Ramendra Nath Roy v. Brajendra Nath Dass

Woodroffe, J.:— This suit is brought against, four sets of defendants and the point in issue is, whether there has been misjoinder of parties and causes of action. In the judgment under appeal, Chitty, J. has held that the plaintiff who claims such right cannot be allowed to proceed in one suit against the defendants and, adjourning the hearing, gave the plaintiff a fortnight to elect against which of the defendants he would proceed. Though the learned Judge does not expressly say so, it is quite clear on the judgment and proceedings that if the plaintiff does not elect and persists in his claim to sue all defendants, his suit will be dismissed. The position is substantially the same as if the Court had dismissed the action unless the plaintiff elected under the liberty given to him. It has been objected that no appeal lies. The first question is whether this is a judgment. It seems to me that it is, for it is an adjudication that the suit cannot lie as framed and cannot proceed as presented and that the Court cannot hear it. Such adjudication was based on the view that the suit is bad for misjoinder of causes of action and parties. The Court is said to be unable to entertain the suit, the reason being of a like nature with defect of jurisdiction and not a mere irregularity. A decision to this effect will be followed by dismissal unless the plaintiff abandons rights to which under the law he claims to be entitled. It is, in my opinion, a judgment affecting the merits of the question and determining some right or liability between the parties. It has not been contested that if there were a final order having this effect, it would be a judgment. The argument is that there is no such order, that all the Courts has done is to adjourn the suit, that rt has not directed an election or dismissed the suit, and that, therefore, the appeal is premature.

We must look at the substance of the matter. The order giving the plaintiff liberty to elect, a liberty he did not desire and an order which he opposes, is nothing but an adjudication that he cannot proceed on the plaint as framed, and such an adjudication necessarily implies the result which follows on persisting with such a suit, namely, dismissal. The judgment makes clear why the plaintiff was called upon to elect. There appears to me to be in substance a decision that the suit will not lie as framed with the result that if the plaintiff insists on his alleged rights, the suit will be dismissed. I am of opinion that on these facts an appeal will lie.

On the merits the question is this. The frame of the suit is admittedly not supported by Order II, rule 3. It is then said that it is justified by Order I, rule 3. To this it is replied, firstly, that this last rule deals with parties and not joinder of causes of action, and in the alternative and on the supposition that it does deal with joinder of causes of action, the present case does not on the facts fall within the rule. Order I is headed “parties” and Order II “frame of suit.” The question of parties involves that of cause of action and vice versa. A person is made a party because there is a cause of action against him; and where causes of action are joined, parties are joined. In a perfectly framed Code which dealt in separate chapters with parties and causes of action, the provisions should be exactly parallel, looking at the same matter from its different aspects in a Way according to which the provisions of one Order would be in conformity with the provisions of the other. So much may be conceded, and if the solution of the question were doubtful, one might have hesitated on this ground to hold that a suit might be framed under Order I in a manner not provided for by Order II, which, according to its heading, specifically deals with the frame of a suit. But in the present case we have to deal with the wording of a rule, the meaning of which has been construed. There are decisions of the English Courts on rules from which our own are taken. These decisions are subsequent to the year 1896, when Order XVI, r. 1 was amended. It has been held that Order deals not only with joinder of parties, but also joinder of causes of action, notwithstanding that order XVI like Order I is headed, parties only [Compania Sansinena deCarnes Congeladas v. Houlder Bros, & Co., Ltd., Bullock v. The London General Omnibus Co., Markt & Co., Ltd. v. Knight Steamship Co. Ltd. and Times Cold Storage Co. v. Lowther and Blankley].

