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TMI Blog1950 (6) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Singh removed a large number of bricks which were manufactured by Ram Narain Singh for the purposes of the contract. In spite of repeated demands Ram Narain Singh refusal to perform his part of the contract and the plaintiff claimed damages to the extent of Rs. 20,000/-for breach of contract. This was the suit as originally framed. Thereafter the plaintiff applied for attachment before judgment of the bricks and at this stage he came to know that the defendant Bam Narain Singh Bindeswari Prosad Singh, Hazari Singh, Rajen Singh and Thakur Shew Narayan son of Bindewari Prosad had conspired together and pursuant to that conspiracy, Ram Narayan Singh broke the aforesaid contract. Having obtained this knowledge the plaintiff applied to amend his plaint by alleging this conspiracy and by adding Bindeswari Singh Hazari Singh, Rajen Singh and Thakur Shew Narayan as defendants. He amended his claim by claiming Rs. 20,000/- as damages against all the five defendants. The application was rejected by the Subordinate Judge. The plaintiff then moved this Court but did not make the defendants proposed to be added parties to this rule. The rule was heard ex parte and made absolute, the amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on one material fact viz., the breach of the contract made between him and the defendant 1 Ram Narayan Singh. This breach was brought about by all the defendants in conspiracy and therefore it was permissible to sue all the defendants for relief in one suit. He relies for this contention on the provisions of Order 1, Rule 3 which is in the following terms : All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise. 6. I must say at the outset that the judgment of the Court below is not of much assistance to us. The points raised have not been discussed and the application has been disposed of by saying that no reason had been shown why the amendment or addition of the defendants should not be allowed. 7. In my opinion the suit is properly framed and there is no misjoinder of parties or causes of action. Before dealing with the case law on the subject I propose to consider the matter by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here if separate suits were brought against such persons, any common question of law or facts would arise . Let us assume separate suits being brought against each of the defendants; would then a common question of fact arise ? In my opinion, it certainly would. The vital question, viz., the breach of the contract would have to be proved in each and every case, Order 1, Rule 3 does not stipulate that all the questions of law or fact must be common to the defendants. It is sufficient if one common question arises. I realise that the common question must be a substantial one affecting the subject-matter of the suit. In the present case the breach of contract is the very foundation of the suit. If it is not proved the whole suit would fail. This question, viz., the breach of the contract would be common to all the suits if separate suits were instituted against each of the defendants. I am of opinion, therefore, that all the requisites mentioned in Order l, Rule 3 are present in this case and that a suit like the present one is sanctioned by the provisions of Order l, Rule 3. 10. It is argued on behalf of the petitioner that Order l, Rule 3, is merely permissive and that a suit, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion against defendant 1 Bam Narain Singh is different from his cause of action against the other defendants. Bead in isolation Order 2, Rule 3 does cot permit a suit of this description. The rule permits the joining of several causes of action in one suit against one defendant or one group of defendants jointly. It does not sanction a single suit when the cause of action against one defendant is different from the cause of action against another. But it has been held in numerous cases that Order 1, RULE 3 is not confined to joinder of parties only but that it also embraces joinder of causes of action against different parties. It has been further held that Order 2, Rule 3 must not be interpreted so as to override or render nugatory the provisions of Order 1, Rule 3. This view was taken in the case of Ramendra Nath v. Brojendra, Nath 45 Cal. 111 : (A. I. R. 1918 Cal. 858). I am relying on this case at present for no other purpose than that of showing that although a suit as framed may not be in accordance with the provisions of Order 2, Rule 3, nevertheless, it would be maintainable if it complied with the provisions of Order 1, Rule 3 and for the purpose of showing that Order 1, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngeladas v. Houlder Bros. and Co. Ltd. (1910) 2 K. B. 354 : (79 L. J. K. B. 1094). Bullock v. London General Omnibus Co.