Pinaki Chandra Ghose, J.:— This appeal is directed from an order dated June 16, 2004 rejecting the application of the appellant/petitioner under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC).

2. It appears from the facts that the appellant/petitioner applied before the Hon'ble First Court for dismissal of the suit on the ground that the suit is barred on the ground of multifariousness and bad for misjoinder of parties and misjoinder of causes of action.

3. It appears from the facts that the instant suit was filed by the plaintiffs (respondents herein) and the plaintiff No. 1 pleaded that the appellant/petitioner (the defendant) is a registered stock broker of the Calcutta Stock Exchange (hereinafter referred to as the CSE) and also a registered broker with the Securities & Exchange Board of India (hereinafter referred to as the SEBI). The respondent No. 1 (plaintiff No. 1) at the request of the appellant/petitioner (defendant) lent and advance from time to time during 19th April, 1999 and 14 February, 2000 ??? a sum of Rs. 15 lakhs. It is pleaded that the said loan was granted through one Mahendra Kumar Nahata (hereinafter referred to as the said Nahata) being the husband of the respondent No. 1 (plaintiff No. 1). The appellant/petitioner (defendant) duly repaid the said loan to the plaintiff No. 1 (respondent No. 1 herein). Thereafter the petitioner/appellant again approached the said Nahata and at the instance of the said Nahata, the respondent No. 1 on 7 April, 2000 duly issued a cheque for a sum of Rs. 5 lakhs in favour of C.P Sikaria & Co. and the appellant/petitioner herein duly deposited the same in the personal account and encashed the same. The appellant/petitioner failed to pay any interest on the said loan as agreed upon between the parties and further in spite of the demand failed to repay the same. For non-payment of the said loan and interest thereon @ 18% per annum, the respondent No. 1 also suffered damages as pleaded in the plaint to the tune of Rs. 3 lakhs and a decree has been claimed in the suit for a sum of Rs. 10,93,863/- against the appellant/petitioner.

4. The facts also pleaded in the plaint that the plaintiff No. 2 (respondent No. 2 herein) joined causes of action with the respondent No. 1 (plaintiff No. 1) and made herself a party in the instant suit.

5. It would appear from the plaint and has been pleaded that the respondent No. 2 (plaintiff No. 2) at the instance of the said Nahata (being the father of the respondent No. 2) entered into a transaction with the appellant/petitioner under a Scheme called ‘Vyaj Badla Scheme’ and after settlement of the said account between the parties, the appellant/petitioner through the said Nahata took a loan from the respondent No. 2 (plaintiff No. 2) a sum of Rs. 5 lakhs and agreed to pay interest thereon @ 18% per annum and the said amount was agreed to be paid by the appellant/petitioner to the respondent No. 2 (plaintiff No. 2) on demand.

6. The facts almost pleaded similar to the causes of action of the respondent No. 1 (plaintiff No. 1) and it has been stated that a cheque for Rs. 5 lakhs was handed over to C.P Sikaria and Company, the same was deposited, in the personal account of the appellant/petitioner and encashed the appellant/petitioner has also failed to repay the said amount on demand. It is also pleaded that the respondent No. 2 has suffered damages to the tune of Rs. 3 lakhs and accordingly, a sum of Rs. 10,90,849/- became due and payable by the appellant/petitioner to the respondent No. 2.

7. The suit has been filed after joining the causes of actions of the respondents amongst themselves.

8. It further appears that two suits have also been filed by the appellant/petitioner against these respondents before the City Civil Court at Calcutta, being the Money Suit No. 69 of 2002, claiming a decree for recovery of a sum of Rs. 22,614.16 paise from the respondent No. 1 and it has been pleaded that the said amount became due and payable on account of share transactions had between the parties.

9. A suit being Money Suit No. 585 of 2001 also filed by the appellant/petitioner against the respondent No. 2 for recovery of a sum of Rs. 1,19,933.38 paise before the City Civil Court, Calcutta on account of share transactions and the amount due and payable by the respondent No. 2 to the appellant/petitioner on account of share transactions.

