Karnataka High Court
Dr. George vs Mr. C.F. Jose on 20 September, 2010
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT _
DATED THIS THE 20*" DAY OF SEPT_E~9---'1SEjR€ ':iO1.Q V4' -.
BEFORE V &
THE HON'BLE MR. JUST-ICE='A,__l\!. \/ENOGOR,¢.EA_OOV\(rrj>;r§i%
WRIT PETITION NO;1i"i.;éVs9.[20iO--
BETWEEN: K W
Dr. George V '
S/0.Late C.V.Fran_cis V .. :
Aged 71 years V "
R/at Chettupu_zh.a!%gkaraVn__ H~~oVu'se'a_' '
Avenue RQac!i,._ !§4undupVaOi~tam"'" V
Chee,y~a--ra.m*ViIléige. "
Thrisstar Tén'iuk_; _T hriss4ur~«l'}istrict
Kerafa 5680 "
PETITIONER
(eysr; Asjiosk, Bv.*Pa tsr, TAdv.)
1;.- V - . i'Vi«r%,C F.-Jiose
S/c';C.$;I.Francis
Agedrr 70 veers
.. 'R/at Chettupuzhakkaran House
Aizenue Road, Mundupalfam
Cheeyaram Village
Thrissur Tatuk, Thrissur District
Kerafa - 680 005.
2. Mrs.Valsa Chacko
W/0.Late C.F.Chacko
Aged 66 years
R/at Chettupuzhakkaran House
Fatima Nagar, Chembukavu Viilage
Thrissur Taluk, Th rissur District
Kerala --~ 680 005.
Saju Chacko
S/o.Late C.F,Chacko
Aged 43 years
R/at Chettupuzhakkaran"House '
Fatima Nagar, Chembukayu Village 'D
Th rissur Talu k, Thrissu'r"Di'strict_
Kerala -- 680 OO..5}" -_
Ms.Seena Jojy '--
D/o.Late:éC;..F.Cl;jacko'V::: _ _ :
Aged 45 yeagrsg V "
R/ a:t"C'.h_eVttu ;S*_uzh-aj!<_|V'<a.ra'n'i_ Ho use
Fatinja'i..Nagar; 'ChevrritJu'kiavi;g Village
.ThAri.ss*:;.=r Tai2_uk, "T.hrissur"'D~is'trict
Keraiavyi+..V5V3'oV%oo5:~»g_g _'
D/o«.-Late C.-F.C.hacE<o
* » Aged 4-2 years '
R/at Chet'tu_o.uzvhakkaran House
"Fatima Nagar, Chembukavu Village
' --vTh~ri'ssu'r..Ta|uk, Thrissur District
' vvKe.raiaF:--v68O 005.
vfvvirs-.,AAP<oshan Antony
' D' 0. W/o.Late Dr.C.F.Antony
Aged 59 years
R/at Chettupuzhakkaran House
Avenue Road, Cheeyaram Village
Thrissur Taluk, Thrissur District
Kerala - 680 005.-
Ms.Rose Paui
D/o.Late Dr.C.F.Antony
Aged 36 years.
8. Ms.Tessa Antony
D/o.Late Dr.C.F.Antony
Aged 27 years.
9. Mr.Joe Antony
S/o.Late Dr.C.F.Antony
Aged 59 years. .
Respondents 7 to 9 _
R/at Chettupuz.hakkaran --H'ouse_
Avenue Road , ' C_h'eey{_a ram "Vi.i_i'a,g"e.
Thrissur Taluk, Thrisst:r.'VDistrictf»._ .
Keraia-5680
. ' V RESPONDENTS
(By Sri for.._8t__;S~riV K'. syuman , Advs. for R-1;
Service or niQt!;Ce t'o'R2'~t"o R'9"dis}oensed with)
This"wiii.t _petitio4Vn";Ǥs fiied under Articles 226 and 227
of the C--onstituti'o.n of%'Incf'§a praying to set aside the order
dated 21.'04.20V10~..'pas'sed"by the Court of the City Civil and
Sessions">,_ju.dge._ Cat "«...Bangaiore in O.S.No.5896/2006
(Ann-exure'-».B)'."" "
flhisupetitionmeoming on for preliminary hearing in 'B'
' V.Vg'roVup.,V''t~hi's.V day the Court made the foliowingz
ORDER
..V"Pet.iVt'ioner instituted 05.5896/2006 against the 2 xrespondents. Written statement was filed by the 15* "".de1"Aendant on 30.9.2006. Appiication seeking amendment of the piaint was filed on 13.3.2007. The Triai Court, suo / r"
motu passed an order under Order 2 and of CPC.
