Calcutta High Court
Assembly Of God Church vs Ivan Kapper And Anr. on 12 August, 2004
Equivalent citations: 2004(4)CHN360, AIR 2005 (NOC) 137 (CAL), 2004 A I H C 4250, (2005) 1 ICC 873, (2004) 4 CAL HN 360
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This revisional application under Article 227 of the Constitution of India is at the instance of defendants in a money suit and is directed against Order No. 17 dated May 7, 2004 passed by the Civil Judge, Senior Division, 3rd Court, Alipore in Money Suit No. 15 of 2002 thereby rejecting an application under Order 7 Rule 11(d) of the Code of Civil Procedure ("Code") for rejection of the plaint.
2. Two plaintiffs (the plaintiff No. 1 being the husband of the plaintiff No.2) filed the aforesaid money suit against the School Authorities for recovery of their retirement benefits as employees of the School. There is no dispute that the plaintiff No. 1 retired as a Superintendent of Boys' Home and the plaintiff No.2, as the Headmistress of the School. In the plaint they have made two separate schedules disclosing their separate dues and in paragraph 25 of the plaint, the specific averments are made that the respective right to relief had arisen out of the series of acts and transactions wherein the plaintiffs were jointly and separately involved and if the plaintiffs brought separate suits, common question of law and fact would have arisen. It is further stated that above and beyond, the plaintiffs having causes of action in which they are jointly interested against the same defendants, they are free to unite those causes of action against the defendants jointly.
3. After entering appearance in the suit, the School Authorities filed an application for rejection of the plaint under Order 7 Rule 11(d) of the Code on the ground that the two plaintiffs having been undisputedly employed by virtue of two different contracts, the causes of action of two plaintiffs were entirely different and as such, the suit was bad for misjoinder of plaintiffs as well as of causes of action. In other words, according to the defendants, the suit was bad for multifariousness.
4. The learned Trial Judge, by the order impugned herein, has dismissed the application for rejection of the plaint on the ground that the alleged defects pointed out by the defendants did not come within the purview of Order 7 Rule 11(d) of the Code. The Trial Judge further held that any question relating to maintainability as regards framing of the suit would be a question of law and fact and the same can be adjudicated finally only upon taking evidence and not at that stage. The Court also held that prima facie, the plaintiffs being employees under the same organization, the suit as framed was maintainable.
5. Being dissatisfied, the defendants have come up with the present application under Article 227 of the Constitution of India.
6. Mr. Sen, the learned Counsel appearing on behalf of the petitioners assails the order impugned on the ground that if it appears on the basis of averments made in the plaint that the suit has been filed in contravention of the provisions contained in Order 1 or Order 2 of the Code, the Court should give an opportunity to the plaintiffs to remove the defects and if the plaintiffs do not cure such defects in spite of giving opportunity, the plaint should be rejected. In support of such contentions, Mr. Sen relies upon an unreported decision of a learned Single Judge of this Court in the case of Margo Trading & Six Ors. vs. Om Credit Private Limited, dated October 30, 1995, in Suit No 242 of 1995.
7. The aforesaid contention of Mr. Sen has been seriously disputed by Mr. Mukherjee, the learned Advocate appearing on behalf of the plaintiffs. Mr. Mukherjee contends that the objection as regards misjoinder of parties or misjoinder of causes of action cannot come within the scope of Order 7 Rule ll(d) of the Code, as rightly pointed out by the learned Trial Judge. According to Mr. Mukherjee, even if the Court finds that a suit is bad for misjoinder of parties or causes of actions, the suit cannot be dismissed nor can the plaint be rejected. Mr. Mukherjee submits that at any rate, no question of rejection of plaint arises on the basis of objections raised by the petitioners. He, thus, prays for dismissal of this revisional application.
8. The only question that arises for determination in this application is whether an objection as regards misjoinder of plaintiffs or misjoinder of causes of action can come within the purview of Order 7 Rule 11(d) of the Code.
9. According to Order 7 Rule 11 Clause (d) of the Code, a plaint shall be rejected where the suit appears from the statements in the plaint to be barred by any law.
