Jayanta Kumar Biswas, J.
1. This is the defendant's application under Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908 (in short "the CPC"). His case is that the plaint is liable to be rejected, because it is apparent from the statements in it that the plaintiff's suit is barred by law; the law that bars the suit is multifariousness.
2. The case made out in the plaint is this. The defendant is a share broker. Sri Mahendra Kumar Nahata is the husband of the first plaintiff and the father of the second plaintiff Sri Nahata and the defendant were known to each other. The plaintiffs and the defendant had entered into several different transactions before the transactions leading to the suit took place. In early 2000 the defendant approached Sri Nahata for arranging a loan of Rs. 5,00,000/- from the first plaintiff. Accordingly, a cheque dated April 7th, 2000 for Rs. 5,00,000/- was given to the defendant by way of loan, the terms and conditions where of were decided by oral agreement between Sri Nahata and the defendant. The cheque was deposited by the defendant in his personal account, and not in his clients' account, which is maintained by him according to the rules and regulations of the exchange and the other authorities, for carrying on share transactions on behalf of his clients. Similarly, a loan of Rs. 5,00,000/- was given to the defendant by the second plaintiff by a cheque dated April 26th, 2000. The cheque was handed over by Sri Nahata. For giving the loans Sri Nahata acted on behalf of the plaintiffs, and the terms and conditions of the loans were identical. The defendant was to repay the loans with interest by December 31st, 2001. He, however, failed and neglected to repay the loans and also the interest accrued thereon. He wrongly instituted two suits against the plaintiffs separately in the City Civil Court at Calcutta. Since the the plaintiffs' causes of action against the defendant, though arose out of two separate loans, raised common questions of fact and law, they joined together and decided to file one suit by joining their identical causes of action; they so decided also for avoiding multiplicity of proceedings and saving costs.
3. The case of the defendant is the following one. His transactions with the plaintiffs were separate, and hence they were not entitled to join together for filing one suit by joining their separate causes of action. The causes of action did not emanate from any common source, and there was no inter-dependence and nexus between them. On facts, it could not be said that the plaintiffs were jointly interested against the defendant. The plaintiffs ought to have filed two independent suits. Hence being bad for misjoinder of parties and misjoinder of causes of action the suit is barred by law.
4. Mr. Ratnanka Banerjee, Advocate, appears for the defendant. His contentions are that the transactions were independent in every respect, the plaintiffs demanded repayment by issuing two separate notices, the defendant filed two separate suits against the plaintiffs, and hence there was no legal basis for the plaintiffs to join their independent causes of action against the defendant in one suit. According to him multifarious ness will attract the provisions of Order 7 Rule 11 (d) of the CPC, and hence the plaint is liable to be rejected.
5. Mr. Banerjee has relied on the decisions in The Corporation of Calcutta v. Radhakrishna Dev and Ors., ; Smt. Nagendra Bala Debi and Ors. v. Provash Chandra and Ors.,
(DB);Ebrahimbhai v. State of Maharashtra and Ors., (DB); and the unreported Single Bench decision of this Court dated October 30th, 1995 in Margo Trading and Six Ors. v. Om Credit Pvt. Ltd. (Suit No. 242 of 1995).
6. Mr. P.K. Das, Senior Advocate, appears for the plaintiffs. His submissions are these. The provisions in Orders 1 and 2 of the CPC do not prohibit the filing of a suit by two or more plaintiffs by joining their separate causes of action. Misjoinder of parties and misjoinder of causes of action are only obstacles to one trial. Multifarious ness is not a ground for rejection of a plaint. Since a suit cannot be defeated for misjoinder of parties or misjoinder of causes of action, it cannot be said that a suit that is bad for multifariousness is barred by law. In Margo Trading case attention of the learned Judge was not drawn to the provisions in Order 1 Rule 9 of the CPC.
7. Mr. Das has relied on the decisions in Harendra Nath Singha Ray v. Purna Chandra Goswami and Ors. ; Monindra Lal
Chatterjee v. Hari Pada Ghose and Ors. ; Shew Narayan Singh v. Brahmanand Singh and Ors., (DB); Sreedam Chandra Bhur v. Tencori Mukherjee and Ors., (DB); Ranjit Kumar Pal Chowdhury v. Murari Mohan Pal Chowdhury and Ors., (DB); Shambhoo Dayal v. Chandra Kali Devi and Ors,, ; Krishna Laxman Yadav and Ors. v. Narsinghrao
Vithalrao Sanwane and Anr., (DB); Andhra Steel
Corporation v. A.S.C. Engineers and Consultants and Ors., 84 CWN 822; British Airways v. Art Works Export Ltd. and Anr., (DB); Iswar Bhai C. Patel v. Harihar Behera and Anr., I ; Russel Properties and Estates v. Indian Alluminium Co. Ltd. and Ors., 2001 (2) CHN 142; and the unreported Single Bench decisions dated November 19th,2003 in A.L.P. No. 10 of 2003 (Subh Shree Commercial Co. Ltd. and Anr. v. Chandi Prasad Sikaria) and December 11th, 2003 in A.L.P. No. 10 of 2003 (Premlata Nahata and Anr. v. Chandi Prasad Sikaria).
8. I find that the contentions of the parties give rise to two questions; (1) whether multifariousness is such a law as is mentioned in Order 7 Rule 11 (d) of the CPC for rejection of a plaint; and (2) whether the suit of the plaintiffs is bad for multifariousness.
