Sundar Jha vs Bansman Jha on 8 February, 1906

Calcutta High Court
Sundar Jha vs Bansman Jha on 8 February, 1906
Equivalent citations: (1906) ILR 33 Cal 367
Author: H A Pratt
Bench: Harington, Pratt


Harington and Pratt, JJ.

1. This is an appeal from the order of the Sub-Judge returning a plaint for amendment on the ground that it was bad for misjoinder.

2. The plaintiffs are 4 in number and they all claim possession of the entire 16 annas of certain properties. They claim under different titles. The first three are heirs of Kamala Nath Jha, deceased, while plaintiff No. 4 derives his title to ten annas out of the sixteen by purchase from plaintiffs Nos. 1 to 3.

3. The learned Subordinate Judge considered that the cause of action of plaintiffs 1 to 3 was a different cause of action from that of plaintiff No. 4, and accordingly returned the plaint for amendment.

4. The whole question turns on the meaning of “same cause of action” in Section 26 of the Civil Procedure Code.

5. The words “cause of action” may be the statement of the wrong for which the plaintiff seeks redress–as for example a plaintiff’s cause of action may be a breach by the defendant of a contract to sell and deliver goods–refusal by the defendant to give up possession of lands to which the plaintiff is entitled–or publication of a libel on the plaintiff. All these may in the ordinary language be described as “causes of action.”

6. In England “cause of action” has been defined as every fact, which, if traversed, the plaintiff would have to prove to entitle him to the relief he claims; in other words “cause of action” has been interpreted as meaning a statement of all the facts which give rise to the plaintiff’s right to relief.

7. The meaning of the phrase has been considered in the case of Salima Bibi v. Sheikh Muhammad (1895) I.L.R. 18 All. 131, in which it was held by Edge C. J. and Burkitt J. that cause of action in Section 31 of the Civil Procedure Code was to be defined as it was in England. The meaning in Section 26 was also considered in this Court in the case of Haramoni Dassi v. Hari Churon Chowdhry (1895) I.L.R. 22 Calc. 833. In that case the Allahabad case is not referred to, and the Court held that the qualification implied in the words in respect of the same cause of action would be satisfied, if the facts which constituted the infringement of the right of the several plaintiffs were the same.

8. If this interpretation be followed, there is nothing in the facts of this case which renders the suit bad for misjoinder.

9. We think that in this section the words must bear the meaning attached to them in the case of Haramoni Dassi v. Hari Churon Choudhry (1895) I.L.R. 22. Calc. 833. Unless that meaning is given it would be impossible as the learned Judges, who decided the case, point out to give a meaning to that portion of the section which provides, for joinder of plaintiffs in the same action, where the rights claimed are alternative.

10. In the present case the plaintiffs all ask jointly for possession of the same property. Their cause of action is the refusal by the defendant to yield them possession.

11. In our opinion they can lawfully be joined notwithstanding that the facts, on which the right to joint possession arises, are not the same.

12. The appeal must therefore be allowed with costs.

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