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MANU/SC/7070/2007

Equivalent Citation: AIR2007SC1247, 2007 (67) ALR 166, 2007 1 AWC772SC,


2007(5)BomCR220,
(2007)3CALLT45(SC),
2007(3)CTC101,
JT2007(3)SC69,
2007(1)KLT910(SC),
2007-4-LW41,
(2007)2MLJ1177(SC),
2007(2)SCALE496,
(2007)2SCC551, [2007]2SCR261, 2007(3)WLN29
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 446 of 2007 (Arising out of SLP (C) No. 23272 of 2005)
Decided On: 02.02.2007
Prem Lala Nahata and Anr.
Vs.
Chandi Prasad Sikaria
Hon'ble

Judges/Coram:

P.K. Balasubramanyan and S.B. Sinha, JJ.


Counsels:
For Appellant/Petitioner/Plaintiff: Bhasker P. Gupta and Jaideep Gupta, Sr. Advs., O.P.
Jhunjhunwala, Shruti Chaudhury and Sanjeev Kumar, Advs. for Khaitan & Co
For Respondents/Defendant: Rana Mukherjee, Siddharth Gautam and Goodwill Indeevar,
Advs.
Subject: Civil
Catch Words
Mentioned IN
Acts/Rules/Orders:
Code of Civil Procedure, 1976 (CPC) - Section 21, Code of Civil Procedure, 1976 (CPC) Section 24, Code of Civil Procedure, 1976 (CPC) - Section 80, Code of Civil Procedure,
1976 (CPC) - Section 80(1), Code of Civil Procedure, 1976 (CPC) - Section 80(2), Code of
Civil Procedure, 1976 (CPC) - Section 86, Code of Civil Procedure, 1976 (CPC) - Section
99, Code of Civil Procedure, 1976 (CPC) - Order 1, Rule 1, Code of Civil Procedure, 1976
(CPC) - Order 1, Rule 2, Code of Civil Procedure, 1976 (CPC) - Order 1, Rule 3, Code of
Civil Procedure, 1976 (CPC) - Order 1, Rule 3A, Code of Civil Procedure, 1976 (CPC) Order 1, Rule 4, Code of Civil Procedure, 1976 (CPC) - Order 1, Rule 5, Code of Civil
Procedure, 1976 (CPC) - Order 1, Rule 6, Code of Civil Procedure, 1976 (CPC) - Order 1,
Rule 9, Code of Civil Procedure, 1976 (CPC) - Order 1, Rule 10, Code of Civil Procedure,
1976 (CPC) - Order 2, Rule 3, Code of Civil Procedure, 1976 (CPC) - Order 2, Rule
6, Code of Civil Procedure, 1976 (CPC) - Order 7, Rule 11, Code of Civil Procedure, 1976
(CPC) - Order 16, Rule 1; Suits Valuation Act
Cases
Referred:
Liverpool & London S.P. & I Association Ltd. v. M.E. Sea Success I
and Anr. MANU/SC/0951/2003 ; Thomas v. Moore (1918) 1 K.B. 555; Mahant Ramdhan
Puri v. Chaudhary Lachmi Narain MANU/PR/0047/1936 ; Margo Trading and Six Ors. v.
Om Credit Private Limited; Harendra Nath v. Purna Chandra MANU/WB/0073/1927
;Payne v. British Time, Recorder Co. Ltd. (1921) 2 K.B. 1; Assembly of God Church v.

Ivan Kapper and Anr. MANU/WB/0271/2004 ; Mayar (H.K.) Ltd. and Ors. v. Owners &
Parties, Vessel M.V. Fortune Express and Ors. MANU/SC/8083/2006
Cases
Overruled
/
Reversed:
Margo Trading and Six Ors. v. Om Credit Private Limited; Chandi Prasad Sikaria Vs.
Premlata Nahata and Anr. (MANU/WB/0294/2005)
Authorities
Referred:
Black's Law Dictionary; Halsbury's Laws of England, Volume 37, paragraph 69, and 73
Prior
History
/
High
Court
Status:
From the final Judgment and Order dated 19.5.2005 of the High Court of Calcutta in G.A.
No. 3029/2004, A.P.O.T. No. 447/2004, G.A. No. 4458/2004 and C.S. No.
29/2003 (MANU/WB/0294/2005))
Disposition:
Appeal allowed
Citing
Reference:
Discussed
1
Dissented
4
Distinguished
1
Mentioned
1
Ratio
Decidendi:
Misjoinder of parties or of cause of action Effect Even assuming defect of
misjoinder of causes of action it is not case where convenience of trial warrants
separating of causes of action by trying them separately
Case
Note:
(1) Code of Civil Procedure, 1908 - Section 99, Order I, Rules 1, 3 and 9, Order
II, Rules 3 and 6 and Order VII, Rule 11 (d)--Rejection of plaint--Suit barred by
any law--Misjoinder of parties or misjoinder of causes of action--Order I, Rules
1, 3 and 9 and Order II, Rules 3 and 6 clearly suggest--That it is open to court to
proceed with suit--Notwithstanding defect of misjoinder of parties or misjoinder
of causes of action--And if suit results in decision--Same cannot be set aside in
appeal merely on that ground in view of Section 99--Unless conditions of
Section 99 satisfied--Hence, by no stretch of imagination can suit be bad for
misjoinder of parties or misjoinder of causes of action be held to be barred by
any law within meaning of Order VII, Rule 11 (d)--Course when procedural
objection raised.
Rule 9 of Order I, Rules 1 and 3 of Order I, and Rules 3 and 6 of Order II, C.P.C.
(Code) clearly suggest that it is open to the Court to proceed with the suit
notwithstanding the defect of misjoinder of parties or misjoinder of causes of
action and if the suit results in a decision, the same could not be set aside in

appeal, merely on that ground, in view of Section 99 of the Code, unless the
conditions of Section 99 are satisfied. Therefore, by no stretch of imagination,
can a suit be bad for misjoinder of parties or misjoinder of causes of action be
held to be barred by any law within the meaning of Order VII, Rule 11 (d) of the
Code.
Thus, when one considers Order VII, Rule 11 of the Code with particular
reference to Clause (d), it is difficult to say that a suit which is bad for
misjoinder of parties or misjoinder of causes of action, is a suit barred by any
law. A procedural objection to the impleading of parties or to the joinder of
causes of action or the frame of the suit, could be successfully urged only as a
procedural objection which may enable the Court either to permit the
continuance of the suit as it is or to direct the plaintiff or plaintiffs to elect to
proceed with a part of the suit or even to try the causes of action joined in the
suit as separate suits.
(2) Code of Civil Procedure, 1908--Order I, Rule 1, Order II, Rule 3 and Order
VII, Rule 11 (d)--Rejection of plaint--Plaintiffs jointly filing suit against
defendant-respondent -- Plaintiff-appellants contended that their claim
emanated from dealing of husband of plaintiff No. 1 and father of plaintiff No. 2
with defendant--And that there was no misjoinder of causes of action as alleged
by defendant--And that plaint not liable to be rejected under Order VII, Rule 11
(d)--Single Judge of High Court hearing suit on original side dismissed
application of defendant for rejection of paint--But Division Bench on appeal
upturned order of single Judge--Whether Division Bench justified in doing so?-Held, no--Two suits filed by respondent defendant against appellants in another
court--Already withdrawn for joint trial with suit filed by appellants--In present
suit appellants claiming payments also forming basis of claim of respondent
against respective appellants in his two suits--Even assuming that there was
defect of misjoinder of causes of action in plaint filed by appellants--It is not a
case where convenience of trial warrants separating of causes of action by
trying them separately--Joint trial of three suits--Would be proper course in
circumstances of case.
JUDGMENT
P.K. Balasubramanyan, J.
Leave granted.

1. The appellants are the plaintiffs in C.S. No. 29 of 2003 filed on the original
side of the Calcutta High Court. They are mother and daughter. They together
sued the respondent, the defendant, for recovery of sums allegedly due to them
from him. Appellant No. 1 sought recovery of a sum of Rs. 10,93,863/- with
interest thereon and appellant No. 2 sought recovery of a sum of Rs. 10,90,849/with interest. Their claims were based on transactions they allegedly had with
the respondent herein, through Mahendra Kumar Nahata, the husband of
appellant No. 1 and father of appellant No. 2. In essence, the claim of appellant
No. 1 was that a sum of Rs. 5 lakhs had been lent by her to the respondent and
the same had not been repaid and the same was liable to be repaid with interest
and damages. The case of appellant No. 2 was also that she had lent a sum of Rs.
5 lakhs to the respondent and the same along with interest and damages was due
to her. It was their case that the transactions had been entered into through

Mahendra Kumar Nahata, and that through Nahata, they have had prior
dealings with the respondent. They had averred thus in paragraph 4 of the plaint:
The said Nahata in his usual course of business was known to the Defendant for
many years and sometime in April, 2000 while acting on behalf of the Plaintiffs,
the said Nahata at the request of Defendant had duly arranged for two loans of Rs.
5,00,000/- to be lent and advanced by each of the Plaintiffs to the Defendant and
this Suit has been brought to recover the said loans with interest and special
damages arising from the Defendant's failure to repay the said loans within the
stipulated date therefore as is stated more-fully hereinafter.
The respondent not having repaid the money and having repudiated their claim
by filing suits against them, the suit for recovery of the amounts was being filed.
2. The respondent had earlier filed two suits for recovery of amounts allegedly
due from the appellants. Money Suit No. 585 of 2001 was instituted by the
respondent against appellant No. 2 herein claiming recovery of certain amounts
after setting off the amount of Rs. 5 lakhs taken from appellant No. 2. He had
accepted that Rs. 5 lakhs had been paid by the appellant but pleaded that it was
not a loan, but it was as part of a business transaction set out in that plaint. The
respondent had also filed Money Suit No. 69 of 2002 against appellant No. 1
herein for recovery of certain amounts on the same basis and after setting off the
sum of Rs. 5 lakhs alleged to have been paid by her. The suits were filed in the
City Civil Court at Calcutta. The said suits were pending when the appellants
together instituted their suit C.S. No. 29 of 2003. Their suit, as noticed, was on
the basis that the sums of Rs. 5,00,000/-each paid by them to the respondent
were by way of loans.
3. The appellants moved A.L.P. No. 10 of 2003 on the original side of the
Calcutta High Court invoking Clause 13 of the Letters Patent read with
Section 24 of the Code of Civil Procedure (for short "the Code") seeking
withdrawal of Money Suit No. 585 of 2001 and Money Suit No. 69 of 2002 for
being tried with C.S. No. 29 of 2003 on the plea that common questions of fact
and law arise in the suits and it would be in the interests of justice to try and
dispose of the three suits together. Though the respondent resisted the
application, the court took the view that it would be appropriate in the interests
of justice to transfer the two suits pending in the City Civil Court at Calcutta to
the original side of the High Court for being tried and disposed of along with
C.S. No. 29 of 2003 filed by the appellants. The said order for withdrawal and
joint trial became final.
4. While matters stood thus, the respondent herein, the defendant in C.S. No. 29
of 2003, made an application G.A. No. 4458 of 2003 praying that the plaint in

C.S. No. 29 of 2003 be rejected under Order VII Rule 11 of the Code on the
ground that the cause of action of each of the appellants, the plaintiffs in that
suit, did not emanate from any common source and there was no
interdependence or nexus between the causes of action put forward by the
respective plaintiffs in the suit and that there was no common foundation for the
right to relief claimed by them. It was pleaded that the appellants, the plaintiffs
could not have joined as plaintiffs in one suit in terms of Order I Rule 1 of the
Code and could not have united their independent causes of action in the same
suit in terms of Order II Rule 3 of the Code. It was submitted that there was not
only misjoinder of parties but there was also misjoinder of causes of action. It
was on this basis that the prayer for rejection of the plaint under Order VII Rule
11(d) of the Code was made. The appellants, the plaintiffs, resisted the
application. They contended that the claim of the plaintiffs emanated from the
dealings at the instance of Nahata, husband of plaintiff No. 1 and father of
plaintiff No. 2 with the defendant and that there was no defect of misjoinder of
causes of action in the suit. They submitted that the plaint was not liable to be
rejected under Order VII Rule 11(d) of the Code.
5. The trial judge on the original side, considered the question whether the plaint
filed by the appellants was liable to be rejected under Order VII Rule 11(d) of
the Code on the basis that the suit appeared from the statements in the plaint to
be barred by any law. The learned Judge took the view that there was no law
barring a suit in which there was misjoinder of parties or a misjoinder of causes
of action, though, of course, for the purposes of convenience, a court would
avoid the misjoinder of causes of action or misjoinder of parties. But on the basis
of such a defect, the plaint could not be rejected by invoking Order VII Rule
11(d) of the Code since it could not be held that a suit which suffers from the
defect either of misjoinder of parties or misjoinder of causes of action or both, is
barred by any law. Thus, the application filed by the respondent herein, the
defendant in C.S. No. 29 of 2003, was dismissed.
6. The respondent purported to file an appeal challenging that order under Clause
15 of the Letters Patent. The Division Bench held that the suit was bad for
misjoinder of causes of action and hence the trial court was not justified in not
invoking Order VII Rule 11(d) of the Code and in not rejecting the plaint. The
Division Bench, did not reject the plaint, but, gave the appellants an opportunity
to elect to proceed with the present suit at the instance of one of them and thus
confine the plaint claim to one of them and the transaction relied on by that
plaintiff. Aggrieved by this decision of the Division Bench this appeal has been
filed by the plaintiffs.

