Ram Narain Dut vs Annoda Prosad Joshi And Ors. on 10 June, 1887

Calcutta High Court
Ram Narain Dut vs Annoda Prosad Joshi And Ors. on 10 June, 1887
Equivalent citations: (1887) ILR 14 Cal 682
Bench: Tottenham, Norris


1. This is an appeal against the Subordinate Judge of Burdwan reversing the decree of the Munsif in favour of the plaintiff and dismissing the suit on account of misjoinder of several causes of action. For the appellant it contended that the lower appellate Court was wrong in holding that the suit was liable to be dissmissed for such misjoinder.

It was contended that there was no misjoinder, and it was contended that, if there was misjoinder, then insamuch as the first Court excercised its judicial discretion in not dismissing the such upon that ground, the Subordinate Judge in appeal ought not to have interfered. It seems that the first Corut was of opinion that there was misjoinder of diffirent causes of action in the suit. The Munsif was of opinion that a seprate suit should have been brought against each defandant; but he says, as the laws does not lay down that such a suit should be thrown out on account of such a defect, he passed it over

It appears to us that the Munsif was wuite right in saying that there was a misjoinder of causes of action, and it appers to us that the lower appellate Court was quite right in saying that the must be dismissed.

The plaintiff had obtained a decree under section 52 of the Rent Law of 1869 to eject his tenant for arrears of rent and to obtain possession of the tenure. In attempting to execute that decree he was opposed as regards certain plots of land which he alleged to be comprised in that tenure. As to some of the lands he got possession without opposition, but as to many plots he was opposed. Those who opposed him apparently instituted proceedings under Section 332 of the Code of Civil Procedure, and their claims were decided under that section in their favor.

2.The present suit was brought by the plaintiff to obtain a declaration that all the several plots claimed against him by the several defendants in these proceedings belonged to the tenure in respect of which he had obtained a decree for khas possession, and prayed for khas possession of the various plots.

3. There appear to be some twelve different defendants named in the plaint. They filed separate defences and several pleaded misjoinder. They set up totally different titles, quite distinct one from another, in respect of the various plots of land, and equally distinct one from another. The plaintiff’s case as stated in the plaint made no mention of the proceedings under Section 332 It merely mentioned that the defendants in collusion had prevented him from getting possession under his decree under Section 52 of the Rent Act. He sought therefore to treat them as having combined to prevent his executing his decree.

4. The lower appellate Court, in coming to the conclusion that the case was bad for misjoinder, did go to a certain extent into the evidence, and we think that be could not have done otherwise.

5. It has been objected by the appellant’s pleader in this ease that the lower appellate Court had no right to consider the evidence in the case, and then, upon that evidence, to bold that the suit was bad for misjoinder. We think, however, that the course adopted by the lower Courts was right.

6. If the allegation set forth in the plaint had been correct, then perhaps there would be no misjoinder ; but, upon the contentions set out in the written statements, it is clear that the defendants did not admit any combination or joint action on their part in opposing the plaintiff. We think that the lower appellate Court, therefore, was right in looking to the evidence to see whether the allegations of the plaintiff were made out. He found that the allegation of collusion or combination was altogether unfounded. The several defences were found to be bona fide, which they put forward in respect of various plots of land claimed by the plaintiff, and, inasmuch as the proceedings under Section 332 bad given the plaintiff full notice of these claims, it would certainly have been competent to the plaintiff to sue them separately in respect of the lands separately claimed; and further it appears to us that the plaintiff had no right to sue the defendants jointly in respect of the separately-claimed lands.

7. The lower appellate Court has relied upon the Full Bench decision in Raja Ram Tewari v. Luchman Pershad B.L.R. Sup. Vol. 731 : 8 W.R. 15, and it is contended for the appellant that the principle laid down in that case was not applicable to the facts of the present ease, inasmuch as the plaintiff in the present case had one object, viz., to establish title to the lands which he got possession of in execution of a decree under Section 52 of Bengal Act VIII of 1869 ; and the defendants who contest his claim had but one defence, which is common to them all, viz., to invalidate the plaintiff’s title. This we find upon perusal of the judgment is by no means the case. The plaintiff may have had one object, viz., to get possession of all the lands, but it is not correct to say that the defendants had joint defences common to all. We think, therefore, that the lower appellate Court was right in saying that the suit was bad for misjoinder The Code of Civil Procedure, Section 31, provides that no suit shall be defeated by reason of misjoinder of parties. This is not a case of misjoinder only of parties ; it is a case of misjoinder of causes of action. There is no section of the Code which permits a person to sue various defendants together in respect of various causes of action. We think that in this case the plaintiff had a distinct cause of action against each of the defendants who set up his own title in respect of one or other of the different plots of land. That being so we dismiss the appeal with costs.

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