2. According to the Trial sought three different reliefs in respect land in different survey and tl:.er'efore.',':,thVere is no common question ovr':fact the case and according to it, there'VV_is:"jAo_indefv of action in one suit which trial and hence, it has direc.t_ed.;.4th.e'.p'l'aintiff«.to"~o:r;o'o'se"any one of the reliefs in the :7{._)|ai_ii't "separate suits for remaining reliefs.' "Aggrvieved',rV.'the"'plaintiff has filed this writ petition. =lileard"th'e'V learned counsel on both sides and f per u 'thee. writ papers.
The Trial Court has not noticed the decision of the rrApex'""C.ourt in the case of PREM LALA NAHATA AND ""~.V\/al'I!\f:OTHER VS. CHANDI PRASAD SIKARIA (2007) 2 SCC "551), wherein, almost in an identical circumstances, it has been held as under: \§ /7'
-.
"10. Based on this understanding, we the respective positions of Order 1 and Order a of things. Order 1 deals with parti_es'~vtof.all"Vsuit provides who may be joined as.l'the:lp'laintiffsand ' be joined as the defendants. ltlalso ideals' of the court to direct thle"-plaintiffs either to~eleclt with' reference to a particular plvaiintiff _ or at particular defendant or to order separate trials' respect' of "the parties misjoined as the p1'a:£mffst_ olrltheldefendants. It also gives power to thecourtto.ipi*onouncel.juVd'gmlent for or against one of the plarties frorri pa.rties who have joined together "'~suledl"v.:together. The order also spe'cifies;that suitvshall n_ot"'be defeated by reason of the misjoinderllofi.nona--jcirider of parties, so along as in the case oflncon--join'der,"'the' non--joinder is not of a necessary party. Code". also gives power to the court to V_"'*é-ubstitute the-cori*ect person as a plaintiff or add parties A or _vfstril<:.e*~0ut parties as plaintiffs or defendants, at any V stagetifit"is~found necessary.
2 deals with frame of suits. It provides that every_ suit shall be framed as far as practicable so as to " *=.afford grounds for final decision upon the subjects in if 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 tlief:l"p21aintiffs having causes of action in which aie'fjoi7ntlyp interested against the same defendant,-rnayunite causes of action in the samefflsuit; It that T. objection on the ground of misjoiinder of '-causves action should be taken at the«.___earlies.t' opportuciiityiy it also"
enables the court, where i"t..Valppears"to the court that the joinder of causes action m'ayV""embarrass "or delay the trial or otherwise to order separate trials or to make su.ch'_o.th'er o_rde'1'. a's--.1rn'ay be expedient in the interestsjustice. -V
12. ':1' fplainft suffers from the defect o;fVp_arti_es or.rnisjoinder of causes of action eithei'4in'termjse.of» Rule 1 and Order 1 Rule 3 on the o~haelrh_ehd, 2 Rule 3 on the other, the Code iitself indi-cates that the perceived defect does not make one 'barred by law or liable to rejection. This is ._clea1"afrorn Rules 3--A, 4 and 5 of Order 1 of the Code, and pth'is."is,_err';phasised by Rule 9 of Order 1 of the Code which A pro'vid§s that no suit shall be defeated by reason of non-- joinder or misjoinder of parties and the court may in A' ' 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 ernphasisgd 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 /' /v provides that save as otherwise provided. unite in the same suit several causes ofactivons"against the same defendant and any__p»1a.i1f1tiffslhaving .Vca_use'&':_V T actions in which they are jdiuntlyiivinterested" . same defendant may unite such csiusesef. action': in the same suit. Rule 6 enabies"*~.i;he court--.to:*_:order"separate trials even in a case of mi_s__io:inderV of cause_s action in a plaint filed. _ V 1 '
13. After the amendmesnthvof '1~T6_-Rule 1 in England, it was he1d'«Ioy.the;_Court of, Afip.ea1 England in Thomas v. Moqrerz_9i§,_8;'._1 K..e_1555:s'7 Lice 577{CA} thus:
been at the time when sirnuy-tt::1:;:%a:te__v*.4eHarmqy11894 AC 494.-1891-41Au ER Rep 8635 (HL) was goinder of parties and joinder of causesof. act.ion._ are-7discretionary in this sense, that if _{they are tldere is no absolute right to have them
- lstruck' out, is discretionary in the Court to do so if it " 'it"thi11ks.VTright."
