Skip to content


Lobsang Khampa and ors. Vs. Sunam Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Suit No. 12 of 1971
Judge
Reported inAIR1977HP23
ActsCode of Civil Procedure (CPC) - Order 1, Rule 1 - Order 2, Rule 3
AppellantLobsang Khampa and ors.
RespondentSunam Ram
Appellant Advocate H.K. Bharadwaj, Adv.
Respondent Advocate H.S. Thakur, Adv.
Cases ReferredIn Hadu Sahu v. State of Orissa
Excerpt:
civil - joint suit - order 1 rule 1, order 2 rule 2 of code of civil procedure, 1908 - petitioner eleven in number filed suit jointly - whether filing of joint suit competent - petitioner were not jointly interested against defendant in several causes of action and as such could not be joinder of cause of action under order 2 rule 3 - relief of individual petitioner did not arise form same act or transaction or series of act - held, petitioner could not be joined under one suit under order 1 rule 1. - .....believed as against kali ram (d. w. 1) and other witnesses. 10. even otherwise, as i have already stated, separate receipts were issued and separate accounts were kept for each plaintiff. receipts exts. 1. p. 3, p. 5. p. 7, p 9 p. 11, p. 14, p. 15, p. 17 and p. 18 go to prove that separate supplies were made and no joint account was maintained, for the manure also, separate notices were sent by the defendant to the plaintiffs (exts. p. 2. p. 4, p. 6, p. 10, p. 12, p. 16. p. 20 and p. 21). lob-sang yamphal plaintiff (p.w. 3) stated that the defendant gave separate receipts to them. but lobsang namdol plaintifl (p.w. 4). and konchak skyap plaintiff (p.w. 6) chose to state that the defendant had to make joint payment to them, meaning thereby that the contract was in the same transaction......
Judgment:
ORDER

D.B. Lal, J.

1. Lobsang Khampa and ten others have filed this suit for recovery of Rs. 73,618.37p. from Sanam Ram defendant on the allegations that they are Tibetan-refugees settled in India and raised potato crops during the year 1969 by taking lands on lease from the local zamindars. The potato crop was ready in September/October, 1969 and the plaintiffs being not conversant with the local dialect experienced some difficulty in marketing their crop. Accordingly the plaintiffs agreed to sell and the defendant agreed to purchase their crop at an agreed rate of Rs. 70/- per bag for A-I quality and Rs. 60-per bag for A-II quality of potatoes. Individual plaintiffs supplied separate quantities of potato bags. They had also taken manure separately from the defendant for which they are liable to pay to the defendant which amount they have set off in the present suit. According to plaintiffs .the total cost of potato bags was Rs, 9,7,318.27, while they have to pay Rs. 9,280.00 as cost for manure. Besides, Rs. 14,420.00 was paid by the defendant to the plaintiff. In this manner a sum of Rs. 73.618.37 is due and payable by the defendant to the plaintiffs.

2. The defendant objected, inter alia, that the suit filed by the eleven plaintiffs jointly is not competent, as the right to relief does not arise out of the same act or transaction, or series of acts or transactions, nor a common question of law or fact arises. Similarly several causes of action could not be joined as the plaintiffs were not jointly interested in them against the defendant. In this manner there is misjoinder of parties as well as causes of action and hence the suit is defective for multifariousness. In fact the individual plaintiffs should have filed separate suits and in that contingency this Court will have no jurisdiction and the plaint is liable to be returned for presentation to a competent Court.

3. The preliminary objections enumerated above gave rise to the following two issues;--

Issue No. 1:--Is the suit filed by the plaintiffs jointly not competent as alleged?; and

Issue No. 2:--Can the plaint be returned for presentation to proper Court as according to defendant the valuation of suit in respect of individual plaintiff is less than the pecuniary jurisdiction of this Court?

4. As the suit can be disposed of in this Court, on the decision of these wo issues, T need decide them at the present stage.

FINDINGS

5. Issue No. 1: In the plaint under paragraph 4 it is stated that the plaintiffs agreed to sell and the defendant agreed to purchase the potato crop of the plaintiffs at an agreed rate which is specified. In paragraph 5 individual supply of potato bags made by the plaintiffs is described, In paragraph 7 individual payments made to respective plaintiffs are given. In paragraph 8 separate quantities of manure were supplied to individual plaintiffs and its valuation is described. In paragraph 11, the cause of action is stated to arise 'on diverse dates between 15th October, 1969 to 13th November, 1969 when the supply was made by the plaintiffs to the defendant' and 'on diverse dates when the part payments were made by the defendant to the plaintiffs'. It is further averred that 'the cause of action also arose on different dates when demands of the plaintiff were made and the defendant assured for payment after, admitting his liability'. It is significant to note that in the plaint it is nowhere stated that the plaintiffs were jointly interested against the same defendant in several causes of action, or that the relief arises out of the same act or transaction, or that even a common question of law or fact arises. In the written statement when the plea of multifariousness was taken by the defendant, in the replication for the first time, the plaintiffs averred that they 'jointly agreed to supply the potatoes tothe defendant at the common rate and that 'common questions arise between the parties'. The plaintiffs mentioned Order 1, Rule 1 of the Civil P. Code indicating thereby that all the plaintiffs could join in one suit. No reference is made to Order 2, Rule 3 so that it could be stated that even the causes of action could be joint in the same suit and the conditions laid down in that Rule are satisfied. Thus the state of pleadings make it clear that the frame of the suit was not put under Order 2, Rule 3, Civil P. Code. In the plaint itself no plea of joint interest in the several causes of action was taken.

