IN THE HIGH COURT OF KARNATAKA AT _ DATED THIS THE 20*" DAY OF SEPT_E~9---'1SEjR€ ':iO1.Q V4' -. BEFORE V & THE HON'BLE MR. JUST-ICE='A,__l\!. \/ENOGOR,¢.EA_OOV\(rrj>;r§i% WRIT PETITION NO;1i"i.;éVs9.[20iO-- BETWEEN: K W Dr. George V ' S/0.Late C.V.Fran_cis V .. : Aged 71 years V " R/at Chettupu_zh.a!%gkaraVn__ H~~oVu'se'a_' ' Avenue RQac!i,._ !§4undupVaOi~tam"'" V Chee,y~a--ra.m*ViIléige. " Thrisstar Tén'iuk_; _T hriss4ur~«l'}istrict Kerafa 5680 " PETITIONER (eysr; Asjiosk, Bv.*Pa tsr, TAdv.) 1;.- V - . i'Vi«r%,C F.-Jiose S/c';C.$;I.Francis Agedrr 70 veers .. 'R/at Chettupuzhakkaran House Aizenue Road, Mundupalfam Cheeyaram Village Thrissur Tatuk, Thrissur District Kerafa - 680 005. 2. Mrs.Valsa Chacko W/0.Late C.F.Chacko Aged 66 years R/at Chettupuzhakkaran House Fatima Nagar, Chembukavu Viilage Thrissur Taluk, Th rissur District Kerala --~ 680 005. Saju Chacko S/o.Late C.F,Chacko Aged 43 years R/at Chettupuzhakkaran"House ' Fatima Nagar, Chembukayu Village 'D Th rissur Talu k, Thrissu'r"Di'strict_ Kerala -- 680 OO..5}" -_ Ms.Seena Jojy '-- D/o.Late:éC;..F.Cl;jacko'V::: _ _ : Aged 45 yeagrsg V " R/ a:t"C'.h_eVttu ;S*_uzh-aj!<_|V'<a.ra'n'i_ Ho use Fatinja'i..Nagar; 'ChevrritJu'kiavi;g Village .ThAri.ss*:;.=r Tai2_uk, "T.hrissur"'D~is'trict Keraiavyi+..V5V3'oV%oo5:~»g_g _' D/o«.-Late C.-F.C.hacE<o * » Aged 4-2 years ' R/at Chet'tu_o.uzvhakkaran House "Fatima Nagar, Chembukavu Village ' --vTh~ri'ssu'r..Ta|uk, Thrissur District ' vvKe.raiaF:--v68O 005. vfvvirs-.,AAP,_ju.dge._ Cat "«...Bangaiore in O.S.No.5896/2006 (Ann-exure'-».B)'."" " flhisupetitionmeoming on for preliminary hearing in 'B' ' V.Vg'roVup.,V''t~hi's.V day the Court made the foliowingz ORDER
..V”Pet.iVt’ioner instituted 05.5896/2006 against the
2 xrespondents. Written statement was filed by the 15*
“”.de1″Aendant on 30.9.2006. Appiication seeking amendment
of the piaint was filed on 13.3.2007. The Triai Court, suo
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motu passed an order under Order 2 and of
CPC.
2. According to the Trial
sought three different reliefs in respect
land in different survey and tl:.er’efore.’,’:,thVere is no
common question ovr’:fact the case and
according to it, there’VV_is:”jAo_indefv of action in one
suit which trial and hence, it
has direc.t_ed.;.4th.e’.p’l’aintiff«.to”~o:r;o’o’se”any one of the reliefs in
the :7{._)|ai_ii’t “separate suits for remaining
reliefs.’ “Aggrvieved’,rV.’the”‘plaintiff has filed this writ petition.
=lileard”th’e’V learned counsel on both sides and
f per u ‘thee. writ papers.