l"dl4.A Privy Council in Mahant Ramdhan Pun' v. chgqudhury Lachmi Narain{AIR 1937 PC 42.-1937 All LJ _ 555} pointed out: [AIR p.45) "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." \ /' ,4-v Of course, their Lordships were speaking in Section 99 of the Code. Their Lordships'_"1'eferred"_ to abovequoted observation of the . Court. . oi"; >' Appeal {in b T Thomas V. Moore in that decision. {It is thereforepcliearxthat a suit that may be bad Vfozjmisjoinder ofcauses ofigactionz is not one that could be'g.o.t'~istruck*-- oiutor rzcjeclted by a defendant as a matter of..--right and the'di.scr§etion vests with the court eith--e_rfto the suit or to direct the plaintiff to take steps defect. in fact, the Privy Couvnfiil in that the suit was bad for causes of further noticed that the triialpdiudge the complications created th.ereby..itried::f:A§V of the suit satisfactorily. Thereforeil occasion for the court to dismiss the suit onthe misjoinder of causes of action at the appellate stage-.
isxwellllunderstood that procedure is the handmaid V' " ..ofjus'ti:ce:an,_d not its mistress. The scheme of Order 1 and clearly shows that the prescriptions therein are in A=-.._thev_>reVaJm of procedure and not in the realm of substantive law or rights. That the Code considers A' ' objections regarding the frame of suit or joinder of parties it 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 rnisjoinder of parties or causes of action or nonjoinder of parties unless a court finds that the nonjoinfler is of a necessary party. /"
'/6' This is on the same principle as of Section__2"1"oft;-hefijode which shows that even an objectionfito::_"territori.al' jurisdiction of the court in wl'1ichi the instituted,' j i could not be raised successfVully::'for:'theiirslt appeal against the decree unless the appellant: alsotvabjlee, to show consequent failure.:ofi_iustice..The:.'Suitsl"Va1uation Act similarly indicatesp_....th'at'--.absence-_of'§ pecuniary jurisdiction in the,._flcour_t the cause without objection also stands isfsanie footing. The amendmentjto v'C"odVe in the year 1976 confers4..pQwer:onthe ieozurt towtransfer a suit filed in a cofuj: 1:jii;;§ifi'g ' nlobjurisdiction, to a court having Juviris'd1'cat;1ic:n In context of these provisions
--.particu'lar:"reéfereiice "to the rules in Order 1 and Orde.1j'2, is clear that an objection of Vrn_isjoin'de_r:l of..plai'ntlift".s or misjoinder of causes of action, p"roceAd'ura.1...«objection and it is not a bar to the " enteliftaining of the suit or the trial and final disposal of . ltizefsuitl court has the liberty even to treat the plaint bin suel1_.a case as relating to two suits and try and 2°dis'pose":them of on that basis."
5. In view of the declaration of iaw made by the Supreme Court and in view of the facts and circumstances of the case, there is neither joinder of causes of action nor misjoinder of unnecessary parties. There is misdirection \ / I 10 on the part of the Trial Court in passing order, without correctly noticing the re_c'o'rd'1ja.nd'»:al~so relevant provisions applicable to:=,.the.-Arné.tter..' l V In the result, writ peVtitvior.».stanV.as. order stands quashgedi The" broug'ht"torward, is required to be tried Trial Court is directed to." the pending I.As.
within a date a copy of this order.
instituted in the year 2006, the Trial Courtis-v__diire"cte'd to expedite the trial and dispose ofthe as e'ar!y.._a«s practicable and at any event within a ' ,period.__o~f year from today.
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Ifidge