ORDER
G. Yethirajulu, J.
1. This is a reference made by a learned single Judge of this Court to give a finding on a question whether a Landlord can maintain a single eviction petition against the tenants of two different portions of a building leased out under two separate lease deeds in the light of Order 1 Rules 3 and 9 and Order 2 Rules 6 and 7 of the Code of Civil Procedure, 1908 (for short ‘C.P.C.’).
2. Before delving into the question, we wish to refer to the relevant provisions of C.P.C.
3. Order 1 of the C.P.C. deals with parties to a suit. Order 1 Rule 3 reads as follows:
3. Who may be joined as defendants:- All persons may be joined in one suit as defendants where-
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise.
4. Order 1 Rule 5 reads as follows:
5. Defendant need not be interested in all the relief claimed:- It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.
5. Order 1 Rule 9 reads as follows:
9. Misjoinder and non-joinder:- No suit shall be defeated by reason of the misjoinderor non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a necessary party.
6. Order 2 Rule 3 reads 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 suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.
7. Order 2 Rule 6 reads as follows:
6. Power of Court to order separate trials:- 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 order separate trials or make such other order as may be expedient in the interests of justice.
8. Order 2 Rule 7 reads as follows:
7. Objections as to misjoinder:- All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.
9. Order 1 Rule 3 governs joinder of defendants. It states as to who may be joined as defendants in one suit. All persons may be joined as defendants in a single suit if the following conditions are satisfied:
(i) The right to relief against each defendant must arise out of the same act or transaction or series of acts or transactions; and
(ii) If separate suits were brought against such persons, common questions of law or fact would arise.
10. The object of Rule 3 is to avoid multiplicity of suits and needless expenses, which can be avoided without embarrassment to the parties to the suit and also to the Court Ishwar Bhai v. Harihar .
11. Order 2 deals with frame of suit. The primary object of Order 2 Rule 1 is to ensure adjudication of all disputes in one suit by preventing further litigation in future.
12. The following illustrations would give a clear picture about the joinder of necessary parties or causes of action:
Illustration No. 1:
B, C, D and E each separately entered into an agreement with A to supply 100 tins of oil. They failed to supply the goods. A cannot join B, C, D and E as defendants in one suit for damages inasmuch as there are four distinct contracts and, therefore, four different transactions.
Illustrations No. 2:
A Purchases a house in occupation of B and C, tenants under two different lease deeds. A’s suit against B and C is not maintainable, as both the transactions (lease deeds) are separate and independent.
13. The persons against whom relief is claimed jointly, severally or in the alternative may be joined in one suit as defendants. It is not necessary that each and every defendant should be interested in all the reliefs. It is also not necessary that all questions of law or fact which arise should be common to all the defendants. It is enough that the relief claimed is in respect of the same act or transaction and one of the questions is common to all the defendants.
14. In Corporation of Calcutta v. Radhakrishna , the Calcutta High Court held that a single suit by a corporation for arrears of rent against different owners of subdivided premises is bad for multifariousness.
15. Where two or more persons have been joined as defendants in one suit in contravention of the provisions of Order 1 Rule 3, there is misjoinder of defendants.
16. As per Rule 5 of Order 1, the defendant need not be interested in all the reliefs claimed in the suit. Order 1 Rule 9 declares that no suit shall be dismissed by reason of the misjoinder or non-joinder of parties and it will be decided on merits.
17. As a general rule, a suit cannot be dismissed merely on the ground of misjoinder or non-joinder of parties. A defect as to misjoinder of parties does not affect jurisdiction of the Court, nor it touches the merits of the matter. Normally, a Court of law is required to decide suit on the basis of controversy raised by the parties as regards the rights and interests and not on technicalities, such as misjoinder or nonjoinder of parties Naba Kumar v. Radhashyam AIR 1931 P.C. 229 and Ravindranath v. Union of India .
18. Order 2 Rule 3 deals with joinder of causes of action. This rule applies not only to cases where there is only one plaintiff, one defendant and several causes of action, but also to the cases where there are two or more plaintiffs, two or more defendants and several causes of action.
