Sunday 25 March 2018

When suit should not be dismissed for misjoinder of parties or causes of action?

 Since the suit was dismissed for misjoinder of parties and/or causes of action, it is pertinent to mention here the law on the point which is as under:

Order II Rule 3

Joinder of causes of action-(1) Save as otherwise provided, a Plaintiff may unite in the same suit several causes of action against the same Defendant, or the same Defendants jointly; and any Plaintiffs having causes of action in which they are jointly interested against the same Defendant or the same Defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject matters at the date of instituting the suit.

Order II Rule 6

Power of Court to order separate trials-Where it appears to the court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice.

In Black's Law Dictionary it has been stated that the expression 'cause of action' is the fact or facts which give a person a right to judicial relief. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the Plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the Plaintiff a right to relief against the Defendant. It must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded.

19. Order II, Rule 3, provides for the joinder of several causes of action and states that a Plaintiff may unite in the same suit several causes of action against the same Defendant, or the same Defendants jointly or several Plaintiffs having causes of action in which they are jointly interested against the same Defendant or Defendants jointly may unite them in one suit. The remedy for any possible inconvenience with regard to said Rule is supplied by the provisions of Order II, Rule 6, which authorizes the Court to order separate trials of causes of action which though joined in one suit cannot be conveniently tried or disposed of together.

20. Similarly, Order I Rule 1 of the Code permits joinder of more than one persons 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 in such persons, whether jointly, severally or in the alternative; and if such persons brought separate suits, any common question of law or fact would arise. Order I Rule 2 provides that where it appears to the court that any joinder of Plaintiffs may embarrass or delay the trial of the suit, the court may put the Plaintiffs to their election or order separate trials or make such other order as may be expedient.

21. In this connection, it is pertinent to refer to a judgment of this Court in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors. MANU/SC/0493/1992 : 1992 (2) SCC 524 wherein it was held as under:

14. It cannot be said that the main object of the Rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the Rule rather than its main objectives. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought or relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.

22. In view of the foregoing discussion, we are of the opinion that the Appellants even though had different causes of action against the Respondent but it was a continuity of the agreement dated 06.06.2009 and oral agreement is evidenced by the transcript of conversation between the Appellant No. 2 and the Respondent on 6/07.04.2011, therefore, both the Appellants could have joined as Plaintiffs in a suit and the suit is not bad for misjoinder of parties or causes of action. Hence, learned single Judge as also the division bench, was not right in giving an option to the Appellants to pursue reliefs qua Appellant No. 1 or qua Appellant No. 2 only.
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8837 of 2016

Decided On: 10.04.2017

Hema Khattar and Ors. Vs. Shiv Khera


Hon'ble Judges/Coram:
Madan B. Lokur and R.K. Agrawal, JJ.



Citation: 2018 (1) MHLJ 119.
Read full judgment here: Click here

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