Whether the court can dismiss the suit for non joinder of necessary party?

 It could thus be seen that a "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. It has been held that if a "necessary party" is not impleaded, the suit itself is liable to be dismissed. {Para 18}

19. As already discussed hereinabove, the Plaintiff himself has admitted in the plaint that the suit property is jointly owned by the Defendant, his wife and three sons. A specific objection was also taken by the Defendant in his written statement with regard to non-joinder of necessary parties. Since the suit property was jointly owned by the Defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the Defendant's wife and three sons without impleading them. Even in spite of the Defendant taking an objection in that regard, the Plaintiff has chosen not to implead the Defendant's wife and three sons as party Defendants. 

21. In view of the Plaintiffs own admission that the suit property was jointly owned by the Defendant, his wife and three sons, no effective decree could have been passed in their absence.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5755-5756 of 2011

Moreshar Yadaorao Mahajan Vs.  Vyankatesh Sitaram Bhedi (D) thr. L.Rs. and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: B.R. Gavai, J.

Decided On: 27.09.2022

Citation: MANU/SC/1251/2022

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Can the court dismiss the suit if the plaintiff has failed to file an amended plaint and remains absent in the court?

It is the settled position in law that once an application for amendment is allowed, in terms of the provisions of Order VI Rule 18 CPC, the plaint has to be amended. If the amended plaint is not filed within the stipulated time, the plaint cannot be amended thereafter, as also confirmed by the Supreme Court in Union of India v. Pramod Gupta, (2005) 12 SCC 1. The relevant extract is as below:

“40. It may be true that not only the memorandum of appeal but also the reference was amended. Mr. Rao pointed out that the necessary amendments have been carried out in the application for reference or memorandum of appeal. In terms of Order VI Rule 18 of the Code of Civil Procedure, such amendments are required to be carried out in the pleadings by a party who has obtained leave to amend his pleadings within the time granted therefor and if no time was specified then within fourteen days from the date of passing of the order. The consequence of failure to amend the pleadings within the period specified therein as laid down in Order VI Rule 18 of the Code is that the party shall not be permitted to amend his pleadings thereafter unless the time is extended by the court. It is not in dispute that such an order extending the time specified in Order VI Rule 18 has not been passed.

76. We have noticed hereinbefore that the amendments have not been carried out in the pleadings in terms of Order VI, Rule 18 of the Code of Civil Procedure. The said provision being mandatory, if not complied with the consequences flowing therefrom shall ensue.” {Para 12}

13. Even in Azad Khan v. Riyajuddin [Second Appeal No. 288 of 2017, decided on 21st March, 2017], the Allahabad High Court upheld dismissal of a suit, when the plaintiff had not filed the amended plaint despite repeated opportunities and had subsequently not appeared before the Court. The Court held as under:

“15. Admittedly, the plaintiff was not attending the Court and he did not comply the order dated 16.1.2015 to amend the memo of the parties. If the plaintiffs do not want to pursue his suit, they cannot be compelled to contest the case. 

17. I find that both the courts below have rightly recorded the findings that the appellants have no locus as the memo of parties was not amended by the plaintiff and he was not present on the date fixed. In his absence the trial court has rightly dismissed the suit. Order 6, Rule 18 C.P.C. provides that if a party fails to comply the direction of the Court and does not amend in terms of order of the Court, he shall not be permitted to amend after expiry of the time allowed by the Court. For the sake of convenience the said provision is quoted below:

"18. Failure to amend after Order. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be unless the time is extended by the Court."

18. On a plain reading it becomes clear that if a party has failed to comply the order within the time frame, he shall not be permitted to carry out the amendment. Of course the Court has power to extend the time. In this case no application was moved by the plaintiff for extension of time. As noted above the plaintiff was not present on the dates fixed. The provision of Order 16, Rule 18 was inserted by Act 22 of the 2002. The intention of the legislature is clear that there should not be delay in deciding the suit by taking recourse to delaying tactic.”

14. In the present case also, the Trial Court has dismissed the suit both for want of amended plaint as also for non-prosecution. Clearly, in view of this fact, in this revision petition no further orders would be called for.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

C.R.P. 60/2020, CM APPLs. 22672/2020 & 22674/2020

THARVINDER SINGH & ORS Vs VIRESH CHOPRA

CORAM:

JUSTICE PRATHIBA M. SINGH

Date of Decision: 4th January, 2022

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Whether the court frame issues on vague pleadings?