7. Though arguments were addressed on the maintainability of the appeal filed


by the respondent before the Division Bench under Clause 15 of the Letters
Patent, (in which one of us, Balasubramanyan, J. finds considerable force)
counsel for the appellant fairly brought to our notice the decision in Liverpool
& London S.P. & I Association Ltd. v. MANU/SC/0951/2003 : M.E. Sea
Success I and Anr. (2004)9SCC512 to which one of us (Sinha J.) was a party,
which has taken the view that an appeal under Clause 15 of the Letters Patent
lies even in a case where the trial judge refuses to accede to the prayer of a
defendant to reject a plaint under Order VII Rule 11 of the Code. Of course, that
was a case where the rejection was sought under Order VII Rule 11(a) of the
Code on the basis that the plaint did not disclose a cause of action. For the
purpose of this case, we accept the position enunciated therein. We also do not
think it necessary to consider whether there is any distinction between prayers
for rejection sought under Clause (a) of Rule 11 of Order VII of the Code and
Clause (d) of Rule 11 of Order VII of the Code and we proceed on the basis that
the Letters Patent Appeal under Clause 15 filed by the respondent herein was
maintainable.
8. But it is a different question whether a suit which may be bad for misjoinder
of parties or misjoinder of causes of action, is a suit barred by law in terms of
Order VII Rule 11(d) of the Code. The Code of Civil Procedure as its preamble
indicates, is an Act to consolidate and amend the laws relating to the procedure
of the Courts of Civil Judicature. No doubt it also deals with certain substantive
rights. But as the preamble vouchsafes, the object essentially is to consolidate
the law relating to Civil Procedure. The very object of consolidation is to collect
the law bearing upon the particular subject and in bringing it upto date. A
consolidating Act is to be construed by examining the language of such a statute
and by giving it its natural meaning uninfluenced by considerations derived from
the previous state of the law.
9. Based on this understanding, we can consider the respective positions of
Order I and Order II in the scheme of things. Order I deals with parties to a suit
and provides who may be joined as plaintiffs and who may be joined as
defendants. It also deals with the power of the Court to direct the plaintiffs either
to elect with reference to a particular plaintiff or a particular defendant or to
order separate trials in respect of the parties mis-joined as plaintiffs or
defendants. It also gives power to the Court to pronounce judgment for or
against one of the parties from among the parties who have joined together or
who are sued together. The order also specifies that a suit shall not be defeated
by reason of the misjoinder or non-joinder of parties, so along as in the case of
non-joinder, the non-joinder is not of a necessary party. The Code also gives

power to the Court to substitute the correct person as a plaintiff or add parties or
strike out parties as plaintiffs or defendants, at any stage, if it is found necessary.
10. Order II deals with frame of suits. It provides that every suit shall be framed
as far as practicable so as to afford ground for final decision upon the subjects in
dispute and to prevent further litigation concerning them. It is also insisted that
every suit shall include the whole of the claim that a plaintiff is entitled to make
in respect of its subject matter. There is a further provision that the plaintiff may
unite in the same suit several causes of action against the same defendant and
plaintiffs having causes of action in which they are jointly interested against the
same defendant, may unite such causes of action in the same suit. It provides that
objection on the ground of misjoinder of causes of action should be taken at the
earliest opportunity. It also enables the Court, where it appears to the Court that
the joinder of causes of action may embarrass or delay the trial or otherwise
cause inconvenience, to order separate trials or to make such other order as may
be expedient in the interests of justice.
11. Thus, in a case where a plaint suffers from the defect of misjoinder of parties
or misjoinder of causes of action either in terms of Order I Rule 1 and Order I
Rule 3 on the one hand, or Order II Rule 3 on the other, the Code itself indicates
that the perceived defect does not make the suit one barred by law or liable to
rejection. This is clear from Rules 3A, 4 and 5 of Order I of the Code; and this is
emphasised by Rule 9 of Order I of the Code which provides that no suit shall be
defeated by reason of non-joinder or misjoinder of parties and the court may in
either case deal with the matter in controversy so far as it regards the rights and
interests of the parties actually before it. This is further emphasised by Rule 10
of Order I which enables the court in appropriate circumstances to substitute or
add any person as a plaintiff in a suit. Order II deals with the framing of a suit
and Rule 3 provides that save as otherwise provided, a plaintiff may unite in the
same suit several causes of actions against the same defendant and any plaintiffs
having causes of actions in which they are jointly interested against the same
defendant may unite such causes of action in the same suit. Rule 6 enables the
Court to order separate trials even in a case of misjoinder of causes of action in a
plaint filed.
12. After the amendment of Order XVI Rule 1 in England, it was held by the
Court of Appeal in England in Thomas v. Moore (1918) 1 K.B. 555 thus:
Whatever the law may have been at the time when (1894) A C 494 was decided,
joinder of parties and joinder of causes of action are discretionary in this sense, that
if they are joined there is no absolute right to have them struck out, but it is
discretionary in the Court to do so if it thinks right.

The Privy Council in Mahant Ramdhan Puri v. MANU/PR/0047/1936


Chaudhary Lachmi Narain pointed out:
It is desirable to point out that under the rules as they now stand, the mere fact of
misjoinder is not by itself sufficient to entitle the defendant to have the proceedings
set aside or action dismissed.
Of course, their Lordships were speaking in the context of Section 99 of the
Code. Their Lordships referred to the above quoted observation of the Court of
Appeal inThomas v. Moore (supra) in that decision. It is therefore clear that a
suit that may be bad for misjoinder of causes of action is not one that could be
got struck out or rejected by a defendant as a matter of right and the discretion
vests with the court either to proceed with the suit or to direct the plaintiff to take
steps to rectify the defect. In fact, the Privy Council in that case noticed that the
suit was bad for misjoinder of causes of action. It further noticed that the trial
judge had in spite of the complications created thereby, tried and disposed of the
suit satisfactorily. Therefore, there was no occasion for the court to dismiss the
suit on the ground of misjoinder of causes of action at the appellate stage.
13. It is well understood that procedure is the handmaid of justice and not its
mistress. The Scheme of Order I and Order II clearly shows that the
prescriptions therein are in the realm of procedure and not in the realm of
substantive law or rights. That the Code considers objections regarding the frame
of suit or joinder of parties only as procedural, is further clear from Section 99 of
the Code which specifically provides that no decree shall be reversed in appeal
on account of any misjoinder of parties or causes of action or non-joinder of
parties unless a Court finds that the non-joinder is of a necessary party. This is
on the same principle as of Section 21 of the Code which shows that even an
objection to territorial jurisdiction of the Court in which the suit is instituted,
could not be raised successfully for the first time in an appeal against the decree
unless the appellant is also able to show consequent failure of justice. The Suits
Valuation Act similarly indicates that absence of pecuniary jurisdiction in the
Court that tried the cause without objection also stands on the same footing. The
amendment to Section 24 of the Code in the year 1976 confers power on the
Court even to transfer a suit filed in a Court having no jurisdiction, to a Court
having jurisdiction to try it. In the context of these provisions with particular
reference to the Rules in Order I and Order II of the Code, it is clear that an
objection of misjoinder of plaintiffs or misjoinder of causes of action, is a
procedural objection and it is not a bar to the entertaining of the suit or the trial
and final disposal of the suit. The Court has the liberty even to treat the plaint in
such a case as relating to two suits and try and dispose them off on that basis.

14. Order VII Rule 11(d) speaks of the suit being "barred by any law".
According to the Black's Law Dictionary, bar means, a plea arresting a law suit
or legal claim. It means as a verb, to prevent by legal objection. According to
Ramanatha Aiyar's Law Lexicon, 'bar' is that which obstructs entry or egress; to
exclude from consideration. It is therefore necessary to see whether a suit bad for
misjoinder of parties or of causes of action is excluded from consideration or is
barred entry for adjudication. As pointed out already, on the scheme of the Code,
there is no such prohibition or a prevention at the entry of a suit defective for
misjoinder of parties or of causes of action. The court is still competent to try
and decide the suit, though the court may also be competent to tell the plaintiffs
either to elect to proceed at the instance of one of the plaintiffs or to proceed
with one of the causes of action. On the scheme of the Code of Civil Procedure,
it cannot therefore be held that a suit barred for misjoinder of parties or of causes
of action is barred by a law, here the Code. This may be contrasted with the
failure to comply with Section 80 of the Code. In a case not covered by Subsection (2) of Section 80, it is provided in Sub-section (1) of Section 80 that "no
suit shall be instituted". This is therefore a bar to the institution of the suit and
that is why courts have taken the view that in a case where notice under
Section 80 of the Code is mandatory, if the averments in the plaint indicate the
absence of a notice, the plaint is liable to be rejected. For, in that case, the
entertaining of the suit would be barred by Section 80 of the Code. The same
would be the position when a suit hit by Section 86 of the Code is filed without
pleading the obtaining of consent of the Central Government if the suit is not for
rent from a tenant. Not only are there no words of such import in Order I or
Order II but on the other hand, Rule 9 of Order I, Rules 1 and 3 of Order I, and
Rules 3 and 6 of Order II clearly suggest that it is open to the court to proceed
with the suit notwithstanding the defect of misjoinder of parties or misjoinder of
causes of action and if the suit results in a decision, the same could not be set
aside in appeal, merely on that ground, in view of Section 99 of the Code, unless
the conditions of Section 99 are satisfied. Therefore, by no stretch of
imagination, can a suit bad for misjoinder of parties or misjoinder of causes of
action be held to be barred by any law within the meaning of Order VII Rule
11(d) of the Code.
15. Thus, when one considers Order VII Rule 11 of the Code with particular
reference to Clause (d), it is difficult to say that a suit which is bad for
misjoinder of parties or misjoinder of causes of action, is a suit barred by any
law. A procedural objection to the impleading of parties or to the joinder of
causes of action or the frame of the suit, could be successfully urged only as a
procedural objection which may enable the Court either to permit the
continuance of the suit as it is or to direct the plaintiff or plaintiffs to elect to

