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Bombay High Court
Kacharbhoj Vaija And Ors. vs Bai Rathore Widow Of Kachar Raja … on 21 February, 1883
Equivalent citations: (1883) ILR 7 Bom 289
Author: K Charles Sargent
Bench: C Sargent, Kt., Kemball


JUDGMENT

Charles Sargent, Kt., C.J.

1. We think the Subordinate Judge was right in holding that the claim to have the several alienations by the widow Rathore mentioned in the plaint declared void arises out of several distinct causes of action against the several defendants who were the alienees of the particular properties, the subject of those alienations, which causes of action could not, therefore, be properly united in the same suit, having regard to the provisions of Section 45 of the Code of Civil Procedure. The Code does not state what course the Judge ought to pursue where there has been a misjoinder of causes of action. In similar cases under Sections 8 and 9 of the Code of 1859, which are virtually the same as Section 45 of the present Code in a less expanded form, it was said by Peacock, C.J., in Rajah Ram Tewary v. Luchman Pershad 8W.R.15 that Judges ought to reject the plaint. If this be not done, and the objection be taken by the defendants in their written statement, the Judge ought to raise an issue and decide it. However, it was said by Sir R. Couch, C.J., in Imrit Nath Jha v. Roy Dhunput Sing Bahadur 9 Beng. L.R. 241 that if the Judge felt doubtful whether his decision on the point of misjoinder would stand, he might properly frame the issues of fact for the determination of the case, and take evidence on them, and then dismiss the suit on the ground of multifariousness, without recording any finding on the other issues. In the present case the Judge has raised all the issues, and found on the issues of law–first, that there was a misjoinder of causes of action; secondly, that the plaintiff had no cause of action, and dismissed the plaint. As to the latter finding, the Subordinate Judge has, we think, misconceived the object of the suit by reading it somewhat too literally. Its object was two-fold–first, to have the widow restrained from making unlawful alienations in the future of the family property; and, secondly, to have the alienations already made by her declared void beyond her life as against her and the alienees. Under special circumstances the heirs would clearly be entitled to the relief by injunction as against the widow; and as regards past alienations, Section 42 of the Specific Relief Act (see ill. (e)) gives the heirs the right to such a declaration.

2. To entitle the plaintiffs to such a declaration it would doubtless be necessary for them to show that they were the presumptive heirs; but it was not, as the Subordinate Judge would appear to have thought, the object of their suit to establish such a relationship. But, although the plaintiffs may have causes of, action against the several defendants, it would be highly inconvenient, and entirely opposed to the language of Section 45 of the Code of Civil Procedure, if the Court were to proceed to hear the suit on its merits. It was suggested, however, on the strength of a remark by Phear, J., in Hurro Monee Dossea v. Onookool Chunder 8 W.R. 461 that the plaintiffs might be allowed to proceed against the defendant, who alone has appeared by vakil on this appeal. It would probably be sufficient to say that the suit so restricted would not, as admitted by the plaintiffs themselves, be within the ordinary jurisdiction of the Subordinate Judge. We think, however, that the plaintiffs are entitled to no indulgence; for, in the first place, the objection on the ground of misjoinder of causes of action was taken by the defendant’s written statement, and the plaintiffs still insisted on the issue being tried, and it has been found against them; and, secondly, this is an attempt to give the Subordinate Judge his special jurisdiction by combining causes of action contrary to the provisions of the Code of Civil Procedure. We must, therefore, confirm the decree on the ground that there is a misjoinder of causes of action. Appellants to pay respondents their costs.


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