This, notwithstanding incidental observations to a contrary effect in Thompson v. The London County Council, is not disputed before us. The decisions in the Bombay High Court given in 1908 and referred to in Jankibai v. Shrinivas Ganesh do not refer to the latest English decisions. It is conceded before as that it cannot be now contended that Order XVI from which Order I is taken, does not refer to joinder of causes of action. These decisions were on Order XVI, rule I, corresponding to Order I, rule 1, but are equally applicable to Order I, rule 3 which is in exactly the same terms as Order I, rule 1 substituting the word “defendant” for “plaintiff.” Indeed, in England where the rule relating to the joinder of defendants is in differing terms from that relating to joinder of plaintiffs it has been held that they should be interpreted on similar principles. It must be held then that Order I, rale-3, does refer to joinder of causes of action. The next question then is whether the joinder in the present case is justified by that rule. It is contended that it is not, it being argued that there are different sets of transactions and no common question of law or fact. The foundation of the case, on which the rest of it depends, is the alleged fraud of B.N Dass. If such fraud is proved the question is, did the defendants who all claim under B.N Dass obtain any title? If the plaintiff fails to prove fraud on the part of B.N Dass, the case fails against all the defendants. If he proves fraud, it may be that the defendants may have a different answer by way of defence; but that does not make the case any the less one of a common question of law and fact. The same act or transaction which concerns all parties is the alleged fraud of B.N Dass, and this involves a common question of law or fact. All defendants have derived title from a person who is alleged to have obtained the goods by means of fraud. By reason of this the possession of all is alleged to be wrongful. Whether a common question arises may be tested by seeing what the evidence will be. In the shorthand notes Chitty, J. expressed the opinion that the evidence will be common, and that if there were separate suits, they might be heard together with consent. In the judgment the learned Judge qualified this statement by saying that this was true up to a point. It is true so far as the plaintiff's cause of action, as based 011 the fraud of B.N Dass, is concerned, though there may be some facts which are parties alar to particular parties being offered in proof of the plaintiff's case (e.g, present possession of the goods as a result of such fraud) or by the defendants as part of their defence. The rule does not say that all questions must be common. It is sufficient that there is a common question. In my opinion, then the plaint is within the provisions of Order I, rule 3. It may be conceded that the case of the Bengal National Bank raises points which do not affect other defendants. For the Bank is not concerned with the transactions with Cartwright & Co. or the two mills which claim through them. Goods covered by railway receipt No. 9 have Dot been stopped in transit, having been already delivered to the Lansdowne Mill. The plaint asks for declaration that the plaintiff is entitled to the document (Railway receipt No. 9) and to the goods covered thereby which are said now to be with the Lansdowne Mill. The Bank claims to deal with the goods if it can do so. The common root of title is B.N Dass.

I am of opinion, therefore, that the suit is not bad for misjoinder of parties and causes of action. Should it however, be convenient, the Court may [Umcibai v. Vithal] direct the successive trial of the issues separately affecting different defendants. Thus the question of the alleged fraud of B.N Dass touching all the defendants may be tried first. If it fails, there is an end of the case. If it succeeds, and the Bengal National Bank does not wish to be present at the trial of the issues, so far as they affect the other defendants viz., Cartwright & Co. and those claiming through them, there is no reason why it should attend. I would, therefore, decree this appeal with costs.

Mookerjee, J.:— This appeal is directed against a determination by Mr. Justice Chitty that there has been a misjoinder of causes of action in this suit and that the plaintiff cannot be allowed to proceed “against the defendants as they at present stand on the record. A preliminary objection has been taken to the competence of the appeal on the ground that this decision does not constitute a “judgment” within the meaning of clause 15 of the Letters Patent. Stress has been laid on the circumstance that the order as drawn up merely adjourns the suit to a specified date with liberty to the plaintiff to elect meanwhile as against which of the defendants he will prosecute the suit and does not specifically state, as the order of Chaimell, J. did, in the case of Frankenburg v. Great Horseless Carriage Co. that, on his failure to elect the suit will be dismissed. In my opinion, there is no substance in the preliminary objection.