proceed with a part of the suit or even to try the causes of action joined in the
suit as separate suits.
16. It cannot be disputed that the court has power to consolidate suits in
appropriate cases. Consolidation is a process by which two or more causes or
matters are by order of the Court combined or united and treated as one cause or
matter. The main purpose of consolidation is therefore to save costs, time and
effort and to make the conduct of several actions more convenient by treating
them as one action. The jurisdiction to consolidate arises where there are two or
more matters or causes pending in the court and it appears to the court that some
common question of law or fact arises in both or all the suits or that the rights to
relief claimed in the suits are in respect of or arise out of the same transaction or
series of transactions; or that for some other reason it is desirable to make an
order consolidating the suits. (See Halsbury's Laws of England, Volume 37,
paragraph 69). If there is power in the court to consolidate different suits on the
basis that it should be desirable to make an order consolidating them or on the
basis that some common questions of law or fact arise for decision in them, it
cannot certainly be postulated that the trying of a suit defective for misjoinder of
parties or causes of action is something that is barred by law. The power to
consolidate recognised in the court obviously gives rise to the position that mere
misjoinder of parties or causes of action is not something that creates an
obstruction even at the threshold for the entertaining of the suit.
17. It is recognised that the court has wide discretionary power to control the
conduct of proceedings where there has been a joinder of causes of action or of
parties which may embarrass or delay the trial or is otherwise inconvenient. In
that situation, the court may exercise the power either by ordering separate trials
of the claims in respect of two or more causes of action included in the same
action or by confining the action to some of the causes of action and excluding
the others or by ordering the plaintiff or plaintiffs to elect which cause of action
is to be proceeded with or which plaintiff should proceed and which should not
or by making such other order as may be expedient. (See Halsbury's Laws of
England, Vol. 37, paragraph 73). Surely, when the matter rests with the
discretion of the court, it could not be postulated that a suit suffering from such a
defect is something that is barred by law. After all, it is the convenience of the
trial that is relevant and as the Privy Council has observed in the decision noted
earlier, the defendant may not even have an absolute right to contend that such a
suit should not be proceeded with.
18. The Division Bench has mainly relied on an unreported decision of a learned
Single Judge of the same High Court in Margo Trading and Six Ors. v. Om

Credit Private Limited, a copy of which was provided for our perusal. On
going through that decision it is seen that the learned Judge has not adverted to
or considered Rule 9 of Order I or its effect on the aspect of misjoinder of parties
and has also not given due importance to the effect of the other provisions in that
Order. Nor has the learned judge given due importance to the effect of the rules
in Order II and in particular to Rule 6. We find that there have been very many
decisions of the same High Court on the aspect of misjoinder of parties or of
causes of action. But it is difficult to say that any of those decisions has taken the
view that a plaint was liable to be rejected under Order VII Rule 11(d) of the
Code on such a defect being pointed out. On the other hand, in Harendra
Nath v. MANU/WB/0073/1927 :Purna
Chandra AIR1928Cal199
the
Division Bench quoted from Payne v. British Time, Recorder Co. Ltd. (1921)
2 K.B. 1, the following passage:
Broadly speaking, where claims by or against different parties involve or may
involve a common question of law or fact bearing sufficient importance in
proportion to the rest of the action to render it desirable that the whole of the
matters should be disposed of at the same time the Court will allow the joinder of
plaintiffs or defendants, subject to its discretion as to how the action should be
tried.
and continued:
This is a good working rule for practical purposes and, applying it to the
present case, it seems to us clear that the action as framed is justified by
Order 1, Rules 1 and 3, Civil P.C. Looking at the matter, however, from
the point of view of Order 1, Rule 2, we are of opinion that the trial of the
suit as laid is likely to be somewhat embarrassing, especially as some of
the questions that will arise so far as property A is concerned, will have
no bearing upon the claim as regards properties B, C, D and E and also
because the question of costs, in so far as the deity is concerned will arise,
which, if possible, must be kept separate from these which the plaintiff
will incur or be entitled to recover in his personal capacity.
We, accordingly, set aside the orders passed by both the Courts below and
direct that the plaint be treated as comprising two suits: one at the instance
of the plaintiff as shebait of the deity Nandadulal Thakur in respect of
property A and the other at the instance of the plaintiff in his personal
capacity in respect of the properties B, C, D, and E, and the two suits be
separately tried.

The legal position in an identical situation as ours has been considered by a


learned
judge
of
that
Court
in Assembly
of
God
Church v. MANU/WB/0271/2004 :Ivan Kapper and Anr. 2004(4)CHN360
. The learned judge has held that a defect of misjoinder of parties and causes of
action is a defect that can be waived and it is not such a one as to lead to the
rejection of the plaint under Order VII Rule 11(d) of the Code. As we see it, the
said decision reflects the correct legal position. The decision in Margo
Trading (supra) does not lay down the correct law. The decision of this Court
in Mayar (H.K.) Ltd. and Ors. v. MANU/SC/8083/2006 :Owners &
Parties, Vessel M.V. Fortune Express and Ors. AIR2006SC1828 does not
touch on this aspect and is concerned with a case of suppression of material facts
in a plaint.
19. In the case on hand, we have also to reckon with the fact that the suits filed
by the respondent against the respective appellants based on the transactions
combined together by the appellants, have already been withdrawn for a joint
trial with the present suit, C.S. No. 29 of 2003. In those two suits, the nature of
the transaction the respective appellants had with the respondent have to be
decided after trial. In the present suit, the appellants are claiming the payments
which also form the basis of the claim of the respondent against the respective
appellants in his two suits. In the present suit, C.S. No. 29 of 2003, all that the
appellants have done is to combine their respective claims which are in the
nature of counter claims or cross suits to the suits filed by the respondent. The
ultimate question for decision in all the suits is the nature of the transactions that
was entered into by the respondent with each of the appellants and the evidence
that has to be led, in both the suits, is regarding the nature of the respective
transactions entered into by the respondent with each of the appellants. To a
great extent, the evidence would be common and there will be no embarrassment
if the causes of action put forward by the appellants in the present suit are tried
together especially in the context of the two suits filed by the respondent against
them and withdrawn for a joint trial. In the case on hand, therefore, even
assuming that there was a defect of misjoinder of causes of action in the plaint
filed by the appellants, it is not a case where convenience of trial warrants
separating of the causes of action by trying them separately. The three suits have
to be jointly tried and since the evidence, according to us, would be common in
any event, the Division Bench was in error in directing the appellants to elect to
proceed with one of the plaintiffs and one of the claims. We do not think that on
the facts and in the circumstances of the case one of the appellants should be
asked to file a fresh plaint so as to put forward her claim. Even if such a plaint
were to be filed, it will be a clear case for a joint trial of that plaint with the
present suit and the two suits filed by the respondent. In any event, therefore, the

Division Bench was not correct in interfering with the decision of the learned
single judge. The effect of withdrawal of the two suits filed by the respondent
against the appellants for a joint trial has not been properly appreciated by the
Division Bench. So, on the facts of this case, the decision of the Division Bench
is found to be unsustainable and the course adopted by it unwarranted.
20. We are of the view that on the facts and in the circumstances of the case and
the nature of the pleadings in the three suits that are now before the Original Side
of the Calcutta High Court, it would be just and proper to try them together and
dispose them of in accordance with law for which an order has already been
made. A joint trial of the three suits based on the evidence to be taken, in our
view, would be the proper course under the circumstances.
21. We therefore allow this appeal and reversing the decision of the Division
Bench restore the decision of the learned single judge. We request the learned
single judge of the High Court to try and dispose off the three suits expeditiously
in accordance with law.
Manupatra Information Solutions Pvt. Ltd.
MANU/DE/0121/1991
Equivalent

Citation: AIR1988Delhi79,

[1991]70CompCas340(Delhi),

(1987)ILR

2Delhi187
1991-(070)-COMPCAS -0340 -DEL
IN THE HIGH COURT OF DELHI
Decided On: 06.10.1987
Appellants:Bank of India
Vs.
Respondent: Vinod Kumar Bhalla
Hon'ble
Mahesh Chandra, J.
Counsels:
For Appellant/Petitioner/plaintiff: B. Mohan, Adv

Judges/Coram:

For Respondents/Defendant: S.P. Chugh, Adv.


Subject: Company
Catch Words
Mentioned IN
Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Order 1 Rule 1, Code of Civil Procedure, 1908 (CPC)
- Order 1 Rule 3, Code of Civil Procedure, 1908 (CPC) - Order 2 Rule 6;Banking
Companies (Acquisition and Transfer of Undertakings) Act, 1970 - Section 3(4)
Case

Note:

(i) Company - recovery - Order 1 Rules 1 and 3 and Order 2 Rule 6 of Code of
Civil Procedure, 1908 and Section 3 (4) of Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1970 - whether suit bad for misguide of parties plaintiff was body corporate having different branches - defendants transacted
with plaintiff in its corporate character - nothing to show transactions were
altogether distinct and separate - plaintiff entitled to file suit in respect of both
branches in same suit - held, suit not bad for misguide of parties.

(ii) Court fee - whether proper court fee paid by plaintiff - though single suit
filed in respect of three accounts court fee payable separately on each counts plaintiff failed to pay full court fee in suit - plaintiff directed to pay deficit.

JUDGMENT
Mahesh Chandra, J.
1. BY this order, I propose to dispose of issues Nos. 3 and 4 framed, vide orders dated
February 10, 1987, by G. C. Janin J. in this suit for recovery of Rs. 6,47,476.31 inasmuch
as both these issues were ordered to be treated as preliminary. This suit has been filed by

the plaintiff, Bank of India, for recovery of Rs. 6,47,476.31 against the defendant, Shri
Vinod Kumar Hhalla, sole proprietor of Navik Commercial Enterprises. The issues are as
follows :

"3, Whether the suit was bad for misguide of parties ?


4. Whether proper court fee had been paid ?"
2. I have heard learned counsel for the parties and have gone through the plaint and the
written statement and the documents placed on record and after giving my considered
thought to the matter before me, I have come to the following findings :

Issue No, 3. - It would be appropriate to mention at the outset that from


the perusal of the plaint, it would be found that the suit relates to recovery
of amounts due to the plaintiff from the defendant on account of one
account maintained in Karol Bagh branch thereof and two accounts
maintained with Parliament Street branch thereof. In para 1 of the
preliminary objections of the written statement, the contention of the
defendants :
"the suit is bad for multifariousness of parties and causes of action,
hence the same merits dismissal. The suit comprises accounts of
two different branches of the bank with different causes of action.
Each branch is a separate entity for the purposes of the suit and as
such causes of action arising at two different branches under
different accounts/dealings cannot be joined together and thus the
suit is bad and liable to be dismissed.
3. In reply there tom the plaintiff has submitted in para 1 of its replication :

"The objections as contained in para 1 of the preliminary objections are not


maintainable. The plaintiff in the suit is a body corporate having different branches
and the defendants having transacted with the plaintiff in its corporate character
the plaintiff is entitled to file the suit in respect of both the branches in the same
suit. It is denied that the suit is bad for any alleged misguide of parties or
multifariousness as alleged."
4. My attention has, in this behalf, been drawn by learned counsel for the plaintiff to
section 3, sub-section (4) of the Banking Companies (Acquisition and Transfer of
Undertakings) Act, 1970. This sub-section lays down as follows :