The proceedings in a civil suit are governed by the procedure laid down in the CPC and which provides for pleadings by the adversarial parties, framing of issues on the substantial questions of law and facts arising thereon, evidence being confined to the issues and findings in the judgment and decree in the suit being confined to the issues framed. A suit is not entitled to succeed or liable to be dismissed on a reasoning which has no foundation in pleadings and/or on which no issue has been struck. In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack De Sequeira MANU/SC/0225/2012 : (2012) 5 SCC 370 it was held that if pleadings do not give sufficient details, they will not raise an issue and the Court can reject the claim or pass a decree on admission. It was further held that on vague pleadings, no issue arises. 

IN THE HIGH COURT OF DELHI

RSA No. 394/2015

Decided On: 29.04.2020

Gopi Chand  Vs.  Geeta Devi and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

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Whether finding given by court against defendant in first suit will amount to res-judicata in second suit if first suit was dismissed?

The findings of the court are clear i.e., that there is sub-letting to the company. The question is whether the above findings which were rendered in a proceeding between the same parties constituted res judicata. The submission of ld. Senior counsel-Mr. Keshav Dayal on behalf of the Petitioners-tenants is that since the suit itself was dismissed, the finding could not have been challenged by the tenants. Thus, the findings by itself would not constitute res judicata unless and until a decree was drawn against the tenants. This submission has some merit as, the settled position in respect of res judicata as held recently by the Supreme Court in State of Andhra Pradesh v. B. Ranga Reddy, MANU/SC/1074/2019 : 2019 (10) SCALE 671 is that a mere finding cannot be challenged and unless and until the decree has been passed, an appeal is not maintainable. Thus, a mere finding, not capable of being challenged, cannot operate as res judicata. The observations of the Supreme Court are as under:

"36. We find that the High Court has failed to draw the distinction between the decree and a finding on an issue. It is the decree against which an appeal lies in terms of Section 96 of the Code. Decree in terms of Section 2(2) of the Code means formal expression of an adjudication conclusively determining the rights of the parties. The defendants-State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue No. 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it.

38. The decree is of dismissal of the suit, whereas, the reasons for passing such decree is judgment as defined in Section 2(9) of the Code. In terms of Section 11 read with Explanation I, the issue in a former suit will operate as res judicata only if such issue is raised in a subsequent suit. Since, the issue of title has not attained finality, therefore, it is not a former suit to which there can be any application of Section 11.

39. In view of the above, we allow the present appeals, set aside the order passed by the High Court in the first appeal filed by the State, as the findings on Issue Nos. 1 and 2 in the first and second suit do not operate as res judicata. The pending applications, if any, shall stand disposed of."

13. The Supreme Court quoted with approval in this case, the decision in Banarsi and Ors. v. Ram Phal, MANU/SC/0147/2003 : 2003 (9) SCC 606 where the Court held as under:

"8. Sections 96 and 100 Code of Civil Procedure make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. (See Phoolchand v. Gopal Lal [MANU/SC/0284/1967 : AIR 1967 SC 1470 : (1967) 3 SCR 153], Jatan Kumar Golcha v. Golcha Properties (P) Ltd. [MANU/SC/0041/1970 : (1970) 3 SCC 573] and Ganga Bai v. Vijay Kumar[MANU/SC/0020/1974 : (1974) 2 SCC 393].) No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 Code of Civil Procedure provide for an appeal against decree and not against judgment.

9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross-objection though certain finding may be against him. Appeal and cross-objection--both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was the well-settled position of law under the unamended Code of Civil Procedure."

IN THE HIGH COURT OF DELHI

CM (M) 600/2019, CM Appls. 17972, 20292 and 20409/2019

Decided On: 19.02.2020

 Arun Kumar Jain  Vs.  Bhagwant Singh Pabla 

Hon'ble Judges/Coram:

Prathiba M. Singh, J.

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Whether court should dismiss suit for removal of encroachment relying on court commissioner report?