10. After hearing the learned Counsel for the parties and after going through the provisions contained in the Code, I find that according to Order 1 Rule 9 of the Code no suit can be defeated by reason of misjoinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. Rule 10 of Order 1 enables the Court at any stage of proceeding either upon or without the application of either parties and on such terms as it may appear to the Court to be just, order that the name of any party improperly joined whether as plaintiff or defendant be struck out.
11. Similarly, under Order 2 Rule 6, where it appears to the Court that the joinder of causes of action in any 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. According to Order 2 Rule 7 of the Code, all objections as regards misjoinder of causes of action should be taken at the earliest possible opportunity, otherwise, it should be deemed to have been waived. Similarly, under Order 1 Rule 13 of the Code, all objections on the ground of misjoinder of parties should also be taken at the first possible opportunity, otherwise, such objection should be deemed to have been abandoned.
12. Section 99 of the Code further provides that even if, in spite of raising objection at the appropriate time as regards misjoinder of parties or causes of action, the Court improperly overrule such objection, and passes a decree, an Appellate Court shall not reverse or modify the decree on account of such misjoinder of parties or causes of action not affecting the merit of the case or jurisdiction of Court.
13. The aforesaid provisions of the Code abundantly indicate that defect as regards misjoinder of parties and causes of action is such a defect which can be waived by a party and even if the same is not waived and the Court ignoring a valid objection passes a decree, for that reason, such decree will not be set aside unless such defects affect the merit of the case or jurisdiction of the Court.
14. In my view, in order to bring a case within the scope of Order 7 Rule 11(d) of the Code, the defects must be of an absolute nature which creates a complete bar in entertaining the suit on the basis of averments made in the plaint. If the statements made in the plaint, give discretion to the Court in overruling the objection and if the ultimate decision is not subject to the interference by the Appellate Court, the same cannot be said to be in reality a bar created by law for the time being in force. At this stage, it will be profitable to refer to a decision of the Privy Council in the case of Ramdhan Puri vs. Lachmi Narayan, reported in AIR 1937 PC page 42 where the Privy Council while dealing with a ease of misjoinder of parties and causes of action, made the following observations at page 45 of the judgment:
"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."
15. I am, therefore, of the opinion that even if the averments made in the plaint are not in conformity with the provisions contained in Order 1 or Order 2 of the Code regarding misjoinder of parties or causes of action, such defects cannot be put forward as a bar so as to attract the provision of Order 7 Rule 11(d) of the Code. If, however, the Court accepts the plea of misjoinder of the plaintiffs, it will take step in accordance with the provision of the Order 1 Rule 2 of the Code by giving liberty to the plaintiffs to elect. If in spite of giving such direction, the plaintiffs do not exercise option, the Court itself can strike out the unnecessary plaintiff or plaintiffs and proceed with the suit by invoking powers under Order 1 Rule 10 and Order 6 Rule 16 of the Code or direct that the suit should be treated as more than one suits, (see the observation of the Division Bench of this Court in the case of Harendra Nath vs. Purna Chandra, . But the suit cannot be dismissed or the plaint cannot be rejected for not exercising the election because of the specific mandate given by the Code that no suit should be defeated for misjoinder of parties or causes of actions. [see Gur Prosad Shing vs. Gur Prosad Lai, reported in AIR 1914 Cal 795 (DB)].
16. Even on a plain reading of Order 7 Rule 11 of the Code, it will appear that apart from the instances mentioned in Clauses (a) or (d), for not complying with any direction of the Court upon a plaintiff within the time fixed by Court as indicated in Sub-rules (b), (c), and (e) [Calcutta amendment of that rule, the Court is vested with power to reject the plaint but such power has not been conferred upon a Court for not meeting the requirements of election within the time fixed in terms of the direction under Order 1 Rule 2 of the Code. Thus, it is clear that the plaint can be rejected only for not complying with those directions of the Court within the time fixed as mentioned in Sub-rules (b), (c) and (e) of Order 7 Rule 11 of the Code or under the circumstances indicated in Sub-rule (a) or (d) thereof and not otherwise unless specifically authorised by any other statute. In the Code itself, there are provisions indicating penal consequence for not complying with the direction of the Court within the time fixed by Court, for instances, Order 11 Rule 21, Order 6 Rule 18, but no such penal consequence is mentioned in Order 1 Rule 2 of the Code.