"Every corresponding new bank shall be a body corporate with perpetual succession
and a common seal with power, subject to the provisions of this Act, to acquire,
hold and dispose of property, and to contract and may sue and be sued in its
name."
5. This shows that under section 3(4) of the Banking Companies (Acquisition and Transfer
of Undertakings) Act, 1970, the right to sue vests in the bank as a body corporate rather
than in any particular branch thereof and as such the suit has to be filed in the name of
the plaintiff bank and not in the name of any of its particular branches. That being the
position, it should be open to the plaintiff bank under Order 2, rule 3, Civil Procedure
Code, to file the suit for consolidated amount due to the plaintiff from the same defendant
in one suit. Learned counsel for the defendant has not been able to draw my attention to
any bar in the Civil Procedure Code in this behalf. Let us also consider the provisions of
the Civil Procedure Code in this behalf.
6. It is Orders 1 and 2 of the Civil Procedure Code which lay down the law on the point's
Order 1, Civil Procedure Code, relates to "parties to suit" while Order 2 relates to "frame
of suit". Strictly speaking, these tow orders cannot be treated as relating to two distinct
topics. The question of parties involves that of cause of action and vice versa. Provisions
of these orders are rather intended to avoid multiplicity of suits. Order 1, rule1, of the
Civil Procedure Code, Provides for persons "who may be joined as plaintiffs". It reads as
under :

"1. All persons may be joined in one suit as plaintiffs where(a) any right to relief in respect of, or arising out of, the same act or
transaction or series of acts or transactions is alleged to exist in
such persons, whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of
law or fact would arise."
7. Order 2, rule 3, Civil Procedure Code, provides for "joinder of causes of action" and it
lays down as under :

"3(1) Save as otherwise provided a plaintiff may unite in the same suit
several causes of action against the same defendant, or the same
defendants jointly; and any plaintiffs having causes of action in which they
are jointly interested against the same defendants or the same defendants
jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the court as
regards the suit shall depend on the amount or value of the aggregate
subject matters at the date of instituting the suit." Order 2, rule 6, Civil
Procedure Code, contains a limited bar to joinder of accuses of action and
confers power on the court to order separate trial and provides as under :
"6. Where it appears to the court that the joinder of accuses of action in
one suit may embarrass or delay the trial or is otherwise inconvenient, the
court may order separate trials or make such other order as may be
expedient in the interests of justice."
8. A reading of Orders 1(1) and 2(3) of the Civil Procedure Code, together with subsection (4) of section 3 of the Banking Companies (Acquisition and Transfer of
Undertakings) Act, 1970, would show that the right to sue vests with the Bank of India as
a body corporate rather than in any particular branch thereof and in view thereof, it would
follow that it is open to the Bank of India to file on e consolidated suit in respect of its
claim against the same defendant so long as it does not violates any other provision of
law such as jurisdiction of the court, particularly when the right to relief in respect thereof
arises out of the same act or series of transactions as is the position in the instant case. It
will be only where such consolidation is likely to embarrass or delay the trial of the suit or
is otherwise inconvenient that the court would exercise its jurisdiction under rule 6 of
Order 2 and in that event it may put the plaintiff to election. It is always open to the
plaintiff to join different causes of action against the same defendant so long as such
joining does not cause any embarrassment or delay the trial of the suit or is not otherwise
inconvenient within the meaning of Order 2, rule 6, Civil Procedure Code. No doubt some
common link or nexus must be found in order that the requisite as to their being the
same act or transaction or the same series of acts or transactions may be satisfied to
enable such joinder of causes of action. Joinder of such causes of action on the same set
of facts is thus in principle permissible. It cannot be said bu any strength of imagination
that the present suit is bad for misguide of parties. In fact, there is no misguide of parties
which is involved in the instant case. What is involved is joinder of causes of action.
Joinder of different causes of action is permissible if the court trying them has jurisdiction
in respect of all causes of action. The purposes of Order 2m rule 3, Civil Procedure Code,
is to avoid multiplicity of suits. To achieve permit a joinder of two or more causes of
action in one suit. Order 2, rule 3m Civil Procedure Code, authorizes a plaintiff to unite
several causes of action against a single defendant, subject, however, to the limitation
that if such joinder is likely to embarrass or delay trial and all the causes if action cannot
be conveniently tried together, an order may be made directing separate trials of the
same. It is only when various causes of action are distinct and cannot be conveniently

tried together and when the joinder of numerous causes of action amounts to an abuse of
the process of the court and is likely to embarrass or delay the trial that the court would
put the plaintiff on election and not otherwise. Thus, where a defendant transacts
business with different branches of a body corporate having the right to sue, such body
corporate can join different causes of action arising out of these transactions in one suit
so long as it does not embarrass or delay the trial or is not otherwise inconvenient,
provided the court has jurisdiction to try all these causes of action.
9. The amounts sought to be recovered in the account maintained by the defendant in the
Karol Bagh branch of the plaintiff relates to irrevocable letters of credit granted through
the facility of packing credit loan limit account. It has been categorically mentioned in
para 8 of the plaint that after opening the abovementioned account with the Karol Bagh
branch, the defendant "approached the plaintiff bank and represented to the plaintiff bank
that in order to facilitate their banking operations, they would like to have further preshipment facilities from the Parliament Street branch of the plaintiff bank. The defendant
represented that on sanctioning of the various facilities in the form of pre-shipment
finance ,he will operate the banking account with the Parliament Street branch of the
plaintiff bank. It was also suggested that whatever amounts is due and outstanding in the
existing packing credit account with Karol Bagh branch, the same shall stand adjusted on
export performance in the near future". In pursuance thereof, the packing credit loan
account in the same of the defendant was opened in the Parliament Street branch of the
plaintiff bank had in its Thereafter ,at the request of the defendant, the plaintiff bank had
in its Parliament Street branch also granted another pre- shipment advance in the form of
shipping loan having a limit of Rs. 2 lakhs tot he defendant and the amount is sought to
be recovered by the plaintiff on account of balances in all these three accounts. In the
face of this factual position, it would be all the more difficult to say that the transactions
are altogether distinct and separate. Keeping in view all these facts, it is difficult to
accepts that the defendant has established this issue and as such issue No 3 is decided
against the defendant.
10. Issue No. 4 : It has been conceded by learned counsel for the plaintiff that even
though one single suit can be filed by the plaintiff in respect of all the three accounts, the
court fee is payable separately on each of the counts and, accordingly, in view thereof, I
hold that the plaintiff has failed to pay full court fee in this suit and this issue is decided in
favor of the defendant and the plaintiff is, accordingly, directed to make good the
deficiency in court fee within four weeks her of .No other point has been raised.
11. This disposes of preliminary issues Nos. 3 and 4.

12. Let the suit be now listed for trial on other issues. For fixation of dates of trial to be
listed before the Deputy Ragistrar, on October 19, 1987.

MANU/DE/2983/2005
Equivalent Citation:
IN THE HIGH COURT OF DELHI
IA 415/2005 in CS (OS) No. 398/2001
Decided On: 29.09.2005
Appellants: Capt. D.P. Verma
Vs.
Respondent: Air Sahara and Ors.
Hon'ble

Judges/Coram:

Swatanter Kumar, J.
Counsels:
For Appellant/Petitioner/plaintiff: J.R. Midha and Niraj Singh, Advs
For Respondents/Defendant: Rajiv Nayar, Sr. Adv., Minakshi Nag and Sanjay Paul, Advs.
Subject: Civil
Catch Words
Mentioned IN
Acts/Rules/Orders:
Code of Civil Procedure (CPC) - Order 1 Rule 9, Code of Civil Procedure (CPC) - Order 1
Rule 10(2), Code of Civil Procedure (CPC) - Order 1 Rule 13, Code of Civil Procedure
(CPC) - Order 2 Rule 3, Code of Civil Procedure (CPC) - Order 2 Rule 6, Code of Civil
Procedure (CPC) - Order 2 Rule 7, Code of Civil Procedure (CPC) - Order 7 Rule
11; Indian Penal Code (IPC) - Section 420; Company Law
Cases
Referred:
ABN-Amre Bank v. the Punjab Urban Planning and Development Authority, 1993(3) PLR
479; Liverpool & London S.P. & I. Association Ltd. v. M.V. Sea Success I and Anr., (2004)
9 SCC 512; Buta Singh v. UOI, AIR 1995 SC 1945; Arunesh Punetha v. Boston Scientific
Corporation and Ors., CS (OS) 951/2004
Citing
Reference:

Discussed
1
Mentioned
3
Case
Note:
Civil - Struck off Names - Substitution - Order 1 Rule 10(2)(C) of Code of Civil
Procedure, 1908 (CPC) - Defendants-applicants have filed this application under
Order 1 Rule 10(2)(C) of CPC praying that names of defendants 2 to 4 be struck
off from array of defendants and also strike out name of S, Chairman of
defendant No.1 as representing defendant No.1 company, which is now to be
represented by G, Principal Officer and Authorised Representative of defendant
No.1 - Held, applicants-defendants have not even demonstrated in application
as to how are they improper and not necessary party in present suit particularly
in face of fact that defendant No.4 had written letters as an authorised person of
defendant No.1, which now has been denied by defendants 2 and 3 - Allegations
of collusion and conspiracy between said defendants to defeat legitimate claim
of plaintiff certainly would require answer by Court before plaintiff can be
denied or granted relief prayed for - As far as name of S is concerned, same can
be substituted by principal officer of company on ground that there is no
allegations against S except that he is chairman of company - Another ground is
that, under Articles of Company and provisions of Company Law, a company can
sue and be sued in its own name and is normally represented through principal
officer of company - Once defendants themselves have come forward to say to
that defendant No.1 is to be represented by principal officers of company G, this
Court finds that no prejudice will be caused to plaintiff if said name of S is
permitted to be substituted by name of G, principal officer of company Application is allowed limited to above extent
JUDGMENT
Swatanter Kumar, J.
1. The plaintiff, who worked in Indian Airlines as senior Commander from 1972 to July,
1994 and thereafter worked for Jet Airways from August, 1994 to 6th October, 1995 and
joined the defendants' organisation i.e. Air Sahara on 6th October, 1995, has filed the
present suit for recovery of Rs.40 lakhs.
2. The plaintiff has founded his claim that under the policy of the defendant, he was
entitled for ownership of residential accommodation costing around Rs.36 lakhs, which
have been wrongfully denied by the defendants in the suit. On an application filed by the
plaintiff, the plaint of the plaintiff was permitted to be amended and the amended plaint
was filed in this Court on 28th October, 2002. By way of amendment, he added
defendant No.4 to the plaint as well as made detailed allegations against all the
defendants alleging conspiracy and collusion between the defendants to frustrate the
legitimate and rightful claim of the plaintiff. According to the case pleaded by the plaintiff
in the amended plaint, the plaintiff had completed three years of service on 8th October,
1998 and thereby rendered himself eligible for ownership of the residential
accommodation costing Rs.36 lakhs but to his utter surprise, the defendants not only ill
treated the plaintiff but also failed to act on the repeated representations of the plaintiff.
The plaintiff for this purpose had relied upon para 3 of the scheme of the defendants,

which is attached to the plaint as Annexure P-1. It is specifically averred in the plaint that
defendants vide their letter dated 15th February, 2000 had conceded the request of the
plaintiff and his resignation was accepted with effect from 16th November, 2000. Specific
and definite averments have been made against the defendants particularly defendant
No.4, who had issued the letter dated 18th November, 1995 and which now according to
other defendants was issued without authority and as such is not binding. In the written
statement filed by these defendants earlier to the un-amended plaint where defendant
No.4 was not a party issuance and contents of this letter were denied. According to the
plaintiff these defendants have colluded and conspired together and defrauded the
plaintiff and have denied the lawful authority of the defendant No.4 just to deny the
legitimate claim of the plaintiff earlier departmentally and now before the Court.
3. The defendants have now filed an application under Order 1 Rule 10(2)(C) praying that
names of defendants 2 to 4 be struck off from the array of defendants and also strike out
the name of Shri Subroto Roy, Chairman of defendant No.1 as representing defendant
No.1 company, which is now to be represented by Mr. Gaurav Kumar, Principal Officer
and Authorised Representative of defendant No.1. The whole emphasis of the application
is that there is no liability jointly and/or severally of the defendants and there is no
personal liability as well and the relief which the plaintiff can claim is available to him
against defendant No.1 alone. Reference has also been made to the order of the High
Court in Criminal Writ Petition No.316/2004 dated 9th August, 2004 wherein the Court
held that no case under Section 420 IPC was made out against the defendants of which
the learned Magistrate could take cognizance. But the applicants have themselves stated
in para 12 of the application that such findings would not be binding on the civil Court
and defendant No.1 is and ought to be sued through the authorised representative of the
company.
4. This Court in a recent judgment of this Court passed in is 6175/2005 in CS (OS) No.
1750/2000 had discussed in detail the scope of the findings of the criminal court in
relation to the matter in issue in a civil Court. The Court held as under :-