6. The plaintiffs no doubt adduced evidence in support of their plea of joint interest in the several causes of action. It is undisputed that separate receipts were issued and separate accounts were kept Similarly separate supply of potato bags was made and obviously one plaintiff was not interested in the supply made by the other. In respect of the manure, separate notices were served. With this background, one has to appreciate the oral evidence led by the plaintiffs.

7. According to the statements of eight of the plaintiffs who are PW. 1 to. P.W. 8, all the plaintiffs settled the contract with the defendant at one time and they had a joint interest in the several cause of action. It is significantly stated by them that no one else was present besides the 11 plaintiffs when such a talk took place with the defendant. But there is overwhelming evidence to prove that Kali Ram was a go-between and the defendant had a talk with the plaintiffs through Kali Ram who could explain the dialect of the plaintiffs to the defendant. It means, therefore, that all the 8 witnesses who are no other than the plaintiffs themselves, have not spoken a correct thing. Kali Ram was very much present and this Kali Ram is produced by the defendant as DW. 1. He denied that any joint talk took place. According to him individual plaintiffs agreed to supply potato bags to the defendant and there were separate transactions, giving rise to separate causes of action. It is incorrect that all the 11 plaintiffs had one common transaction with the defendant. In the contingency, of joint contract obviously there would have been a common account for both receipt and payment. But this is not the position. As regards the presence of Kali Ram at the time of the supplies made by the plaintiffs, one can refer to the two complaintsfiled by Takpa plaintiff (PW. 2) against Sanam Ram defendant and Kali Ram. In these complaints the allegation was made that the potatoes were supplied to both Sanam Ram defendant and Kali Ram and the latter were not making payments to the plaintiffs. Sherap plaintiff (P.W. 1) and Takpa plaintiff (PW. 2) both stated (Exs. D. 4, D. 4/1, D. 2 and D. 2/1 that the potatoes were sold to both Sanam Ram defendant and Kali Ram. These plaintiffs were confronted with that statement and they could only state that they could not supply any reason why the statements were so written. However, they denied that they ever made that statement. Kali Ram also filed one complaint against Alakh and these 11 plaintiffs, and in that complaint again the allegation was made that he was being blamed for not making the payment for potatoes to the plaintiffs. Besides these complaints, there is a series of documents of complaints and counter-complaints sent to the Director of Welfare or to His Holiness the Dalai Lama whose headquarters were at Dharam-sala. Both Sanam Ram and Kali Ram very much figure in these complaints as the persons who were supplied potatoes by the plaintiffs and the dispute related to that supply. From these documents it is evident that Kali Ram had very much to do with these transactions.

8. Sherap plaintiff (P.W. 1) stated that no one else was present when the contract was made with the defendant. So stated Takpa plaintiff (P. W. 2). But these statements are obviously incorrect. Lobsang Khampa (P.W. 5) stated that Sanam Ram did not make any payment through Kali Ram. But that statement is incorrect in view of the statements of Kali Ram (P.W. 1). his wife Lila Devi (D.W. 10) and the list Ex. D. 8 which discloses the payments made to individual plaintiffs through Kali Ram. Similarly Konchak Skyap plaintiff (P. W. 6) also spoke a lie when he said that the contract was not settled through Kali Ram.