9. The word "multifariousness" does not find a mention in the CPC. In connection with pleading it means the improper joining the distinct and independent matters, and thereby confounding them.
10. Provisions in Order 1 Rule 1 of the CPC permit more than one plaintiff to join together in one suit. But if they join even when the circumstances mentioned in Clauses (a) and (b) of Rule 1 do not exist, it becomes a case of misjoinder of plaintiffs. On objection by the defendant such a case of misjoinder is to be dealt with by the Court according to provisions in Order 1 Rule 9 of the CPC. It clearly provides that no suit shall be defeated by reason of the misjoinder of parties. This means that there is no law that bars the filing of a suit that suffers from misjoinder of parties.
11. Again, provisions in Order 2 Rule 3 of the CPC permit more plaintiffs than one having causes of action in which they are jointly interested against the same defendant to unite such causes of action in the same suit. When causes of action, except those specifically prohibited, are joined, though not permissible by provisions in Order 2 Rule 3 of the CPC, it becomes a case of misjoinder of causes of action. On the objection by the defendant how the situation will be dealt with by the Court for that the provisions in the CPC are silent. Misjoinder of causes of action, save as otherwise provided, is, however, not specifically prohibited. This means that a suit bad for misjoinder of causes of action suffers only from an illegitimacy, and not from an illegality.
12. Misjoinder of parties and misjoinder of causes of action have not been declared illegal by the provisions in the CPC or by any other law. They would, however, be illegitimate, since the laws in Orders 1 and 2 of the CPC do not recognise them as permissible. On the objection by the defendant at the earliest possible opportunity the Court has to pass necessary order on the questions. By such order the Court, however, cannot dismiss the suit or reject the plaint. It is only to record the findings whether there is misjoinder. The decision is a warning to the plaintiffs that they would not get relief on the illegitimately joined cause of action. If the defendant does not raise the objection at the earliest possible opportunity, then by fiction of law he would be deemed to have waived his right to object to the misjoinder. This means that in the absence of an objection the Court would adjudicate all the issues arising out of all the causes of action, though they are bad for misjoinder. So it is evident that for misjoinder of parties and misjoinder of causes of action neither a suit is liable to be dismissed, nor is a plaint liable to be rejected.
13. In the cases relied on by the learned Counsel for the parties, except for Margo Trading case, the question whether a suit bad for multifariousness would be a suit barred by law did not arise at all. So far brevity's sake I have not specifically dealt with them. In Margo Trading case also the question did not arise; in it the Court and the parties rather proceeded on the basis that multifariousness is a law, which bars the filing of a suit. But the question has been raised in this case, and after examining it, I find that multifariousness is not a law that bars the filing of a suit. As held in Ranjit Kumar Pal Chowdhury v. Murari Mohan Pal Chowdhury and Ors., (supra) the rule against multifariousness is a rule of convenience. So a suit bad for multifariousness cannot be dismissed holding that it is barred by law.
14. Now under Order 7 Rule 11 (d) of the CPC a plaint is liable to be rejected only when from the statement made in it, it is apparent that the suit is barred by law. This means that the suit is not maintainable at all and the trial will be useless, because even after trial it is bound to be dismissed as barred by law. This is never the case when a suit is bad for multifariousness.
15. Hence emerges the legal position that multifariousness is not such a law as is mentioned in Order 7 Rule 1(d) of the CPC for rejection of a plaint.
16. As a result this application of the defendant for rejection of the plaintiffs' plaint must fail, even if it is held that the suit of the plaintiffs is bad for multifariousness.
17. Although this application should fail on the ground that the rule against multifariousness does not bar the filing of a suit, in my view, the question whether the suit of the plaintiffs is bad for multifariousness should be decided in this application itself.
18. On a combined reading of the provisions in Orders 1 and 2 of the CPC, it appears that more plaintiffs than one can join in one suit and in it they can unite their causes of action, provided the following circumstances exist: (a) their right to relief, whether jointly, severally or in the alternative, is connected with, or arises out of, the same act or transaction, or series of acts or transactions; (b) if they brought separate suits, any common question of law or fact would arise; and (c) in the causes of action, they are jointly interested against the same defendant or defendants.
19. The joinder of parties and of causes of action have been made lawful so that multiplicity of proceedings can be avoided. So objections regarding misjoinder of parties and of causes of action have to be decided with a liberal approach. Provisions in Rules 9 and 13 of Order 1 and Rule 7 of Order 2 of the CPC sufficiently express the intention of the Legislature that in the cases of misjoinder the Court would exercise its discretion to deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It is therefore clear that a plea of multifariousness is not to be examined with a rigid approach.
20. I find that in this case if the plaintiffs brought separate suits, then such suits would have given rise to common questions of fact. Whether the transactions were loan transactions, and what were the terms and conditions of the transactions, are the chief common questions of act regarding the causes of action of the plaintiffs. Sri Nahata is the common link for the transactions, Only one set of evidence will be necessary for adjudicating the claims of the plaintiffs. The defendant is not likely to suffer any inconvenience if claims of both the plaintiffs are tried and determined in one suit. On facts it cannot be said that there is no nexus between the two causes of action. So there is no reason to say that the suit is bad for multifariousness.
21. For the foregoing reasons, I am of the view that this application should be dismissed; and hence it is hereby dismissed.
22. Costs of this application shall, however, be the exists in the suit.
23. Urgent certified xerox copy of this judgment and order may be supplied to the parties, if applied for.