Iswar Das Marwari vs Raghunandan Mahton

Das, J.—This appeal comes before us from the judgment of the District Judge of Santal Parganas. The substantial question which we have to determine in this appeal is whether the plaint filed in the suit out of which this appeal arises is bad for multifariousness.

Now the suit was brought upon two Rokkas. The plaintiffs allege, first, that all the defendants are members of a joint Mitakshara Hindu family, secondly, that on the 3rd of Jeth 1321. F., the defendants Nos. 1 and 5 for the necessary expenses of the family took a loan of Rs. 200 from the plaintiffs, and thirdly, that on the 21st of Sawan 1321, they, meaning by that word, as we think, the defendants, the members of the joint family, took another loan of Rs. 725 from the plaintiffs on another Rokka. On these allegations the plaintiffs asked for a decree against all the defendants.

The Court of first instance found that the money borrowed on the first Rokka was undoubtedly for the benefit of the whole of the joint family but it also found that the second Rokka was executed only by Raghunandan and that it was not shown that the money covered by that Rokka was for the benefit of the joint family. In that view, the Court of first instance, after having recorded the evidence in the case, dismissed the plaintiffs'' suit on the ground of multifariousness.

The plaintiffs appealed, and the lower Appellate Court did not consider whether the money borrowed on the second Rokka was for the benefit of the joint family or not but, without considering that point, it came to the conclusion that the plaintiffs'' suit was clearly bad for multifariousness and in that view dismissed the plaintiffs'' appeal.

In our opinion the judgment of the lower Appellate Court is wrong and cannot stand. The rule as to multifariousness will be found in Order II, rule 3. That rule provides that any plaintiffs having causes of action in which they are jointly interested against the same defendants, or the same defendants jointly, may unite such causes of action in the same suit. Now in this case the plaintiffs do allege in their plaint that they have a cause of action against the defendants jointly. Their case may be true or it may be false, but at any rate, so far as the allegations are concerned, they undoubtedly make a case that they have got a cause of action against all the defendants jointly. No doubt the Court of first instance after a complete investigation has come to the conclusion that the defendants other than Raghunandan are not liable on the second Rokka, but in our opinion that finding does not dispose of the question whether the plaint itself is bad for multifariousness. The question was debated in the case of Ramendra Nath Ray Vs. Brojendra Nath Dass and Others, . That was a case against various defendants, and Chitty, J., held that the suit was clearly bad for multifariousness and gave the plaintiff a fortnight''s time to elect how he would proceed with the suit and which of the defendants he would retain upon the record. The plaintiff declined to elect and preferred an appeal from the judgment of Chitty, J. That appeal was heard by Woodroffe and Mookerjee, JJ., and they came to the conclusion that the question of the multifariousness could only be decided on the allegation made in the plaint. They point out that the real test in determining whether a suit is bad for multifariousness or not, is to see whether there is a common question to be tried between the parties. Now if it is the plaintiff''s case that all the defendants are equally liable on the Rokka, then it seems to us that there undoubtedly is a common question to be tried between the parties. If he believed in his case and if he instituted two suits on the two Rokkas, the defendants would be the same in each suit because his case undoubtedly is that they are all liable on the Rokkas. Mookerjee, J., says at page 172 Page of 37 C.L.J.--Ed. that "As regards the second test, it is clear that if different suits were instituted, at least one common question of fact will arise, namely, the exact nature of the act imputed to Brojendra Nath Das which would have to be investigated presumably on the same evidence separately adduced in the several suits", and then he points out that one of the principal teats is to Bee whether, if different suits were brought by the plaintiff on the different causes of action, all the defendants would, on the allegations of the plaintiff, have to be joined as defendants in each suit. If they have to be joined as defendants in each suit on the allegations of the plaintiff, then clearly no question of misjoinder of causes of action can arise. He says that such a question can only arise on the allegations made in the plaint. In my opinion the decision of Woodroffe, J., and Mookerjee, J., is clearly right on principle and we respectfully follow that decision. If the test proposed by the learned Judges is applied here, clearly there is a common question to be tried between all the defendants and, if the plaintiffs were driven to bring two different suits on the two Rokkas then, on their own allegations, they would still have to implead as defendants the same persons in each suit. We are of opinion that the plaint filed in this case is not bad for multifariousness. We would, therefore, allow this appeal and remand the case to the lower Appellate Court with a direction that that Court should remand it to the Court of first instance for disposal according to law.

The appellants are entitled to the costs of this appeal and of the appeal to the lower Appellate Court. The costs incurred in the Court of first instance will abide the result and will be disposed of by that Court.

L.C. Adami, J.

I agree.