The Trial Court has not noticed the decision of the
rrApex'””C.ourt in the case of PREM LALA NAHATA AND
“”~.V\/al’I!\f:OTHER VS. CHANDI PRASAD SIKARIA (2007) 2 SCC
“551), wherein, almost in an identical circumstances, it has
been held as under: \§
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“10. Based on this understanding, we the
respective positions of Order 1 and Order a
of things. Order 1 deals with parti_es’~vtof.all”Vsuit
provides who may be joined as.l’the:lp’laintiffsand ‘
be joined as the defendants. ltlalso ideals’
of the court to direct thle”-plaintiffs either to~eleclt with’
reference to a particular plvaiintiff _ or at particular defendant
or to order separate trials’ respect’ of “the parties
misjoined as the p1’a:£mffst_ olrltheldefendants. It also gives
power to thecourtto.ipi*onouncel.juVd’gmlent for or against
one of the plarties frorri pa.rties who have joined
together “‘~suledl”v.:together. The order also
spe’cifies;that suitvshall n_ot”‘be defeated by reason of the
misjoinderllofi.nona–jcirider of parties, so along as in the
case oflncon–join’der,”‘the’ non–joinder is not of a necessary
party. Code”. also gives power to the court to
V_”‘*é-ubstitute the-cori*ect person as a plaintiff or add parties
A or _vfstril<:.e*~0ut parties as plaintiffs or defendants, at any
V stagetifit"is~found necessary.
2 deals with frame of suits. It provides that
every_ suit shall be framed as far as practicable so as to
” *=.afford grounds for final decision upon the subjects in
if dispute and to prevent further litigation concerning them.
It is also insisted that every suit shall include the whole of
the claim that a plaintiff is entitled to make in respect of
its subject–matter. There is a further provision that the
plaintiff may unite in the same suit several causes of
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action against the same defendant and tlief:l”p21aintiffs
having causes of action in which aie’fjoi7ntlyp
interested against the same defendant,-rnayunite
causes of action in the samefflsuit; It that T.
objection on the ground of misjoiinder of ‘-causves action
should be taken at the«.___earlies.t’ opportuciiityiy it also”
enables the court, where i”t..Valppears”to the court that the
joinder of causes action m’ayV””embarrass “or delay the
trial or otherwise to order separate
trials or to make su.ch’_o.th’er o_rde’1′. a’s–.1rn’ay be expedient in
the interestsjustice. -V
12. ‘:1’ fplainft suffers from the defect
o;fVp_arti_es or.rnisjoinder of causes of action
eithei’4in’termjse.of» Rule 1 and Order 1 Rule 3 on
the o~haelrh_ehd, 2 Rule 3 on the other, the Code
iitself indi-cates that the perceived defect does not make
one ‘barred by law or liable to rejection. This is
._clea1″afrorn Rules 3–A, 4 and 5 of Order 1 of the Code, and
pth’is.”is,_err’;phasised by Rule 9 of Order 1 of the Code which
A pro’vid§s that no suit shall be defeated by reason of non–
joinder or misjoinder of parties and the court may in
A’ ‘ either case deal with the matter in controversy so far as it
-regards the rights and interests of the parties actually
before it. This is further ernphasisgd by Rule 10 of Order
1 which enables the court in appropriate circumstances
to substitute or add any person as a plaintiff in a suit.
Order 2 deals with the framing of a suit and Rule 3
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provides that save as otherwise provided.
unite in the same suit several causes ofactivons”against
the same defendant and any__p»1a.i1f1tiffslhaving .Vca_use’&’:_V T
actions in which they are jdiuntlyiivinterested” .
same defendant may unite such csiusesef. action’: in the
same suit. Rule 6 enabies”*~.i;he court–.to:*_:order”separate
trials even in a case of mi_s__io:inderV of cause_s action in a
plaint filed. _ V 1 ‘
13. After the amendmesnthvof ‘1~T6_-Rule 1 in England,
it was he1d’«Ioy.the;_Court of, Afip.ea1 England in Thomas
v. Moqrerz_9i§,_8;’._1 K..e_1555:s’7 Lice 577{CA} thus:
been at the time when
sirnuy-tt::1:;:%a:te__v*.4eHarmqy11894 AC 494.-1891-41Au ER Rep
8635 (HL) was goinder of parties and joinder of
causesof. act.ion._ are-7discretionary in this sense, that if
_{they are tldere is no absolute right to have them
– lstruck’ out, is discretionary in the Court to do so if
it ” ‘it”thi11ks.VTright.”
