Calcutta High Court
Mrs. Rekha Mukherjee vs Ashis Kumar Das And Anr. on 4 September, 2000
Equivalent citations: (2001)2CALLT76(HC)
JUDGMENT Samarendra Nath Bhattacharjee, J.
1. This revisional application has been preferred against the order No. 119 dated 19.4.1999 passed by the learned 9th Civil Judge, Senior Division, Alipore in Title Suit No. 49 of 1990 whereby the learned Court decided the issue Nos. 9 and 5 in favour of the plaintiffs/opposite parties.
2. The petitioner herein is the sole defendant of Title Suit No. 49 of 1990. The opposite parties filed a suit for specific performance of contract against the petitioner/defendant alleging that the defendant executed 3 agreements for sale in favour of the plaintiffs 1 and 2 and their mother since deceased on 16.12.89. By those 3 agreements the defendant agreed to sale the undivided one third share of 9 cottahs of land at premises No. 77/1 Hazra Road, Cal-29 in favour of each of the three persons being Smt. Gouribala Das, Ashis Kumar Das and Abish Kumar Das at a total sum of Rs. 9,00,000/- and each of them was to pay a sum of Rs. 3 lakhs. It was further agreed that each of the purchasers was to pay Rs. 75,000/- as earnest money and accordingly all the three purchasers paid a total amount of Rs. 2,25,000/- to the defendant. The agreements were cancelled by the defendant on 4.6.90 and the earnest money received by her was also forfeited on grounds common to "at all. On 23.3.90 Smt. Gouribala Das, the mother of the plaintiffs died. The plaintiffs 1 and 2 filed the aforesaid Title suit on 31.10.90 for specific performance of contract. Pursuant to the revisional application filed by the defendant this High Court directed the learned Court below to decide the issue Nos. 9 and 5 at the preliminary stage. The issue No. 9 reads thus, "Is the suit bad for mis-joinder of causes of action?" and issue No. 5 was framed on the point, "whether the suit is properly valued and correctly stamped?"
3. The learned Judge disposed of issue No. 9 by holding, "I am of the humble opinion and accordingly, hold that right to relief in the instant suit arises out of the transaction by way of execution of agreements for sale on the same date which arose against the sole defendant. The common question does arise in the instant suit. It would also appear from the facts disclosed in the plaint that alleged cancellation of the agreement were on the same date i.e. on 12.6.90. The suit property is the same. The case arises out of the similar nature of agreement in three sets in respect of 1/3 rd share each of undivided suit property as mentioned in the schedule to the plaint. The earnest money of Rs. 75,000/- paid for the purchase of the suit property in respect of each of three agreements for sale and the total consideration for the purchase of entire suit property amounts to Rs. 9 lacs. Relief as prayed in the plaint is the same as against the sole defendant.
With an object to avoid multiplicity of the suits, I am of the considered view that the suit is not bad for mis-joinder of causes of action."
4. In order that several plaintiffs may join different causes of action in one suit against one defendant, the following conditions must co-exist:--
(i) the rights to relief must arise out of the same transaction or series of translations;
(ii) at least one common question of law or fact will arise if separate suits are filed; and
(iii) all the plaintiffs must be Jointly interested in all the different causes of action.
(Order 1, Rule 1 read with Order 2, Rule 3 of the Code of Civil Procedure, 1908 as explained in Mulla's Key To Indian Practice, 7th edition, at page 43.)
5. Mr. Mukherjee, appearing for the petitioner has argued that even the first condition has not been satisfied in this case inasmuch as the rights to specific performance prayed for by four plaintiffs arise allegedly out of three separate agreements to which plaintiff Nos. 3 and 4 are neither parties nor privies. The fact that the agreements were executed on the same day with the same object of settling the defendant's earlier eviction suit against the plaintiff Nos. 1 and 2, or that the plaintiffs are near relations, or that the agreements are in respect of undivided shares of the same land, or that the agreements are similarly worded, will not make the agreements parts of the same series of translations.
6. Mr. Mukherjee relied upon decisions in Anukul Chandra v. Province of Bengal ; Nagendra Bala v. Provash Chandra, ; Innovative Capital v. Tushar Shah 1998(2) CLJ 329; Ramajas Agarwala v. Linton Molesworth and Company AIR 1923 Pat. 411; Chandulal Suklal v. Dagdu A.I.R. 1925 Bom. 342.