The fact that the Local Commissioner's report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioner's report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioner's report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioner's report, the High Court straightway proceeded to dismiss the suit. The Plaintiffs have been asserting encroachment by the Defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the Plaintiff not only with reference to the Commissioner's report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8285 of 2009

Decided On: 04.02.2019

 Ram Lal Vs. Salig Ram and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: 2020(1) MHLJ 170

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Whether suit for mandatory injunction for removal of illegal structure should be dismissed if plaintiff has failed to prove his title?

The first and the foremost fact that is required to be considered is that, the learned trial Court on the basis of evidence before it, had come to the conclusion that the plaintiff had failed to prove that, Saraswatibai left Will dated 17-7-1997 in his favour. Important point to be noted is that, though the trial Court had held that, the suit plot was self acquired property of Maruti and after his death, the plot was exclusively held by Saraswatibai, it was on the basis of challenge to the Will, the burden was on the plaintiff to prove the said Will, in which he had failed. The First Appellate Court also held that, the suit plot was the self acquired property of Maruti and that Saraswatibai had not executed any Will dated 17-7-1997 in favour of plaintiff. In fact when plaintiff had filed the said suit based upon the title which he was claiming through the said Will, and he failed in establishing the said Will i.e. title to the suit plot, then the ultimate result would have been only the dismissal of the suit, not else.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

S.A. No. 717 of 2016

Decided On: 11.06.2019

 Shivram Vs. Prabhakar 

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2019(6) MHLJ 903

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Whether eviction suit on ground of bonafide need can be dismissed if landlord has not taken steps for starting business in tenanted premises?

The Courts below while discussing bona fide of the petitioner for requirement of the demised premises have commented that he failed to plead or prove the business intended to be started by him in the demised premises, as such, it cannot be said that his need is bona fide one. Learned Rent Controller has gone to the extent of observing that the landlord has failed to prove any steps taken by him in order to start his own business in the shop in question.

17. The above facts to my mind are wholly irrelevant while deciding the bona fide need of the landlord for the tenanted premises. A person does not require any experience or ready finances and his preparation to be disclosed at the time of filing petition seeking ejectment of the tenant. In present day scenario the finances are available through banks and other financial institutions as and when a person has to start business. A landlord cannot visualize at the time of filing petition as to what type of business he could start in the shop after its vacation. Suppose it takes 4/5 years before he is put in possession of the shop (this petition is pending for the last 22 years) he will have to study market condition and similar other factors while deciding as to what business he could start. It is quite possible that if he had thought of starting a particular business at the time of filing of the ejectment petition, the same may not be feasible or remunerative by the time he gets possession of the shop because of many competitors in that field of business who have come in the market by that time. A person does not require any experience to start a new business as we have a number of instances where a person having no experience had been very successful while a person with all expertise has failed in a particular business.

IN THE HIGH COURT OF PUNJAB AND HARYANA

CR No. 2058 of 2004 (O&M)

Decided On: 27.02.2019

 Ashwani Kumar  Vs.  Madan Lal

Hon'ble Judges/Coram:

Surinder Gupta, J.

Citation: 2019(1) RCR(Rent) 449

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Whether second suit will be barred by res judicata if first suit was dismissed as it was premature?

 It is not that every matter decided in a former suit, can be pleaded as res-judicata in a subsequent suit. To consider a matter "res-judicata", one of the conditions is, the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. To support the plea of res-judicata, it is not enough that the same matter shall be in issue. It is also important that the matter was heard and finally decided. The expression "heard and finally decided" refers to a matter on which the Court, having exercised its judicial mind, has recorded a finding and arrived at a decision on a contested matter.

14. Thus, taking into consideration the facts of the case and the ratio laid down in the case of Shedon Singh (supra), I hold and conclude that since the rejection of the first suit on the ground that the same was premature and not on merits, the findings rendered in the first suit are not binding on the parties, as well as, on the learned trial Judge in the second suit on the ground of res-judicata. The Question is answered accordingly.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 795 of 2005

Decided On: 16.04.2019

 Shrikant Waman Pawaskar Vs. Deepali Dinanath Pawaskar

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(6) MHLJ 447

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Whether Representative suit is to be dismissed if there is non compliance of O 1 R 8 of CPC?