10. It is submitted on behalf of the appellant/petitioner that the said suits were filed by the appellant/petitioner earlier than that of the suit filed by the respondents herein and according to the appellant/petitioner, the present suit is a counter-blast suit and with an oblique and ulterior motive filed by the respondents against the appellant/petitioner on the basis of inflated and fictitious claims and after clubbed themselves together for the purpose of attracting pecuniary jurisdiction of this Hon'ble Court. It is further submitted that the money suits which were filed by the appellant/petitioner before the City Civil Court, Calcutta, writ of summons were duly served upon the respondents and each of the respondents entered appearance in the suits.

11. Mr. Banerjee, learned Advocate appearing on behalf of the appellant/petitioner contended before us that the instant suit which has been filed by the respondents is bad for misjoinder of parties as well as for misjoinder of causes of action. It is submitted that the causes of action of the respondents cannot be clubbed together and cannot attract the provisions laid down in Order 2 Rule 3 of the CPC. It is further submitted that each of the respondents acted separately and independently with the appellant/petitioner. He further submitted that the transactions are separate. The respondents issued separate notices in respect of their individual claims and further there was no legal basis for the respondents to join their independent causes of action against the appellant/petitioner in one suit. According to him, multifariousness will attract Order 7 Rule 11(d) of the C.P.C and the plaint is liable to be rejected.

12. Mr. Banerjee further submitted that the order is an appealable one under Clause 15 of the Letters Patent since it has already taken the valuable right of the appellant/petitioner accrued in its favour and therefore, it would amount to a ‘judgment’ within the meaning of Clause 15 of the Letter Patent. In support of such contention Mr. Banerjee relied upon the decisions reported in 95 CWN 1172, Shipping Corporation of India Ltd. v. West Bengal Small Industries Corporation: 2001 (2) CLT(HC) 34. State Bank of India Staff Association v. Popal & Kotech Properties; 2003 (1) CLJ 426, P & I Services Private Ltd. v. Board of Trustees for the Port of Calcuta, and 1998 (2) CHN 459, Binaguri Investments Pvt. Ltd. v. Gautam Ray & Ors. also placed strong reliance upon a decision reported in AIR 1981 SC 1786, Shah Babulal Khimji v. Jayaben D. Kanla, and he drew our attention to the said decision of the Hon'ble Supreme Court, particularly, to Paragraph 120 of the said decision and submitted that the order is an appealable order.

13. Mr. Banerjee also relied upon the decisions reported in AIR 1952 Cal 222, Corporation of Calcutta v. Radhakrishna Dev; AIR 1953 Cal 185, Nagendra Bala Devi v. Devi Pravash Chandra and AIR 1975 Bom 13, Ebrahimbhai v. State of Maharashtra He further relied upon an unreported decision of this Hon'ble Court in ‘Margo Trading v. Om Credit Private Ltd. delivered on October 30, 1995 by His Lordship Ruma Pal, J. relying upon all these decisions. Mr. Banerjee duly pointed out that the plaintiffs are not jointly interested against the defendant and could not have united their independent causes of action in the same suit. He further contended that the Court does not allow to join several plaintiffs having independent causes of action against one defendant, what has been done in the suit by the plaintiffs is to combine several suits in one action. The provisions relating to ordering a separate trial would apply. He relied upon the said unreported decision of this Hon'ble Court strongly.

