HARU BEPARI Vs. ROY KSHITISH BHUSAN ROY BAHADUR

JUDGEMENT

(1.) This is a Rule to show cause why an appellate order of the learned District Judge of Pabna and Bogra, dated 22 February, 1934, disposing of an objection to the sufficiency of court- fees in connexion with the plaint in a suit, and the memorandum of the appeal, which arose out of that suit, should not be set aside. The suit was instituted by 73 persons who averred that they held each a separate jama as in Sch. "Ka" of the plaint, consisting of 73 items, but that certain lands of each of these jamas as in Sch. "Kha", also containing 73 items, were included within the subject matter of a suit under Bengal Act 5 of 1920, which was decreed on the basis of a compromise entered into by certain persons whom the 73 plaintiffs interpleaded as defendants in their suit. It was alleged that by virtue of the compromise decree to which the plaintiffs were not parties the defendants were trying to oust the plaintiffs from their holdings, and they prayed for the following reliefs: (1) A declaration that the plaintiffs had raiyati jote interest in Sch. "Kha" lands as appertaining to Sch. "Ka" jotes; (2) a declaration that the compromise decree was illegal, ultra vires, void, and inoperative against the plaintiffs.

(2.) The court-fee paid on the plaint was Rs. 20 as for a suit for a declaration without consequential relief under Art. 17(iii), Schedule 2, Court-fees Act, and on the Memorandum of Appeal also a court-fees of Rs. 20 only was paid. The District Judge held, that as the plaintiffs were in reality praying for 73 different sets of declarations, the suit embranced 73 subjects within the meaning of Section 17, Court-fees Act, and 73 separate amounts of Rs. 20 should have been paid both in respect of the plaint and of the memorandum of appeal. It has been argued that "subject" means distinct kinds of relief and that therefore Section 17 does not apply to the present case. Distinct reliefs are certainly subjects within the meaning of Section 17, but we cannot agree that the connotation of the word subject" is co-extensive with that of the expression "kind of relief." No authorities have been cited to show that a suit in which one kind of relief only is asked for cannot be a suit embracing more than one subject within the meaning of Section 17.

(3.) In the alternative, it has been submitted that the word "subject" in Section 17 means cause of action, and that in so far as the joinder of so many plaintiffs is permissible by the operation of Order 1, Rule 1, Civil P. C, the suit is based on one cause of action only. It seems to us that one infirmity of this argument is the assumption, that the conditions which Order 1, Rule 1 requires to be fulfilled, amount in their totality to the elements which constitute one cause of action, and that Order 1, Rule 1 excludes by its force the joinder of plaintiffs in a suit based on more causes of action than one. The advocate for the petitioner cited Haramony Dassi V/s. Hari Churn (1895) 22 Cal 833. That decision was concerned with the construction of S, 26 of the Code of 1882 (now Order 1, Rule 1) and the passage relied upon at p. 840 is as follows: Following the ordinary canon of construction that a clause in a statute should be construed, so as to give some meaning to every part of it, and bearing in mind that the expression "cause of action" has not been defined anywhere in the Civil Procedure Code, except indirectly for the purposes of Section 17, and that so far as that section goes it is used in a restricted as well as in some respects in an elastic sense, we think the proper way to construe Section 26, so as to give the words in the alternative some meaning, is to hold that the expression "cause of action" occurring in it is used, not in its comprehensive, but in its limited sense, so as to include the facts constituting the infringement of the right, but not necessarily also those constituting the right itself, so that the qualification implied in the words in respect of the same cause of action" will be satisfied if the facts which constitute the infringement of the right of the several plaintiffs are the same, though the facts constituting the right upon which they base their claim to that relief in the alternative may not be the same. Section 26 of the Code of 1882 was thus expressed: All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist whether jointly severally or in the alternative in respect of the same cause of action.