 Even the findings of the learned Courts below that the suit must be dismissed because the provisions of Order 1 Rule 8 CPC have not been complied with are not correct. Order 1 Rule 8 CPC deals with suits filed in representative capacity and a person filing a suit in representative capacity is supposed to file a list along with his application giving the names, parentage, and details of all persons on whose behalf the suit is purported to be filed.

9. In the present case, though an application for permission to file the suit in representative capacity was filed the plaintiffs did not make any effort to have this application decided and no orders of the Court were obtained permitting the plaintiffs to file the suit in representative capacity. The learned lower Appellate Court has totally mis-read the record in holding that no list of persons was filed. List of persons was filed but that was not a proper list since only names were given and no details as required by law were given. In a claim relating to Bartandari rights the plaintiffs should have also given the details of the residence of each of the claimants since only the persons residing in particular villages would have Bartandari rights in the land. In a suit filed under Order 1 Rule 8 CPC the Court before granting permission must give notice of the institution of the suit to all the persons so interested though it is not necessary that such notice must be by way of personal service. This notice can be given by public advertisement also. The purpose of giving such a notice is that the persons on whose behalf the suit is stated to be filed have a right to apply to the Court to be made parties to the suit. A suit which has been filed under Order 1 Rule 8 and where permission has been sought cannot be withdrawn or abandoned unless notice is given to all the persons for whose benefit the suit was stated to have been filed. A decree passed in such a representative suit virtually operates like a decree in arm.

10. In the present case, it appears that though an application was filed the plaintiffs never obtained orders of the Court on the said application nor took any steps to ensure that notice is issued to the persons for whose benefit the suit was purported to be filed. Therefore, the provisions of Order 1 Rule 8 CPC have not been complied with.

11. Having said so, in case of non-compliance with the provisions of Order 1 Rule 8 CPC the suit itself cannot be dismissed. At best, the suit can be treated to be a suit filed by the parties in their individual or personal capacity. It may not be treated as a representative suit but it cannot be said that the suit itself has to be dismissed; To this extent the findings of both the Courts below are wrong. Therefore, question No. 2 is also decided in favour of the appellants.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Decided On: 19.11.2009

Devi Singh  Vs.  Chairman, Managing Committee, D.A.V. Public School and Ors.

Hon'ble Judges/Coram:

Deepak Gupta, J.

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Whether suit dismissed on ground of res judicata will be decree even if it was passed without framing of issue?

 In terms of Section 2(2) of the Code, in case, the court adjudicating the case, conclusively determines the rights of the parties with regard to any one or more or all of the matters in controversy in the suit, the requirement of decree is satisfied. Such determination can be preliminary or final. Rejection of a plaint is deemed to be a decree Under Section 2(2) of the Code. Only two orders are excluded-(i) any adjudication from which an appeal lies as an appeal from an order and (ii) any order of dismissal for default. Order XLIII of the Code has provided for appeals from orders. The impugned order does not come under Order XLIII. The order has conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, viz., Res Judicata. True, it is not an order passed on framing an issue. But at the same time, there is adjudication on the controversy as to whether the suit is barred by Res Judicata in the sense there is a judicial determination of the controversy after referring to the materials on record and after hearing both sides.

15. The impugned order dismissing the suit on the ground of Res Judicata does not cease to be a decree on account of a procedural irregularity of non-framing an issue. The court ought to treat the decree as if the same has been passed after framing the issue and on adjudication thereof, in such circumstances. What is to be seen is the effect and not the process. Even if there is a procedural irregularity in the process of passing such order, if the order passed is a decree under law, no revision lies Under Section 115 of the Code in view of the specific bar under Sub-section (2) thereof. It is only appealable Under Section 96 read with Order XLI of the Code.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4543 of 2016 

Decided On: 13.04.2016

 Rishabh Chand Jain  Vs.  Ginesh Chandra Jain

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Citation: 2017(1) MHLJ 16 SC

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Whether second suit is tenable if first suit is dismissed on ground that it was premature?

Mr. Sawant, the learned Counsel appearing for the respondent would contend that, when the first suit was dismissed having found it was pre-mature, subsequent suit cannot be said to be barred by res-judicata. Mr. Sawant, has relied upon the judgment of the Apex Court in the case of Sheodan Singh v. Daryao Kunwar, reported in MANU/SC/0264/1966 : AIR 1966 Supreme Court 1332 (V 53 G 257), wherein it is held that -

"In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit."

