RAMENDRA NATH RAY Vs. BROJENDRA NATH DASS

JUDGEMENT

(1.) This suit is brought against four sets of defendants and the point in issue is, whether there has been misjoinder of parties and causes of action. In the judgment under appeal Chitty, J., has held that the plaintiff who claims such right cannot be allowed to proceed in one suit against the defendants, and adjourning the hearing, gave the plaintiff a fortnight to elect against which of the defendants he would proceed. Though the learned Judge does not expressly say so, it is quite clear on the judgment and proceedings that if the plaintiff does not elect and persists in his claim to sue all defendants, his suit will be dismissed. The position is substantially the same as if the Court had dismissed the action unless the plaintiff elected under the liberty given to him. It has been objected that no appeal lies. The first question is whether this is a judgment. It seems to me that it is, for it is an adjudication that the suit cannot lie as framed and cannot proceed as presented and that the Court cannot hear it. Such adjudication was based on the view that the suit is bad for misjoinder of causes of action and parties The Court is said to be unable to entertain the suit, the reason being of a like nature with defect of jurisdiction and not a mere irregularity. A decision to this effect which will be followed by dismissal unless the plaintiff abandons rights to which under the law he claims to be entitled, is, in my opinion, a judgment affecting the merits of the question and determining some right or liability between the parties. It has not been contested that if there were a final order having this effect, it would be a judgment. The argument is that there is no such order, that all the Court has done is to adjourn the suit, that it has not directed an election or dismissed the suit, and that, therefore, the appeal is premature.

(2.) We must look at the substance of the matter. The order giving the plaintiff liberty to elect, a liberty he did not desire and an order which he opposes, is nothing but ah adjudication that he cannot proceed on the plaint as framed, and such an adjudication necessarily implies the result which follows on persisting with such a suit namely, dismissal. The judgment makes clear why the plaintiff was called upon to elect. There appears to me to be in substance a decision that the suit will not lie as framed, with the result that if the plaintiff insists on his alleged rights, the suit will re dismissed. I am of opinion that on these facts an appeal will lie.

(3.) On the merits the question is this. The frame of the suit is admittedly not supported by Order II, Rule 3. It is then said that it is justified by Order I, Rule 3. To this, it is replied, firstly, that this last Rule deals, with parties and not joinder of causes of action, and in the alternative and on the supposition that it does deal with joinder of causes of action, the present case does not on the facts fall within the rule. Order I is headed "parties" and Order II frame of suit." The question of parties involves that of cause of action and vice versa. A person is made a party because there is a cause of action against him, and where causes of action are joined, parties are joined. In a perfectly framed Code which dealt in separate chapters with parties and causes of action, the provisions should be exactly parallel, looking at the same matter from its different aspects in a way according to which the provisions of one Order would be in conformity with the provisions of the other. So much may be conceded, and if the solution of the question were doubtful, one might have hesitated on this ground to hold that a suit might be framed under Order I in a manner not provided for by Order II which, according to its heading, specifically deals with the frame of a suit. But in the present case we have to deal with the wording of a rule, the meaning of which has been construed. There are decisions of the English Courts on rules from which our own are taken. These decisions are subsequent to the year 1896, when Order XVI, Rule 1 : was amended. It has been held that that Order deals not only with joinder of parties, but also joinder of causes of action, notwithstanding that Order XVI like Order I is headed "parties" only Compania Sansinena v. Houldar (1910) 2 K.B. 354 : 79 L.J.K.B. 1094 : 103 L. T. 333; Bullock v. London General Omnibus Co. (1907) 1 K. B. 354, 79 L. J. K. 1094, 103 L. T. 333; Markt v. Knight Steamship Co. (1910) 2 K.B. 1021 at p. 1036 : 79 L.J.K.B. 939 : 103 L. T. 369 and Times Cold Storage Co. v. Lowther (1911) 2 K. B. 100 at p. 107 : 80 L. K. 901 : 104 L. T. 637 : 55 S. J. 442.