It is plain that the true test to be applied in the solution of the question of the competence of the appeal is, not the form of the adjudication but its real effect on the suit or proceeding in which it has been made. Whatever the form of the adjudication may be, there is no doubt that it does, in the present instance, put an end to the suit, so far as the trial Court is concerned; from this standpoint, the adjudication may properly be deemed a judgment, not merely within the test formulated by White, C.J in Tuljaram Row v. Alagappa Chettiar but, also within the definition given by Couch, C.J in The Justices of the Peace for Calcutta v. The Oriental Gas Co., Ld.: “Judgement in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. That this does not necessarily involve an actual decision on the right in controversy between the parties, is clear from one of the illustrations given by Couch, C.J, himself he pointed out the obvious difference between an order for the admission of a plaint and an order for its rejection, and added the observation that “the former determines nothing, but is merely the first step towards putting the case in a shape for determination; the latter determines finally, so far as the Court which makes the order is concerned, that the suit as brought will not lie; the decision therefore is a judgement in the proper sense of the term.” The same view is confirmed by the decision of Couch O.J in Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed Hadiee Joosub, where he held that an appeal lies from an order refusing to set aside an order granting leave to a plaintiff to sue under clause 12 of the Letters Patent. The order, he said, was of great importance to the parties, was not a mere formal order or an order merely regulating the procedure in the suit, but one that had the effect of giving a jurisdiction to the Court which it otherwise would not have; it might fairly be said to determine some right between the parties, namely, the right to sue in a particular Court. To the same effect is the decision of the Judicial Committee in Hurrish Chunder Chowdhry v. Kalisunderi Debi, that an appeal lies against an order which, in substance, decides a question of jurisdiction. Now when a Court refuses to proceed with the trial of a suit on the ground of misjoinder of parties and causes of action, the Court may fairly be said, in the words of Beverley and Jenkins, JJ., in Mullick Refait Hossein v. Sheo Pershad Singh, to be unable to entertain the suit, and the reason is of a like nature with defect of jurisdiction. As pointed out by Lord Herschell and Lord Russell in Smurthwaite v. Hannay and by Lord Halsbury in Subrahmania Ayyar v. King-Emperor, an objection that a suit is multifarious is really an objection that the salt has been constituted as to joinder of parties and causes of action, in a way not authorised by the law and the rules applicable to procedure. The decision that a suit is so constituted and cannot be entertained as framed, is, in my opinion, a judgment within the meaning of the Letters Patent. It may further be usefully borne in mind that, as was pointed out in Mathura Sandari Dasi v. Haran Chandra Saha and Budhu Lal v. Chattu Gope, the various definitions or elucidations of the term “judgment” to be found in a variety of cases in the reports, are not statutory definitions, and, while they furnish useful tests, they cannot be deemed inflexible and exhaustive. In the present case, if we look at the nature and contents of the order, there is no escape from the conclusion that it would be idle to hold that the plaintiff should refuse to elect, should get his suit dismissed, and, then, prefer an appeal against the decree of dismissal as he would be unquestionably entitled to do. I am not disposed to place a narrow construction upon the term “judgment” and thereby to postpone the inevitable determination by the Court of Appeal, of the controversy as to the constitution of the suit. The preliminary objection must, consequently, be overruled.

