(2015) 417 KLW 244

IN THE HIGH COURT OF KERALA AT ERNAKULAM

A.HARIPRASAD, J.

C.R.P No.231 of 2013

Dated this the 15th day of July, 2015

AGAINST THE JUDGMENT AND DECREE IN OS 308/2008 of ADDL.SUB COURT, PALAKKAD DATED 15-03-2013. 

REVISION PETITIONER(PLAINTIFFS)

MANIKKAN AND ANOTHER

BY ADVS.SRI.D.KRISHNA PRASAD. SMT.S.SANTHY. 

RESPONDENTS (DEFENDANTS 2 TO 9

GOVINDARAJ AND OTHERS

R1, R5 TO R8 BY ADV. SRI.RAJESH SIVARAMANKUTTY. R3 BY ADVS. SRI.SAJAN VARGHEESE K. & SRI.LIJU. M.P. 

O R D E R 

Revision petitioners are the plaintiffs in a suit for specific performance of two separate contracts. The trial court, after an elaborate trial and on hearing both sides - in fact, after reserving the case for judgment - pronounced an order, disposing of the case on an issue relating to misjoinder of parties and causes of action and directed the plaintiffs to opt as to whom among them intend to prosecute the suit and against which of the defendants. This order is under challenge in this revision petition.

2. Case of the plaintiffs, in short, is that the first defendant agreed to assign plaint A schedule property to the first plaintiff. He executed an agreement setting out the terms and conditions for the sale. Likewise, the second defendant executed another agreement with the second plaintiff agreeing to sell plaint B schedule property. Defendants 1 and 2 are brothers. The properties in plaint A and B schedules were their co-ownership properties earlier. Later, they partitioned the properties. The first defendant got A schedule and the second defendant obtained B schedule properties. Petitioners contended that both of them agreed to sell the lands on the same day and on the same terms and conditions. Subsequent to the execution of agreements to assign, they sold the properties to defendants 3 to 5. Defendants 6 to 8 are the legal heirs of since deceased first defendant. These two plaintiffs filed a unified suit for specific performance of the said contracts against defendants 1 and 2 and other defendants. In reality, the first plaintiff claims a relief of specific performance of contract against the first defendant only. Similarly, the claim of the second plaintiff for the said relief is only against the second defendant.

3. In this factual setting, the court below raised following issue :-

“ Whether the suit is bad for misjoinder of parties and misjoinder of cause of action? ” 

4. It is an admitted case that the parties without any demur went on for trial after settling the issues. Two witnesses were examined on the side of the plaintiffs and thirteen documents were marked. Out of these thirteen documents, Exts.A1 and A2 are the two contracts for sale sought to be specifically enforced. Two witnesses testified on the side of the defendants. No documentary evidence was adduced on their side. The matter was heard by the Court and reserved for judgment. Thereafter, the impugned order was passed by the trial Judge. As per the impugned order, he entered a finding on the issue that the suit is bad for misjoinder of parties and causes of action. The trial court thereafter directed the plaintiffs to elect as to who among them was proceeding with the suit and against which of the defendants. The plaintiffs were directed to amend the plaint accordingly.

5. The questions engaging our attention are 

whether the issue relating to misjoinder of parties and causes of action can be considered after the parties adduced evidence and the court reserved the case for judgment? 

What could be the object behind Order I Rules 1 and 3 and Order II Rule 3 of the Code of Civil Procedure, 1908 (in short 'the Code') ? 

6. Heard the learned counsel for the petitioners and the learned counsel appearing for the contesting respondents.

7. It is the submission of the learned counsel for the petitioners that if the plaintiffs are compelled to exercise an option at this distance of time, one of the plaintiffs will lose his right to enforce the contract for ever on the ground of limitation. Therefore, the order passed by the court below has certainly an effect of finally disposing of the suit and hence revisable.

8. Regarding the sustainability of the order, learned counsel appearing for the contesting respondents contended that the order is faultless because the two plaintiffs, who had separate causes of action against defendants 1 and 2 separately, without any rhyme or reason, opted to file a single suit seeking distinct reliefs against the defendants. According to the learned counsel, the defendants are put to prejudice by improperly impleading them in a suit instituted by two different persons, each one of them having a distinct cause of action against one of the defendants. Therefore, the proper course would have been to file two separate suits and not a single suit.

