Madhya Pradesh High Court
Pahelwan Singh And Ors. vs Leela Bai And Ors. on 15 September, 1997
Equivalent citations: AIR1998MP152, AIR 1998 MADHYA PRADESH 152, (1999) 1 JAB LJ 349
ORDER T.S. Doabia, J.
1. The issue in this petition is as to whether the court below was justified in proceeding with the trial of the suit which according to the petitioners contained pleas which should have been challenged by filing separate suits. In a nutshell the argument raised is that there is mis-joinder of cause of action and also parties. With a view to sustain his claim, following factual submissions have been made.
2. One Ramsewak. father of the plaintiffs sold different pieces of agricultural land on different occasions to different persons. The date on which sales have been made and the persons to whom these sales were made are noticed below :
Date of Sale Deed To whom Sale Deed was Executed.
26-3-1986 Defendant No. 1.
26-10-1985 Defendant No. 2.
10-7-1985 Defendant No. 3.
26-6-1986 Defendant No. 4 & 5.
27-6-1986 Defendant No. 7 & 8.
27-6-1986 Three Sales Deeds in favour of defendant Nos. 9, 10 and 11 by 3 separate sale Deeds.
27-6-1986 Defendants No. 12 and 13.
16-6-1987 8-10-1987 All these sales are being challenged by filing a composite suit. To the adoption of this course, an objection has been taken. This objection is to the effect that sale deeds pertain to different portions of land and these sales were made to different persons. These transactions according to the petitioner should be challenged by filing a separate suit.
3. The learned counsel for the petitioners placed reliance on a decision of this court in Kanhaiyalal v. Keshodas, AIR 1961 Madh Pra 46. In the above case, it was observed that two conditions most be satisfied before two or more defendants can be joined in the same suit. These conditions were indicated as under :
(i) a right to relief aguinst them arises in respect of the same act or transaction or series of acts or transactions; and
(ii) if separate suits were instituted against the defendants any common question of law or fact would arise.
After making the aforementioned observations it was further observed that both the conditions must exist together and there must be nexus or common link, it would be apt to notice what was said in paras 5 and 6 of the judgment. These read as under:
"Both these conditions must exist together There must be some nexus or common link. This condition is not fulfilled if the case against each defendant is entirely distinct and separate in its subject matter from that of the other defendants. If no connection or conspiracy is alleged to exist between the various persons joined as defendants, the suit will be bad for multifariousness. Otherwise, if a common suit is permitted against two or more defendants when there is no nexus inter se. it wilt only lead to obscurity and confusion. The policy of the law embodied in these rules is that on the one hand, needless multiplicity of suits should be avoided but, on the other hand, the trial of a suit should not be embarrassed. The expression "common question of law or fact', does not mean "same or similar" question of law or fact. The distinction is real. See: Mahbub Shah v. Emperor. 72 Ind. App. 148; AIR 1945 PC 118, and Pandurang v. State of Hyderabad. (1955) I SCR 1083; AIR 1955 SC 216).
In the present case, the cause of action against both the defendants are quite, different. One defendant has nothing to do with the case against the order. Shri Gupta relies on Purushottam Amrit v. Bhagwansao Tikaramsao, AIR 1938 Nagpur 461. Pyarchand v. Narayan, Madh B. LJ (1954) HCR 1233, Mahommed Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC 78. Not one of these cases applies here. The facts were quite different. Suits relating to transactions entered into by a manager of a Hindu Joint family or a Hindu widow, stand on a quite different footing".
4. Reliance has also been placed On Bhaiyalal Biliram Teli v. Ramchandra Hemraj Mahesri, AIR 1937 Nagpur 99. In the above case, there were two mortgages of same property. These were sought to be challenged by filing a single suit. It was observed that mortgagee cannot bring one suit in respect of two mortgages of the same property executed in favour of two persons,
5. Reliance has also been placed on Shiv Prasad v. Hardiya v. Shriram 1974 MPIJ (SN) 78. In the above case trespass was committed by different persons on different dates on different portions of the land owned by the landowner. It was observed that one suit against all the purchasers is not maintainable. The suit was held to be bad on account of mis-joinder of cause of action and of parties.
6. Reference be also made to a judgment of Punjab and Haryana High Court in the case reported as Santsingh v. Desh Ram, AIR 1974 Punj & Har 276, A. D. Koshal, J., (latter Judge of the Supreme Court of India) observed that where each defendant is answerable for his own act. then, it would be apt that different suits are filed. The suit filed was held to be bad for joining multifarious cases of action in one suit.
7. The above decisions do support the contention put across by the learned counsel for the petitioners.
8. The learned counsel for the plaintiff, however, places reliancc on a decision reported as Anant Jog v. State of MR, 1972 Jab LJ (SN) 43. In the above case, it was held that where common questions of law and fact are likely to arise, it separate suits are brought then, causes of action can be joined in one suit.
9. The other decision on which reliance placed is Bhanwer Singh v. M/s. Dhariwal Bros. 1983 MPWN (SN) 3 (28). In the above case, it was observed that one suit for eviction of a premises let out on separate agreements can be filed.
10. I am of the opinion that the course adopted by the plaintiffs in tiling one single suit challenging ten transactions of sales made in favour of different persons would be bad in view of the provisions of Order II Rule 3 of C.P.C. Had the sale been made in favour of one person on different dates, something could have been said in favour of the plaintiff. In this case the sale is to diferent persons on different dates of different portions of land. As such, the suit as filed would be bad and misjoinder of cause of action.
11. As such, the court below would return the plaint to the plaintiff. The plaintiff would be at liberty to elect as to against which of the defendants he wants to prosecute the suit in question. He would be at liberty to file separate suits. In case different suits are filed then, the suits be tried together and disposed of by the same Court.