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 upon the allegations made in the plaint. The suit is framed in the alternative for the recovery of goods and documents of title relating thereto or of the value of the goods. The plaintiff asserts that the bales of jute in controversy were his property and that Brajendra Nath Dass by means of fraud obtained possession thereof with the documents of title. The plaintiff further asserts that the goods have subsequently; passed into the possession of the Lansdowne Jute Mills and the Hastings Jute Mills through Cartwright & Co. to whom they were transferred by Brajendra Nath Dass. The plaintiff next alleges that one of the documents of title, namely, a railway receipt has passed from Brajendra Nath Dass to the Bengal National Bank, though the goods covered thereby are in the possession of the Lansdowne Jute Mills. On these allegations, the plaintiff joined as defendants Brajendra Nath Dass, Cartwright & Co., the Lansdowue Jute Mills, the Hastings Jute Mills and the Bengal National Bank. The relief he seeks is the recovery of the goods and the documents of title, or, in the alternative, the value of the goods. As regards the alternative claim, he seeks a decree for the entire sum against Brajendra Nath Dass and Cartwright & Co., or proportionate sums against the other three defendants according to the value of the goods and documents in the possession of each of them. Before the trial of the suit, the Delhi and London Bank were added as defendants on the application of the Hastings Jute Mills, on the ground that they were interested in the subject-matter of the litigation. Mr. Justice Chitty has held, that the suit cannot proceed on the plaint as framed, because not framed in conformity with Order II, rule 3 of the Civil Procedure Code, 1908. He has further held that the plaintiff could, not successfully claim the benefit of Order I, rule 3. His view in substance is that Order I, rule 3 is limited to joinder of parties and has no application to questions of joinder of causes of action, which must be deemed to be governed exclusively by Order II, rule 3. For the solution of this, the fundamental question, in this appeal, it is necessary to examine the provisions of Orders I and II.

