Calcutta High Court (Appellete Side)
Sri Tapan Prakash Bose vs Sri Arun Kumar Bose & Ors on 26 March, 2008
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
C.O. No.19 of 2007
Sri Tapan Prakash Bose
versus
Sri Arun Kumar Bose & Ors.
For the Petitioner : Mr. Bidyut Banerjee,
Ms. Shila Sarkar.
For the Opposite : Mr. Jiban Ratan Chatterjee,
Parties Mr. Partha Pratim Roy.
Judgment On : 26-03-2008.
The propriety of the order being No.45 dated 14th November, 2006 passed
by the Learned Small Causes Judge at Sealdah in T.S. No.22 of 2006, is under
challenge in this Revisional Application at the instance of the
defendant/petitioner.
Let me now consider as to how far the Learned Trial Judge was justified in
rejecting the petitioner's objection regarding misjoinder of causes of action in the
suit, in the facts of the instant case.
The plaintiffs/opposite parties filed a suit against the defendant/petitioner
amongst others who are opposite parties no.3 to 5 herein inter alia praying for a
decree for declaration of the plaintiffs' absolute right, title and interest in respect
of "A" schedule property with a further declaration that the defendant/petitioner
is a bare licensee in "A" schedule property and for recovery of possession of the
"A" schedule property from the defendant/petitioner on revocation of licence.
In the said suit the plaintiffs have also sought for a declaration of their
6/7th share in the "B" schedule property with a further declaration that the
defendant no.1 has 1/7th share therein and for partition of the "B" schedule
property by appointment of commissioner.
The plaintiffs have claimed title in respect of "A" schedule property by
virtue of a deed of family settlement dated 14th August, 1989 executed by their
mother Madhuri Bose during her lifetime. The plaintiffs thus claimed that they
became the absolute owner of the "A" schedule property as their mother gifted
the said property to them by the said deed of settlement.
The plaintiffs have further claimed that the defendant no.1/petitioner has
no title in respect of the "A" schedule property. According to the plaintiffs, the
defendant no.1/petitioner is a bare licensee in respect of "A" schedule property
and after revocation of licence his occupation in the "A" schedule property, is
unauthorized. Hence, a decree for eviction is sought for against the defendant
no.1/petitioner from "A" schedule property.
With regard to "B" schedule property, the plaintiffs claim that the plaintiffs
along with all the defendants including the defendant/petitioner herein as well as
their mother since deceased inherited the "B" schedule property in equal share
from the plaintiffs' father Jyoti Prasad Bose who died intestate on 17th August,
1977. The plaintiffs, thus, claim that all the seven heirs of Jyoti Prasad Bose
inherited 1/7th share each in "B" schedule property. The plaintiffs further claim
that the mother of the parties settled her undivided 1/7th share in "B" schedule
property in favour of the plaintiffs/opposite parties by the deed of settlement
dated 14th August, 1989. The plaintiffs further claim that the undivided interest
of the proforma defendants/opposite parties has also been settled with the
plaintiffs/opposite parties. Thus, the plaintiffs/opposite parties claim 6/7th
interest in "B" schedule property, and thereby admitting the petitioner's interest
therein to the extent of 1/7th share. A decree for partition has been sought for in
respect of "B" schedule property inasmuch as joint enjoyment and/or possession
thereof is found to be inconvenient.
Thus, on bare reading of the plaint case it appears that two distinctly
separate causes of action have been joined together in the present suit by the
plaintiffs against the common defendant/petitioner.
Though an impression was sought to be given to this Court by Mr.
Banerjee, learned Senior Counsel appearing for the petitioner that different set of
reliefs in respect of different suit properties were sought for against different set
of defendants on different set of causes of action, but this Court on careful
examination of the plaint finds that, in fact, no relief has been claimed in the said
suit against the proforma opposite parties herein either in respect of "A" schedule
property or in respect of "B" schedule property. Thus, this Court cannot
conclude that different reliefs have been claimed by the plaintiffs against different
set of defendants in the said suit. This Court, thus, holds that the plaintiffs, in
fact, claimed different reliefs against the common defendant namely the
petitioner herein in respect of different suit properties on distinctly different
causes of action.
In this context, an objection was raised against misjoinder of causes of
action in such a suit, at the instance of the defendant/petitioner.
The Learned Trial Judge rejected the petitioner's said objection by holding
inter alia that joinder of such causes of action is permissible in view of Order II
Rule 3 of the Code of Civil Procedure. The Learned Trial Judge further held that
since the Hon'ble High Court, while disposing the earlier Revisional Application
directed the Learned Trial Judge to accept the written statement filed by the
defendant/petitioner wherein, the entire claim of the plaintiffs were dealt with by
the petitioner, this Court cannot segregate the different reliefs claimed by the
plaintiffs in the said suit by accepting the objection of the defendant/petitioner
regarding misjoinder of causes of action.
Several decisions were cited at the Bar to support the respective
contentions of the parties.
Mr. Banerjee, Learned Senior Counsel appearing for the petitioner cited the
following decisions to support his contention that the suit is not maintenable for
misjoinder of multifarious causes of action against different set of defendants :-
1.Balasundara Mudaliar -Vs- Muthuvenkatachala Mudaliar & Ors.
reported in AIR 1954 Madras 799.
