Sayan Singh vs Harnam Singh and others

P.C. Pandit, J.—Sayan Singh Petitioner filed a usual declaratory suit challenging nine alienations made by his father, Harnam Singh, on the grounds that the lands in question were ancestral and the said alienations had been effected without consideration and legal necessity. All the alienees were made Defendants in the suit. On an objection having been raised by them a preliminary issue was framed as to "whether the suit was bad for misjoinder of parties and causes of action and inconvenience for trial."

The trial Judge came to the conclusion that although under the provisions of Order 1, Rule 3, Civil Procedure Code, the Plaintiff was entitled to file one suit challenging the different alienations, but it observed "this Court cannot lose sight of the fact that trying the nine different alienations in one suit shall result in unnecessary jumbling of facts and it shall become embarrassing and unmanageable for the parties and Court to sift facts from a plethora of evidence. In this connection, provisions of order 1, Rule 2, and Order 2, Rule 6, are relevant, which are intended to alleviate such contingencies." He decided that only those cases in which the same land had been sold to different parties could be joined together. The other alienation should be tried separately. The last sentence of his order was "In the interest of convenient trial and disposal. I order accordingly." It might be mentioned that before him the counsel for the Plaintiff had argued that out of nine alienations eight were such in which the share of same land was sold to different parties.

Against the order of the learned Subordinate Judge, the Plaintiff filed a revision petition in this Court praying that the suit as framed should have been tried.

The revision petition came up for hearing before S. B. Capoor, J. Nobody appeared on behalf of the Defendant Respondents before the learned Judge. By his ex-parte order, dated 19th of January 1968, he accepted the revision petition, holding that under the provisions of order 1, Rule 3, CPC Code, there was no legal bar to the joinder of all the alienations in the suit. In the present case, according to the learned Judge, there was no misjoinder of causes of action when Plaintiff as reversioner sued for a declaration in one suit in regard to several alienations made by his father. The learned Judge observed "It also seems that unnecessary burden will be thrown on the Plaintiff if eight out of nine alienations are tried together and the other alienation is tried separately. It is obvious that common questions of fact and law will arise, viz., the ancestral nature of the land and whether the father of Sayan Singh had embarked upon a coarse of wasteful extravagance which would make the alienations liable to be challenged by his son."

Subsequently, the Defendants filed two applications, one u/s 151 of the CPC (Civil Miscellaneous No. 1334 of 1968), praying that the ex parte order might be set aside and the revision be heard on merits, because service was not properly effected on them and it was, therefore, that nobody appeared before the learned Judge on the date of hearing; and the other u/s 5 of the Limitation Act, read with Section 151 of the CPC (Civil Miscellaneous No. 1230 of 1968), with a prayer that the delay in moving this Court for setting aside the ex-parte order be condoned. Notice was issued in both the applications by S. B. Capoor, J., himself. Thereafter, the learned Judge retired and after the service was complete the said applications were placed before me for disposal on 16th of January 1970. On that day, the counsel opposing the applications conceded that they might be granted and the main case restored to its original number and it be set down for hearing on 19th January 1970. The revision petition was, accordingly, argued today on merits by the counsel for the parties.

Counsel for the Defendant-Respondents conceded that under the provisions of Order 1, Rule 3, CPC Code, the present suit could not be held to be bad for misjoinder of parties and causes of action. His main argument, however, was that the trial Judge had acted under Order 2, Rule 6, CPC Code, which provided that where it appeared to the Court that any causes of action joined in one suit could not be conveniently tried or disposed of together, the Court might order separate trials or make such other older as might be expedient. The Court had come to the conclusion, as already mentioned above, that the trial of nine different alienations in one suit would result in unnecessary jumbling of facts and it would become embarrassing and unmanageable for the parties and the Court to sift facts from a plethora of evidence. It was because of that conclusion that the learned trial Judge held that all the nine alienations could not be conveniently tried or disposed of together. The learned Judge was not of the view that the suit was bad for misjoinder of parties and causes of action. Since the Defendants were not represented before S. B. Capoor J., this aspect of the matter was not emphasised before him. According to the learned Judge, the trial Court had held that since eight alienations out of nine were such in which share of the same land was sold to different parties, those could be tried together and the other alienation could be tried separately. This observation of the learned Judge, according to the counsel for the Defendants, was not correct and he submitted that the trial Court had not given that decision. It is true that this was the argument of the counsel for the Plaintiff before the learned trial Judge, but his decision was that only those cases in which the same land had been sold to different parties could be joined together and the other alienations should be tried separately. It might be mentioned that in the certified copy of the judgment of the trial Court the word used in the last but one sentence was ''alienation'' and not ''alienations''. According to the learned Counsel for the Defendants, that was merely a clerical error.

Learned Counsel for the Petitioner could not point out from the record that there in fact are eight alienations in which the share of same land was sold to different parries. That being so, it could not be said that the trial Judge had concluded that eight alienations could be tried together and only one alienation should be tried separately. Under Order 2, Rule 6, CPC Code, "it was within the discretion of the trial Court to order separate trials, if it came to the conclusion that any causes of action joined in one suit could not be conveniently tried or disposed of together." It has not been established in the instant case that the said discrection had been exercised in any arbitrary or perverse manner which called for interference by this Court. I would, however, mention that it would have been better if the trial Judge had specifically mentioned which alienations in the instant case could be tried together. Before further proceedings are taken, this should now be done. With these observations, this petition is dismissed, but, with no order as to costs.

Before parting with the case, it might be mentioned that the counsel for the Petitioner submitted that the trial Court should also be asked to give reasons for coming to the conclusion that the causes of action joined in the instant suit could not be conveniently tried or disposed of together. In my opinion there is no merit in this submission, because in the earlier portion of the judgment under revision, as already reproduced above, the trial Court had given reasons when it observed that the trying of nine different alienations in one suit would result in unnecessary jumbling of facts and it would become embarrassing and unmanageable for the parties and the Court to sift facts from the plethora of evidence.