Vasavan and Another vs Balakrishnan and Another

M.M. Pareed Pillay, J.—Revision petitioners are defendants 4 and 5 in O S. 448 of 1983 of the Munsiff''s Court, Parur. There are six defendants in the suit. They are in possession of six shop rooms in a line building. Each one has taken possession of the shop room from the landlord under separate agreements of tenancy. Plaintiff, who obtained landlord''s right filed O.S. 448 of 1983 against all the six defendants. Defendants 3, 4 and 5 raised the contention that a single suit against all the six defendants is not maintainable. The learned Munsiff held that there is no mis-joinder of causes of action and no mis-joinder of patties and hence the suit is maintainable. Learned counsel for the plaintiff submitted that plaintiff wants to demolish the entire building, that as the Kerala Buildings (Lease and Rent Control) Act 1965 is not applicable to the area where the petition scheduled building is situated, the only defence available to the defendants is with regard to the propriety or legality of the notice and as that is the common question to be decided the suit filed against all the defendants is maintainable. He contended that a single suit can be filed against different tenants, where common questions of law or fact would arise Contention of the plaintiff is that he wants to reconstruct the whole building and therefore there is no necessity to file separate suits against the different tenants. Counsel for the plaintiff contended that filing of single suit would be advantageous to all the parties concerned and it would not in any way affect the defence available to the defendants. It is pointed out that the plaintiff has sent notices to the defendants terminating the tenancy as provided u/s 106 of the Transfer of Property Act.

Counsel for the revision petitioners submitted that a single suit against different tenants is not maintainable. He relied on the decision reported in Kali Charan Vs. Ganesh Prasad and Another, of the above decision it is held as follows:

The suit against the two defendants was not based on the same act or transaction or series of acts or transaction. The tenancy of each one of them was separate in distinct portions of the house. The transaction between the plaintiff with each of the defendants was separate and distinct. Termination of the tenancy of one and his refusal to vacate the premises gave rise to a separate right to the plaintiff as against that tenant. Merely the other accommodation let out to the second defendant being in the same house and the second defendant also having refused to vacate after termination of his tenancy, would not make his refusal the same act or transaction or series of the same act or transaction as the act or transaction of the first defendant.

Counsel for the revision petitioners submitted that the averments in the plaint itself would show that each shop room is separately numbered by the local authority, that they are let out to different tenants under different agreements and that a tenant in one room has nothing to do with the tenancy arrangements in respect of the other tenants and therefore the single suit filed against all the defendants is not maintainable. As the averments in the plaint itself disclose that each room was let out separately to different tenants it cannot be said that the right of relief claimed by the plaintiff arises out of the same act or transaction or series of the same act or transactions. The tenancy of each one of them is separate in distinct portions of the shop building. Plaintiff''s predecessor had transactions separately which each of defendants. Merely because the suit notice was served on all the defendants and that they refused to vacate the premises it cannot be said that the refusal would give a right to the plaintiff to claim relief in respect of, or arising out of, the same act or transaction so that he could file a single suit against all of them.

Order T Rule 3 C. P. C. postulates that two conditions must be satisfied where two or more defendants can be joined in the same suit. The first condition is that plaintiff must allege a right to relief against them in respect of the same act or transaction or series of acts or transactions. The second condition is that if separate suits were brought against the defendants any common questions of law or fact would arise. The above two conditions must exist together. Existence of one of the conditions alone is not sufficient. In the present case each defendant is in possession of separate portions of the building under separate tenancy arrangements. Apart from the fact that the defendants are occupying portions of the same building there is nothing common among them to be agitated in the suit.

Counsel for the respondent relied on AIR 1942 Madras 334, (Rao Bahadur v. Ranganathan Chettiar) and submitted that where substantial common questions of fact are involved in different claims against different parties their joinder in one suit will not be regarded as multifarious. The above decision also says that both the conditions referred to in Order I Rule 3 must be fulfilled in order to justify the joinder provided for therein. It has to be noted that in AIR 1942 Madras 334 case, plaintiff had no means to ascertain which defendant or defendants were in possession of the lands respectively, as they have been dividing the land among them and changing the allotment from time to time according to their convenience. Under the above situation the plaintiff in that suit was unable to bring separate suit for recovery of different portions of the land from the defendants. The facts of the case in AIR 1942 Madras 334 has no application to the facts in the case in hand. As already pointed out the averments in the plaint itself would show that each shop room is a separate building and that they were let out to different tenants under different agreements. Counsel for the respondents relied on Gangadhar Sahu and Others Vs. Akhapati Ram Murty Patro and Others, , in support of his contention that as common questions of law or facts are involved single suit can be filed against all the defendants. The above decision was rendered in rent control proceedings. In that case the rent control petition filed against the defendants involved common ground for eviction. It also involved common point of contest. In Gangadhar Sahu and Others Vs. Akhapati Ram Murty Patro and Others, it was held that as it involved common questions of law or facts all the defendants can be proceeded against in one proceeding as it comes within the ambit of second alternative situation envisaged in Order I Rule 3 C. P. C. I cannot agree with the above decision as it overlooked the essential factor that both the conditions in Order I Rule 3 C. P. C must exist for its application. Another ruling cited by the counsel for the respondents is AIR 1954 Tri 21, (Gopal Krishna Deb and others v. Jagadindra Krishore Dev Barma and others). The above ruling is also not helpful to the respondents as the averments to the plaint itself discloses separate enjoyment of the premises under separate tenancies by the defendants. Counsel for the respondents also relied on 1983 KLT 172. Devassia v. St Mary''s Forane Church) in support of his contention. That decision has been rendered under the Rent Control Act. In the above case the landlord filed the petition for bona fide reconstruction of the building against different tenants. In the above decision it has been held that the statutory tribunal may will be within its rights if it allows the junction of all such tenants in one single petition and that would be well within the inherent jurisdiction which is there with tribunals of limited jurisdiction. The above ruling does not have any application to the facts of the case in hand. Plaintiff can file a single suit against different tenants only if the two conditions envisaged in Order I Rule 3 exist. If not, a single suit cannot be filed against several tenants on the ground that common questions of law or facts arise in the suit. If both the conditions do not exist the suit filed against the different tenants will not be maintainable. As each shop room is separately occupied by different tenants and as they are let out to them under different tenancy arrangements it cannot be said that a single suit can be filed against all of them. The order of the Munsiff is hereby set aside and it is held that the suit filed against different defendants is not maintainable. The plaintiff may choose one of the defendants against whom he wants to continue the suit. As against others it is open to him to file fresh suits.

The Civil Revision petition is allowed. No order as to costs.