In the case at hand, the first suit was dismissed predominantly on the ground that it was premature and therefore the latter suit was not barred by res-judicata.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 795 of 2005

Decided On: 16.04.2019

Shrikant Waman Pawaskar  Vs. Deepali Dinanath Pawaskar

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.
Citation: 2019 SCC ONLINE Bom 835

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Whether suit of landlord on ground of bonafide need is to be dismissed if his other suit on ground of bonafide need is dismissed?

A decision in the other suit even if against the plaintiff on the question of bona fide requirement, would not necessarily result in the dismissal of this suit. The two matters in this case do not involve identical questions as was the case in the judgment of the Supreme Court. It is only when a decision in one matter is bound to affect the decision in another that the judgment would apply. This is not the case here.

11. In the present suit, the bona fide requirement involves questions of fact and, in any event, mixed questions of law and fact. It is possible that a Court may decide the question of bona fide requirement against the landlord in one case but not in another. This would depend on the facts and circumstances of each case. This would be so even if the properties are located in the same building. Therefore, significantly, in the present case, neither party sought to tender the evidence in the other suit as evidence in this suit. The evidence in that matter was not read as evidence in this matter.

IN THE HIGH COURT OF BOMBAY

Civil Rev. Appln. No. 251 of 2008

Decided On: 11.04.2008

Bhagwan Vithal Deokar Vs.  Narendra Padmakar Yavalekar and Ors.

Hon'ble Judges/Coram:

S.J. Vazifdar, J.

Citation: 2008(5) MHLJ 863

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Whether court should dismiss the suit if there is irregularity in court commissioner report?

 The fact that the Local Commissioner’s report, and for that matter a
properly drawn up report, is requisite in the present case for the purpose of
elucidating the matter in dispute is not of any debate, for the order dated
24.01.1991 passed by the First Appellate Court having attained finality
whereby, additional issues were remitted for finding on the basis of Local
Commissioner’s report. In the given set of facts and circumstances, we are
clearly of the view that if the report of the Local Commissioner was suffering
from an irregularity i.e., want of following the applicable instructions, the
proper course for the High Court was either to issue a fresh commission or to
remand the matter for reconsideration but the entire suit could not have been
dismissed for any irregularity on the part of Local Commissioner. To put it
differently, we are clearly of the view that if the Local Commissioner’s report
was found wanting in compliance of applicable instructions for the purpose of
demarcation, it was only a matter of irregularity and could have only resulted

in discarding of such a report and requiring a fresh report but any such flaw,
by itself, could have neither resulted in nullifying the order requiring
appointment of Local Commissioner and for recording a finding after taking
his report nor in dismissal of the suit. Hence, we are unable to approve the
approach of High Court, where after rejecting the Commissioner’s report, the
High Court straightway proceeded to dismiss the suit. The plaintiffs have
been asserting encroachment by the defendants on their land and have also
adduced oral and documentary evidence in that regard. As noticed, the First
Appellate Court had allowed the appeal and decreed the suit filed by the
plaintiff not only with reference to the Commissioner’s report but also with
reference to the other evidence of the parties. Unfortunately, the High Court
appears to have overlooked the other evidence on record.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8285 OF 2009

RAM LAL VS. SALIG RAM 

Dinesh Maheshwari, J.
Dated: 4th February, 2019.

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Whether suit can be dismissed on ground that it was composite suit?

At no stage, it appears, that respondents understood the suit as suffering from multifariousness. The point was however, raised before the appeal Court and, the appeal Court, has upheld this point. On facts as well as in law, the appeal Court, was not right in upholding such a plea and non-suiting the appellants on the ground that the suit itself was barred by multifariousness or that the suit itself was a composite suit which was not maintainable.

