Muthappa Chetty and Others vs Muthu Palani Chetty and Others

Arnold White, C.J.—In this case, the plaint alleges that an agreement of partnership was entered into between the first Plaintiff and the third

Defendant, for the purpose of carrying on business at a place called Silangoor, that a further agreement was entered into that the first Defendant

should be sent as agent to Silangoor, and that he should conduct the business there. The plaint also alleges that the first Defendant failed to carry

out his instructions and failed to furnish accounts, and that an agreement was then entered into between the first Plaintiff and the third Defendant

that the third Defendant should proceed to Silangoor, should receive the accounts and the cash and assets of the firm and that the business of the

firm should be wound up in six months. The plaint also alleges that the third Defendant, acting in collusion with the first Defendant, wound up the

business, returned to India with the assets of the firm and failed to render accounts to the first Plaintiff or to hand over to him his share in the

partnership assets. The plaint alleges that the course of action is the Defendants not rendering proper accounts and not paying the amounts due to

the Plaintiffs after the arrival of the Defendants in India, and the Plaintiffs ask for a decree, (1) ordering the first to third Defendants to deliver over

all the accounts relating to R.M.M.A., a firm belonging to the Plaintiffs and third to fifth Defendants and to furnish proper vouchers, (2) ordering the

Defendants to pay to the Plaintiffs the capital, profit, etc., appertaining to the proportionate share of the Plaintiffs after examining the accounts upon

their being produced by the first to third Defendants and after striking accounts, and (3) ordering the Defendants to stand responsible for the

damages, which might have been caused to the firm through any negligent or wrongful act of the first to third Defendants.

It will thus be seen that the Plaintiffs sue the first Defendant for damages for his breach of contract as an agent of the firm. They sue the third

Defendant for dissolution of the partnership. The fact that they also make a claim for damages against the third Defendant does not prevent the

cause of action against the first Defendant from being distinct from that against the third. Mr. Sandara Ayyar argued that the case fell within Section

28 of the Code, and that inasmuch as the Plaintiff was not in a position to know whether the first Defendant had or had not handed over the

accounts and assets of the firm to the third Defendant, he was entitled to sue them jointly or in the alternative. He laid stress upon the fact that

whereas Section 26, which deals with the joinder of Plaintiffs, allows all persons to be joined as Plaintiffs in whom the right to the relief claimed is

alleged to exist, whether jointly, severally, or in the alternative in respect of the same cause of action, Section 28 which deals with the joinder of

Defendants allows all persons to be joined as Defendants against whom the right to relief is alleged to exist whether jointly, severally, or in the

alternative in respect of the same matter. He also relied upon the fact that the limitation to the application of Section 31 is, in terms, restricted to the

joinder of Plaintiffs in respect of distinct causes of action.

Section 28 corresponds to Rule 4 of Order XVI of the Rules of the Supreme Court except that the words ""in the same matter"" occur in the

section of the Code, whilst they do not occur in the English rule. The terms of the English rule would thus seem to be wider and more general than

the terms of the section, and it is in England settled law that two separate causes of action cannot be charged against two Defendants in one

section. See the judgment of the House of Lords in, Sadler v. Great Western Railway Co. [1896] I.A.C. and of the Court of Appeal in Burstall v.

Beyfus R. 26 Ch.D. 35. The case of Walters v. Green (sic) is clearly distinguishable. There the Plaintiff sued several Defendants in respect of a

joint tort. To my mind, the plaint in the present case can only be construed as alleging two distinct causes of action against the Defendants Nos. 1

and 3. Even if the Plaintiff is entitled to rely on the words ""in respect of the same matter"" in Section 28 as warranting a different construction being

placed upon the section from that which the English Courts have adopted with reference to the corresponding rule, it cannot be said that the right

to relief alleged to exist against the first Defendant is in respect of the same matter as the right to relief alleged to exist against the third Defendant.

Mr. Sundara Aiyar was bold enough to argue that the claim for damages was a claim for damages in the winding up, and that, reading the third

prayer of the plaint by the light of the allegations in paragraphs 8 and 12, the winding up was the ''same matter'' in respect of which the right to

relief was alleged to exist against the two Defendants. It seems to me the matters are essentially different. The matter in the one case is an alleged

breach of contract by an agent of the firm. In the other case, it is the right of one partner in the firm as against the other partner, to have accounts

taken, and the partnership wound up.

