9911796707
TMI Blog2008 (3) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... garding misjoinder of causes of action in the suit, in the facts of the instant case. 3. 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. 4. 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiffs/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 l/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. 8. 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 comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein, 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. 12. 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 main tenable for misjoinder of multifarious causes of action against different set of defendants: 1. Balasundara Mudaliar v. Muthuvenkatachala Mudaliar and Ors. AIR 1954 Mad 799 2. Bankim Chandra Paira and Anr. v. Anand Bazar Patrika and Anr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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