28. In Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others, MANU/SC/0071/2004 : AIR 2004 SC 1801, the Hon'ble Supreme Court has held that a plaint is to be read in its entirety and not in piece. Whether relief could be granted on the pleaded facts and evidence adduced is totally different from the relief claimed. All the relevant claims may not be allowed to a party on the pleadings and evidence adduced. Whether part of the relief cannot be granted by the Civil Court is a different matter from saying that because of a combined claim of reliefs the jurisdiction is ousted or no cause of action is disclosed. Where the main dispute related to the question of continuance of tenancy and the period of tenancy of the appellant with the trust and other reliefs were regarding enquiry into affairs of the trust, the application would not have been rejected on the ground that the civil court lacks jurisdiction on account of institution of composite suit or on account of any misjoinder of cause of action. In this case, the Hon'ble Supreme Court held that reliefs relatable to sections 51 and 51 of the Bombay Public Trust Act, 1950, ought to have been segregated from the other reliefs in relation to tenancy and continuance of tenancy, since, such other reliefs were well within the jurisdiction of the civil court. Accordingly, adjudication of the suit was restricted only upon question of tenancy, terms of tenancy and the period of tenancy. For rest of the reliefs, plaintiff was permitted to make such application as warranted in law for relinquishment and/or giving up claim of other reliefs. From this, it is quite clear that even assuming that the suit in the present case was a composite suit seeking eviction not only from the tenanted premises but also from the encroached premises, that by itself, was not sufficient to dismiss the entire suit as not maintainable. As noted earlier, upon reading of the plaint in its entirety and the context in which the pleadings appear, it cannot be said that the relief was prayed for even in respect of encroached portion. In any case, the ratio of Sopan Sable (supra) is a clear answer to the issue that the suit could not have been dismissed in its entirety on the alleged ground that the same was a composite suit.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 60 of 2015

Decided On: 05.02.2018

 Mangilal Mishrimal Bafna Vs. Nemichand Khetmal Jain and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: 2018(4) MHLJ 347

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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

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Whether dismissal of earlier eviction petition in default would operate as res judicata to subsequent eviction petition?

In Hariender Kaur Vs. Sharan Gurdev Singh MANU/PH/0323/2008 : 2008 (2) PLR 478, it was also similarly held that the principles regulating the Code of Civil Procedure would not operate and there would not be a res judicata as such and reliance was also placed upon the judgment of the Apex Court. It was held as under:

"6. Full Bench of this Court in the case of Amar Singh and Anr. v. Dalip MANU/PH/0334/1981 : 1981 PLR 649 has held that Section 11 Civil Procedure Code deals with the decisions of the Civil Courts only and the decision of the court of exclusive jurisdiction/Tribunals are not covered by that section. The decisions of Tribunals and Courts of exclusive jurisdiction debar the raising of the issues in a civil suit on matters which are exclusively within their jurisdiction not because of Section 11 but because of the provisions contained in the statute creating those Tribunals or Courts. Sometimes, their decisions operate by way of res-judicata under the general principles of res-judicata also but never because of the provisions of Section 11."

7. Then in Sheodan Singh v. Daryao Kunwar, MANU/SC/0264/1966 : AIR 1966 Supreme Court 1332, it is held that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on merits. It is observed that:

"....for example, the former suit was dismissed by the trial. Court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court-fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit."

8. As held in N.R. Narayari Swamy's case (supra), grounds of bona fide requirement or non-payment of rent is a recurring cause. Even otherwise, the principles regulating the procedure under the Code of Civil Procedure are not strictly applicable to proceedings under the Act. In view of the position as noticed, it is not possible to hold that withdrawing a petition under Section 13 of the Act can act as res-judicata for the petitioner to prosecute his petition under Section 13-B of the Act. No other, point is urged before me."

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No. 8057 of 2016 (O&M)

Decided On: 05.07.2017

Sham Lal  Vs. Vinod Kapoor and Ors.

Hon'ble Judges/Coram:

Gurmeet Singh Sandhawalia, J.

Citation: 2017(2) RCR(Rent) 344

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Whether eviction suit can be dismissed if landlord fails to give notice to tenant prior to filing of suit?