Order I relates to parties to suits, Order II relates to frame of suits. Consequently, at first sight, it might seem as if the two orders related to two distinct topics. Such a view, however, Would obviously be based upon an unsubstantial distinction, because when a plaintiff frames his suit, he joins parties as defendants, ordinarily because he claims to have a cause of action against them; in other words, when the legislator has to frame rules for joinder of parties and joinder of causes of action, he examines, on the two occasions, the same problem though from different standpoints. Accordingly, in a Code which is ideally arranged with due regard to logic and symmetry, one would expect to find in the chapter on joinder of causes of action provisions which accurately correspond to similar provisions in the chapter on joinder of parties. Codes, however, are rarely, if ever, accurately logical and symmetrical. It would, consequently, be unsafe to assume that because a particular rule finds a place in Order I, which treats of parties to suits, it can have no bearing on questions of misjoinder of causes of action; it is manifestly necessary that some regard, at any rate, must be paid to the history of the legislation on the subject: Maharajah Ishuree Persad Narain Singh v. Lal Chutterput Singh, Brown v. Mc-Lachlan and Kripa Sinahu Mukerjee v. Annada Sundari Debi. Now it is well known that Order I, rule 1, is a reproduction of Order XVI, rule 1 of the Rules of the Supreme Court in England, while Order I, rule 3, which corresponds to R.S.C, Order XVI, rule 4 is yet substantially different in phraseology therefrom. Order II, rule 3, again corresponds to R.S.O Order XVIII, rule 1, but differs therefrom in an important respect. Thus, as Order I, rule which provides for the joinder of plaintiffs is identical with R.S.C Order XVI, rule 1, it is consonant to well established principles of statutory interpretation that we should determine the exact scope of the rule in our Code in the light of the decisions in the Superior Courts in England which have explained the true construction of R.S.C, Order XVI, rule 1. As White, C.J observed in Lovelock & Lewes v. Malabar Timber and Saw Mills, in considering the construction of a section in an Indian Act which is professedly based on an English enactment, which in fact reproduces almost word for word the language of the English enactment, we are in practice, if not in theory, bound by the decisions of the English Court of Appeal. Now, it is well-known that the English rule, as it now stands, was introduced on the 26th October, 1896, to meet the difficulty created by the decision of the House of Lords in Smurlhwaite v. Hannay to the effect that the rule as it previously stood did not relate to joinder of causes of action, but applied only to joinder of parties in respect of the same cause of action. The scope of the rule was greatly extended by alteration, and it can no longer be said that the order relates only to joinder of parties and not to joinder of causes of action. Reference may, in this connection, be made to the judgment of Bowen L.J in Hannay & Co. v. Smurthwaite, which emphasises the distinction between the expression “right to any relief” which was used in the old rule and the phrase “any right to relief” which is used in the rule now in force. The history of this alteration is explained in the case of The Universities of Oxford and Cambridge v. George Gill & Sons, which followed the decision in Stroud v. Lawson. That the altered rule covers joinder of parties as also causes of action must now be treated as indisputable in view of the decisions in Bullock v. The London General Omnibus Co., Compania Sansinena de Carnes Congeladas v. Houlder Bros. & Co., Ld., Markt & Co. v. Knight Steamship Co., Ld. and Times Cold Storage Co. v. Lowther and Blankley It is further worthy of note that although the phraseology of R.S.C, O. XVI, r. 3, which relates to joinder of defendants, has uot been altered, its scope has recently been deemed to have been enlarged by reason of the alteration effected in R.S.C, O. XVI, r. 1, which treats of joinder of plaintiffs: Campania Sansinena de Carnes Congeladas v. Houlder Bros. Co., Ld.. Consequently, as under our Code, the rules relating to the joinder of defendants has been framed on the same lines as the altered rule relating to the joinder of plaintiffs (O. I, rr. 1 and 3), there is even much stronger reason here than in England to hold that O. I, r. 3 applies to questions of joinder of parties as also joinder of causes of action. I do not feel pressed by the phrase “save as otherwise provided” which occurs in O. II, r. 3(1). I am not prepared to read into this rule the words “in this order” after “provided,” specially in view of the language used in E.S.O, O. XVIII, r. 1, whereon our rule is based. Nor do I feel embarrassed by the decision in Thompson v. The London County Council, Munday v. South Metropolitan Electric Light Co., Ld. and Greenwood v. Greenwood, which do not militate against the view that R.S.C, O. XVI, rr. 1 and 3 relate to misjoinder of parties as also causes of action. The decision in Thompson v. The London County Council, overlooks the cases of Stroud v. Lawson and The Universities of Oxford and Cambridge v. George Gill & Sons, as explained in Frankenburg v. Great Horseless Carriage Co. and Compania Sansinena de Caribes Congeladas v. Houlder Bros. & Co., Ld.. The case is an authority only for this principle: if you have suffered a wrong, it may be that A is the person who has committed it, in which case he is liable, but, perhaps, you are not certain that it may not be B who has committed it, and, if so, B is liable; as between A and B, they are strangers to each other in the matter, and, then, because you cannot ascertain whether A or B committed the wrong, you cannot bring the action for damages against A and B jointly. The two other decisions mentioned are clearly distinguishable on their special facts. Similarly, Gower v. Couldridge which followed Sadler v. The Great Western Hail way Co. and was explained in Frankenburq v. Great Horseless Carriage Co., only illustrate the principle that if you have a cause of action against A and B for a tort X, and quite a separate cause of action against B for tort Y, you cannot in one action unite claims in respect of both torts X and Y against A and B. Reliance has been placed on behalf of the respondents on the decision of the House of Lords in Sadler v. The Great Western Railway Co., which was applied in Gower v. Couldridge, and of the Court of Appeal in Stroud v. Lawson; but neither case lends support to the theory that R.S.C.O XVI is restricted to joinder of parties and throws no light on questions of joinder of causes of action. The matter is one essentially of substance and not of form, as Romer, L.J observed in Frankenburg v. Great Horseless Carriage Co., and I am not prepared to put a narrow construction upon the provisions of O.I On the one hand, we have the fundamental principle that needless multiplicity of suits should be avoided; on the other hand, we have the equally essential principle that the trial of the suit should not be embarrassed by the simultaneous investigation of totally unconnected controversies. The Legislature has effected a compromise of these two principles by means of the rules embodied in Orders I and II which may possibly overlap to some extent in their application to concrete cases. It is not the function of the Court, however, to determine how far the rules are appropriate; we are bound to interpret them in their natural sense and apply them to the circumstances of each case. I hold, accordingly, that O. I, r. 1 and O. I, r. 3 apply to questions of joinder of parties as also of causes of action, and I respectfully dissent from the contrary view adopted by Davar, J. in Umabai v. Bhau Balwant and Jankibai v. Shrinivas Ganesh, without examination of or reference to the later decisions in England as to the scope and meaning of the corresponding rules in that system.