(1907) 1 K.B. 264 : (76 L. J. K. B. 127), Markt Co., Ltd. v. Knight Steamship Co., Ltd. (1910) 2 K.B. 1021 : (79 L. J. K. B. 939) and Times Cold Storage Co. v. Lowther and Blankley (1911) 2 K. B. 100 : (80 L, J. K. B. 901). This, notwithstanding incidental observations to a contrary effect In Thompson v. London County Council (1899) 1 Q. B. 840 : (68 L. J. Q. B. 625), is not disputed before us. The decisions in the Bombay High Court given in 1908 and referred to in Mt. Jankibai v. Shrinivas Ganesh do not rifer to the latest English decisions. It is conceded before us that it cannot be now contended that Order 16 from which Order 1 is taken does not refer to joinder of causes of action. These decisions were on Order 16, Rule 1 corresponding to Order 1, Rule 1 but are equally applicable to Order 1, Rule 3 which is in exactly the same terms as Order 1, Rule 1 substituting the word defendant for plaintiff. Indeed, in England where the rule relating to the joinder of defendants is in differing terms from that relating to joinder of plaintiffs it has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the original defendant alone. To succeed against the other defendants he would have to prove conspiracy as well. Thus he argues there is no single fact or group of facts which if proved would entitle him to relief against all the defendants and, that being so, it cannot be said that there is a common question of fact. In my opinion this argument is fallacious. I would test its validity in this way. Suppose the plaintiff failed to prove a breach of contract would not the suit fail against all the defendants ? It surely would. Thus the breach of contract is a question of fact which affects all the defendants; it is therefore a common question of fact which must be proved against all the defendants in the suit. \ It is true that even if this common question of fact is proved an additional fact viz., conspiracy must be proved if the added defendants are to, be made liable but this does not matter. Order 1, Rule 3 does not stipulate that all the questions of fact arising in the suit must be common. It is sufficient if one common question of fact arises. I realise that this common question must be one which is not an inessential or trivial question upon which nothing turns. It must invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have obtained the goods by means of fraud. By reason of this, the possession of all is alleged to be wrongful. Whether a common question arises may be tested by seeing what the evidence will be. In the shorthand notes Chitty J., expressed the opinion that the evidence will be common and that if there were separate suits, they might be heard together with consent. In the judgment the learned Judge qualified this statement by saying that this was true up to a point. It is true so far as the plaintiff's cause of action, as based on the fraud of B.N. Dass, is concerned though there may be some facts which are particular to particular parties being offered in proof of the plaintiff's case (e.g. present possession of the goods as a result of such fraud) or by the defendants as part of their defence. The rule does not say that all questions must be common. 17. The same view was taken by this Court in the case of Harendra Nath v. Puma Chandra AIR1928Cal199 . I would refer particularly to the passage appearing at p. 171 where Mukherjee J. quotes certain observations of the Court of appeal in Payne v. British Time Record Co. Ltd. (1921) 2 K.B. l : (90 L. J. K. B. 445) to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... infringed no question of tort would arise. In such a case one suit against all is in my opinion permissible. This view has been taken by a Special Bench of the High Court at Rangoon in the case of P.B. Boss v. M. R. N. Chettyar Firm A. I. R. 1938 Rang. 185 : (1938 Rang L. R. 303 S. B.) Dunkley J. observes : The learned Judge appears to have thought that there was a misjoinder of defendants in the original suit, and that a decree based on a breach of contract against one defendant and a decree for damages in tort against another defendant cannot be made in the same suit. With the greatest respect, this is a misconception of the law. There was no misjoinder of defendants In this case; the provisions of Order 1, Rule 3, Civil P. C., cover the joinder of the three defendants in the suit in the Township Court. There is no reason why a decree for damages for breach of contract against one defendant and a decree for damages in tort against another defendant should not be passed in the same action; in R.T. Grant v. Australian Knitting Mills Ltd. the Privy Council made a decree against the retailer of the underwear for breach of contract and against the manufacturer of the underwear i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended the Code radically on this question by the provisions of Order 1 and Order 2. We are bound by the decisions interpreting the rules contained in these new orders and these decisions I would respectfully repeat lay down the correct principles of interpretation of these rules. 21. I hold therefore that the order of the Court below is correct. The rule must be discharged with costs. 22. K.C. Chunder J.--The facts are very simple. (After stating the facts of the case, his Lordship proceeded as follows:) Mr. Sen appearing on behalf of the petitioners, defendants 2 to 5 contended that as there was a misjoinder of defendants and causes of action, defendants 2 to 5 should be dismissed from the suit, and we should decide the point instead of sending the case back to the Court below as all the materials are also before us. 23. It is unnecessary for me to go into the question when joinder of parties and causes of action are allowed under Order 1 and Order 2, Civil P. C. There are various kinds of joinders and different principles have been applied in different classes of cases. The present case is one of joinder of defendants and causes of action though the plaintiff is the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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