8. Be that as it may, the acceptance of the report of cancellation by the


learned special court would no way directly or by necessary implication can
be a finding in relation to the matter in issue in a civil suit. It is a settled
canon of law that findings of a criminal court are not binding on civil court
more so in the facts of the present case when the report of cancellation
has been accepted by the criminal court. It is not even stated whether the
said order has attained finality. Even if, it would no way have the effect of
operating as a res judicata or be barred on applied principles of
constructive res judicata so as to require the court to reject the plaint at
the threshold. It is a settled principle of law that the averments made in
the plaint and the documents filed by the plaintiff are to be considered
prima facie correct for the purposes of determining the fate of an
application under order 7 Rule 11. Reference in this regard can be made to
the judgment of ABN-Amre Bank v. the Punjab Urban Planning and
Development Authority 1993(3) PLR 479, where the court held as under:7. It is a settled rule of law that the plea of rejection of plaint is
founded on the "PLEA OF DEMURRER". A person raising such plea in
law has to take the facts as stated by the opponent as correct.
Despite tentative admission of such correctness, the plaint does not
disclose a complete or even partial cause of action or the relief

claimed is barred by law and thus, the plaint is liable to be rejected


within the provisions of Order 7 Rule 11 of the Code of Civil
Procedure. Plain language of this rule shows that for determination
of an application under this provision, the Court has to look into the
plaint. This concept has been extended by judicial pronouncement
of various courts so as to take within its ambit even the documents
filed by the plaintiff Along with plaint or subsequent thereto but
prior to the hearing of such application....
9. Reference can also be made to the judgment of Supreme Court in
Liverpool & London S.P. & I. Association Ltd. v. M.V. Sea Success I and
another MANU/SC/0951/2003 : (2004)9SCC512 , wherein the Supreme
Court held as under:139. Whether a plaint discloses a cause of action or not is
essentially a question of act. But whether it does or does not must
be found out from reading the plaint itself. For the said purpose the
averments made in the plaint in their entirety must be held to be
correct. The test is as to whether if the averments made in the
plaint are taken to be correct in their entirety, a decree would be
passed.
10. Coming to the averments made in the plaint. The suit is filed for
recovery of damages by the company for a wrongful loss caused by the
defendants while misusing their official status in the course of their
employment with the plaintiff company. Paragraph Nos. 8(a) to (e), 9 and
18, clearly indicate a definite cause of action against the defendants and
the bare reading of the plaint read in conjunction with the documents
placed on record cannot at least prima facie lead to a conclusion that the
plaint does not discloses any cause of action. The cause of action has to be
an integral cause of action and there are specific averments clearing
indicating the chain of events which have resulted in institution of the suit.
The company ex facie has a legal right to take recourse to the civil remedy
despite the fact that the cancellation report filed by the CBI has been
accepted. The ingredients of a criminal offence cannot be placed at power
with determination of issues in a civil court. The scope of both these
proceedings is distinct and different and they cannot overlap each other
particularly criminal proceedings cannot over- shadow or frustrate the civil
proceedings by the court of a competent jurisdiction. In the present case,
it needs to be mentioned that the person who is stated to have given
writing before the court and did not appear, is no longer in the
employment of the plaintiff company. However, that is not the subject
matter of the present application. Suffice it to note that the finding of the
criminal court cannot be treated, in fact and in law, an admission of the
plaintiff company that it has no cause of action against the defendants.
The defendants have to meet the case pleaded in the plaint which is
possible only during the course of trial. The thrust of submissions made on

this application is ex facie opposed to the basis principles of law.


5. It is settled principles of law that findings recorded by a criminal Court are not binding
on the civil Court. The fact that the Court did not find prima-facie a case under
Section 420 IPC against the defendants herein would by itself be of no consequence to
striking off names of these defendants from the array of defendants. In the original plaint
certainly the plaintiff has made no specific averments against these defendants but in the
amended plaint, which was permitted by this Court and to which the defendants have
filed written statement, definite allegations of some consequence have been made. These
allegations, if proved, would have relevancy to matter in issue and are material facts for
the purpose of granting or declining relief to the plaintiff as prayed for. Reference in this
regard can be made to para 2, 6, 9, 10, 10A, 10B, 10C and 11 of the plaint where
averments have been made against defendants 2 to 4. These averments are not vague or
so irrelevant that on the cumulative reading of the plaint even a prima facie finding can
be recorded that plaintiff has disclosed no cause of action against the said defendants and
they are neither necessary nor proper parties to the suit. The dimension of necessary and
proper party are wide enough to take within its ambit such defendants whose presence
before the Court may be proper and not necessary for determining the controversy
between the parties and for granting and declining the relief prayed for by the plaintiff. In
this regard reference can be made to a recent judgment of this Court dated 25th August,
2005 in the case of Arunesh Punetha Vs. Boston Scientific Corporation & Ors. (CS (OS)
951/2004) wherein this Court held as under :-

"Order VII Rule 11 contemplates rejection of a plaint on the grounds


stated therein. Mis-joinder of cause of action and/or mis-joinder of parties
is not explicitly stated to be a ground for rejection of a plaint in that
provision. Strenuous argument was raised on behalf of the applicant that a
plaint suffering from defect of mis-joinder of parties and/or cause of action
would be liable to be rejected under Clause 'd' of Order VII Rule 11 of the
Code. Under this provision, the plaint shall be liable to be rejected in the
cases where the suit appears, from the statement in the plaint, to be
barred by any law. The contention is that mis-joinder of parties and/or
cause of action would bar the plaintiff from claiming a relief and ultimately
a suit may be liable to be dismissed on that ground. As such it would
automatically have to be treated as a bar to the maintainability of the suit.
This argument is apparently mis-conceived. Firstly, it cannot be disputed
that mis-joinder of cause of action or parties is not a stated ground per se
for rejection of a plaint. Secondly, it cannot in law be treated as a bar to
the maintainability of the suit. The purpose of rejecting a plaint is to avoid
vexatious, frivolous or a suit which in the eye of law is not maintainable. It
is the maintainability of the suit which will be a paramount consideration
before the court. While considering such an objection at the threshold of
the proceedings, it is obligatory upon the plaintiff to frame a suit so as to
afford ground for final decision upon the subjects and disputes and to
prevent further litigation. The suit of the plaintiff should include the whole
of the claim of the plaintiff which he is entitled to make in respect of the
cause of action. Rule 3 of Order 2 deals with joinder of cause of action
which enables a plaintiff to unite in the same suit, several causes of action
against the same defendant. In other words, the plaintiff has a right to join
causes of actions against the defendants in a common suit. However, such
joinder of cause of action, if are mis-joined, the defendant in the suit

under Rule 7 of Order 2 is required to take such objection at the earliest


opportunity failing which it could be said that the defendant has waived
the objection. Even if the plea of the defendant in regard to mis-joinder of
cause of action has any merit, the court in exercise of its power under Rule
6 of the same Order may even direct separate trials on each cause of
action or make such orders as may be expedient in the interest of justice.
Similarly, a plaintiff can also join different persons as defendants where
any right to relief in respect to or arising out of the same act or
transaction or series of acts or transactions is alleged to exist against such
persons whether jointly and/or severally. It is equally the obligation of the
defendant to take such objection at the earliest opportunity in terms of
Rule 13 of Order 1. Under Sub-rule 2 of Rule 10 of Order I of the Code,
the power is vested in the court to strike out or add parties. The argument
raised on behalf of the applicant is completely misplaced in view of the
unambiguous language of Rule 9 of Order I which provides that no suit
shall be defeated by reason of mis-joinder or non-joinder of parties and
the court may in every suit deal with the matter in controversy so far as
record the right and interest of the parties actually before it. Exception to
the Rule, of course, is in regard to non-joinder of a necessary party which
is not the case herein. Thus the bare reading of the relevant provisions of
theCPC shows that no suit can normally be dismissed for non-joinder of
parties or cause of action with the exceptions as stated and in any case
not at the threshold of the proceedings while taking recourse to the
provisions of Order VII Rule 11 of the CPC. In this regard, not only the
plaintiff but the defendant would also require an opportunity to
substantiate their contention of mis-joinder of parties or cause of action.
21. The court has to give a meaningful reading to the plaint and if it is a
manifestly vexatious or merit-list in the sense of not disclosing the clear
right to sue, the court may exercise its powers under this provision and
consider the request for rejection of a plaint. Non-disclosure of cause of
action would not be understood as non-disclosure of complete facts. The
plaintiff is to prima facie show that he has an actionable remedy in law on
the facts stated in the plaint read in conjunction with the documents. Even
where the plaintiff has not paid the adequate court fee, the court normally
would grant him an opportunity to make up the deficiency in payment of
court fee and not dismiss the suit under Order VII Rule 11 of the Code.
Reference can be made to the case of Buta Singh v. UOI
MANU/SC/0378/1995 : [1995]3SCR359 . Ends of justice and opportunity
to prove a case are the twin essentials running like a golden thread under
the provisions of the CPC. The claim of the plaintiff in regard to joinder of
cause of action or parties is a subject matter which can safely be gone into
by the court during the course of the trial and by passing appropriate
directions as afore-noticed. None of them can be read into the provisions
of Order VII Rule 11 clause 'd' by necessary implication or otherwise. The
language of the legislature is unambiguous and incapable of being such an
interpretation. Where the court would not unnecessarily limit the powers of
the court under a provision, there it would also not permit enlargement of
such power by incorporating what is not even intended by the legislature

to be included in such provision. As far as defendant No. 3 is concerned,


the plaintiff has shown from the bare reading of the plaint that it has
sufficient and definite cause of action against the said defendant.
6. Applying the above principles to the facts of the present case it cannot be said that the
names of defendants can be struck off the record by the Court under Order 1 Rule 10 (2)
(C) of the Code. The conditions precedent to grant of such relief is that a party should not
be impleaded to a suit which is improper or whose presence before the Court may not be
necessary in order to enable the Court effectively and completely adjudicate all the
questions in the suit. Besides this, the Court has to be satisfied that it would be just and
proper to pass such an order.; Neither of these ingredients are satisfied in the present
case. The applicants have not even demonstrated in the application as to how are they
improper and not necessary party in the present suit particularly in the face of the fact
that defendant No.4 had written letters as an authorised person of defendant No.1, which
now has been denied by defendants 2 and 3. The allegations of collusion and conspiracy
between the said defendants to defeat the legitimate claim of the plaintiff certainly would
require answer by the Court before the plaintiff can be denied or granted the relief prayed
for.
7. As far as the name of Subroto Roy is concerned, the same can be substituted by the
principal officer of the company. For this, reasons are two. Firstly, there is no allegations
against Subroto Roy except mentioning in para 2 of the plaint that he is the chairman of
the company. Secondly, under the Articles of Company and provisions of the Company
Law, a company can sue and be sued in its own name and is normally represented
through the principal officer of the company. Once the defendants themselves have come
forward to say to that defendant No.1 is to be represented by the principal officers of the
company Mr. Gaurav Kumar, I see no prejudice will be caused to the plaintiff if the said
name of Subroto Roy is permitted to be substituted by the name of Gaurav Kumar,
principal officer of the company.
8. For the reasons afore-recorded, this application is allowed limited to the extent that
the plaintiff is directed to amend the memo of parties and sue defendant No. 1 through
its Principal Officer Mr. Gaurav Kumar in place of Mr. Subroto Roy. The prayer in regard
to striking out the names of defendant Nos. 2 to 4 from array of defendants is rejected.
9. The application is disposed of accordingly.
Manupatra Information Solutions Pvt. Ltd.

