SUNITI SUNDARI DEVI Vs. SRIKRISHNA CHAKRAVARTI

JUDGEMENT

(1.) This is an appeal by the plaintiff against the judgment and decree of the Subordinate Judge dismissing the suit. The suit was brought by the plaintiff against several defendants. Her allegation against defendant 1 was that defendant 1 was the shebait of three idols, Krishna Jiu, Krishna Bay Jiu and Gopal Deb Thakur and the properties in suit were the debutter properties of these three idols. Allegations were made against defendant 1 for misconduct and plaintiff brings this suit, the first prayer of which was that defendant 1 be removed from his office of shebait. The second prayer is that she being in the line of shebaits be appointed shebait of these three Thakurs. There are various sets of other defendants in the suit. They are purchasers of various properties in private sales, sales in execution of decrees and otherwise of different portions of the properties in suit. These defendants have no connexion with each other. The prayer is that the properties have been wrongfully alienated by defendant 1 and that the plaintiff who asks herself to be appointed shebait of these three idols may be allowed a decree on behalf of the idols to recover possession of those properties. A large number of issues were framed which would be found at p. 29 of the paper book. Defendants 2, 3, 4, 5, 6 and 7 contested the suit. At their request certain preliminary issues, that is, 1, 2, 3, 4 and 13 were taken up by the learned Subordinate Judge for decision first. Issue 1 whether the plaintiff had any cause of action, wa3 decided in her favour. Issues 2 and 3 related particularly to the question whether the suit was bad for multifariousness. Issue 4 was whether the suit as against defendant 3 was barred by limitation. The last issue was with regard to the question of res judicata which also was decided in favour of the plaintiff. No question arises before us with regard to the plaintiff's right to sue and with regard to the question of res judicata.

(2.) The appeal before us refers to the question of multifariousness and the point of limitation. The Subordinate Judge decided those two questions against the plaintiff. He held that the suit as framed was multifarious and he asked the plaintiff to elect within a certain date as to which of the defendants she wanted to proceed against and to amend her plaint accordingly. The plaintiff did not do that within the time allowed and therefore the Subordinate Judge dismissed the suit.

(3.) The plaintiff appeals to this Court and on her behalf the principal argument is that her suit ought not to have been dismissed but the issues which affect the different defendants differently might have been separately tried. The argument of the learned vakil for the appellant shortly stated amounts to this, that if she brought a separate suit against defendant 1 for his removal from the office of shebait and obtained a decree, that decree would be of no use as against the defendants who are alienees of the properties which she alleges to be debutter. Therefore in their presence the questions whether defendant 1 was the shebait, whether the properties are debutter properties, whether he is liable to be removed and whether the plaintiff should be appointed the succeeding shebait on removal of defendant 1 are questions in which each set of defendants is interested, and if she brought separate suits alleging the same fact making these defendants separately parties in those suits then obviously the Court in the exercise of its discretion would have consolidated all these suits for trial of these common issues of fact and law ; therefore it is not expedient that she should be compelled to bring the present suit against one set of defendants alone and bring other suits against the other different sets of defendants, as in that case those suits would again be consolidated and practically become one suit for the trial of the common issues. Her prayer therefore is that let the issues of fact and law which are common to all the defendants be tried together, and these are, as I have already said, whether the properties are valid debutter, whether defendant I was really the shebait and whether the plaintiff is entitled to have defendant 1 removed and next to have herself appointed as shebait. These questions should be tried. If the defendants have got separate defences, and it does not appear from the issues that any defence was raised that assuming that the properties were debutter the sale to any of the defendants was for legal necessity of the Thakurs - if, as I say, there are any questions special to be tried with reference to any particular set of defendants that question may be separately tried by the learned Judge in such a way as not to cause inconvenience to the other defendants. It seems to me that, having regard to the circumstances of this case, that is the proper procedure to be adopted. No doubt the suit can very well be described as multifarious as these defendants claim different properties under different sales, but there are these common (questions of fact and law. Therefore it seems to us that it would not lead to a proper administration of justice to compel the plaintiff to bring separate suits in such a case as this, seeing that these separate suits would have to be consolidated afterwards.