Gajbadan Tradewing Private Limited vs Edward And Others

Sabyasachi Bhattacharyya, J

The present challenge has been preferred against an order whereby the application filed by the defendant/petitioner, captioned to be under Order VII Rule 11 of the Code of Civil Procedure (Code), was dismissed by the learned trial Judge, primarily by relying on the judgment of Prem Lala Nahata and another Vs. Chandi Prasad Sikaria reported at (2007) 2 Supreme Court Cases 551.

Learned senior counsel appearing for the petitioner, in his usual fairness, submits that although the rigours of Order VII Rule 11 of the Code could not be invoked at this stage, on the basis of the plaint itself, the learned Trial Court ought to have exercised its power under Order II Rule 6 of the Code, as recognized in Prem Lala Nahata (supra), and directed separate suits to be filed in respect of the particular portions of the subject property allegedly belonging to each of the plaintiffs.

Learned senior counsel takes the court through the plaint pleadings and points out that in paragraph no. 1 of the plaint itself, the suit property has been described in separate schedules, being schedules A to D, which have been described to be owned by the plaintiffs "respectively", thereby indicating their separate ownerships in each of the suit schedule properties as per the plaint case.

Learned senior counsel next takes the court through the reliefs sought in the suit.

Reliefs B to E all pertain to compensations allegedly payable by the defendants to each of the plaintiffs separately.

Also, it is submitted that the suit property has been described in different schedules, indicating that schedule A to D properties belong exclusively and independently to each of the plaintiff nos. 1 to 4.

It is further argued that insofar as the plaintiff no. 5 is concerned, even as per the plaint pleadings, the said plaintiff does not have a right/title in praesenti in the suit property and at best may have a right in terms of an agreement allegedly entered into by the said plaintiff with the plaintiff nos. 1 to 4.

Thus, the suit, it is argued, is bad for misjoinder of parties as well as causes of action.

Learned senior counsel places reliance in particular on the proposition laid down in paragraph 19 of Prem Lala Nahata (supra) in support of his contentions.

Learned counsel appearing for the plaintiffs/opposite parties argues that the plaintiffs stake a joint claim in the entire suit property, although the same has been segregated in different schedules in the plaint, by way of inheritance through their father.

It is iterated by learned counsel for the opposite parties that the source of title of the plaintiffs as claimed in the suit is common, as such lending identity to the cause of action.

Moreover, the cause of action of the suit pertains to the same act, thereby lending homogeneity to the character of the cause of action, thus making the suit maintainable as a whole.

However, upon hearing learned counsel for the parties, the Court fails to find any whisper of pleadings in the entirety of the plaint as to the source of the title of the plaintiff nos. 1 to 4 being common.

The narrative of the plaint case commences from the alleged ownership of plaintiff nos. 1 to 4 and there is no mention about such title having devolved jointly by way of inheritance from their ancestor.

In paragraph no. 1 of the plaint, as rightly argued by the petitioners, the separate schedule properties as described in schedules A to D respectively have been described to be owned by each of the plaintiff nos. 1 to 4 exclusively.

The use of the term "respectively" qualifying such alleged ownership clearly indicates a segregation among the ownership vis-à-vis each of the suit schedule properties among the plaintiffs.

Such proposition is further bolstered by the nature of the reliefs claimed in the suit.

Insofar as the reliefs B to E of the plaint are concerned, compensation has been claimed to be payable by the defendants to each of the plaintiff nos. 1 to 4 separately and distinctly.

What is more „incriminating" against the plaintiffs/opposite parties is that each of the schedules A to D claim the components of property described in such schedules to be owned by one of the plaintiff nos. 1 to 4 or the other, in exclusion of the others.

Thus, from a plain and meaningful reading of the plaint itself, it is palpable that there is misjoinder of causes of action in the suit.

Insofar as the joinder of plaintiff no. 5 is concerned, the court also finds substance in the contention of the petitioners to the extent that the said plaintiff, even as per the plaint case, does not have any title in praesenti in the suit property and at best may have an actionable claim against the other plaintiffs on the strength of the purported agreement executed by the latter in favour of plaintiff no. 5.

The other question which crops up incidentally is whether within the limited confines of the present challenge under Article 227 of the Constitution of India, arising out of an application under Order VII Rule 11 of the Code, the revisional court can traverse beyond the said provision and direct the plaintiffs to file separate suits in respect of their individual properties.

It is trite law that the caption of an application is immaterial.

What is to be looked into is the substance of the same. Another important factor which has to be taken into account is that both under Order VII Rule 11 and under Order II Rule 6 of the Code, the court can suo moto exercise its powers, respectively by rejecting the plaint or directing separate suits to be filed.

An application filed by the defendants can be looked into from two perspectives - first, their personal cause of action and secondly, an attempt to bring to the notice of the court the irregularity in the frame of the suit, which would, in turn, prompt the court to invoke the provisions of either Order VII Rule 11 or Order II Rule 6 and exercise its powers accordingly, if so deemed necessary.

By way of the application captioned under Order VII Rule 11 of the Code, what the defendant/petitioner did was to point out to the court the pith and substance of the irregularity/illegality in the frame of the suit which ought to have prompted the learned trial Judge to invoke its powers, if not under Order VII Rule 11 of the Code, under Order II Rule 6 of the Code to nip the illegality in the bud instead of relegating the parties to an unnecessary and futile trial, ultimately culminating in the same conclusion.

In such view of the matter, for the ends of justice and in exercise of its powers under Article 227 of the Constitution, this Court is of the opinion that it has sufficient superintending power to invoke the provisions of Order II Rule 6 of the Code, which the learned trial Judge ought to have done in the circumstances of the case, and direct the plaintiffs to file separate suits.

Accordingly, CO No. 65 of 2026 is allowed, thereby setting aside the impugned order, bearing order no. 13 dated March 16, 2026 passed by the learned Civil Judge (Senior Division) at Kalimpong, in Title Suit No. 5 of 2025, thereby dismissing OC Suit No. 5 of 2025 as not maintainable in its present form, with liberty to each of the plaintiffs/opposite parties to institute separate suits to espouse their respective causes of action with regard to the suit plots owned exclusively by them as per their contentions in OC Suit No. 5 of 2025.

It is made clear that the time spent by the plaintiffs/opposite parties in pursuing the suit and in the present revisional application shall be regarded as bona fide time lost by the plaintiffs/opposite parties, thus attracting the provision of Section 14 of the Limitation Act, 1963 and the time spent till now from the date of filing of the suit shall be considered to be excluded from the limitation period for filing such separate suits, if filed, by each of the plaintiffs.

That apart, it is further clarified that the merits of the contentions of either of the parties in the suit have not been gone into by this Court and it will be open to both sides to espouse their respective contentions before the Trial Court, if and when such suits are filed by the plaintiffs/opposite parties.

The plaintiffs/opposite would be entitled to withdraw the court-fees paid in connection with OC Suit No. 5 of 2025.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.