 Insofar as the second ground is concerned, perusal of Section 16 would show that when eviction of tenant is sought on any of the grounds mentioned under Section 16(1) of the said Act, no notice is required. It is clear from the perusal of Section 16(1) that if the landlord satisfies the conditions mentioned in the grounds available under Section 16(1) of the said Act, he can directly file a suit for possession. In the facts of the present case, though the learned appellate Court has concurred with the findings of fact arrived at by the learned trial Court that the petitioner has proved his case for bona fide need and that it was also proved that the petitioner does not have any alternate premises for starting his business, has reversed the order solely on the ground that the suit was premature. I find that the said findings are totally in ignorance of the provisions of Section 16(1) of the said Act.

14. I have perused the judgment of the trial Court as well as the appellate Court. The learned trial Court, elaborately discussing the evidence on record, has come to a finding of fact that the suit premises were required by the petitioner for his bona fide occupation for running business of jewellery. It has also come in the evidence that there is a partition in the family and that the petitioner is residing separately and as such requires the premises to start his business separately. The said finding of fact is rightly confirmed by the learned appellate Court. The learned appellate Court, in unequivocal terms, concurred with the said finding and held that the petitioner needs the premises for bona fide occupation and also held that the petitioner wants to start his business there. Only on the ground that the suit was premature, the decree for possession on the ground under Section 16(1)(g) of the said Act has been reversed. As I have already held hereinabove that for filing a suit for eviction under Section 16(1)(g), it is not necessary to issue a notice of 90 days as contemplated under Section 15 of the said Act, I find that the findings of the learned appellate Court are totally unsustainable in law.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 147 of 2005

Decided On: 27.07.2005

Madhukar S/o Laxman Umalkar Vs. Keshao S/o Laxman Shilawant

Hon'ble Judges/Coram:

B.R. Gavai, J.

Citation: 2005(3) MHLJ947,2005 BOM RC440

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Whether suit filed by assignee of plaintiff whose suit is dismissed is maintainable on same cause of action?

 Another legal aspect to be mentioned is that by virtue of the statement of law in Order IX Rule 9 of the Code, where a suit is wholly or partly dismissed under Rule 8 of Order IX, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But, he may apply for an order to set the dismissal aside and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs.

23. In this context, a question a may arise whether the plaintiff, who is only an assignee from the plaintiff in O.S. No. 157 of 2003, is barred from instituting a fresh suit on the same cause of action? This question was considered by the Supreme Court elaborately in Suraj Ratan Thirani and Others v. The Azamabad Tea Co. & Others (MANU/SC/0231/1964 : AIR 1965 SC 295). It was observed that the term "cause of action" is to be construed with reference rather to substance than to the form of action. It was held that if essential bundle of facts on which the plaintiff based his/her title and the right to relief were identical in two suits, then the bar under Order IX Rule 9 of the Code will apply to the second suit, even if it was brought by an assignee from the plaintiff in the first suit. Following quotation may be relevant for our purpose:

"We are not however impressed by the argument that the ban imposed by Order 9 Rule 9 creates merely a personal bar or estoppel against the particular plaintiff suing on the same cause of action and leaves the matter at large for those claiming under him. Beyond the absence in Order 9 Rule 9 of the words referring 'to those claiming under the plaintiff' there is nothing to warrant this argument. It has neither principle, nor logic to commend it......... The rule would obviously have no value and the bar imposed by it would be rendered meaningless, if the plaintiff whose suit was dismissed for default had only to transfer the property to another and the latter was able to agitate rights which his vendor was precluded by law from putting forward."

24. The above said principle was followed in M/s. Parasram Harnand Rao v. M/s. Shanti Parsad Narinder Kumar Jain and another (MANU/SC/0479/1980 : (1980) 3 SCC 565).

25. It is therefore well settled that if there is identity of cause of action between the earlier suit, which was dismissed for default, and the present suit, though it is instituted by an assignee of the plaintiff in the earlier suit, the bar under Order IX Rule 9 of the Code will be attracted. Even though the plaintiff in this case may contend that the second suit by the assignee of the plaintiff in O.S. No. 157 of 2003 is filed on a different cause of action, it may be an insurmountable task for him to claim any benefit because there is a clear identity of cause of actions in both the suits.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 855 of 2016 (B)

Decided On: 06.01.2017

E.N. Chandran Vs. Valsan Matathil

Hon'ble Judges/Coram:

A. Hariprasad, J.

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Procedure to be followed by court if order of discovery of documents is not complied

