Allahabad High Court
Devesh Chandra Gupta vs Dina Nath on 11 October, 1991
Equivalent citations: AIR1992ALL115, AIR 1992 ALLAHABAD 115, 1992 ALL CJ 1 16, (1992) 1 RENCJ 209, (1992) 19 ALL LR 197, (1992) 1 ALL WC 90, (1992) 1 ALL RENTCAS 3
JUDGMENT
1. The plaintiff-appellant of Suit No. 437 of 1981. Devesh Chandra Gupta, claimed the following reliefs in the suit :--
"(A) That by a decree of possession against the defendants and in favour of the plaintiff, the defendants be evicted from the property as detailed at the foot of the plaint in Schedule A & B and the plaintiff be put in actual and physical possession thereof after total eviction of defendants therefrom.
(B) That a decree for recovery of Rs. 2,705/- as rent and damages for use and occupation since 1-1-1980 to 20-10-1981 be passed in favour of the plaintiff against the defendants first set;
(C) That a decree for recovery of pendente lite and future damages for use and occupation at the rate of Rs. 300/- P.M. viz. at the present rental value of the suit property be passed in favour of the plaintiff against the defendants first set on payment of additional court-fee in execution side;
(D) That the costs of the suit be also awarded to the plaintiff against the defendants;
(E) Any other relief/ reliefs which may be found suitable and proper in the opinion of the Court may also be awarded to the plaintiff."
2. The suit was decreed by the trial court on 21-10-1982, in particular, granting relief (A) directing the defendants for handing over the vacant possession of the suit property within a period of three months failing which the plaintiff was entitled to have possession through the agency of the court at the costs of the defendants, and also the relief (C) decreeing the claim relating to pendente lite and future damages at the rate of Rs. 125-00 per month, subject to the adjustment of the amount deposited by the defendants, and the liability was to continue till the suit property was vacated by the defendants. The lower appellate court on 24-12-1985 set aside the said decree of the trial court where against the present second appeal, filed in this Court, was admitted on the following substantial question of law.
"Whether the suit of the plaintiff was maintainable against the defendants."
3. The brief facts relating to the controversy under the substantial question are-
(i) That the plaintiff, the owner of the property in suit, let out to the defendants Nos. 1 and 2 the northern portion of building, as contained in Schedule A to the plaint, at the rate of Rs. 65-00 per month, and the southern portion of the same building, as contained in Schedule B, at the rate of Rs. 60.00 per month, which contains a Kothari appurtenant thereto and the same was not let out. The defendants Nos. 1 and 2, illegally and without his consent, sub-let the property in question to one Hari Shanker, defendant No. 3, who illegally placed a wooden structure on the property described in Schedule B. On 19-8-1981 a composite notice, as required by S. 106 of the Transfer of Property Act, 1882, terminating the tenancy and requiring them to handover vacant possession of the suit property, was given. Consequent upon the notice, the vacant possession of the property was not handedover and, accordingly, the plaintiff filed the suit for the reliefs, as quoted earlier:--
(ii) That the defence, as set up by the defendants Nos. 1 and 2, was that they never sublet the property in suit but, in fact, they gave the saw machine, which was installed thereon, for running it to the defendant No. 3 on Rs. 225-00 per month.
4. The trial court framed as many as seven issues which all were decided in favour of the plaintiff. The defendant aggrieved therefrom filed Civil Appeal No. 3 of 1983 wherein the lower appellate Court did not upset the finding on any of the issues, but allowed to raise a new plea, which was neither pleaded in the written statement nor there was any objection before the trial Court. The question was as to whether the composite suit for two different causes of action was maintainable or the same was bad for joinder of different causes of action regarding the two tenancies.
5. Heard the learned counsel for the appellant and the learned counsel for the respondent, Dina Nath.
6. Learned counsel for the appellant made two-fold submissions -
(i) That the court below had erred in law in allowing the defendants to raise, for the first time, the question regarding the maintainability of the suit for joinder of two causes of two different tenancies; and
(ii) That the view taken by the lower appellate Court, even on merits, is unsustainable.
7. The defendants did not make any grievance in their written statement before the trial court regarding mis-joinder of causes, and as such there was no issue. The lower appellate court allowed the question to be raised, for the first time, and relying on the decision of this Court in Ram Chandra v. Judge, Small Cause Court, Farrukhabad, reported in (1984) 1 All Rent Cas 338 : (1984 All LJ 143), before the lower appellate Court two decisians of this Court were cited by the counsel for the rival parties. The other decision was in the case of Murari Lal Agrawal v. Mithan Lal, reported in (1977) 3 All LR 72, The lower appellate Court, relying upon the latest decision, set aside the decree of the trial Court and dismissed the suit.
8. Learned counsel for the respondent submitted that-
(i) in view of the conflicting decision of this Court the matter requires to be settled by the larger Bench and accordingly the same may be referred; and
(ii) in view of the Explanation II as added by the State Amendment to sub-rule (3) of Rule (2) of Order II of the Code of Civil Procedure, the view taken by the lower appellate Court, on the basis of the decision in the case of Ram Chandra (1984 All LJ 143) (supra), is correct.
9. The question for consideration is as to whether the lower appellate Court acted rightly in allowing the defendant to raise the question of misjoinder of causes at the appellate stage. In this connection Rule 2 of the Order II, C.P.C. which is extracted below, is relevant :--
2. Suit to include the whole claim :--
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim :--
Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinguished.
(3) Omission to sue for one of several reliefs. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation. I-- for the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under some obligation shall be deemed respectively to constitute but one cause of action."