Equivalent Citation: AIR1987Ori264


IN THE HIGH COURT OF ORISSA
First Appeal No. 185 of 1976
Decided On: 12.05.1987
Appellants: Union of India (UOI)
Vs.
Respondent: Ashok Kumar Rasiklal & Co. and Anr.
Hon'ble

Judges/Coram:

H.L. Agrawal, C.J. and S.C. Mohapatra, J.


Counsels:
For Appellant/Petitioner/Plaintiff: B. Pal, Adv.
For Respondents/Defendant: G. Rath, Adv. (for No. 1)
Subject: Civil
Catch Words
Mentioned IN
Acts/Rules/Orders:
Limitation Act, 1963 - Section 21; Railways Act, 1890 - Section 73; Code of Civil
Procedure, 1908 (CPC) - Order 2 Rule 3
Cases
Referred:
Purushottam Umedbhai & Co. v. Manilal & Sons, MANU/SC/0004/1960 : AIR 1961 SC
325; East IndiaRailway Co. v. Ram Lakhan Ram, MANU/BH/0117/1923 : AIR 1925 Pat
37; Bengal Nagpur Railway v. Behari Lal Dutt, MANU/WB/0031/1925 : AIR 1925 Cal
716; Rajasthan High Court in the v. Union of India,MANU/RH/0206/1954 : AIR 1955
Raj 57; The Andhra Pradesh State Electricity Board v. The Firm of Patel and Patel, AIR
1977 Andh Pra 172; Chairman, Bihar State Electricity Board v. Hind Agricultural Farm,
AIR 1978 NOC 301, 1978 BLJ 511 (Pat); Kurapati Venkata Mallayya v. Thondepu
Ramaswami
and Co.,MANU/SC/0052/1962 :
AIR
1964
SC
818; Chhangamal
Harpaldas v.
Dominion
of India,MANU/MH/0182/1957 :
AIR
1957
Bom
276; Union of India v. West Punjab Factories Ltd.,MANU/SC/0039/1965 : AIR 1966 SC
395; Md. Jaffer Haji Ebrahim v. Union of India, AIR 1972 Orissa 101; Union of India v.
Gangaji
Kalyanji,
AIR
1959
Madh
Pra
222; E.I.
Railway Co. v.
Ahmadi
Khan,MANU/BH/0245/1924 : AIR 1924 Pat 596
Disposition:
Appeal dismissed
Case
Note:
Civil - Damages - Section 21 of the Limitation Act, Section 78-B of the Railways
Act- Appeal by the Defendant, Union of India representing the South Eastern
Railway, against the decree of the trial court for a sum of Rs. 79,556.40 passed
as damages for non delivery of certain Mohua flower consignments - Held, It
was a case of misdescription of the Defendant and that the amendment of the
cause title of the plaint did not attract the mischief of Section 21 of the

Limitation Act - The suit, therefore, must be deemed to have been instituted
against the Union of India right from the date of its institution which obviously
was within the period of limitation - Right of the consigner to maintain the suit
was upheld on his larger right to sue based on the privity of contract with
himself - Market price at the time of the damage is the correct measure of
damages to be awarded - The claim of the Plaintiff for the loss of the goods has
been rightly held by the trial court to be well established and did not call for any
interference by this Court - Plaintiff had already issued one notice under Section
78-B of the Railways Act for all the nine consignments and, therefore, the
present suit for recovery of damages for wrong delivery of all the consignments
was maintainable - Plaintiff had issued only one consolidated notice to the
defendant-Railway Company in respect of 30 consignments of different dates Notice being a part of the cause of action, separate suits did not lie - Appeal
dismissed
JUDGMENT
H.L. Agrawal, C.J.
1. This is an appeal by the defendant, Union of India representing the South Eastern
Railway, against the decree of the trial court for a sum of Rs. 79,556.40 passed as
damages for nondelivery of certain Mohua flower consignments, raising some interesting
questions of law.
2. The facts :

The plaintiff despatched nine consignments of Mohua flower from Khariar


Road Railway Station to Seoni under nine separate railway receipts in the
month of May, 1970. Each consignment was loaded in one full wagon-load
consisting of 321 bags, each weighing 224.70 quintals. The consignments
were booked to 'self and, according to the plaintiffs case, they were
despatched under sale orders to M/s. Jaiswal Trading Corporation, Seoni,
subsequently added as defendant No. 2, @Rs. 8,839.60 p. per wagon. The
relative documents including the railway receipts were accordingly sent
through the Bank for collection of the money from the concerned party.
The defendant-Railway Administration, however, delivered all the
consignments to defendant No. 2 on the basis of indemnity bonds without
presentation of the railway receipts. Since defendant No. 2 did not retire
the documents from the Bank, the Bank returned them to the plaintiff. The
plaintiff claimed damages from the defendant-Railway Administration on
the ground that the delivery of the consignments to defendant No. 2 was
entirely illegal and, therefore, the defendant was liable to compensate the
loss in question to the plaintiff.
It may be mentioned that originally the suit was filed only against the
General Manager, S. E. Railway. But after filing of the written statement,
the plaint was amended impleading defendant No. 2 and also amending
the description of defendant No. 1 by adding "Union of India through"
before the description of the original defendant.
3. Since long arguments have been made regarding the effect of the amendment, I shall
discuss the same at the appropriate stage, but the order allowing the amendment which

was passed on 27-2-1974 stated that "as the amendment is a formal one, and as no
objection is raised from the other side, it is allowed".
4. The suit was contested only by defendant No. 1 and although the basic facts that the
plaintiff was the consigner and the delivery of the consignments was given to i defendant
No. 2 on the basis of the indemnity bonds were not disputed, the main pleas of defence
which were also urged in this Court on behalf of the appellant were as follows : --

(1) The plaintiff having already sold the ; goods before the delivery was
effected to defendant No. 2, it had no right to sue.
(2) The suit was barred by limitation.
(3) The plaintiff must satisfactorily prove the particulars of the
consignments and in any event the claim of the plaintiff was highly
exaggerated.
5. In support of its case, the plaintiff examined four witnesses and two witnesses were
examined on behalf of the defendants.
P. W. 1 was the Goods Clerk of the Booking Station who proved the fact of the
consignments in question being loaded after proper checking and weighment. He stated
that the weights in the railway receipts were mentioned thereafter.
P.W. 2 is a partner of the plaintiffs firm. He was the main witness examined by the
plaintiff to prove the entire case of the plaintiff. He stated that the consignments in
question were loaded in the wagons in the presence of the Goods Clerk after proper
weighment and verification and that the purchaser of the consignments (defendant No. 2)
was to retire the documents from the bank on full payment of the amount mentioned in
the Hundies. He also denied the suggestion put to him in the cross-examination, that a
sum of Rs. 50,000/- paid by defendant No. 2 to the plaintiff was on account of the
consignments in question. According to his evidence, this payment was towards some
other transactions. He further stated that the railway receipts in question were endorsed
in favour of M/s. Laxmi Chand Paramananda and M/s. Ram Chand Kisanlal of Raipur on
receipt of the amounts mentioned in the Hundies who in their turn had endorsed the
documents in favour of the Punjab National Bank for delivery to defendant No. 2. And it is
on this evidence that vehement argument was made by Mr. B. Pal, learned counsel
appearing for the appellant, that the plaintiff having lost its title in the goods was not
competent to maintain the suit. I shall, however, separately address myself to this
argument, but at this stage I notice the further evidence of P.W. 2 which is equally
important, namely, that when the railway receipts were not retired by defendant No. 2,
the same were returned to the two firms of Raipur who cancelled the endorsements and
returned the Hundies to the plaintiff on full payment.
P.Ws. 3 and 4 are two businessmen of Khariar Road dealing in Mohua flower and were
examined to corroborate P.W. 2 regarding the market rate at the relevant time at the
destination.

P.W. 1 was the Goods Clerk who proved the indemnity bonds in question executed by
defendant No. 2 for taking delivery. D.W. 2 was the Station Master who had effected
delivery of the consignments in question to defendant No. 2. He could not give any
satisfactory explanation in his cross-examination as to why the consignments were
delivered to defendant No. 2 on indemnity bonds when no case of loss of the railway
receipts was shown.
6. The trial court framed a number of issues including the question of limitation, the right
of the plaintiff to institute the suit and the amount for which the decree could be passed,
and on the materials on record decided all the issues in favour of the plaintiff and decreed
the suit almost for the entire claim.
7. Mr. B. Pal who appeared on behalf of the defendant-appellant raised the following
contentions in support of the appeal: --

(1) The suit was barred by limitation;


(2) The plaintiff having parted with title in the consignments had no right
to sue; and
(3) There was no reliable evidence to prove the measure of damage
claimed by the plaintiff and, therefore, the suit must fail.
Contention No. 1 : (Limitation)
8. Let us take up for consideration the question of limitation which was considered by the
trial court under additional Issue No. 4. This question arises on account of the provisions
of Section 79 of the Civil P.C. according to which a suit against the Central Government
has to be filed in the name of the Union of-India.
According to the plaintiffs case, the cause of action for the suit arose on 19-6-1970 and
the suit was filed on 19-8-1971 against the General Manager of the South Eastern
Railway. Subsequently a petition for amendment of the plaint was filed on 16-2-1974
which was allowed by the trial court without any objection being raised by the defendant.
The plaintiff had prayed in the amendment petition that due to mistake defendant No. 1
had been "improperly described" and that in order to describe it correctly, the words
"Union of India through" may be added before the description of the defendant as
existing. The trial court has also mentioned in the judgment that from the very beginning
it was the Union Government who had appeared in the suit on 15-10-1971 so much so
that the Vakalatnama was executed by the Deputy Chief Commercial Superintendent on
behalf
of
the Union of India.
No
fresh
Vakalatnama
was
filed
by
the Union of India after the amendment of the plaint. The Union of India also adopted
the same written statement and only a few paragraphs were added in the original written
statement thereafter.
Mr. Pal, however, referred to Section 21 of the Limitation Act which provides that "Where
after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit
shall, as regards him, be deemed to have been instituted when he was so made a party".
The following Proviso has been added in the new Act: --

"Provided that where the court is satisfied that the omission to include a new
plaintiff or defendant was due to a mistake made in good faith, it may direct that
the suit as regards such plaintiff or defendant shall be deemed to have been
instituted on any earlier date."
The legislative intendment for adding the Proviso is not to deprive a plaintiff of his rights
on account of an omission to implead a person owing to a bona fide mistake if the court is
satisfied in that behalf. It may be mentioned that the Proviso is in consonance with
Section 17(1)(c) of the Act which makes a bona fide mistake a good ground for extending
the period of limitation.
9. The submission of Mr. Gangadhar Rath appearing for the plaintiff-respondent on the
other hand is that apart from the fact that the amendment of the plaintiff would not
amount to addition of a new defendant, or, for the v matter of that, his substitution, it
was only a correction of a misdescription of the defendant. In order to supplement his
submission, counsel referred to some paragraphs of the plaint to show that all the
relevant allegations in the plaint were essentially made against the railway administration
of the Unionof India and not against the General Manager as such. I may usefully refer
to some portions of paragraph 15:

"That the defendant Railway Administration is thus liable to compensate


the plaintiff for each of the consignments......
The Railway Administration is also liable to pay interest............"