 Even assuming that in certain circumstances the provisions of Order XI, Rule 21 must be strictly enforced, it does not follow that a suit can be lightly thrown out or a defence struck out, without adequate reasons. The test laid down is whether the default is wilful. In the case of a plaintiff, it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under Order XI, Rule 21, unless the court is satisfied that the plaintiff was wilfully withholding information by refusing to answer interrogatories or by withholding the documents which he sought to discover. In such an event, the plaintiff must take the consequence of having his claim dismissed due to his default, i.e. by suppression of information which he was bound to give : Denvillier v. Myers. (1883) WN 58. In the case of the defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit. The power for dismissal of a suit or striking out of the defence under Order XI, Rule 21, should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party.

16. It is well settled that the stringent provisions of Order XI, Rule 21 should be applied only in extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established.

17. An order striking out the defence under Order XI, Rule 21 of the Code should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard the order of the court. The rule must be worked with caution, and may be made use of as a last resort .

 It was further contended that the High Court was in error in observing that 'in view of the clear language of Order XI, Rule 21' the defendant has no right to cross-examine the plaintiff's witnesses. A perusal of Order XI, Rule 21 shows that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant 'be placed in the same position as if he has not defended'. This indicates that once the defence is struck off under Order XI, Rule 21, the position would be as if the defendant had not defended and accordingly the suit would proceed ex-parte. In Sangram Singh v. Election Tribunal MANU/SC/0044/1955 : [1955]2SCR1 it was held that if the court proceeds ex-parte against the defendant under Order IX, Rule 6(a), the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the court may dismiss the plaintiff's suit. Every Judge in dealing with an ex-parte case has to take care that the plaintiff's case is, at least, prima facie proved.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2126 of 1978

Decided On: 07.08.1978

Babbar Sewing Machine Company Vs. Trilok Nath Mahajan

Hon'ble Judges/Coram:

A.N. Sen, D.A. Desai and Jaswant Singh, JJ.

citations: 1978 AIR 1436, 1979 SCR (1) 57

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Whether suit can be dismissed for want of cause of action?

Now the question arises as to what appropriate orders should be passed in a case like this where the plaintiff has suppressed true facts from the Court to make out a flimsy cause of action. The plaint cannot be rejected under Order 7 Rule 11 CPC because for this purpose the Court will have to see only the allegation contained in the plaint. Does it mean the Court is power less to deal with the litigants who file frivolous and vexatious suit concealing material facts from the Court? The answer to this question is provided by a decision of the Supreme Court in the case of T. Arivandandam v. T.V. Satyapal and Anr. reported in MANU/SC/0034/1977 : [1978]1SCR742 . Hon'ble Supreme Court observed that if clever drafting has created illusion of a cause of action the evil should be nipped in the bud by examining the party searchingly under Order 10 CPC. it was held that such bogus litigation should be struck down at the earliest. As already noticed, the plaintiff concealed all the material facts in the original plaint and also in the amended plaint. He filed suit as the original owner of the property which has been found to be untrue from his own admission contained in the reply referred to above. If true facts were pleaded he would not have been entitled to maintain the suit for possession nor he could maintain the suit for declaration that the sale deed dated 9th June 1995 executed by defendant Nos. 1 and 2 in favor of the defendant No. 3 in respect of one half portion of the property No. IX/6075, Kashyap Marg, New Police Station, Gandhi Nagar, Delhi is illegal because at the time of execution of the said sale deed, the power of attorney executed by the plaintiff in favor of defendant No. 1 and 2 was admittedly in force. The said power of attorney was cancelled subsequently vide cancellation deed dated 26th July, 1995. The true facts which are admitted in his own reply indicate that he had no cause of action to file the suit. Material facts were suppressed from the Court only to make out a sham, flimsy cause of action. Therefore, on the authority of the judgment of the Supreme Court in the case of T. Arivandandam (supra), I think the suit is liable to be dismissed not under Order 7 Rule 11 CPC, but for want of cause of action.

IN THE HIGH COURT OF DELHI

IA No. 7494/1999 and S. No. 70/1998

Decided On: 12.09.2001

 Madan Lal Vaid Vs. Nand Kumar Walia and Anr.

Hon'ble Judges/Coram:

Om Prakash Dwivedi, J.

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