14. Mr. P.K Das, learned Senior Advocate appearing on behalf of the respondents contended that Order 1 and Rule 2 of the CPC do not prohibit filing of a suit by two or more plaintiffs by joining separate causes of action. According to him, the point which has been taken by Mr. Banerjee is only to delay the proceedings. He further submitted that multifariousness is not a ground for rejection of a plaint. If the plaint cannot be rejected on the ground of misjoinder of parties or misjoinder of causes of action, then it cannot be said that the suit is bad for multifariousness or the same can be barred under Order 7 Rule 11(d) of the CPC. In support of his such submission he relied upon the decision reported in AIR 1928 Cal 199, Harendra Nath Singha Ray v. Puma Chandra Goswami; AIR 1950 Cal 479, Shew Narayan Singh v. Brahmanand Singh; AIR 1986 Cal 120, British Airways v. Art Works Export Ltd. and 84 CWN 822, Andhra Steel Corporation v. A.S.C Engineers & Consultants He further submitted that the suit, which has been filed by the appellant/petitioner before the City Civil Court, Calcutta has already been transferred to this Court and it is also directed that the suits should be heard analogously. Therefore, no appeal has been preferred from the said order by the appellant/petitioner. Therefore, these three suits have to be taken together and decided by this Hon'ble Court. He further submitted that the Hon'bie First Court was correct in dismissing the application since in ‘Margo Trading (supra), the Hon'ble Court was not dealt with the provisions of Order 1 Rule 9 of the CPC. According to him, the order so passed by the Hon'ble First Court is in accordance with the provisions of law and the Hon'ble First Court was correct in holding that the word ‘multifariousness’ has not been stated in the CPC under Order 7 Rule 11 of the CPC as a ground. Order 1 Rule 1 of the CPC also permits to file a suit after joining together. Under Order 2 Rule 3 of the CPC more than one plaintiffs having causes of action to which they are jointly interested against the same defendant to unite such causes of action in the same suit. He further submitted that the Hon'ble First Court correctly dealt with the matter and held that the misjoinder of parties and misjoinder of causes of action have not been declared illegal by the provisions of CPC. The Hon'ble First Court has also held that the rule against multifariousness is nothing but a rule of convenience. Therefore, correctly held that even if a suit is bad for multifariousness cannot be dismissed holding that it is barred by law. Therefore, Mr. Das submitted that the Hon'ble First Court is correct and further the application has to be dismissed on the ground that the instant appeal is not maintainable.

15. Now the questions are to be decided by this Court are whether the suit is barred under the provisions of law and whether the appeal is maintainable.

16. To decide the said questions, first we have to place the reliance on the plaint filed in the instant suit by the respondents. It appears from the pleadings that the moneys were lent and advanced at the instance of the said Nahata by the plaintiff No. 1 to the defendant, the defendant duly paid the said amount and thereafter fresh loan of Rs. 5 lakhs was granted by the plaintiff No. 1 to be defendant at the instance of the said Nahata. We have scrutinized the plaint and we have found that the claim of the plaintiff No. 1 is on account of money lent and advanced and further a claim of Rs. 3 lakhs being damages for non-payment of the interest on the said amount as agreed upon between the parties. It further appears that the plaintiff No. 2 pleaded almost in the similar nature and claimed Rs. 7,90,849/- on account of money lent and advanced to the appellant/petitioner and further a sum of Rs. 3 lakhs as damages for non-payment of the said amount.

17. After perusing the plaint, it appears to us that the causes of action of the plaintiff No. 1 and plaintiff No. 2 are separate and on the basis of their individual dealings with the defendant. The claim is arising out of two different agreements. Each of the transaction is an independent transaction. The reliefs claimed are different as it would be evident from the prayers in the plaint and further it appears to us that a prayer has been made in the plaint for an enquiry into the loss and damages suffered by the plaintiffs and decree may be passed in favour of the plaintiffs for such amounts as may be found upon such enquiry. In our opinion, the said prayer is nothing but an eyewash or an effort tried to bypass the provisions of law and we do find that the causes of action of the plaintiff No. 1 and the plaintiff No. 2 cannot be treated as one. Each of the plaintiffs will have to prove their claim separately. The claim of the plaintiffs is not based on one agreement. Therefore, in our opinion, the suit is bad not only for misjoinder of parties but also for misjoinder of causes of action.

18. On other points we have also considered Order 1 Rule 1 of the CPC which allows joinder of parties in a suit subject to the conditions as has been pointed out by His Lordship Ruma Pal, J. in ‘Margo Trading’ (supra) (an unreported decision of the Single Bench) where His Lordship considering the provisions of Order 1 Rule 1 of the CPC has held that unless both the conditions which have been codified in Order 1 Rule 1 of the CPC are fulfilled, the suit is bad for multifariousness and would be liable to be dismissed. His Lordship held that those conditions are (a) that any right to relief in respect of, or arising out of, the same act or transaction or series of transaction is alleged to exist in such persons whether jointly, severally or in the alternative, (b) if such persons brought separate suits, any common question of law or fact would arise. Unless both these conditions are fulfilled, it has to be held that the suit would be bad for multifariousness and would be liable to be dismissed.