10. Misdescription of parties and correction of the misdescription are not unknown to law.
Where it is clear from the facts as to who is the person who intends to sue or is intended
to be sued but is described wrongly, it is a case of misdescription of parties which can be
corrected by the court any time.
The Supreme Court in the case of Purushottam Umedbhai & Co. v. Manilal &
Sons MANU/SC/0004/1960 dealt with a somewhat ', similar question where the suit was
instituted in the name of the firm and the partners were "substituted later in its place.
11. However, reference was made by Mr. Pal to the case of East India Railway Co. v.
Ram Lakhan RamMANU/BH/0117/1923 where , although the principle : --

"Where there is a misdescription of the defendant in the cause title there is


complete power in the Court to make the necessary correction without any regard
to lapse of time, for in case of misdescription the Court will not have any difficulty
in coming to the conclusion that the defendant had been substantially sued though
under a wrong name. There is all the difference in the world between mis describing
a party intended to be sued and suing a wrong party".
was accepted, on appreciation of the facts of the case that a personal decree was sought
against the agent, East Indian Railway Co., and that there was no suggestion in the plaint
that it was sought to bind the Railway Company, it was held that it was not a case of
misdescription. This case, therefore, instead of supporting Mr. Pal, would go against him.
Mr. Pal next referred to the case of Agent," Bengal Nagpur Railway v. Behari Lal
Dutt MANU/WB/0031/1925 . There, the suit was against the Railway for non-delivery of
certain goods. In that case, the defendant was "Agent of the Bengal-Nagpur Railway
Saheb Bahadur". The Agent (Mr. Young) appeared and took the objection regarding the

defect in the frame of the suit and no amendment of any nature was sought for. In that
circumstance, the Calcutta High Court held, and in my Opinion was essentially directed
against the Agent and not against the railway administration. This case is, therefore,
apparently distinguishable.
On this point, however, there is a Bench decision of the Rajasthan High Court in
the v. Union of IndiaMANU/RH/0206/1954 : AIR 1955 Raj 57 where the suit was
brought against Mr. Rawlins, General Manager, Jodhpur Railway. Mr. Rawlins appeared
and in his written statement took the objection that the suit against him was not proper
as he was not the owner of the Jodhpur Railway. While dealing with the question of
limitation, the following observation made in paragraphs 8 and 9 of the judgment
deserves to be quoted : --

"..........We are of the view that if the suit is filed against the Manager or
agent of the railway, and if it appears that the intention was to sue the
railway and to get a relief against the railway, it may be possible in an
appropriate case to hold that the name of the defendant originally put
down was merely a misdescription.

(9) But the present case is of a different nature altogether. Here the suit
was not against the Manager of the Jodhpur Railway. The suit was against
Mr. Rawlins who was described as the Manager, Jodhpur Railway."
The above observation clearly supports' the stand of Mr. Rath. I
Let us see a few cases under some other Statutes. MANU/AP/0130/1977 (The Andhra
Pradesh State Electricity Board v. The Firm of Patel and Patel) was a case where the suit
was originally filed against four officers of the Andhra Pradesh State Electricity Board
Later on, the plaintiff was allowed to amend the cause title of the plaint by addition of the
words "Andhra Pradesh State Electricity Board, represented by" so as to read that the
Board was represented by those four officers. No other amendments were made either in
the body of the plaint or in the relied portion. It was held that from a reading of the
pleadings and the antecedent circumstances it was the Board that was intended to be
sued and the suit as against the Board must be taken to have been instituted from the
date when the suit was originally instituted.
Similar was the situation in the case of Chairman, Bihar State Electricity Board v. Hind
Agricultural FarmAIR 1978 NOC 301 : 1978 BLJ 511 (Pat). There also the suit was
instituted against the Chairman of the Bihar State Electricity Board and later, on
amendment, the description was allowed to be corrected and the plea of limitation was
rejected.
I shall now close the citations on this point after referring to the case of Kurapati Venkata
Mallayya v. Thondepu Ramaswami and Co. MANU/SC/0052/1962 where a receiver
appointed by the court to collect debts due to a firm had instituted the suit in his own
name, but later on, he amended the cause title so as to indicate that it was the firm who
was the real plaintiff and the firm was suing through him. It was held that the
amendment was merely a case of misdescription which could be corrected any time for
the purpose of showing the correct description of the plaintiff and that the question of
limitation would not arise in such a case.

12. I have shown the nature of the basic allegations made in the plaint, the conduct of
the defendant-Union of India in treating the suit to have been instituted against it, the
mode and the manner of the amendment of the plaint applied for and the order of the
court, and on a circumspection of the various authorities noticed above, I come to the
irresistible conclusion that it is a case of misdescription of the defendant and that the
amendment of the cause title of the plaint did not attract the mischief of Section21 of the
Limitation Act. The suit, therefore, must be deemed to have been instituted against
the Unionof India right from the date of its institution which obviously was within the
period of limitation. Although no arguments were advanced on the basis of the proviso to
Section 21 excerpted above, I am equally convinced that even taking the worst view of
the matter, it is a fit case where the proviso to Section 21can also be applied to the
rescue of the plaintiff.
Contention No. 2 : (Right to sue)
13. Undisputed the plaintiff sent the goods by the railway receipts made to self. The
buyer was M/s. Jaiswal Trading Corporation, defendant No. 2. Evidently, the property in
the goods did not pass to the buyer on delivery of the goods to the Railway
Administration as carrier. Law is not in doubt that where the railway receipt is handed
over on payment of the price of the goods, there is clearly an absolute transfer both of
the goods and of the right to take delivery under the contract. The transfer can be made
even by endorsement in blank coupled with delivery of the document to the transferee,
provided the intention is to make an absolute delivery carrying with it a right to the
goods. There are, however, some divergent opinions as to whether a commission agent
deriving no title to the goods can maintain a suit. A consigner until he retains his title in
the goods can always maintain a suit for damages notwithstanding any circumstance, but
the railway receipt being negotiable after endorsement, the right to take delivery would
pass on from the consigner to the endorsee for valuable consideration and the consigner
will cease to have any right. The railway receipt may be handed over or can also be
endorsed for a limited purpose. It is unnecessary to dilate in the judgment dealing with
the law of 'endorsement in blank' and other aspects as well as the relevant principles
embodied in the Sale of Goods Act or the Transfer of Property Act as the point on the
facts found does not create much complexity. The trial court on consideration of the ex
parte evidence of the parties has recorded a finding with which I find myself in complete
agreement with the finding that defendant No. 2 had not paid any consideration to the
plaintiff for the consignments in question and that the two firms, namely, M/s. Laxmi
Chand Paramananda and M/s. Ram Chand Kisanlal, in whose favour the railway receipts
were endorsed after return of the documents by the Bank had cancelled the
endorsements in their favour and having received back the money had handed over the
documents to the plaintiff. In that view of the matter, the ownership in the goods
continued with the plaintiff.
14. Mr. Pal has referred to the following decisions on the question, namely
(1) MANU/MH/0182/1957 (Chhangamal
Harpaldas v.
Dominion
of India),
(2) MANU/SC/0039/1965 (Union of India v. West Punjab Factories, Ltd.), and
(3) MANU/OR/0034/1972 (Md. Jaffer Haji Ebrahim v. Union of India),

In Chhangamal's case, the question was as to whether a consignee could sue. It was
observed that a consigner may sue upon the breach of a contract of consignment and an
owner of goods covered by a railway receipt may sue upon his title. But a bare consignee,
who is not a party to the contract of consignment and who is not the owner of the goods,
cannot maintain a suit for compensation for loss or damage to the goods. He has no
cause of action ex contractu or ex delicto.
The Supreme Court also laid down the same principle, namely,

"Ordinarily, it is the consignor who can sue if there is damage to the consignment,
because the contract of carriage is between the consignor and the railway
administration."
Haji Ebrahim's case also does not take the matter any farther. It was simply reiterated in
the case that the consignee had no right to maintain a suit against the Railways until the
transfer of ownership right in the goods had passed on to him.
15. Before the Madhya Pradesh High Court in MANU/MP/0071/1959 (Union of India v.
Gangaji Kalyanji) relied upon by Mr. Rath, the situation was very much similar to the case
in hand. There also the consigner) had endorsed the railway receipt in favour of another,
but it was returned to him by the endorsee. The right of the consigner to maintain the
suit was upheld on his larger right to sue based on the privity of contract with himself.
16. Taking into consideration, therefore, the relevant law governing the right of the
plaintiff, who was not only the consignor and the consignee both, but also the bolder of
the railway receipts for valuable consideration, I do not have any hesitation in my mind
that he was fully entitled to institute the suit for recovery of the damages.
Contention No. 3 : (Measure of damages)
17. Let us now take up the third point, namely, the measure of damages. We have
already seen the relevant evidence on the question of value of the consignments. The
evidence of the P.Ws. on this question, is almost ex parte. The evidence of D. W. 2, the
Station Master, that he was informed by the Goods Clerk (D.W. 1), deputed by him to
ascertain the market rate, that the rate of Mohua flower was only Rs. 8/- per quintal,
apart from being in the nature of hearsay, cannot outweigh the cogent evidence adduced
on behalf of the plaintiff in this regard. There has been not only an assertion by the
plaintiffs partner (P. W. 2), but two dealers in the trade (P.Ws. 3 and 4) have also fully
supported the case of the plaintiff on this point by bringing on the record the
documentary evidence of actual transactions vide Ext. 11 series. In the case
of Union of India v. The West Punjab Factories, Ltd. MANU/SC/0039/1965 (supra) itself
it has been observed that the market price at the time of the damage is the correct
measure of damages to be awarded. The claim of the plaintiff for the loss of the goods
has been rightly held by the trial court to be well established and does not call for any
interference by this Court.
18. When the hearing of the appeal was concluded on 23-4-1987 and the judgment was
reserved , a further point was sought to be raised for the first time in this Court on behalf
of the defendant-appellant that the suit was also bad on account of mis-joinder of the

causes of action for bringing only one suit for all the nine consignments which had been
booked separately under separate railway receipts.
19. There is no merit in this part of the argument as well. No objection as to the
misjoinder of the causes of action was taken in the written statement. Rule 7 of Order 2
of the Civil P.C. specifically provides that all objections on the ground of misjoinder of
causes of action shall be taken at the earliest possible opportunity and, in all cases where
issues are settled, at or before such settlement, unless the ground of objection has
subsequently arisen, and any such objection not so taken shall be deemed to have been
waived. Rule 3 of Order 2 entitles the plaintiff to unite in a same suit several causes of
action against the same defendant. Therefore, the plaintiff in this case was entitled to join
the causes of action in question when the nature of the allegation was similar and the
parties were the same. That apart, the plaintiff had already issued one notice under
Section 78-B of the Railways Act for all the nine consignments and, therefore, the present
suit for recovery of damages for wrong delivery of all the consignments was maintainable.
In support of this view, we also find a Bench decision of the Patna High Court in the case
of E.I. Railway Co. v. Ahmadi Khan MANU/BH/0245/1924 . In that case, the plaintiff had
issued only one consolidated notice to the defendant-Railway Company in respect of 30
consignments of different dates. It was held that the notice being a part of the cause of
action, separate suits did not lie.
20. For all the above reasons, the appeal must fail and is hereby dismissed. However, we
relieve the appellant from the burden of costs of this Court.
S.C. Mohapatra, J.
21. I agree.

