CORPORATION OF CALCUTTA Vs. RADHAKRISHNA DEV

JUDGEMENT

(1.) This appeal is by the plaintiff the Corporation of Calcutta and it arises out of a suit for the recovery of arrears of rates for the period between the fourth quarter of 1930-1931 to the third quarter of 1934.

(2.) It will be necessary for me to set out certain events which have happened in the conduct of this suit. In the suit as originally framed the plaintiff claimed that the arrears of rates were due in respect of premises No. 31 Elgin. Road. There was a claim for one lump sum against all the defendants and for a declaration of a charge with respect to premises Not 31 Elgin Road. Prior to the trial of the suit the plaintiff was asked to admit certain facts by the defendants and pursuant to this application the plaintiff admitted that premises No. 31, Elgin Road had been sub-divided into 12 different premises prior to the period for which the rates and taxes were claimed and that these 12 different premises were held separately by the different defendants. The learned Munsif who tried the suit held that the suit was bad for misjoinder of parties and causes of action and for multifariousness and dismissed it stating that subject to the question of limitation the plaintiff, the Corporation of Calcutta was at liberty to bring separate suits against the different defendants, Against this decision an appeal was taken to the District Judge and it was heard by the Subordinate Judge of the Third Court of Alipore Mr. Khondkar Mutberal Islam. He allowed the appeal setting aside the order of the trial Court and remanding the case back to the lower Court for a retrial in the light of certain directions given by him. It will be necessary now to set out certain portions of the judgment of the learned Subordinate Judge on appeal which are as follows:

(3.) Learned Advocate appearing for the plaintiff Corporation urges three points which are as follows: (1) Under Order I, Rule 3 of the Civil P. C. the suit was maintainable and separate decrees should have been passed in the suit as framed; (2) Even if the provisions of Order 1, Rule 3 of the aforesaid Code did not apply, the whole suit should not have been dismissed but action should have been taken under Order 2, Rule 6 and the Court should have ordered separate trials with respect to the separate premises held by the different defendants and should have passed separate decrees against the different defendants in these separate trials; and (3) The Munsif was bound by the order of remand passed by the learned Subordinate Judge which directed him to pass either one decree with respect to one of the sub-divided premises or to pass separate decrees against the separate defendants for the separate holdings. The Munsif had no jurisdiction after such order of remand to dismiss the suit on the ground of misjoinder of causes of action. These are the three main grounds urged by learned Advocate appearing for the appellant. Learned Advocate for the appellant alone submitted that even if these three grounds were not tenable, this Court should permit the plaintiff now to proceed against one of the defendants and to obtain a decree against such defendant.