9. As regards the witnesses produced by the defendant, Kali Ram (D. W. 1) very much stated that he was brought in because the plaintiffs wanted him to intervene so that he could explain to the defendant as he understood the language spoken by the plaintiffs. He further stated that the plaintiffs were asking him that they had not received the payments. In that connection the dispute arose and a complaint was filed by Kali Ram against Alakh and the plaintiffs.The witness further went on to say that he had himself made payments to the plaintiffs and the payments were written on a list prepared by his wife. As he stated, the charge of the plaintiffs was that he had taken money on their behalf from the defendant and was not paying the same to them. S.D. Mukhia (D W, 3) the Potato Grading Inspector stated that Kali Ram used to be present when these plaintiffs came to give their potatoes at the depot of the defendant. Alakh (D. W. 5) admitted that a complaint was instituted against him and the plaintiffs by Kali Ram and the dispute obviously related to the supply of potatoes made to defendant. Ranjit Singh, S. H. O. (D W 7) investigated the complaint filed by Takpa plaintiff. He recorded the statement of Takpa (Ex. D. 2) and also obtained his signatures. Takpa was confronted with that statement and there he admitted that the potatoes were supplied to both Kali Ram and Sanam Ram. Similarly Ranjit Singh, S. H. O. (D. W. 7) stated for statement of Sherap recorded in that complaint (Ex. D. 4) and he also proved the signatures of Sherap over that statement. M.S. Negi, Assistant Director (Welfare) (D. W. 9) stated that the plaintiffs had sent the complaint to His Holiness the Dalai Lama. Kali Ram was very much mentioned in that complaint alongwith Sanam Ram defendant, According to M.S. Negi (D.W. 9) the plaintiffs used to come to pursue their case which related to the dispute between them and Sanam Ram and Kali Ram. Lila Devi (D.W. 10) stated that Kali Ram and she used to work at the depot of Sanam Ram. The plaintiffs had deputed them to work there so that they could explain their supply to Sanam Ram defendant which was not otherwise possible due to language difficulty. She proved Ex, D. 8 which is a list of payments made to plaintiffs, through Kali Ram money was paid by Sanam Ram '.defendant, and Kali Ram distributed it to the plaintiffs. The witness was writing down the amount on a list (Ex. D. 8). Kripa Ram, Tehsil Clerk (D.W. 12) stated about the complaint filed by Kali Ram against Alakh and the plaintiffs. Bhishem Dev, Reader to the Tehsildar Rampur (D.W. 13) similarly stated for the two complaints filed by Takpa against Kali Ram and Sanam Ram defendant (Exs. D. 9 and P. 16). Sanam Ram defendant (D.W. 14), of course, submitted that he had separate contracts with the plaintiffs and they had no joint interest in them. According to him Kali Ram had also supplied potatoes to him.The plaintiffs brought Kali Ram and wanted him to help them inasmuch as Kali Ram knew their language and he could explain their talk to him. As such Kali Ram stayed at his depot on behalf of the plaintiffs. As a result to complaints filed by the plaintiffs Kali Ram was also called at the office of the Deputy Director (Welfare). Sanam Ram stated about the two complaints filed by Takpa against Kali Ram and him under Section 107 of the Criminal Procedure Code (Ex. D. 18 and Ex. D. 23). He also spoke for the the complaint filed by Kali Ram against Alakh and the plaintiffs The complaint was that both Takpa and he were sold potatoes by him but the payments were not being made by him. Sanam Ram also affirmed Ex. D. 8 and stated that the money was distributed to the plaintiffs on his behalf by Kali Ram. It was further stated by Sanam Ram that he had separate dealings with the plaintiffs, but Kali Ram negotiated with each to facilitate language difficulty. All this evidence decidedly proves that Kali Ram was the person who settled these transactions with the defendant. Therefore, the statement of Kali Ram (D.W. 1) assumes extra-importance. According to him, the contracts were separate and never joint and there is no reason to dis-believe him. The 8 plaintiffs P.W. 1 to P.W. 3 were naturally interested to give statements in their favour. Being highly interested, they cannot be believed as against Kali Ram (D. W. 1) and other witnesses.

10. Even otherwise, as I have already stated, separate receipts were issued and separate accounts were kept for each plaintiff. Receipts Exts. 1. p. 3, P. 5. P. 7, P 9 P. 11, P. 14, P. 15, P. 17 and P. 18 go to prove that separate supplies were made and no joint account was maintained, For the manure also, separate notices were sent by the defendant to the plaintiffs (Exts. P. 2. P. 4, P. 6, P. 10, P. 12, P. 16. P. 20 and P. 21). Lob-sang Yamphal plaintiff (P.W. 3) stated that the defendant gave separate receipts to them. But Lobsang Namdol plaintifl (P.W. 4). and Konchak Skyap plaintiff (P.W. 6) chose to state that the defendant had to make joint payment to them, meaning thereby that the contract was in the same transaction. If that was the intention, what was the difficulty in making supply and receiving payment, both entered in an account common to all theplaintiffs But in fact this was not done.Sanjey Bum plaintiff (P.W. 8), however,admitted hat separate 'purchis' were given by the defendant to the plaintiffs although they had asked the defendant to give 'one common purchi', but the defendant was unable to do so. All this appears to be a vain talk. These witnesses were made to say so, as there is absolutely no evidence to indicate that either joint supply was intended or joint payment was asked for. As against them Kali Ram (D.W. 1) stated that separate payments were by him to the plaintiffs (Ex. B. 8) and that there were as many contracts of supply as the plaintiffs were and joint supply or joint payment were never intended. The statement of Kali Ram decidedly carries some weight because he was the person who actually settled these transactions of the plaintiffs with the defendant. Sanam Ram defendant (D.W. 14), of course, stated that individual supplies were made and individual payments were given. One contract had nothing to do with the other and decidedly one plaintiff was not interested as to what payment was made to the other plaintiff and if anything was due for payment to Mm.