9. Per contra, learned counsel for the petitioners contended that the court below did not consider the factual foundation laid in paragraph 11 of the plaint for filing a single suit. The defendants 1 and 2 together alienated plaint A and B schedule properties to defendants 3 to 5 and both the plaintiffs 1 and 2 had causes of action not only against defendants 1 and 2 respectively, but also against other defendants. It is therefore contended that there is nothing illegal in the plaintiffs together filing a single suit against the defendants claiming the reliefs.

10. The provisions in the Code relevant for consideration in this revision petition could be seen under Order I Rules 1 and 3 and Order II Rule 3. I shall refer to each provision in the succeeding paragraphs.

11. Parties to a suit mean plaintiff(s) and defendant(s). It is well known that the parties to a suit may be necessary or proper parties. A necessary party is one whose presence is essential and against whom a relief is sought . Besides, a necessary party is one in whose absence no effective decree or order can be passed. On the other hand, a proper party is one without whom a decree can be passed or order be made, but whose presence is necessary for an effectual or complete adjudication of the matter. Order I Rule 1 of the Code reads as follows :-

“ R.1. Who may be joined as plaintiffs.- 

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 person brought separate suits, any common question of law or fact would arise.

12. Order I of the Code deals with the joinder of parties, and to a certain extent, with the joinder of causes of action. Order II Rule 3 of the Code deals exclusively with the joinder of causes of action. It is well settled that Rule 4 of Order I of the Code also should be read along with Order 1 Rule 1. Rule 4 says that a judgment may be given without any amendment (a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to; (b) against such one or more of the defendants as may be found to be liable, according to their respective liabilities.

13. Learned author Mulla on the Code of Civil Procedure (15th Edition) has made the following observations :-

“Under this rule several persons may join as plaintiffs in one suit, though their causes of action are separate and distinct provided that - (i) the right to relief, alleged to exist in them, arises out of the same act or transaction or series of acts or transactions; and (ii) the case is of such a character that, if such persons bring separate suits, a common question of law or fact would arise. Both these conditions must be fulfilled to enable two or more persons to join as plaintiffs in one suit. The two conditions are cumulative and not in the alternative. At the same time it is not necessary that all questions arising in the case should be common to all the parties. It is sufficient even if one of the questions is common to them.”

14. Misjoinders are generally classified into three categories :-

15. Order I Rule 1 of the Code provides in effect that two or more persons may be joined as plaintiffs in one suit, if the right to relief alleged to exist in each plaintiff arises from the same act or transaction and there is a common question of law or fact; if there is no common question of law or fact, they cannot be joined as plaintiffs in one suit. They must bring separate suits. If two or more persons are joined as plaintiffs in one suit in a case not covered by Order I Rule 1 of the Code, it results in misjoinder of plaintiffs.

16. So far as misjoinder of defendants are concerned, the relevant provision is Order I Rule 3 of the Code. It reads as follows :-

“R.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.”

17. Supreme Court in 

Anil Kumar Singh v. Shiv Nath Mishra ((1995) 3 SCC 147) 

observed thus :-

“......... The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings. A person may be added as a party-defendant to the suit though no relief may be claimed against him/her provided his/her presence is necessary for a complete and final decision on the question involved in the suit. Such a person is only a proper party as distinguished from a necessary party. .........”

18. Order I Rule 3 of the Code provides in effect that two or more persons may be joined as defendants in one suit if the right to relief alleged to exist against each of them arises from the same act or transaction and there is a common question of law or of fact. If two or more persons are joined as defendants in one suit in a case not covered by Order I Rule 3 of the Code, the result is a misjoinder of defendants.

19. Misjoinder of causes of action is dealt with in Order II Rule 3 of the Code reads as follows :-

“R.3. Joinder of causes of action.- 

(1) Save as otherwise provided, a plaintiff my 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 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.”

20. If we read Order I Rule 3 and Order II Rule 3 of the Code together, it will indicate that the question of joinder of parties also involves the question of joinder of causes of action. The simple principle is that a person is made a party in a suit because there is a cause of action against him and when causes of action are joined the parties are also joined. [See 

Ishwarbhai C Patel v. Harihar Bahera (AIR 1999 SC 1341)].

21. Misjoinder of causes of action can be further divided into three, viz; 

22. The rule is that where in a suit there are two or more plaintiffs and two or more causes of action, the plaintiffs should be jointly interested in all the causes of action. If the plaintiffs are not jointly interested in all the causes of action, the case is one of misjoinder of plaintiffs and causes of action. Order II Rule 3 r/w Order I Rule 1 of the Code forbids such a misjoinder.