l”dl4.A Privy Council in Mahant Ramdhan Pun’ v.
chgqudhury Lachmi Narain{AIR 1937 PC 42.-1937 All LJ
_ 555} pointed out: [AIR p.45)
“It is desirable to point out that under the rules as
they now stand the mere fact of misjoinder is not by itself
sufficient to entitle the defendant to have the proceedings
set aside or action dismissed.” \
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Of course, their Lordships were speaking in
Section 99 of the Code. Their Lordships’_”1’eferred”_ to
abovequoted observation of the . Court. . oi”; >’ Appeal {in b T
Thomas V. Moore in that decision. {It is thereforepcliearxthat
a suit that may be bad Vfozjmisjoinder ofcauses ofigactionz
is not one that could be’g.o.t’~istruck*– oiutor rzcjeclted by a
defendant as a matter of..–right and the’di.scr§etion vests
with the court eith–e_rfto the suit or to direct
the plaintiff to take steps defect. in fact, the
Privy Couvnfiil in that the suit was bad
for causes of further noticed that
the triialpdiudge the complications created
th.ereby..itried::f:A§V of the suit satisfactorily.
Thereforeil occasion for the court to dismiss
the suit onthe misjoinder of causes of action at
the appellate stage-.
isxwellllunderstood that procedure is the handmaid
V’ ” ..ofjus’ti:ce:an,_d not its mistress. The scheme of Order 1 and
clearly shows that the prescriptions therein are in
A=-.._thev_>reVaJm of procedure and not in the realm of
substantive law or rights. That the Code considers
A’ ‘ objections regarding the frame of suit or joinder of parties
it only as procedural, is further clear from Section 99 of the
Code which specifically provides that no decree shall be
reversed in appeal on account of any rnisjoinder of parties
or causes of action or nonjoinder of parties unless a
court finds that the nonjoinfler is of a necessary party.
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This is on the same principle as of Section__2″1″oft;-hefijode
which shows that even an objectionfito::_”territori.al’
jurisdiction of the court in wl’1ichi the instituted,’ j i
could not be raised successfVully::’for:’theiirslt
appeal against the decree unless the appellant: alsotvabjlee,
to show consequent failure.:ofi_iustice..The:.’Suitsl”Va1uation
Act similarly indicatesp_….th’at’–.absence-_of’§ pecuniary
jurisdiction in the,._flcour_t the cause without
objection also stands isfsanie footing. The
amendmentjto v’C”odVe in the year 1976
confers4..pQwer:onthe ieozurt towtransfer a suit filed in
a cofuj: 1:jii;;§ifi’g ‘ nlobjurisdiction, to a court having
Juviris’d1’cat;1ic:n In context of these provisions
–.particu’lar:”reéfereiice “to the rules in Order 1 and
Orde.1j’2, is clear that an objection of
Vrn_isjoin’de_r:l of..plai’ntlift”.s or misjoinder of causes of action,
p”roceAd’ura.1…«objection and it is not a bar to the
” enteliftaining of the suit or the trial and final disposal of
. ltizefsuitl court has the liberty even to treat the plaint
bin suel1_.a case as relating to two suits and try and
2°dis’pose”:them of on that basis.”
5. In view of the declaration of iaw made by the
Supreme Court and in view of the facts and circumstances
of the case, there is neither joinder of causes of action nor
misjoinder of unnecessary parties. There is misdirection
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on the part of the Trial Court in passing
order, without correctly noticing the re_c’o’rd’1ja.nd’»:al~so
relevant provisions applicable to:=,.the.-Arné.tter..’ l V
In the result, writ peVtitvior.».stanV.as.
order stands quashgedi The” broug’ht”torward, is
required to be tried Trial Court is
directed to.” the pending I.As.
within a date a copy of this
order.
instituted in the year 2006,
the Trial Courtis-v__diire”cte’d to expedite the trial and dispose
ofthe as e’ar!y.._a«s practicable and at any event within a
‘ ,period.__o~f year from today.
Sd/#13″
Ifidge