KURIVALLI LINGAYYA SETTY Vs. SITHARAM AGARWALA

JUDGEMENT

(1.) This is a revision against the order of the court of the. Subordinate Judge of Bellary striking out defendant 2 on the ground that he was improperly joined as a party to the suit.

(2.) The facts according to the plaintiff, that gave rise to the cause of action against the defendants, may be briefly stated. The plaintiff is a merchant doing business in dhal and other commodities at Adoni. Defendant 1 posing himself as a representative of Maheswari Mills Moria (Madhya Bharat) entered into a contract with him to sell 4 waggons of gram and dhal. At the time of the contract, he produced forged licences and delivered a letter alleged to have been written by Maheswari Mills authorising him to collect the money from the purchasers in respect of the railway waggons for which railway receipts were to be delivered. Believing these representations, the plaintiff paid Rs. 7000 to defendant 1 and obtained an assignment of four documents styled as railway receipts covering these four waggons. The sum of Rs. 7000 was paid in currency notes of Rs. 100 each by the plaintiff towards a portion of the sale price. The* numbers were noted in the schedule to the plaint. The first defendant agreed to deliver the commodities and recover the balance of the purchase money. He passed a receipt for the amount of Rs. 7000 received by him. On the back of the receipt kept by the plaintiff, the numbers of notes were noted at that time. Defendant 1 also signed in the original and the duplicate of letter paper containing letter bead of the plaintiff's firm agreeing to deliver the wagons contracted for on payment of money. After this transaction, defendant 1 left the place. As the waggons were not sent in accordance with the terms of the contract and discovering the fraud done by defendant 1, the plaintiff filed a complaint before the Tenali Police who promised to investigate into the matter and take suitable action. Identical notes given by the plaintiff to defendant 1 were seized and they were deposited in the First Class Magistrate's Court, Tenali. Defendant 1 was tried by the First Class Magistrate and was convicted and sentenced to undergo imprisonment for a period of two years. The Sub-Divisional Magistrate, Adoni, directed the amount of Rs. 7000 then found on the person of defendant 1 and which belonged to the plaintiff should be returned to the plaintiff. At this stage, defendant 2, filed O. S. No. 169 of 1949 on the file of the court of the Subordinate Judge of Guntur against defendant 1 on the ground that a similar fraud was committed on him and for recovery of a sum of Rs. 10,000, and obtained an ex parte decree. In execution of the decree, defendant 2 in collusion with defendant 1, fraudulently attached the amount in deposit in the Magistrate's court and after the said amount was transferred to the credit of the suit filed by him, he drew out the same. On these allegations the petitioner filed O. S. No. 47 of 1951 on the file of the count of the Subordinate Judge Bellary, for recovering the amounts from the defendants. Para 14 shows that the cause of action of the suit arose at Adoni where the offence was committed and on subsequent dates. It will be seen from the aforesaid facts that so far as defendant 1 is concerned, the cause of action admittedly arose within the jurisdiction of the court of Betlary. But in regard to defendant 2 the cause of action arose within the jurisdiction of the Tenali Sub- Court and defendant 2 also resides within the jurisdiction of the said court. To put in differently neither the cause of action against defendant 2 arose within the jurisdiction of the Bellary Sub-Court nor does the said defendant reside within its jurisdiction. The allegations in the plaint disclose that defendant 2 was not a party to the fraud committed by defendant 1 against the plaintiff in so far as he entered into contract receiving the money by making fraudulent misrepresentation. According to the plaintiff, defendant 2 colluded with defendant 1 only in receiving currency notes from the Magistrate's court towards his decree with the knowledge that those currency notes belonged to the plaintiff.

(3.) Mr. Venkatadri, the learned counsel for the petitioner contended that under Order 1, Rule 3 and Order 2, Rule 3, .P. C., the plaintiff is entitled to club the two causes of action against the two defendants as the right to relief against the defendants arises out of the same act or transaction or series of acts or transactions and common questions of law and facts arose within the meaning of Order 1, Rule 3.