2. Bankim Chandra Paira & Anr. -Vs- Anand Bazar Patrika & Anr.
reported in AIR 1950 Calcutta 129.
3. Dwarke Prasad -Vs- Kishan Lal & Ors. reported in AIR 1986 Allahabad 174.
4. Jokhi Ram & Anr. -Vs- Sardar Singh & Ors. reported in AIR 1955 Allahabad 661.
On the contrary, Mr. Chatterjee, Learned Senior Counsel appearing for the plaintiffs/opposite parties cited the following decisions to support his submission that such joinder of causes of action is permissible in view of Order III Rule 3 and Order I Rule 1 and Order I Rule 3 of the Code of Civil Procedure :-
1. S.M. Gopalakrishna Chetty -Vs- Ganeshan & Ors. reported in AIR 1975 SC 1750.
2. Sm. Tara Sundari Ghosh -Vs- Sm. Chhayarani Dandapth reported in (1995)1 CHN 272.
3. Assembly of God Church -Vs- Ivan Kapper & Anr. reported in (2004)4 CHN 360.
On perusal of the aforesaid decisions, this Court finds that the principles laid down in either of the aforesaid decisions cited either by Mr. Banerjee and by Mr. Chatterjee, does not fit in, in the facts of the present case imasmuch as a relief by way of partition has been sought for in this suit which was filed principally for recovery of possession of a different suit property from the petitioner.
Though it is true that different causes of action can be joined in one suit against the same defendant or against the same defendants jointly when the plaintiffs have causes of action in which they are jointly interested against same defendant or same defendants in view of Order II Rule 3 of the Civil Procedure Code, but the relief for partition in respect of a distinctly different suit property cannot be claimed against a defendant in a suit which was filed principally for recovery of possession of a distinctly different suit property from the said defendant, inasmuch as joinder of such causes of action in one suit without the leave of the Court is not permissible in view of the provision contained in Order II Rule 4 of the Code of Civil Procedure. The provision contained in order II Rule 4 is set out hereunder:-
"Only certain claims to be joined for recovery of immovable property.- No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except -
(a) claims for mesne profits or arrear of rent in respect of the property claimed or any part thereof;
(b) claims for damages for breach of any contract under which the property or any part thereof is held; and
(c) claims in which the relief sought is based on the same cause of action:
Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property."
Thus, this Court finds that the provision contained in Order II Rule 4 Civil Procedure Code is an exception to the general Rule which permits joinder of causes of action in one suit as per the provision contained in Order II Rule 3 of the Civil Procedure Code.
In the facts of the present case the reliefs claimed by way of partition cannot come under any of the exceptions as provided under Clause (a), (b) and (c) under Order II Rule 4 of the Code of Civil Procedure.
As such this Court has no hesitation to hold that in a suit for recovery of possession of "A" schedule property from the petitioner, the plaintiff cannot claim partition against the petitioner in respect of the "B" schedule property without the leave of the Court in view of the Order II Rule 4 of the Code of Civil Procedure. Since no such leave was obtained by the plaintiff for joining such causes of action in the present suit, the Learned Trial Judge ought to have allowed the petitioner's objection regarding misjoinder of causes of action in the instant case.
That apart, Order II Rule 6 of the Civil Procedure Code also does not permit joinder of causes of action of such nature in one suit when joinder of such causes of action in one suit may embarrass and/or delay the trial of the suit and further when the Court finds inconvenience to try such a suit because of such multifariousness. Subject matter of consideration in both the suits are different. There is no common issue between the parties excepting the issue relating to the legality of the deed of settlement executed by mother by which her interest in both "A" and "B" schedule property was given to the plaintiffs. Partition suit is tried in two stages, i.e. at the stage of passing a preliminary decree and thereafter at the stage of final decree. Subject matter of consideration at two different stages of a partition suit is different. The trial of the eviction suit cannot be bifurcated. Thus, even if the trial of the eviction suit is completed with hearing of the partition suit at the preliminary decree stage, still then no effective decree can be passed so long as the partition suit reached the stage of final decree. Even the Court will feel inconvenience in recording evidence in such suit, as set of evidence in both the suits excepting on the said common issue, will be different. As such, in my view, it is a fit case where separate trial of such distinctly different causes of action will be expedient in the ends of justice.
Accordingly, leave is granted to the plaintiffs/opposite parties to elect as to which of the causes of action, the plaintiffs want to pursue in the present case and if the plaintiff files an application for suitable amendment of the plaint in this regard within two weeks from date, the learned Trial Judge will consider such prayer of plaintiff in accordance with law. In the event the plaintiffs fail to take any step in this regard, the Learned Trial Judge is directed to strike out the plaintiffs' pleading in respect of partition of "B" schedule property from the plaint by invoking its jurisdiction under Order VI Rule 16(c) of the Code of Civil Procedure after giving liberty to the plaintiffs for filing separate suit for partition in respect of "B" schedule property on the same cause of action.
The impugned order is, thus, set aside.
The Revisional Application is, thus, disposed of with the above observations.
Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.
( Jyotirmay Bhattacharya, J. )