11. In this connection it was stated on behalf of the plaintiffs that they could not bring a joint supply, as the space in the depot of the defendant was not sufficient. So stated Lobsang Yamphal plaintiff (P.W. 3), Shankar Dass Gorkha plaintiff (P.W 7) and Sanjey Bum plaintiff (P.W. 8). But Kali Ram (D.W 1) denied this fact. According to him. individual supplies were made because the contracts themselves were separate. At the depot of the defendant potato bags of 2 to 3 trucks could be kept at one time. S. D. Mukhia (D.W. 3) the Grading Inspector also stated that there was 'enough space for grading work at the depot of the defendant. Lila Devi, (D.W. 1) who used to be present at the depot supported the defendant by saying that individual loads were brought by the plaintiffs and there was no difficulty as to space, Sanam Ram defendant (D.W. 14) stated that entries were made in the stock register in the name of individual plaintiffs as and when the potato bags were received. He denied the suggestion that the space in his godown was not sufficient to store the potato bags of the plaintiffs. Thus the defence of the plaintiffs that the depot did not contain sufficient space for the entire quantity and no individual supplies were made, does not appear to be correct.

12. Under Order 1, Rule 1, Civil P. Code, all the plaintiffs could only be joined in one suit if the relief arose out of the same act or transaction or series of acts or transactions, and if any common question of law or fact arose. It may be that a similar question of law and fact may have intended to arise in all the transactions, but certainly it could not be a common question of law or fact. The supply made by one plaintiff had no concern with the supply made by the other plaintiff, Each claim depended upon the supply made, shortage detected, rate claimed, payment received and the price of of manure to be deducted. This could be different in the case of each plaintiff and so a common question of law and fact cannot be stated to have arisen in all the acts or transactions. Similarly the relief did not arise out of the same act or transaction or series of acts or transactions. Each plaintiff had separate relief under his contract against the defendant. The case did not fall even under Order 2, Rule 3, Civil P. Code, although that provision was not quoted in the plaint or in the replication. How the plaintiffs were jointly interested in all the acts or transactions? In Monindra Lal Chatterjee v. Hari Pada Ghose, (AIR 1936 Cal 650) it was held that Order 1, Rule 1 applies not only to the joinder of plaintiffs, but also to the joinder of causes of action in one suit. Therefore, Order 1, Rule 1, and O. 2, Rule 3 must he construed together in order to hold that the suit does not suffer from the defect of multifariousness, In Sm, Nagendra Bala Debi v. Provash Chandra, (AIR 1953 Cal 185), it was held that for the application of Order 1, Rule 3 and Order 2, Rule 3 of the Civil P, Code, some common link or nexus must be found in order that the requisite as to there being the same act or transaction or the same series of acts or transactions may be satisfied. There was no common link or nexus between the supplies made to the defendant and payments received from him. In Sri Shanmuga Rajeswara Sethupathi. Rajah of Ranrnad v. State of Madras (AIR 1957 Madras 570) the distinction was noticed between a similar question of law and fact and a common question of law and fact. It was observed that the identity of the points to be decided cannot impart unity to the right, the alleged violation of which gives rise to a cause of action. In the present case there may be identity as to the law point, but that could notbe unity in the law point much less in the fact which arises in each case. In Hadu Sahu v. State of Orissa (AIR 1964 Ori 159) it was held that in a case where each of the plaintiffs sets up a claim in which the other plaintiffs are not interested, there cannot be jointness in the interest claimed by them for several causes of action. The principle can be applied in the present case. I am therefore, confident to hold that the plaintiffs are not jointly interested against the defendant in several causes of action and as such there could not be joinder of causes of action under Order 2, Rule 3. Similarly the relief in respect of individual plaintiffs did not arise from the same act or transaction or series of acts and transactions, and there was no common question of law or fact. As such the plaintiffs could not be joined in one suit under Order 1, Rule 1. The suit is decidedly bad for multifariousness.

13. Issue is decided against the plaintiffs.

14. ISSUE NO. 2: It is manifest individual suits could not be filed in this Court because the pecuniary jurisdiction lay in subordinate Courts. Therefore, the plaintiffs cannot be asked to elect as to which of the claim is to be decided by this Court. The plaint can only be returned to the plaintiffs for presentation in proper Court so that individual suits are filed and the deficiency in Court-fee, if any, is also made up. Issue is decided accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //