Dr. George vs Mr. C.F. Jose and Others

A.N. Venugopala Gowda, J.—Petitioner instituted O.S. 5896/2006 against the Respondents. Written statement was filed by the 1st Defendant on 30.9.2006. Application seeking amendment of the plaint was filed on 13.3.2007. The Trial Court, suo motu passed an order under Order 2 and Rules 3 and 6 of Code of Civil Procedure.

According to the Trial Court, the Plaintiff has sought three different reliefs in respect of portions of the land in different survey numbers and therefore, there is no common question of fact and law involved in the case and according to it, there is joinder of causes of action in one suit which will embarrass or delay the trial and hence, it has directed the Plaintiff to choose any one of the reliefs in the plaint and to institute separate suits for remaining reliefs. Aggrieved, the Plaintiff has filed this writ petition.

Heard the learned Counsel on both sides and perused the writ papers.

The Trial Court has not noticed the decision of the Apex Court in the case of Prem Lala Nahata and Another Vs. Chandi Prasad Sikaria, , wherein, almost In an identical circumstances, it has been held as under:

Based on this understanding, we can consider the respective positions of Order 1 and Order 2 in the scheme of things. Order 1 deals with parties to a suit and provides who may be joined as the Plaintiffs and who may be joined as the Defendants. It also deals with the power of the court to direct the Plaintiffs either to elect with reference to a particular Plaintiff or a particular Defendant or to order separate trials in respect of the parties misjoined as the Plaintiffs or the Defendants. It also gives power to the court to pronounce judgment for or against one of the parties from among the parties who have joined together or who are sued together. The order also specifics that a suit shall not be defeated by reason of the misjoinder or non-joinder of parties, so along as in the case of non-joinder, the non-joinder is not of a necessary party. The Code also gives power to the court to substitute the correct person as a Plaintiff or add parties or strike out parties as Plaintiffs or Defendants, at any stage, it it is found necessary.

Order 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 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 action against the same Defendant and the Plaintiffs having causes of action in which they are jointly interested against the same Defendant, may unite such causes of action in the same suit. It provides hat objection on the ground of misjoinder of causes of action should be taken at the earliest opportunity. It also enables the court, where it appears to the court that the joinder of causes of action may embarrass or delay the trial or otherwise cause inconvenience, to order separate trials or to make such other order as may be expedient in the interests of justice.

Thus, in a case where a plaint suffers from the defect of misjoinder of parties or misjoinder of causes of action either in terms of Order 1 Rule 1 and Order 1 Rule 3 on the one hand, or Order 2 Rule 3 on the other, the Code itself indicates that the perceived defect does not make the suit one barred by law or liable to rejection. This is clear from Rules 3-A, 4 and 5 of Order 1 of the Code, and this is emphasised by Rule 9 of Order 1 of the Code which provides that no suit shall be defeated by reason of non-joinder or misjoinder of parties and the court may in 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 emphasised 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 provides that save as otherwise provided, a Plaintiff may unite in the same suit several causes of actions against the same Defendant and any Plaintiffs having causes of actions in which they are jointly interested against the same Defendant may unite such causes of action in the same suit. Rule 6 enables the court to order separate trials even in a case of misjoinder of causes of action in a plaint filed.

After the amendment of Order 16 Rule 1 in England, it was held by the Court of Appeal in England in Thomas v. Moore (1918) 1 KB 555 : 87 LKB 577 thus:

Whatever the law may have been at the time when Smurthwaite v. Hannay 1894 AC 494 : 1891 4 All ER Rep 865 was decided, joinder of parties and joinder of causes of action are discretionary in this sense, that if they are joined there is no absolute right to have them struck out, but it is discretionary in the Court to do so if it thinks right.

The Privy Council in AIR 1937 42 (Privy Council) 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.

Of course, their Lordships were speaking in the context of Section 99 of the Code. Their Lordships referred to the above quoted observation of the Court of Appeal in Thomas v. Moore in that decision. It is therefore clear that a suit that may be bad for misjoinder of causes of action is not one that could be got struck out or rejected by a Defendant as a matter of right and the discretion vests with the court either to proceed with the suit or to direct the Plaintiff to take steps to rectify the defect. In fact, the Privy Council in that case noticed that the suit was bad for misjoinder of causes of action. It further noticed that the trial Judge had in spite of the complications created thereby, tried and disposed of the suit satisfactorily. Therefore, there was no occasion for the court to dismiss the suit on the ground of misjoinder of causes of action at the appellate stage.

It is well understood that procedure is the handmaid of justice and not its mistress. The scheme of Order 1 and Order 2 clearly shows that the prescriptions therein are in the realm of procedure and not in the realm of substantive law or rights. That the Code considers objections regarding the frame of suit or joinder of parties 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 misjoinder of parties or causes of action or non-joinder of parties unless a court finds that the non-joinder is of a necessary party. This is on the same principle as of Section 21 of the Code which shows that even an objection to territorial jurisdiction of the court in which the suit is instituted, could not be raised successfully for the first time in an appeal against the decree unless the Appellant is also able to show consequent failure of justice. The Suite Valuation Act similarly indicates that absence of pecuniary jurisdiction in the court that tried the cause without objection also stands on the same footing. The amendment to Section 24 of the Code in the confers power on the court even to transfer a suit filed in a court having no jurisdiction, to a court having jurisdiction to try it. In the context of these provisions with particular reference to the rules in Order 1 and Order 2 of the Code, it is clear that an objection of misjoinder of Plaintiffs or misjoinder of causes of action, is a procedural objection and it is not a bar to the entertaining of the suit or the trial and final disposal of the suit. The court has the liberty even to treat the plaint in such a case as relating to two suits and try and dispose them of on that basis.

In view of the declaration of law 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 on the part of the Trial Court in passing the impugned order, without correctly noticing the record and also the relevant provisions applicable to the matter.

In the result, writ petition stands allowed. Impugned order stands quashed. The suit as brought forward, is required to be tried and disposed of. The Trial Court is directed to consider and dispose of the pending I.As. within a period of 3 months from the date a copy of this order is placed on its record.

Since the suit has been instituted in the year 2006, the Trial Court is directed to expedite the trial and dispose of the suit as early as practicable and at any event within a period of one year from today.