19. Rule 3 of Order 2 must be read with Rules 1 and 3 of Order 1. There are two fundamental principles embodied in Orders 1 and 2, namely, (i) needless multiplicity of suits should be avoided; and (ii) the trial of suits should not be embarrassed by simultaneous investigation of totally independent and unconnected controversies.
20. Where there is one plaintiff and two or more defendants and several causes of action, the plaintiff may unite in the same suit several causes of action against those defendants, if the defendants are jointly interested in the causes of action. Therefore, two or more defendants can be joined in one suit, provided the following conditions are fulfilled:
(1) The relief claimed must have been based on the same act or transaction; and
(2) Common questions of law or fact must have been involved.
21. Joint interest of the defendants in the questions raised is a condition precedent to the joinder of several causes of action against several defendants. It is, however, not necessary that each of such defendant must be interested in each of the reliefs claimed. It is sufficient if they are jointly interested in the main questions raised in the suit. In order to apply Order 2 Rule 3, it is essential that all the defendants must be interested and liable jointly in each of the causes of action in the suit though they may not be interested in each of the reliefs claimed by the plaintiff. Order 2 Rule 3 permits a plaintiff to join in the same suit two or more causes of action against two or more defendants, if the defendants are jointly liable. Joint interest in the main questions raised in the litigation is a condition precedent to the joinder of several causes of action against several defendants Ambika Upadhya v. Nakched .
22. In Raja Ram Tewari v. Lachman Parshad (1867) B Suth WR 15 (F.B.), Sir Barnes Peacock, C.J. stated: “Such a joinder in one suit of distinct causes of action against different defendants, each of whom is unconnected with the cause of action against the other, complicates the case before the Judge, and renders it exceedingly difficult for him in dealing with the case of each defendant to exclude from his consideration those portions of the evidence which may not be admissible against him, though admissible against one or more of the others. Moreover, it is vexatious and harassment to the different defendants. Such a procedure renders it almost compulsory on all the defendants to be present, either in person, or by their pleaders, whilst the case is going on against the others in respect of matters in which they are not interested; and, moreover, it is harassing and inconvenient as regards the attendance of the witnesses of the several defendants, as it renders it necessary for the witnesses of each to be present, and to be detained whilst the case of the others is being heard and determined”.
23. The Privy Council also expressed a similar view. In Seturatnam v. Venkatachela AIR 1923 P.C. 67, Sir Lawrence Jenkins stated: “They (the defendants) are not in joint possession; on the contrary, they have separate holdings and should have been separately sued….But the plaintiff, in disregard of the provisions of the Code, has united in the same suit not merely several causes of action but several actions or suits against separate defendants with the result that the litigation has been conducted throughout as though the defendants were a community with common interests”.
24. A suit against two or more defendants on two or more causes of action accrued against the defendants separately when such defendants are not jointly liable is bad for misjoinder of defendants and causes of action, technically called multifariousness. In a suit of contract, strangers to such contract who have distinct and separate interests cannot be joined as defendants Rangayya v. Subramanya AIR 1918 Mad. 681 (F.B.).
25. When an objection is taken as to misjoinder of parties or causes of action at an appropriate stage, the Court may permit the plaintiff to elect as to which of them he will proceed with the suit as filed in case of misjoinder of plaintiffs or against which of the defendants in case of misjoinder of defendants, or with which of the causes of action in case of misjoiner of causes of action Alridge v. Barrow ILR 34 Cal. 662.
26. The Court may either allow the amendment or withdrawal of suit with permission to file a fresh suit on the same cause of action Nitai Lal v. Govinda Bhushan AIR 1936 Pat. 142.
27. The object of Order 2 Rule 6 is to prevent embarrassment or delay in the trial of the suit. Order 2 Rule 7 mandates that all objections regarding the misjoinder of causes of action should be taken at the earliest possible opportunity and in all cases where issues are settled, at or before settlement of issues, unless the ground of objection has arisen subsequently. If such objection is not so taken, it will be deemed to have been waived.
28. From the above legal position and observations, we make it clear that unless the plaintiff establishes that the right to relief against each defendant has arisen out of the same act or transaction or series of acts or transactions, a single suit against two tenants of two separate portions of a building, who entered into lease agreements separately, cannot be maintained.
29. The reference is accordingly answered.