7. Mr. Mukherjee has further argued that no common question of fact will arise if four separate suits are filed by the four plaintiffs for specific performance of three separate agreements because questions of fact are peculiar to each individual case and the conduct of the plaintiffs in relation to the agreements also were different. Mr. Mukherjee has then contended that the third condition is also not attracted in this case inasmuch as after their mother's death, the plaintiffs 1 and 2 are jointly interested in enforcing only the defendant's first agreement with their mother. Only Ashis is separately interested in specifically enforcing the defendant's second agreement with Ashis alone, while Abish alone is interested in enforcing the defendant's third agreement singly with Abish. Ashis and Abish together are not jointly interested in Ashis's separate, single and exclusive cause of action arising out of the second contract between the defendant and Ashis alone. Moreover, according to Mr. Mukherjee, plaintiffs 3 and 4 not being a party to the contract have no cause of action whatsoever against the defendant. Mr. Mukherjee further submits that the defendant is embarrassed in simultaneously defending four unconnected claims allegedly arising out of three different contracts. He relies upon the decision reported in Ramendra v. Brojendra AIR 1918 Cal 858 at page 863. As to the issue No. 5 Mr. Mukherjee does not make any submission and leaves the matter to the Court.
8. Mr. Chatterjee, the learned counsel for the opposite parties while supporting the impugned order has submitted that in the event of filing a suit for specific performance of contract in respect of their deceased mother's share both the plaintiffs jointly would have to file one suit as they inherited 8 annas share out of one third interest of their mother. They could not file separate suits for enforcement of one sixth share of their mother. As the plaintiff No. 1 entered into a separate agreement with a defendant, there can be no bar for him to include in that suit his own independent cause of action for specific performance of his own agreement with a defendant. Similar is the case with the other brother.
9. Having heard the learned counsels of both the sides and having perused the order passed by the learned Court below I am of the opinion that the learned Court below was perfectly justified in passing the impugned order. The plaintiffs 3 and 4 have been brought on record as nominees of the plaintiffs 1 and 2 and they stand and fall with the plaintiffs. They have been brought on record by the plaintiffs due to subsequent developments and the objection of the defendant in this respect has been decided upto Supreme Court in favour of the plaintiffs. Having no independent claim of their own they cannot be expected to file separate suits. The decision in favour of or against the plaintiffs would be binding upon them.
10. In this particular case the right to relief is the right to get a decree for specific performance of contract. Such right to relief arises out of the same transaction or series of transactions which are the execution of agreements, the cancellation of the agreements, the payment of earnest money and the alleged breach of term of agreement by one side or other. Such transactions occurred on the same dates although separately. If two separate suits were filed by plaintiff Nos. 1 and 2 the common questions of facts which would arise in both the suits would have been whether the defendant committed breach of contract or the plaintiffs defaulted in remitting the balance money and so on. The agreements having been executed in respect of one third undivided shares out of the same property the plaintiffs are jointly Interested over the different causes of action. Moreover, the defendant would have to adduce evidence in both the cases and the same set of evidence would be required to be reputed in all the cases to be filed entailing multiplicity of proceedings. The finding in one case would definitely govern the fate of another case as the allegations of breach are common to all the parties. Even if the claim of one of the plaintiffs is dismissed there cannot be a difficulty in deciding the common issues involving common question of facts. Thus all the tests laid down in the aforesaid paragraphs having been satisfied the suit of the plaintiffs cannot be said to be bad for mis-joinder of causes of action.
11. The facts of the cases cited by Mr. Mukherjee on behalf of the petitioner are quite different from the facts of the instant case and as such the decisions relied upon by him are not applicable at all. In Anukal Chandra's case (supra) Their Lordships found, "In effect the relief claimed by the plaintiff is a declaration of title and possession of the southern area against Group I Defendants; of the northern area against Group II and of the western area against Group II or Kumar Birendra Roy as the case may be, ..... There appears to us to be no disclosed link or nexus between this activity of the three several groups of defendants which will justify its description as one act or all part of one series of acts."
12. In Barada Prasad Roy Chowdhury v. Provash Chandra Mondal , "Separate defaults had been made in the payment of revenue by different proprietors in respect of different separate accounts in respect of the parent Tauzi. There Lordship held, The plaintiffs instituted a suit for recovery of amount deposited by impleading 9 defending properties of the separate accounts." Their Lordships held that the payments made were distinct, separate and unconnected with each other. The mere fact that all the payments were made on the same date or that all these separate accounts were really separate accounts of the same parent Tauzi would not alter the position and would not be sufficient to supply the requisite nexus for holding that the acts or transactions evidenced by these payments formed one or the same series of acts or transactions.
13. As the law is well settled, it is not necessary to discuss other decisions in respect of different sets of facts cited at the Bar. Applicability of the tests laid down above will no doubt depend upon the facts and circumstances of each case.
The learned Court below having committed no error in law, the impugned order does not call for any interference. The application is dismissed without any order as to costs.
Let urgent xerox certified copy of this judgment be given to the learned Advocates for both sides.