KANHAYALAL SUPDUBHAI Vs. HIRALAL DEORAM

JUDGEMENT

(1.) This is an appeal from an order of the Assistant Judge of West Khandesh remanding a suit for disposal on merits. It was a suit for an account of certain deposits said to have been made in the defendant's shop by one Deoram, Deoram died in January 1938, and this suit was filed by his two sons and his widow. Soon after Deoram's death the plaintiffs filed Suit No. 86 of 1939 in the Court of the First Class Subordinate Judge at Dhulia. It was an omnibus suit against sixteen defendants, asking for various reliefs. The present defendant was defendant No. 6 in that suit and the relief asked against him was an account of the deposits said to have been made in Ms shop by deceased Deoram-the very relief asked for in the present suit. As such u suit was bad for multifariousness, the plaintiffs were called upon to elect, and they gave a purshis confining it to their claim against defendants Nos. 1 to 5 and 7 to 13. As the suit was not proceeded with against defendant No. 6, the present suit had to be separately filed. The defendant contended, inter alia, that the suit was barred under Order XXIII, Rule 1, Sub-rule (3), of the Civil Procedure Code, and that such a suit for an account was not maintainable. Both these contentions were upheld by the trial Court and the suit was dismissed. In appeal, the learned Assistant Judge disagreed with the trial Court on both the points and remanded the suit for further hearing and disposal on merits.

(2.) When the plaintiffs Suit No. 86 of 1939 was found to be bad for misjoinder of causes of action and defendants, they were called upon to elect the cause of action they were prepared to prosecute and the defendants against whom they wanted to proceed. In view of the finding that their suit was defective, they had to elect, and they stated that they would prosecute their claim based on their sale-deed, as against defendants Nos. 1 to 5 and 7 to 13 only. They said nothing regarding the other reliefs claimed or the other defendants on the record. But it was obvious that the other defendants became unnecessary parties and their names were struck off by the Court, without any specific request from the plaintiffs. The order of the Court compelled the plaintiffs to choose which cause of action they would pursue, and they never voluntarily withdrew or abandoned any claim in the sense contemplated by Order XXIII, Rule 1, of the Civil Procedure Code. Under Sub-rule (2) of that rule, a plaintiff may, in certain circumstances, be permitted by the Court to withdraw from a suit with liberty to sue afresh on the same cause of action. But a plaintiff can withdraw a suit as a matter of right without the permission of the Court, and if he does so, he shall be precluded from suing again on the same cause of action. He cannot withdraw a suit reserving to himself a right to bring a fresh suit, and it is urged for the defendant that by their purshis in Suit No. 86 of 1939 the plaintiffs abandoned their claim against him, and are precluded from filing a fresh suit in respect of the same claim. According to the defendant, the plaintiffs should have obtained from the Court liberty to file a fresh suit against him, before confining their suit only to the claim on the sale- deed, as was done in Luckumsey Ookerda V/s. Fazulla Cassumbhoy (1808) I.L.R. 5 Bom. 177 Such a permission might, and should have been asked for, if the plaintiffs were withdrawing or abandoning any part of their claim by voluntary choice; but it would be unreasonable to apply Order XXIII, Rule 1(3), to a case where the plaintiffs were obliged to give up the defendant and the claim made against him, in obedience to the finding of the Court that the suit as framed was bad for multifariousness. The election to proceed with one cause of action against one set of defendants did not in such a case amount to the withdrawal or abandonment of the other causes of action whose inclusion in the same suit resulted in multifariousness. When the plaintiffs elected to proceed with one cause of action only, the defendant who was then defendant No. 6, had nothing to do with that cause of action, and his name was struck off by the Court of its own accord under Order I, Rule 10, of the Civil Procedure Code. It is urged that even then a fresh suit would be barred under Order XXIII, Rule 1, Sub-rule (3), as held by the Privy Council in. Mahant Singh V/s. U Ba Yi (1989) L.R. 66 I. A. 198

(3.) The facts of that case were peculiar. The four trustees of a Pagoda had given a contract to the plaintiff, and the respondent had stood surety for the trustees for payment of the contractor's dues. The contractor sued to recover his dues from all the five, and pending the suit the four trustees were removed and eight others were appointed as trustees of the Pagoda. The contractor then applied to the Court to substitute the new trustees in the place of the old as defendants. The application was granted, and therefore the names of the four original trustees were struck out and those of the new trustees inserted in their place. The suit then proceeded to trial and it was held that the four original trustees were personally liable under the terms of the contract. Hence the islaim against the new trustees was dismissed and a decreee was passed against the respondent alone as guarantor. In appeal, the respondent contended that he had been discharged from liability as the plaintiff had released the principal debtors by withdrawing his claim against the four original trustees. In considering the effect of the substitution of the names of the new trustees for the old ones, Lord Porter observed (p. 204) :- In England the striking out of the names of the four original trustees would not have affected the respondent's liability. A fresh action could have been brought against them at any time. But it is said that the law of Burma differs from the law of England in this respect, and Reliance is placed on Order XXIII, rule 1 of the Civil P. C.. The appellant indeed contended that he had not proceeded under Order XXIII, 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 name of any person who ought to have been joined be added. But such an order is expressly 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 XXIII, rule 1.