Equivalent Citation: 2006(1)ALD583, 2006(1)ALT215


IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
C.R.P. No. 2413 of 2001
Decided On: 20.10.2005
Appellants: Chowdri Kalyan Chand and Ors.
Vs.
Respondent: V.R. Dwarknath and Ors.
Hon'ble
Judges/Coram:
B. Prakash Rao and G. Yethirajulu, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: M.N. Narasimha Reddy, Adv.
For Respondents/Defendant: K.V. Subramanya Narusu, Adv.
Subject: Tenancy
Catch Words
Mentioned IN
Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Order 1, Rules 1, 3, 5 and 9 - Order 2, Rules 1, 3,
6 and 7
Cases
Referred:
Ishwar Bhai v. Harihar (1999) 3 SCC 457; Corporation of Calcutta v. Radhakrishna AIR
1952 Cal. 222; Naba Kumar v. Radhashyam AIR 1931 P.C. 229; Ravindranath v. Union of
India (2000) 10 SCC 474; Ambika Upadhya v. Nakched AIR 1955 All. 112; Raja Ram
Tewari v. Lachman Parshad (1867) B Suth WR 15; Seturatnam v. Venkatachela AIR 1923
P.C. 67; Rangayya v. Subramanya AIR 1918 Mad. 681; Alridge v. Barrow ILR 34 Cal.
662; Nitai Lal v. Govinda Bhushan AIR 1936 Pat. 142
Citing
Reference:

Discussed
8
Mentioned
2
Case
Note
:
Civil - Necessary Party - Order 1 Rules 3, 9 and Order 2 Rules 3, 6 and 7 of Code
of Civil Procedure, 1908 - Single Judge made a reference to find out
maintainability of single eviction Petition filed by Landlord against tenants of
two different portions of building leased out under two separate lease deeds in
light of Order 1 Rules 3 and 9 and Order 2 Rules 6 and 7 - Hence, this Petition Held, Order 2 Rules 3 permitted Plaintiff to join in same suit, two or more
causes of action against two or more Defendants, when Defendants were jointly
liable - Therefore, Joint interest in litigation was condition precedent to joinder
of several causes of action against several Defendants - However, it was not
necessary that each of such Defendant must be interested in each of relief's
claimed - Hence, it was cleared that unless Plaintiff established that right to

relief against each Defendant had arisen out of same act or transaction, single
suit against two tenants of two separate portions of building could not be
maintained - Petition dismissed.
Ratio
Decidendi:
"Joint interest in litigation is condition precedent to joinder of several causes of
action against several Defendants"
ORDER
G. Yethirajulu, J.
1. This is a reference made by a learned single Judge of this Court to give a finding on a
question whether a Landlord can maintain a single eviction petition against the tenants of
two different portions of a building leased out under two separate lease deeds in the light
of Order 1 Rules 3 and 9 and Order 2 Rules 6 and 7 of the Code of Civil Procedure, 1908
(for short 'C.P.C.').
2. Before delving into the question, we wish to refer to the relevant provisions of C.P.C.
3. Order 1of the C.P.C. deals with parties to a suit. Order 1 Rule 3 reads as follows:

3. Who may be joined as defendants:- All persons may be joined in one


suit as defendants where(a) any right to relief in respect of, or arising out of, the same act
or transaction or series of acts or transactions is alleged to exist
against such persons, whether jointly, severally or in the
alternative; and
(b) if separate suits were brought against such persons, any
common question of law or fact would arise.
4. Order 1 Rule 5 reads as follows:

5. Defendant need not be interested in all the relief claimed:- It shall not be
necessary that every defendant shall be interested as to all the relief claimed in any
suit against him.
5. Order 1 Rule 9 reads as follows:

9. Misjoinder and non-joinder:- No suit shall be defeated by reason of the


misjoinder or non-joinder of parties, and the Court may in every suit deal
with the matter in controversy so far as regards the rights and interests of
the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a necessary party.
6. Order 2 Rule 3 reads as follows:

3. Joinder of causes of action:-

(1) Save as otherwise provided, a plaintiff may unite in the same


suit several causes of action against the same defendant, or the.
same defendants jointly; and any plaintiffs having causes of action
in which they are jointly interested against the same defendant or
the same defendants jointly may unite such causes of action in the
suit.

(2) Where causes of action are united, the jurisdiction of the Court
as regards the suit shall depend on the amount or value of the
aggregate subject-matters at the date of instituting the suit.
7. Order 2 Rule 6 reads as follows:

6. Power of Court to order separate trials:- Where it appears to the Court that the
joinder of causes of action in one suit may embarrass or delay the trial or is
otherwise inconvenient, the Court may order separate trials or make such other
order as may be expedient in the interests of justice.
8. Order 2 Rule 7 reads as follows:

7. Objections as to misjoinder:- All objections on the ground of misjoinder of causes


of action shall be taken at the earliest possible opportunity and, in all cases where
issues are settled, at or before such settlement unless the ground of objection has
subsequently arisen, and any such objection not so taken shall be deemed to have
been waived.
9. Order 1 Rule 3 governs joinder of defendants. It states as to who may be joined as
defendants in one suit. All persons may be joined as defendants in a single suit if the
following conditions are satisfied:

(i) The right to relief against each defendant must arise out of the same
act or transaction or series of acts or transactions; and
(ii) If separate suits were brought against such persons, common
questions of law or fact would arise.

10. The object of Rule 3 is to avoid multiplicity of suits and needless expenses, which can
be avoided without embarrassment to the parties to the suit and also to the Court Ishwar
Bhai v. Harihar MANU/SC/0173/1999 : [1999]1SCR1097 .
11. Order 2 deals with frame of suit. The primary object of Order 2 Rule 1 is to ensure
adjudication of all disputes in one suit by preventing further litigation in future.
12. The following illustrations would give a clear picture about the joinder of necessary
parties or causes of action:

Illustration No. 1:
B, C, D and E each separately entered into an agreement with A to supply
100 tins of oil. They failed to supply the goods. A cannot join B, C, D and E
as defendants in one suit for damages inasmuch as there are four distinct
contracts and, therefore, four different transactions.
Illustrations No. 2:
A Purchases a house in occupation of B and C, tenants under two different
lease deeds. A's suit against B and C is not maintainable, as both the
transactions (lease deeds) are separate and independent.
13. The persons against whom relief is claimed jointly, severally or in the alternative may
be joined in one suit as defendants. It is not necessary that each and every defendant
should be interested in all the reliefs. It is also not necessary that all questions of law or
fact which arise should be common to all the defendants. It is enough that the relief

claimed is in respect of the same act or transaction and one of the questions is common
to all the defendants.
14. In Corporation of Calcutta v. Radhakrishna MANU/WB/0014/1952 : AIR1952Cal222
, the Calcutta High Court held that a single suit by a corporation for arrears of rent
against different owners of subdivided premises is bad for multifariousness.
15. Where two or more persons have been joined as defendants in one suit in
contravention of the provisions of Order 1 Rule 3, there is misjoinder of defendants.
16. As per Rule 5 of Order 1, the defendant need not be interested in all the reliefs
claimed in the suit. Order 1 Rule 9 declares that no suit shall be dismissed by reason of
the misjoinder or non-joinder of parties and it will be decided on merits.
17. As a general rule, a suit cannot be dismissed merely on the ground of misjoinder or
non-joinder of parties. A defect as to misjoinder of parties does not affect jurisdiction of
the Court, nor it touches the merits of the matter. Normally, a Court of law is required to
decide suit on the basis of controversy raised by the parties as regards the rights and
interests and not on technicalities, such as misjoinder or nonjoinder of parties Naba
Kumar v. Radhashyam MANU/PR/0053/1931 and Ravindranath v. Union of India
MANU/SC/2031/1998 : (2000)10SCC474 .
18. Order 2 Rule 3 deals with joinder of causes of action. This rule applies not only to
cases where there is only one plaintiff, one defendant and several causes of action, but
also to the cases where there are two or more plaintiffs, two or more defendants and
several causes of action.
19. Rule 3 of Order 2 must be read with Rules 1 and 3 of Order 1. There are two
fundamental principles embodied in Orders 1 and 2, namely, (i) needless multiplicity of
suits should be avoided; and (ii) the trial of suits should not be embarrassed by
simultaneous investigation of totally independent and unconnected controversies.
20. Where there is one plaintiff and two or more defendants and several causes of action,
the plaintiff may unite in the same suit several causes of action against those defendants,
if the defendants are jointly interested in the causes of action. Therefore, two or more
defendants can be joined in one suit, provided the following conditions are fulfilled:

(1) The relief claimed must have been based on the same act or
transaction; and
(2) Common questions of law or fact must have been involved.
21. Joint interest of the defendants in the questions raised is a condition precedent to the
joinder of several causes of action against several defendants. It is, however, not
necessary that each of such defendant must be interested in each of the reliefs claimed.
It is sufficient if they are jointly interested in the main questions raised in the suit. In
order to apply Order 2 Rule 3, it is essential that all the defendants must be interested
and liable jointly in each of the causes of action in the suit though they may not be
interested in each of the reliefs claimed by the plaintiff. Order 2 Rule 3 permits a plaintiff
to join in the same suit two or more causes of action against two or more defendants, if
the defendants are jointly liable. Joint interest in the main questions raised in the
litigation is a condition precedent to the joinder of several causes of action against
several defendants Ambika Upadhya v. Nakched MANU/UP/0040/1955 : AIR1955All112
.
22. In Raja Ram Tewari v. Lachman Parshad (1867) B Suth WR 15 (Sir Barnes Peacock,
C.J. stated: "Such a joinder in one suit of distinct causes of action against different
defendants, each of whom is unconnected with the cause of action against the other,
complicates the case before the Judge, and renders it exceedingly difficult for him in
dealing with the case of each defendant to exclude from his consideration those portions

of the evidence which may not be admissible against him, though admissible against one
or more of the others. Moreover, it is vexatious and harassment to the different
defendants. Such a procedure renders it almost compulsory on all the defendants to be
present, either in person, or by their pleaders, whilst the case is going on against the
others in respect of matters in which they are not interested; and, moreover, it is
harassing and inconvenient as regards the attendance of the witnesses of the several
defendants, as it renders it necessary for the witnesses of each to be present, and to be
detained whilst the case of the others is being heard and determined".
23. The Privy Council also expressed a similar view. In Seturatnam v. Venkatachela AIR
1923 P.C. 67, Sir Lawrence Jenkins stated: "They (the defendants) are not in joint
possession; on the contrary, they have separate holdings and should have been
separately sued....But the plaintiff, in disregard of the provisions of the Code, has united
in the same suit not merely several causes of action but several actions or suits against
separate defendants with the result that the litigation has been conducted throughout as
though the defendants were a community with common interests".
24. A suit against two or more defendants on two or more causes of action accrued
against the defendants separately when such defendants are not jointly liable is bad for
misjoinder of defendants and causes of action, technically called multifariousness. In a
suit of contract, strangers to such contract who have distinct and separate interests
cannot be joined as defendants Rangayya v. Subramanya AIR 1918 Mad. 681 (F.B.).
25. When an objection is taken as to misjoinder of parties or causes of action at an
appropriate stage, the Court may permit the plaintiff to elect as to which of them he will
proceed with the suit as filed in case of misjoinder of plaintiffs or against which of the
defendants in case of misjoinder of defendants, or with which of the causes of action in
case of misjoiner of causes of action Alridge v. Barrow ILR 34 Cal. 662.
26. The Court may either allow the amendment or withdrawal of suit with permission to
file a fresh suit on the same cause of action Nitai Lal v. Govinda
BhushanMANU/BH/0051/1935 .
27. The object of Order 2 Rule 6 is to prevent embarrassment or delay in the trial of the
suit. Order 2 Rule 7 mandates that all objections regarding the misjoinder of causes of
action should be taken at the earliest possible opportunity and in all cases where issues
are settled, at or before settlement of issues, unless the ground of objection has arisen
subsequently. If such objection is not so taken, it will be deemed to have been waived.
28. From the above legal position and observations, we make it clear that unless the
plaintiff establishes that the right to relief against each defendant has arisen out of the
same act or transaction or series of acts or transactions, a single suit against two tenants
of two separate portions of a building, who entered into lease agreements separately,
cannot be maintained.
29. The reference is accordingly answered.
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