10. The objection on the ground of mis-joinder of causes of action have to be taken at the earliest possible opportunity, i.e. before the trial Cout unless such an objection is of a nature which has subsequently arisen. The law has also provided that if such an objection is not taken at the earliest opportunity, then the same shall be deemed to have been waived. In the present case, no such objection was ever raised by the defendants either in the written statement or even at the time of framing of the issues or subsequently during the pendency of the suit. It is not the case of the defendants that such an objection regarding mis-joinder of causes arose subsequent to the decision in suit. In Mohammad Umar v. State of U.P. reported in (1986) 1 All Rent Cas 264, this Court held that-
"An objection with regard to mis-joinder of causes of action is not to be countenanced by a Court unless the objection of the same was raised by the party concerned at the earliest possible opportunity and in a case where the issues are settled, before the date of settlement of such issues."
Thus, the lower appellate court acted illegally in allowing the objection to be raised before it.
11. Now the second submission, as raised by the learned counsel for the appellant, on the merit has got substance. In the present case, the cause of action arose as a result of the notice under S. 106 of the Transfer of Property Act, 1882, when the defendants did not vacate the suit property, and as such there is no question of the separate causes of action only because the land was let out on different rate of rent on different dates. The tenancy is not in favour of different persons but in favour of the same persons.
12. Before the lower appellate Court two decisions were cited and it is to be seen as to whether, in the context of the controversy involved in the present case, they have any relevance. The case of Ram Chandra (1984 All LJ 143) (supra), as relied on by the lower appellate court, was regarding eviction of a tenant from a building under the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. In that case, the controversy was entirely different. There were two different agreements for two different rooms in the same building and two separate tenancies were created. The Court said that (at p. 144 of All LJ)-
"It cannot be disputed that one suit against two tenants cannot be filed. Similarly, one suit against two tenements of the same tenant cannot be filed. It shall be bad for joining of two different causes of action."
The reason is obvious. Under the Act of 1972, the provisions of the Code of Civil Procedure are not applicable and the requirement of Order II of the Code of Civil Procedure was not considered and there was no occasion for considering the same. So the said case cannot be of any help for the purposes of the controversy in the present case. Likewise is the position of the other case of Murari Lal Agrawal (1977 (3) All LR 72) (supra). That case was under the U.P. Temporary (Control of Rent and Eviction) Act, 1947. There also the provisions of the Code of Civil Procedure, as contained in Order II there of, were not applicable. In that case, there was a joint notice terminating the three tenancies and the controversy was that the notice under S. 106 of the Transfer of Property Act, 1882, was valid or not. This case was also not applicable to the facts and circumstances of the present case and, thus, there is no question of making any reference to the larger Bench.
13. Order II Rule 3, C.P.C. which is extracted below, provides for joinder of several causes against the same defendants and if there are separate causes of action, they can be joined in the same suit against the same defendants.
"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 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."
The provision of Explanation II to Rule 2 of Order II, C.P.C. as added by the U.P. Amendment, does not make any prohibition but only creates a fiction that the rent or compensation for use and occupation of the property, shall be deemed to be claims in respect of distinct causes of action. Explaina-tion II is as extracted below :--
"Explanation II.-- For the purposes of this rule a claim for ejectment of the defendant from immovable property let out to him and a claim for money due from him on account of rent or compensation for use and occupation of that property, shall be deemed to be claims in respect of distinct causes of action."
14. In AIR 1937 PC 42, Mahendra Ram Dhanpuri v. Chaudhary Laxmi Narain, it was held that-
"The mere fact of misjoinder is not by itself sufficient to entitle the defendant to have the proceedings set aside or action dismissed. Where the merits of the case have been satisfactorily disposed of by the trial Court in spite of the complication of the proceedings no objection as to misjoinder can be given effect to in appeal."
The Privy Council had relied upon the case of Thomas v. Moore reported in (1918) 1 KB 555.
15. The case relied on by the respondent is Smt. Samundri Devi v. Nand Ksihore Marwah, (1986) 2 All Rent Cas 428 : (1987 All LJ 255). This case is also not applicable to the facts and circumstances of the present case as the same related to the eviction of a tenant under the Act No. XIII of 1972.
16. Learned counsel for the appellants relied on the case of Magamatai Thevar v. Panddaram, AIR 1977 Mad 347 (para 4). The Court in a suit for recovery of possession and past and future mesne profits the plaintiff impleaded both the persons in possession of separate and distinct lands claiming rights under two individual sale deeds from the legal heirs of the original owner, held that (at p. 349 of AIR)-
"Common questions of fact and law would have arisen even if separate suits had been filed and, therefore, the appellant could file a single suit against both respondents in respect of the A Schedule property. Therefore, it is not possible to uphold the view of the-courts below that the suit is bad for misjoinder of parties and causes of action."
17. Both the objections, as raised by the learned counsel for the appellants, are sustained. The appellate Court has erred in law in allowing the objection to be raised regarding misjoinder of causes at the lower appellate Court stage and also on the merits and the decision taken by the lower appellate Court was not correct as in the present case the joinder of causes was permitted under R. 3 of O. II and the Explanation to R. 2 of Order II was not contrary to the provisions as contained in Rule 3 of Order II, C.P.C. Further, the alleged causes of action, in the present case, was one and the same and, therefore, the question of misjoinder of the cause of action was not there.
18. The appeal is accordingly allowed. The judgment and decree of the lower appellate Court agree set aside and the judgment and decree of the trial of Court are restored, the successful party shall be entitled to costs of this Court.
19. Appeal allowed.