19. We have perused the order of the Hon'ble First Court. We beg to differ with respect from His Lordship's views and we accept the views which have been expressed by His Lordship Ruma Pal, J. in the said ‘Margo Trading’ (supra) as held by His Lordship in the said decision. We also beg to differ with the Hon'ble First Court and we hold that Order 1 Rule 1 of the CPC and Order 1 Rule 3 of the CPC apply but the question of joinder of parties as well as the question of causes of action would be subject to the same limitation as has been pointed out by His Lordship Ruma Pal, J. which we have already stated hereinabove.

20. With respect to the Hon'ble First Court, we also cannot accept the views of His Lordship that since the multifariousness does not find a place in the CPC under Order 7 Rule 2 of the CPC and held that multifariousness is not a law which can put a bar to file a suit, in our opinion, the said view is absolutely wrong and with respect to His Lordship, the Court did not take into account that the suit is barred by law and the law in question would also include the rule prohibiting the multifariousness.

21. It would be proper for us to express ourselves in the light of the opinion expressed by His Lordship Ruma Pal, J. in the said ‘Margo Trading’ (supra) where His Lordship has observed as follows:

“Order 7 Rule 11(d) of the Code directs that a suit shall be rejected where the suit appears from the statement in the plaint to be barred by any law. In other words the Court is limited to a consideration of the plaint alone in determination whether the suit is barred by any law.

The ‘law’ in question is the rule prohibiting multifariousness.

A basis suit envisages one plaintiff suing on one cause of action against one defendant. However, the law permits joinder of several plaintiffs, defendants and causes of action under certain circumstances. Joinder of parties or causes of action in a manner not permitted makes a suit bad for multifariousness.

Order 1 Rule 1 of the Code allows the joinder of plaintiffs in a suit subject to two conditions—one, that any right to relief in respect of, or arising out of, the same act or transaction or series of transaction is alleged to exist in such persons whether jointly, severally or in the alternative, and two—if such persons brought separate suits, any common question of law or fact would arise. Unless both these conditions are fulfilled, it has to be held that the suit would be bad for multifariousness and would be liable to be dismissed. The defect would not be a mere irregularity but of a like nature as a defect of jurisdiction as the Court would be unable to entertain the suit. (See Ramendra Nath Dey v. Brojendra Nath Dass, 21 CWN 794, 801, 804).

It has also been held in the same decision that Order 1 Rules 1 and 3 (which relates to joinder of defendant) apply to questions of joinder of parties as also causes of action. In other words joinder of causes of action would be subject to the same limitations.

Order 2 Rule 3 allows one plaintiff to join several causes of action in one suit against the same defendant or the same defendants jointly. Several plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may also unite such cause of action in the same suit. Even in such case where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient the Court may under Order 2 Rule 6 separate trials or make such other order as may be expedient in the interest of justice.

Objections as to misjoinder are to be take at the earliest possible opportunity under Order 1 Rule 13 and Order 2 Rule 7. The determination of the question whether or not the suit as framed is open to objection on the ground of misjoinder of parties and causes of action depends on the allegations made in the plaint (See Ramendra Nath Ray v. Brojendra Nath Dass (supra).”

22. We have also perused the plaint and the averments made in the plaint and on a scrutiny it appears to us that there cannot be any doubt that each of the plaintiffs have distinct and separate causes of action against the defendant/appellant herein. Each transaction is independent of the other. The breach of one agreement is independent of the other. Each plaintiff will have to prove its right to relief separately such as money let and advanced and suffered damages for breach of the agreement for non-payment of interest. The cause of action of each plaintiff is totally different and is not interdependent. In Ramendra Nath Dey v. Brojendra Nath Dass (supra) it was held that the causes of action against the defendants arose out of the same transaction. Therefore, there was no misjoinder.

23. In ‘Corporation of Calcutta v. Radhakrishna Dev’ (supra) the Court held that the Corporation of Calcutta could not file one suit against several defendants in respect of arrears of rates and taxes even though all the defendants resided in the same premises. It was held that the claim of the Corporation against each of the defendants was a distinct claim and the claim against one defendant had no connection with the other.

