SAJJANAM WADLA CHINA RAJAYYA Vs. CHAPPAL VENKATESHWAR RAO

JUDGEMENT

(1.) 1. C. M. As. Nos. 79/3 and 80/3 of 1955 are respectively filed by the defendant against the judgment and order dated 28-10-1953 of the District Judge, Adilabad, reversing the decision of the Munsif of Chinnoor holding the suits to be beyond time and remanding the same for disposal on the merits. S. A. No. 167/1 of 1956 is preferred by the plaintiff impugning the dismissal of the suit on the ground of limitation. As the question to be determined is common, this judgment will govern all the three appeals.

(2.) The facts are that the plaintiff instituted, in the first instance O. S. No. 102 of 1952-53 on 18-3-1952, against the appellants in C. M. As. Nos. 79 and 80 of 1955 and the respondent in S. A. No. 167/1 of J956 and another defendant, who is out of picture now, for recovery of Rs. 579-9-8 being the principal and interest due on four bonds severally executed by the defendants on 13-1-1950 to pay their proportionate share of an erstwhile joint debt, the promise to pay being within 19-3-1950.

(3.) The defendants in their common written statements denied the execution of the suit bonds and disowned the alleged liability to pay the sum claimed. They further raised the plea that the suit was bad for misjoinder of causes of action. Of the five issues adjusted the first issue was "whether the plaintiff has misjoined the causes of action", and it was set down for evidence. On 9-7-1953, the pleader for the plaintiff, instead of producing evidence contended that the sum claimed was originally borrowed by the father of the defendants which joint liability was later converted into a several one and therefore a common question of law and fact arose which entitled the plaintiff to join the defendants in the same suit in view of the provisions of O. 1, Rule 1, C. P. C. The trial Judge repelled the arguments on the ground that the case set up for the plaintiff was neither borne out by the allegations in the plaint nor by the recitals in the suit bonds. The pleader for the plaintiff then expressed his willingness to continue the suit as against the 2nd defendant. The trial Judge ordered the name of the remaining defendants to be struck off and directed the plaintiff to file fresh plaints within three days. This order and direction was complied with and the fresh plaints were filed on 11-7-1953, which were separately numbered with fresh court-fees. The defendants, in reply, inter alia raised the plea of limitation. The trial Judge decreed the suit against the defendant retained in O. S. No. 102 of 1952 but since the fresh plaints were presented on, 11-7-1953 and the terminus a quo had according to the terms of the suit bonds, expired on 19-3-1953, he dismissed them as being barred by time. The plaintiff appealed and the District Judge of Adilabad held that in so far as the appellants in, C. M. As. Nos. 79 and 80 of 1955 were concerned, the plaintiff was entitled to the benefit of Section 14 of the Limitation Act and therefore the suits against them were within time. But as against the appellant in S. A. No. 167/1 of 1956 he concurred with, the view of the trial Court. All the three appeals filed in this Court were, in the first instance, heard by Manoher Pershad J. It was argued before him on behalf of the defendants that inasmuch as the plaintiff has withdrawn his suit against them by reason of multi-fariousness he was not entitled to the benefit of Section 14 o the Limitation Act. To support that contention, reliance was placed on a Full Bench case of the Allahabad High Court reported as Sadayatan Pande v. Ramachandra Gopal, AIR 1934 All 688 (FB). On behalf of the plaintiff it was contended that inasmuch as the plaintiff did not withdraw the suit voluntarily and there was no specific order of the court allowing him to withdraw his suit the provisions of O. 23, Rule 1, C. P". C., were not attracted so as to deprive him of the benefit of Section 14 of the Limitation Act by reason of the provisions of Rule 2 of the same Order. In that connection, the cases of Guruvabhotlu v. Jogayya, AIR 1935 Mad 69R and Kanhayalal Sapdubhai v. Hiralal Deoram. AIR 1947 Bom _255, for the proposition that where a plaintiff having regard to the view of the court that the suit is bad for mis-joinder of parties and causes of action, elects to give up some of the defendants, there is no withdrawal or abandonment within the meaning of Order 23, Rule 1, C. P. C., and a fresh suit against such defendant is not barred since in such cases the plaintiff is really acting under compulsion of law and not out of voluntary choice. Our learned brother doubted the correctness of the authorities cited on behalf of the plaintiff in view of the decision of the Privy Council in the case of Mahanth Singh v. U Ba Yi, AIR 1939 PC 110, wherein Lord Porter while delivering the judgment of the Board observed: "The appellant (plaintiff) indeed contended that he had not proceeded under Order 23, Rule 1, in applying to substitute the new trustees for the old, but that his application was made under Order I, Rule 10 alone. Their Lordships cannot accept this view. The last named Rule no doubt authorizes the Court to order the name of a party improperly joined to-be struck out and that the names of any person who-ought to have been joined be added. But such an order is expressly directed to be made on such terms as may appear to the court to be just. If no terms are inserted in the order, then in their Lordships view the effect of withdrawing the suit against some of the defendants is to be ascertained from Order 23, Rule 1. That order is not very happily worded but its meaning is reasonably clear. Under its provisions, the court may give liberty to the applicant to institute a fresh suit after a withdrawal but if it does not do so, the plaintiff is precluded from instituting a fresh suit in respect of the same subject-matter." Having regard to the implication of these observations and being of opinion that the matter was not free from difficulty and was of general importance our brother referred it to the Division Bench.