17. As regards the unreported decision of the learned Single Judge relied upon by Mr. Sen, I find that in the said case seven different companies entered into separate contracts with the defendant for purchase of different areas of a building and in such a case, the learned Single Judge was of the view that there were misjoinder of plaintiffs and causes of action and that was a ground' of rejection of plaint. The learned Single Judge, however, granted an opportunity to the plaintiffs to elect which of them would proceed with the suit against the defendant with liberty to the other plaintiffs to file separate suit against the defendant in respect of their separate agreements before appropriate forum. In default of such election, plaint was directed to be taken of the file.
18. It appears from the said unreported decision that the learned Single Judge in the said decision had relied upon several decisions of this Court and other Courts for the purpose of coming to a conclusion that there was misjoinder of plaintiffs and causes of action. In all those reported decisions, the question was whether in the facts of those cases there was misjoinder of causes of action or parties, but none of the cases dealt with the question whether on the basis of plea of such misjoinder, a plaint can be rejected under Order 7 Rule 11(d) of the Code. The learned Judge in the said case made the following observations:
"Merely because the Court has discretion to allow amendment would not make the application under Order 7 Rule 11 not maintainable. As already held, an application as to misjoinder like an application under Order 7 Rule 11 is to be decided on the averments contained in the plaint. The defect is a fatal one unless the Court exercises its discretion to allow amendment of the plaint. But the suit as filed is barred by law and the plaint as it stands is liable to be rejected."
19. The learned Judge in that case after holding that there was misjoinder of plaintiffs and causes of action, rightly took recourse to the provisions of Order 1 Rule 2 of the Code and directed the plaintiffs to elect but while incorporating a default clause of rejection of plaint, in my view, overlooked the provision of Order 1 Rule 9 of the Code. Moreover, the learned Single Judge did not take into consideration the cumulative effect of the provisions of Order 1 Rules 2, 9 & 13 and Order 2 Rules 6 & 7 of the Code showing that the defect of misjoinder of parties and cause of action are waivable and not an absolute bar of maintainability of a suit. Thus, I am unable to accept the said decision as a precedent in support of the proposition of law that misjoinder of plaintiffs or causes of action results in rejection of plaint within the meaning of Order 7 Rule 11(d) of the Code when Order 1 Rule 9, Order 2 Rule 6 and Section 99 of the Code specifically declare that no suit can be defeated on the ground of misjoinder of parties or causes of action and any erroneous decision on such question should not even be interfered with by an Appellate Court unless it affects the merit of the case or the jurisdiction of the Court. Moreover, I have already pointed out that a plaint can only be rejected under the circumstances mentioned in Order 7 Rule 11 of the Code and under no other circumstances unless specifically empowered in that behalf by any other statute and non-compliance of a direction for election under Order 1 Rule 2 of the Code within a specified time does not enable a Court to reject a plaint.
20. Mr. Sen at this juncture, by referring to the various decisions of the Supreme Court urged before me that if I intend to disagree with the aforesaid unreported decision of the learned Single Judge, I should refer the matter to the Hon'ble Chief Justice for placing the same before a Division Bench. As the said decision of the learned Judge was delivered in ignorance of a decision of the Privy Council in the case of Ramdhan Puri vs. Lachmi Narayan (supra), which is binding upon this Court, I am of the view that such reference is unnecessary.
21. Since, the learned Trial Judge has, in this case, merely recorded prima facie observation as regards the frame of the suit and has kept the question of misjoinder of parties and causes of action open, I do not propose to enter into the question whether in the facts of the present case there has been a misjoinder of plaintiffs or causes of action. It is for the Trial Court to take appropriate decision on those points and even if there is misjoinder of plaintiffs or causes of action, the said Court will decide in which way it will exercise its discretion.
22. The revisional application is, thus, dismissed with the aforesaid observations.
23. There will, however, be no order as to costs.