24. In the instant case, we also find that the claim of the plaintiffs are different and the claim against the one defendant had no connection with the other. It would further appear from a decision Nagendra Bala v. Debi Pravash Chandra (supra) where a suit was filed for reimbursement by several defendants in respect of an instalment of revenue payable under the Revenue Sales Act. The revenue was payable both by the plaintiffs as well as the defendants in respect of lands held by them. The lands originally belonged to the same touzi and the payment was made in respect of the same instalment on the same day and for the same reason. The Court, however, held that the defaults were separate by separate individuals in respect of different accounts and it was held that the suit was bad for multifariousness as the causes of action were separate and did not for part of the same transaction.

25. In his case also we do not find any link or nexus and the causes of action of one plaintiff is based upon a particular contract with the defendant. The transaction between the defendant and each one of the plaintiffs is independent and does not part of the same transaction or series of transactions.

26. In the instant case also the plaintiffs are also not jointly interested against the defendant and could not have united their independent causes of action in the same suit. Therefore, fulfilment of only one of the condition would not save the plaint from being rejected.

27. The test of distinctiveness is whether relief can be granted to each plaintiff without reference to the others. There can be no gainsaying that in this case it can. In this case also the plaintiffs are not jointly interested against the defendant and could not have united their independent causes of action in the same suit under Order 2 Rule 3.

28. The provisions of Order 1 Rule 2 and Order 2 Rule 6 which allow the Court to order separate trials where it appears that any joinder of plaintiffs may or causes of action embarrass or delay the trial of the suit. The Court may in such cases put the plaintiffs to their election or order separate trials or make such other order as may be expedient.

29. In this case, however, there has not only been a misjoinder of plaintiffs but a misjoinder of causes of action as well. What the plaintiffs have done is to combine as what should have been independent suits which should have been filed separately in one action. Order 1 Rule 2 deals with the case when there is misjoinder of plaintiffs. When a suit is filed by several plaintiffs in respect of the same transaction although the causes of action are different the Court may put the plaintiffs to their election to choose which plaintiff should proceed in the matter.

30. Order 2 Rule 3 allows one plaintiff to join causes of action in one suit against the same defendant or the same defendants jointly. Several plaintiffs having causes of action in which they are jointly interest against the same defendant or the same defendants jointly may also unite such cause of action in the same suit. Even in such case where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise convenient the Court may under Order 2 Rule 6 order separate trials or make such other order as may be expedient in the interest of justice.

31. In this case the plaintiffs are not jointly interested against the defendant and could not have united their independent cause of action in the same suit. Therefore, we have to hold the suit is bad and liable to be dismissed on the ground of multifariousness and attracts the provision of Order 7 Rule 2 of the CPC.

32. On the point of maintainability of the appeal we have considered the following decisions which are as follows:

In Shah Babulal Khimji v. Jayaben D. Kanla (supra) the Hon'ble Supreme Court has laid down the tests to guide in deciding whether an order passed by the Trial Judge amounts to a judgment within the meaning of the Letters Patent. In the said decision the guidelines which are framed by the Hon'ble Supreme Court are as follows:

“(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes awry a vested right of limitation or any other valuable right accrued to the defendant.

(2) An order rejecting the plaint.

(3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure.

(4) An order rescinding leave of the Trial Judge granted by him under clause 12 of the Letters Patent.

(5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under section 80, bar against competency of the suit against the defendant even though the suit is kept alive.

(6) An order rejecting an application for a judgment on admission under Order 12 Rule 6.

(7) An order refusing to add necessary parties in a suit under section 92 of the Code of Civil Procedure.

(8) An order varying or amending a decree.

(9) An order refusing leave to sue in form pauperis.

(10) An order granting review.

(11) An order allowing withdrawal of the suit with liberty to file a fresh one.

(12) An order holding that the defendants are not agriculturists within the meaning of the special law.

(13) An order staying or refusing to stay a suit under section 10 of the Code of Civil Procedure.

(14) An order granting or refusing to stay executing of the decree.

(15) An order deciding payment of Court-fees against the plaintiff.”

