Sham Sunder vs Mehta Raj Parkash

The argument raised by the present petitioners in the court below that the suit as framed is bad for the reason that there is misjoinder of cause of

action and misjoinder of parties stands negatived. Now present revision petition has been preferred. Facts in brief are as underPlaintiffMehta Raj

Parkash filed a suit for possession. He was exercising his right of prior purchase in respect of the suit house, the details whereof were given in the

plaint. It was pleaded that this house was constructed by the father of the plaintiff prior to 1947. It was constructed in such a way that on the

eastern portion the plaintiff was residing and in the other portion the brother of the plaintiff was having his residence. It was further stated that on

the death of the father of the plaintiff, the house devolved upon the petitioner and his brother Harbans Lal. Harbans Lal died leaving behind two

sons namely Mehta Prem Kumar, defendant No. 1 and Pushkar Raj. It was further pleaded that Pushkar Raj had also died. He was survived by

Ajay Kapoordefendant No. 2. Thus the share which fell to the brother of the plaintiff namely Harbans Lal and which devolved upon Mehta Prem

Kumar and Ajay Kapoor was sold to defendants 3 and 4. This was done by two different sale deeds. It is with regard to these two saledeeds,

right of prior purchase is sought to be enforced. It is stated that as the property once belonged to Harbans Lal and which has been sold by his legal

heirs, therefore, one suit is maintainable. In this situation if two sale deeds made in favour of different purchaser are being assailed then no fault can

be found with the procedure adopted. It is, accordingly, submitted that the suit was properly filed. The issue was considered by the trial court. The

trial court has come to the conclusion that the suit as framed does not suffer from the procedural defect pointed out by the present petitioners.

Taking this view of the matter, the preliminary issue as to whether the suit in the present form is not maintainable as there are two different

saledeeds was decided against the petitioner. They have preferred this revision petition.

Order 2 Rules of the code of civil procedure enables a plaintiff to unite in the same suit, several causes of action against the same defendant or

the same defendants jointly. The learned counsel for the petitioners placing reliance on decisions reported as 'Dwarke Prasad Vs Kishan Lal and

others, AIR 1986 Allahabad 174; and B.S. Bhagavan Singh and others Vs Sharda Bai, AIR 1990 Karnataka 222, submits that the course

adopted by the plaintiff in filing a common suit challenging two sale deeds when sale is made to different persons is not sustainable.

After having heard learned counsel for the parties I am of the opinion that there is no merit in this revision petition. Order 2 Rule 3 CPC permits

a plaintiff to unite in the same suit several causes of action against same defendant or same defendants jointly. In the present case the property once

upon a time belonging to Harbans Lal. On his death it devolved upon his legal heirs. Right of prior purchase is being enforced visavis this property.

Therefore to say that provisions of order 2 Rule 3 would not be attracted is an argument which cannot be accepted. Even otherwise if a suit falls

outside the ambit of order 2 Rule 3 it may still be tried and disposed of on merit by taking support of the provisions contained in order 1 Rule 3. If

several causes of action so connected with the same act or transaction has to give rise to a common question of law and fact at the trial then such a

suit can be said to be properly framed. In this view of mine, I am supported by the view expressed by the Calcutta High Court in the case reported

as 'Ramendra Nath Ray Versus Brojendra Nath Dass and others, AIR 1918 Calcutta 858 and 'Manitirao Govindrao Versus Nathmal Jodhraj

AIR 1947 Nagpur 229. The two decisions on which reliance has been placed by the petitioner are not applicable. In Dwarke Prasad's case

(Supra) a suit was filed for partition and eviction of tenants. It was held that such a suit would not be maintainable. At the same time Allahabad

High Court observed that 'in order that the ends of justice do not suffer and the action set up is not defeated due to a technical difficulty arising. It

was both just and incumbent upon the court below to have accorded on its own motion and in any case on the prayer made for the plaintiff, the

opportunity to make an election in terms of order 2 Rule 6. If several causes of action so connected with the same act or transaction has to give

rise to a common question of law and fact at the trial then such a suit can be said to be properly framed. To this extent this decision cited by the

petitioner helps the respondents.

Independently of the above, in terms of Order 2 Rule 6, if it appears to the court that the joinder of causes of action in one suit may embarrasses

or delay the trial or is otherwise inconvenient, the court can always order separate trial or can make such order as may be expendient in the equal

interest of justice. In the present case right of prior purchase is sought qua a house. As such the view expressed by the court below cannot be

faulted. In any case if any of the parties still raise an objection the court below shall follow the course as envisaged by Order 2 Rule 6 of the code

of civil procedure.

Disposed of as such.