The question next arises, whether the present suit has been constituted in conformity with O. I, r. 3. The determining factors applicable here are, first, could the right to relief against the defendants be said to be in respect of or arising out of (expressions obviously of wider import than relating to) the same act or transaction, and, secondly, would any common question of law or fact arise, if separate suits were brought. As regards the first test, there can in my opinion be no doubt that the right to relief against each of the defendants is based upon the same act, namely, the alleged fraud of Brajendra Nath Dass, and this is so notwithstanding the fact that there may have been subsequent acts or transactions in which the different defendants are individually concerned and which may enable them to raise distinct defences. As regards the second test, it is clear that if different suits were instituted, at least one common question of fact would arise, namely, the exact nature of the act imputed to Brajendra Nath Dass, which would have to be investigated, presumably on the same evidence separately adduced in several suits. Here, again, it is important to observe that the Code does not require that all the questions of law or fact which arise should be common to all the parties. The contention of the respondents was, in fact, based upon two fallacious assumptions, namely, first, that the rules require that each of the defendants should have been concerned in all the transactions, and, secondly, that, if different suits were brought, no question would arise in which all the defendants were not interested. There is clearly no foundation whatever for either of these assumptions [cf. Drincqbier v. Wood]. There is further no basis for the hypothesis put forward at one stage on behalf of the defendants, that questions of joinder of parties and erases of action are governed by different principles, according as the claim is founded on breach of contract or on tort; as Collins M.R observed in Bullock v. The London General Omnibus Company, there is no reason for such a distinction. In my opinion, the case before us is completely covered by Order I, rule 3. I may add that the underlying principle of this conclusion is in exact conformity with what has been the recognised rule in this Court in two well-known classes of cases, namely, first, suits by reversioners for recovery of the estate of the last full owner alienated by a limited or a qualified owner during her period of possession and enjoyment, and secondly, suits for possession by the real owner against holders under derivative titles from a trespasser as the common source. The decision in Ishan Chunder Hazra v. Rameswar Mondol, may be taken as representative of the former class of cases. On the other hand, the decision in Nundo Kumar Nasker v. Banomali Gayan*, where Hill, J. refers to the instructive cases of Hodgins v. Hickson, and Minet v. Johnson, may be taken as the type of the second class of cases. I do not feel pressed by the decisions in Mullick Refait Hossein v. Shea Pershad Singh, and Sarala Sunduri Dasi v. Sarada Prosad Sur, which ruled that under the Code of 1882 there was no provision for joinder of distinct causes of action against distinct defendants. The Code of 1908 brings the rules on the subject in a line with the corresponding rules in England, and the object which the framers of the new Code had in view would be completely frustrated, were the Courts to allow their effect to be qualified by reference to decisions under the Code of 1882, pronounced on provisions some of which, at any rate, have been omitted or materially altered (see, for instance, sections 31 and 45 of the Code of 1882).

There is no force in the contention that grave inconvenience will be caused to some of the parties as they will have to be present during the discussion: of questions which specially affect others alone. The remedy for any possible inconvenience on this ground is supplied by the provisions of Order II, rule 6, which authorises the Court to order separate trials of causes of action which, though joined in one suit cannot be conveniently tried or disposed of together. As pointed out by Scott, C.J in Umabai v. Vithal, the Court is competent to direct the successive trial of the issues separately affecting different defendants and to record interlocutory judgments thereon, to be made the basis of the final judgment at the conclusion of the trial of the whole case.

In my opinion, the suit as framed is not open to objection on the ground of misjoinder of parties and causes of action and should consequently be tried on the merits. I agree that the appeal must be allowed with costs and the order of Mr. Justice Chitty reversed.

Attorneys for the appellants: Watkins & Co.

Attorneys for the respondents: Morgan & Co.; Dutt and Sen; H.M Given-Wilson; Pugh & Co.; Orr, Dignam & Co.; A.C Bose.

O.M

Appeal allowed.