23. Where in a suit there are two or more defendants and two or more causes of action, the suit will be bad for misjoinder of defendants and causes of action, if different causes of action are joined separately against different defendants. This is violation of Order II Rule 3 r/w Order I Rule 3 of the Code. Such a misjoinder is technically called multifariousness.

24. Causes of action cannot be joined in a suit filed against several defendants if they are not all jointly interested in the causes of action, unless common questions are involved so as to attract Order I Rule 1 of the Code. If this condition is not satisfied, the case is bad for misjoinder of claims founded on several causes of action against several defendants.

25. Another important aspect to be noted is that the objections on the ground of misjoinder of parties and causes of action should be taken at the earliest opportunity as provided in Order I Rule 13 and Order II Rule 7 of the Code. Similarly, the objections on the ground of multifariousness also should be taken at the first opportunity by virtue of the aforementioned provisions. The effect of not taking the objection at the earliest possible opportunity has been narrated in Order I Rule 13 and Order II Rule 7 of the Code. Those provisions definitely say that if the objection was not taken at the earliest possible opportunity, i.e, at or before settlement of issues, the objection shall be deemed to have been waived.

26. The Code confers power on the court under Order I Rule 2 and 3A to order separate trials, where it appears to the court that any joinder of the plaintiffs or defendants, as the case may be, is likely to embarrass or delay the trial of the suit. In this context, it is relevant to note that the power conferred on the court to order separate trial as per the said provisions is to avoid an embarrassment or delay in the trial of the suit. The word “trial” is of great importance. The question here is whether the court could have invoked the power to order separate trial after conclusion of the trial ? 

27. The facts in this case show that the order under challenge was passed by the court below subsequent to letting in evidence by the parties and after hearing the contestants. I am of the view that the court was trapped in a legal error by applying the above said provision for ordering separate trial much after the period prescribed by the Code. The purpose of conferment power on the court is to avoid an embarrassment or delay in the process of trial. It is evident that the framers of the Code must have thought that the issues in the suit should not be complicated by wrongly arraying parties. Facts in this case show that both the plaintiffs have separate causes of action against all the defendants in respect of a claim for specific performance of the contract subsisting in their favour. Submission made by the learned counsel for the petitioners that each plaintiff has a cause of action not only against the defendant who executed the agreement, but also against the assignees from him is legally acceptable. One fact to be noticed here is that both defendants 1 and 2 assigned their properties, subsequent to the execution of separate agreements with plaintiffs 1 and 2, to the same set of defendants. Therefore, each plaintiff had causes of action against all the defendants. Viewing from that angle, I do not find any misjoinder of plaintiffs as the right to relief alleged to exist in both the plaintiffs, the right arises out of the same set of acts and also that in case separate suits are filed, common questions of law or fact would arise. Applying the same principles, it can be seen that the suit is not bad for misjoinder of defendants. But, certainly in this case there is misjoinder of causes of action. Then the question arising for consideration is whether the dispute could have been raised or considered after close of the trial. I have no hesitation to hold that the answer should be a firm no. The law prescribes that in such an eventuality, it can only be presumed that the defendants have waived their objections. Hence, the court below committed an illegality in this case because after taking evidence elaborately and hearing both sides, the court should not have disposed of the case on an issue which should have been agitated at the earliest point of time.

28. The apex court in 

Prem Lala Nahata and Another v. Chandi Prasad Sikaria (( 2007)2 SCC 511) 

had occasion to consider the scope of Order I Rules 2, 3A and Order II Rule 3 of the Code. I shall quote the relevant principles from the said decision :-

“12. 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 1 Rule 1 and Order I Rule 3 on the one hand, or Order 2 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 3-A, 4 and 5 of Order 1 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 nonjoinder 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 1 which enables the court in appropriate circumstances to substitute or add any person as a plaintiff in a suit. Order 2 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 .”

29. It further says :-

“ ....... In the context of these provisions with particular reference to the rules in Order 1 and Order 2 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 of on that basis.”

30. For the above said reasons, I find, although the suit is defective for misjoinder of causes of action, that the court below should have treated the objection as waived by the defendants as provided in the provisions mentioned above. The court below therefore should not have disposed of the case by an order of this nature, that too after conclusion of the trial. As mentioned by the Supreme court in Prem Lala Nahata's case (supra), the option now available to the court below is to treat the plaint as relating to two suits and dispose them on that basis. 

Resultantly, the impugned order is set aside. The court below is directed to dispose of the matter on merits in accordance with law. 

All pending interlocutory applications will stand dismissed. 

A.HARIPRASAD, JUDGE. 

amk