Ramjas Agarwala and another vs Linton Molesworth and Co., and others

Kulwant Sahay, J.—This is an application by the plaintiffs against an order dated the 9th March 1922 passed by the Subordinate Judge at Dhanbad, whereby he has held that the suit was bad for misjoinder of parties and causes of action. The material allegations of the plaintiffs as set out in the plaint are shortly these:-

Defendants 3 to 20 entered into a partnership and acquired 66 bighas 11 cottas of land and started a colliery therein In August 1918 they negotiated for sale of the land and the colliery with the plaintiff No. 1 and in June 1919 the terms of the alleged sale were settled between plaintiff No. 1 and the defendants Nos. 3 to 20. It was agreed that the defendants 3 to 20 would attend the office of the plaintiff''s solicitor the next day, to execute a formal agreement and receive a sum of Rs. 5,000 as earnest money, but that the defendants 3 to 20 failed to do so, that thereafter the defendants 3 to 20 carried on negotiations for sale with others, and ultimately they negotiated with the defendants 1 and 2, and on the plaintiff No. 1''s coming to know of this fact, he served a notice through his solicitor upon the defendants 1&2 and 3 to 20 informing them of the agreement with him and calling upon the latter to carry out the agreement. The defendants 3 to 9, however, sold 13 annas odd share in the land and the colliery to the defendants 1 and 2 in November 1919, and the defendants 10 to 20 sold the remaining share to the plaintiff No 2 in September 1919. Thereupon, in December 1919, the present suit was brought by both the plaintiffs and the reliefs asked for in the plaint are as follows:-

(1). That a decree be passed for specific performance of the agreement with the plaintiff No. 1; (2) that a declaration be made that the defendants 1 and 2 cannot retain possession of the property in suit; (3) for possession of the entire property; (4) for damages and mesne-profits; (5) for dissolution of partnership and appointment of a receiver pending the dissolution; (6) that if a decree for specific performance be not passed then a decree for partition may be passed; and (7) for recovery of profits after taking accounts.

Issues were settled on the 8th of March 1922, and issue No. 2 was to the effect "Is the suit bad for misjoinder of parties and causes of action?". The learned Subordinate Judge tried this issue, and by his order dated the 9th of March 1922 held that the suit was bad for misjoinder of parties and he gave an opportunity to the plaintiffs to elect as to which of them should proceed with the suit and for which relief and to amend the plaint accordingly, and he gave them time till the 27th of March within which the plaintiff should make the election and make the necessary amendment, and it was ordered that in the event of their failure to do so, the suit should stand dismissed. The plaintiffs apply for revision of this order.

In my opinion the order of the learned Subordinate Judge is perfectly right and cannot be interfered with. It will appear that upon the allegations made in the plaint the two plaintiffs cannot properly join in the present action. The claim of the plaintiff No. 1 is based upon an agreement alleged to have been entered into by and between the defendants 3 to 20 and himself for sale of the land and the colliery. The claim of the plaintiff No. 2 is based upon his purchase of September 1919 from the defendants 10 to 20. The plaintiff No. 1 has absolutely nothing to do with the claim of the plaintiff No 2 so far as possession and partition of the plaintiff No. 2''s share is concerned. Similarly the plaintiff No 2 has no concern with the relief claimed by the plaintiff No. 1. If the two plaintiffs had brought the suits separately there would not be any question of law or fact which would be common to the two suits. The rights to the reliefs claimed by the two plaintiffs did not arise out of the same act or transaction or series of acts or transactions, and the joinder of the two plaintiffs and the causes of action alleged by them is not authorized by any law or principle.

The learned Vakil for the petitioner relies on the cases of Fakirapa v. Rudrapa (1892) 16 Bom. 119 and Pinapati Mrutyunjaya v. pinapati Janakamma (1903) 26 Mad. 647 (F.B.) but these two cases have absolutely nothing to do with the facts of the present case. In the first case the suit was brought by the widow and the alleged adopted son of one Irapa for a declaration that a certain property attached in execution of a decree against one Rudrapa belonged to them and not to the judgment-debtor, and the suit was brought to set aside the attachment. The Court of first instance decreed the plaintiff''s suit, but on appeal by the defendant the lower appellate Court was of opinion that the interests of the two plaintiffs were antagonistic and it held that the suit was bad for misjoinder of parties. On second appeal to the High Court it was held that there was no misjoinder; the two plaintiffs were both jointly interested in disproving the defendant''s title and their claims were in no way antagonistic and that they could therefore sue jointly. In the second case the widow and the adopted son of a deceased person joined together as plaintiffs and brought a suit to recover a certain sum of money payable by the defendants to the deceased. The money was undoubtedly due to one or the other of them and they were agreed that either should take it. The widow joined as plaintiff because the right of the adopted son was questioned. It was held that the suit was not bad for misjoinder of plaintiffs. It is argued by the learned Vakil for the petitioner that in the present case the plaintiff No. 2 agrees to give up his interest in favour of the plaintiff No. 1 if he succeeds in establishing his agreement, and therefore the interest of the two plaintiffs are not antagonistic; but that would not give them a right to join two totally dissimilar claims in the same action. In my opinion the right to relief claimed by the two plaintiffs is not in respect of or arising out of the same act or transaction, nor is there any common question of law or fact arising out of the separate claims of the two plaintiffs and therefore the joinder of the two plaintiffs and their causes of action in the present case is not authorized by the provisions of Order I rule 1 or any other provision of the Code of Civil Procedure.

Moreover, the present application is made against an interlocutory order passed by the Subordinate Judge and it is settled law that the High Court will not interfere in revision with such orders unless some irreparable injury is caused to any party thereby. Here we are informed that the plaintiff No. 2 has paid no court-fee upon the reliefs claimed by him and there is no irreparable injury caused to any party by the order passed by the learned Subordinate Judge.

The application is therefore dismissed with costs, two gold mohurs. The plaintiffs may make the election and the necessary amendment of the plaint within two weeks of the arrival of the record in the Court below, failing which the suit shall stand dismissed.

Mullick, J.

In my opinion the frame of the suit is bad both under Order I rule 3 and Order II rule 3 of the Civil Procedure Code. I am also of opinion that this Court can not interfere in this case in exercise of its powers of revision and that no case has been made out for the exercise of our powers of superintendence.