33. The Hon'ble Division Bench in ‘Binaguri Investments Pvt. Ltd. v. Gautam Ray (supra) came to the conclusion that the order passed by the Trial Judge did not finally decide either the issue raised by the appellant on the maintainability of the suit but has only deferred the decision for being dealt with under Order 14 Rule 2 of the Code and held the appeal is not maintainable on the ground that the said order cannot come within the meaning of judgment under Clause 15 of the Letters Patent.

34. In State Bank of India Staff Association v. Popal & Kotech Properties (supra) the Hon'ble Court held that the order so passed by the Hon'ble Trial Court decided the issue and came to the conclusion that Order 7 Rule 11(d) of the CPC cannot be made applicable and the said provisions cannot be invoked to ask for rejection of the plaint on the ground that the suit is barred by limitation. The Hon'ble Division Bench held that the said decision will attract the meaning and scope of Clause 15 of the Letters Patent as a judgment and is thus appealable since the order has the potential of effecting the aforesaid valuable-right of the appellant/defendant.

35. In P & I Services Private Ltd. v. Board of Trustees for the Port of Calcuta (supra) the Hon'ble Division Bench held that the Hon'ble Trial Court dismissing the appellant's application for rejection of plaint or in the alternative for deleting its name from the suit with costs came to the conclusion applying the test of Khimji's case and gave a broader view of the expression ‘judgment’ and held that the said order is an appealable order and the appeal is maintainable.

36. In ‘Shipping Corporation of India Ltd. v. West Bengal Small Industries Corporation’ (supra) the Hon'ble Division Bench held that the refusal to reject a plaint under Order 7 Rule 11(d) of the Code does fall within the category of an appealable order. It is further held by the Hon'ble Division Bench that to give a meaning of Clause 15 of the Letters Patent a judgment and order must be vitally affected the valuable right of a party and the Court came to the conclusion that since no rights had been adjudicated upon and since the Hon'ble Single Judge while dealing with the matter has kept the suit pending, no rights had been adjudicated upon and as such the order so passed by the Court cannot be treated as a judgment under Clause 15 of the Letters Patent.

37. On the ground of maintainability, after analyzing the decision cited before us, we place much emphasis on the decision of the Hon'ble Supreme Court reported in AIR 1981 SC 1786 (supra) and it appears that the Hon'ble Supreme Court analyzed the situation laid down principal guidelines in paragraph 120 of the said decision. After considering the said guidelines, it appears to us that if a vested right or any valuable rights of a defendant or a party has been taken away by way of an order and if such suffered person files an appeal before the Court, it has to be held that the order so passed by the Hon'ble First Court shall come within the meaning of ‘judgment’ as defined in Clause 15 of the Letters Patent and an appeal would lie from the said order.

38. In the instant case, it appears to us after analyzing all the decisions cited before us that the appellant/petitioner has a right, which is a valuable right and the appellant/petitioner has been affected by the order, further the said order adjudicated upon a right of the appellant/petitioner and the appellant/petitioner has been prejudiced and would suffer if the suit is not dismissed on the ground of multifariousness as pleaded by the appellant/petitioner. Hence, we have to hold that the order so passed by the Hon'ble First Court rejecting the prayer of the petitioner attracts Clause 15 of the Letters Patent as ‘judgment’.

39. We feel that an opportunity should be granted to the plaintiffs to elect which of them will proceed with the suit against the defendant. Accordingly, we grant an opportunity to the plaintiffs to elect which of them will proceed with the suit against the defendant. The plaintiffs are granted two months' time to make such election by way of an application for amendment upon which the suit of the remaining plaintiffs against the defendant will stand dismissed on the ground of multifariousness. It will, however, be open to other plaintiffs to file separate suits against the defendant in respect of their respective agreement and/or claim before the appropriate forum in accordance with the provisions of law. In default of such election, the plaint will be taken off the file as prayed for.

40. The appeal and the applications are disposed of accordingly. However, each party shall bear their own costs.

Pravendu Narayan Sinha, J.:— I agree.

Later:

41. Mr. Das appearing for the plaintiffs/respondents prayed for stay of the operation of this order and accordingly we grant a stay of this order till 16th July, 2005.

Pinaki Chandra Ghose and Pravendu Narayan Sinha, JJ.:

Appeal & application disposed of.

A.D