There is further objection to the plaint in the present suit. As against the first Defendant the cause of action is breach of contract by the agent of

the firm. This being so, the Plaintiff cannot sue in his own name. If the cause of action had been collusion by the agent with the other partner, it may

be that the Plaintiff could have brought the suit in his own name against the agent and joined the other partner as a Defendant. See Longman v.

Pole (sic); Lindley ''on Partnership,'' Sixth Edition, p. 289.

There is no doubt an allegation in paragraph 7 of the plaint, but it is clear from the allegations in paragraph 5 that the Plaintiff''s alleged cause of

action against the first Defendant accrued prior to, and was quite independent of, the alleged collusion.

As regards Section 578 of the Code, and the merits of the case not being affected by the error or irregularity it seems to me that the

observations made by the judges of this Court in the case of Namasivaya Gurakkal v. Kadirammal ILR 17 Mad. are applicable in the present

case.-""As the case of each Defendant must be decided on its own merits without any reference to the case of another, and as the cases of each will

be different (as even the plaint itself shows) we are of opinion that the misjoinder has affected and must affect the merits of each man''s case and

cannot therefore be passed over as a mere irregularity and condoned as such u/s 578 of the Code of Civil Procedure."" The case of Mohuna

Chandra Roy Choudry v. Atil Chandra Chakravarti Choudry ILR 24 Cal. 540 to which Mr. Sundara Ayyar referred is certainly not an authority

for his proposition that misjoinder of causes of action can be cured by Section 578. Without deciding the point the judges suggest that it cannot

(see page 544).

Mr. Sundara Ayyar further contended that the objection as to misjoinder of causes of action could not be properly taken in the issues or raised

at the hearing of the suit and he relied on the provisions of Sections 46 and 53. Section 46 applies when there are several causes of action against

the same Defendant or the same Defendants jointly (see Khadar Saheb v. Chotibibi (sic). Section 45 gives the right to construe several causes of

action against the same Defendant or the same Defendants jointly, whilst Section 46 empowers the Court to order that the suit be confined to such

of the causes of action as may be conveniently disposed of in one suit. For the reasons which I have stated it seems to me that the present case,

where separate causes of action are alleged against the two Defendants, does not come within the section.

Section 53 gives to the Court a discretionary power at, or at any time before, the settlement of issues to return a plaint for amendment if it joins

causes of action which ought not to be joined in the same suit. The Code apparently does not contemplate an application by a party that a plaint be

amended/and proceedings stayed till the amendment is made. No dout, in the present case, the proper course for the Court of First Instance to

have adopted would have been to have returned the plaint for amendment u/s 53. But the power given to the Court by Section 53 is only a

discretionary power, and if it is shown that the form of a suit is bad by reason that there has been a misjoinder of parties or of causes of action

which is not warranted by the provisions of the Code which deal with this branch of the law of procedure, I do not think it can be said that a party

is precluded from raising the objection and taking it at the hearing of the suit or on appeal. The authorities are the other way. See for instance

Mohuna Chandra Roy Choudry v. Atil Chandra Chakravarti Choudryi ILR 24 Cal. 540. I can find nothing in the provisions of the Code to

warrant Mr. Sundara Ayyar''s proposition that, when a Court of First Instance decides a question of misjoinder in favour of the Plaintiffs, there is

an end of the matter and the Defendant is precluded from raising the question in appeal. The present law of procedure may be defective, but this

can only be cured by amending the law.

Mr. Sundara Ayyar contended that, in any view, the District Judge was wrong in dismissing the suit and that he ought to have returned the plaint

for amendment. I think the Judge was right in dismissing the suit. See Kachar Bhojvaija v. Bai Rathore ILR 7 Bom. 289; Ram Narain But v.

Annoda Prosad Joshi ILR 14 Cal. 681. In Ramanuja v. Devanayaka ILR 8 Mad. 361 and Salima Bibi v. Sheikh Muhammad ILR 18 All. 131 the

suit was held to be bad on the ground of misjoinder of Plaintiffs, not, as in the present case, on the ground that distinct causes of action have been

joined against different Defendants in the same suit. I think this appeal should be dismissed with costs.

Boddam, J.

I agree.