Hariram Fatandas v. Kanhaiya Lal

1. This revision petition of the defendants is directed against the finding of Additional Munsif No. 2, Bhilwara. dated May 22, 1973, by which he rejected their plea regarding mis-joinder of parties and causes of action, The controversy centres round the following facts.

2. One Lal Mohammad, who is not a party to this case, was the owner of a plot of land which he let out to the defendants on a rent of Rs 50/- per mensem, with effect from October 1, 1968. The four plaintiffs (who joined in the suit) alleged that the said Lal Mohammad sold four different portions of that Plot to them, by four separate sale-deeds dated April 1, 1971, and asked the defendants, by a registered notice dated April 7. 1971, to attorn to them. The plaintiffs thereafter instituted the suit which has given rise to the present petition, on August 3. 1971, for the eviction of the defendants, on the ground that they required their respective portions of the plot for their reasonable and bona fide use. They also prayed for the ne-corvery of Rs. 150/- on account of arrears of rent, for a period of three months, and damages. The defendants raised a number of pleas, one of which was a plea relating to mis-joinder of parties and causes of action which gave rise to issue No. 8. As that issue has been found by the trial court against the defendants, they have approached this court by way of the present revision petition.

3. It has been argued by the learned counsel for the petitioners that the learned Munsiff has acted illegally in the exercise of his jurisdiction in deciding issue No. 8 against the petitioners by his impugned order dated May 22, 1973, because the suit suffered from the defect of mis-joinder of causes of action within the meaning of Order II. Rule 3 C. P. C. Reference in this connection has been made to the decisions in Hadu Sahu v. State of Orissa. AIR 1964 Orissa 159; Haru Bepari v. Kshitish Bhusan Roy. AIR 1935 Cal 573 and Mansukhlal Dhanii v. Jupiter Airwavs Ltd.. AIR 1953 Bom 112.

4. As has been stated, four persons have joined in this suit as plaintiffs and the question at the threshold is whether that could be said to be permissible? Rule 1 of Order I. C. P. C. which deals with the question of joinder of plaintiffs, provides as follows,--

"All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising put of the same act of transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise."

Before any persons may join as plaintiffs, it is thus necessary that a relief in respect of or arising out of the "same act" or "transaction or series of acts or transactions" should be alleged to exist. This requirement has obviously been fulfilled in the present case as the "same act" is that relating to the lease of the premises toy Lal Mohammad, to the defendants, on October 1. 1968, on a rent of Rs. 50/-per mensem. The relief which the

-plaintiffs have claimed, jointly, against the defendants thus arises out of that basic fact, not only in regard to that part of the suit which relates to the recovery of the arrears of rent and damages, but also the other part relating to eviction from the suit premises. One essential requirement of Order 1. Rule 1. C. P. C. has therefore been fulfilled in this case. According to the other requirement of the rule joinder of plaintiffs would be permissible if it could be shown that "any common question of law or fact" would arise if they brought their suits separately. It is quite obvious in this case that the common questions of fact which would arise on the filing of separate suits would be those relating to the existence of the tenancy granted by Lal Mohammad and the nonpayment of rent by the defendants at the rate of Rs. 50/- per mensem. It is therefore clear that both the essential requirements of Order I. Rule 1, C. P. C. have been fulfilled and there is no reason why the four plaintiffs should not have join-jed in their suit against the defendants. I am fortified in this view by the decision in Sitaram Agarwalla v. Rajendra Chandra Pal, AIR 1956 Assam 7. which has been noticed in iShambhoo Dayal v. Chandra Kali Devi. AIR 1964 All 350.

5. The question, nonetheless, remains whether joinder of causes of action could be said to be permissible on fulfilment of the requirement of Order I, Rule 1 of the Code of Civil Procedure? Rule 3 (1) of Order II bears on the point and provides as follows,--

"3. Joinder of causes of action.-- (1) Save, as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same unit."

It has b'een urged by Mr. Mathur, on behalf of the non-petitioners, that Order I Rule 1. C. P. C. applies to questions of joinder of parties as also of causes of action, and he has supported his argument by a reference to Ramendra Nath v. Brojendra Nath. AIR 1918 Cal 858. It has been observed by Mookerjee J. in that case that Order I. Rule 1 C. P. C. applies to the question of joinder of parties as also of causes of action and in taking that view the learned Judge did not feel pressed by the phrase "save as otherwise provided" occurring in Order II. Rule 3 (1). That view has been followed in M'onindra Lal v. Hari Pada Ghose. AIR 1936 Cal 650 which has been approved by this court in Thakurji Shriji v. Jagannath Das, 1950 Raj LW 328. It may also be mentioned that the same) view has been noticed and approved in Show Narayan Singh v. Brahmanand Singh. AIR 1950 Cal 479. I have therefore no hesitation in taking the view that as the suit conforms to the requirements of Order, I. Rule 1 C. P. C., that by itself is quite sufficient to justify the finding of the trial court against the defendants on the issue under consideration.

6. I have gone through AIR 1964 Orissa 159 on which reliance has been placed by the learned counsel for the petitioners. In that case, no common question of fact or law was involved, so that it could not be said that the requirement of Order I. Rule 1, C. P. C. was complied with. I have gone through AIR 1935 Cal 573 also, but it cannot avail the defendants because it has been held there that the conditions which rendered the joinder of several plaintiffs permissible under Order I, Rule 1. C. P. C. do not necessarily imply that there can be only one cause of action in the suit in which the several plaintiffs join. AIR 1953 Bom 112 was quite a different case which depended on different facts and different conduct of parties where the fact of each case required a different approach and analysis. It could not therefore be said to be a case in accordance with the provisions of Order I, Rule 1 C. P. C.

7. For the reasons mentioned above, there is no force in the first argument of the learned counsel for the petitioners.

8. It has next been argued that the learned Munsiff failed to take notice of the provisions of Order II, Rule 6, C. P. C. which provides that where it ap-pears to the court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the court may order separate trials or make such other order as may be expedient. Reference in this connection has been made to the decisions in Haridas Nara-yandas v. Jagannath Das. AIR 1939 Nag 256 and Hardwarilal v. Narain Das AIR 1951 Simla 233. There is a two-fold answer to this argument. Firstly, the question of convenience in the trial or dis-posal of the suit was not raised in the court below, and is apparently an afterthought. Secondly, even if it is assumed that the trial court did not follow the provisions of Order II. Rule 6. C. P. C., this court cannot be expected to interfere with that discretion. This is the view taken in Hardwarilal v. Narain Das, AIR 1951 Simla 233 and in AIR 1935 Cal 573 on which reliance has been placed toy the learned counsel for the petitioners.

9. As I do not find any force in this revision petition, it is dismissed with costs. The parties are directed to appear in the trial court on August 26. 1974.