INSTITUTION OF SUIT – CASES

Joinder of Plaintiffs and Defendants

Necessary and Proper Parties:

Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886, [B.P. Sinha J. (as His Lordship
then was) – FB]

The Appellant was the plaintiff in the suit before the Trial Court, which was for a declaration
that the she was the lawful wedded wife of Respondent No. 3, the second son of the Nizam of
Hyderabad. In the same suit, the second wife of Respondent No. 3 filed an Impleadment
application, praying for getting herself and his son as defendant nos. 2 & 3, alleging a collusion
between plaintiff and defendant, for defeating her and her son’s rights in the property of the
defendant. The Trial Court allowed the application, and the same was upheld by the High Court
in revision. The Appeal by special leave preferred before the Supreme Court too failed.

Dismissing the Appeal and upholding the Impleadment of Respondent Nos. 2 and 3, His
Lordship observed: “When a declaratory judgment has been given, by virtue of Section 43,
it is binding not only on the persons actually parties to the judgment but their privies also,
using the term “privy” not in its restricted sense of privy in estate, but also privy in blood.
Privity may arise (1) by operation of law, for example, privity of contract; (2) by creation of
subordinate interest in property, for example, privity in estate as between a landlord and a
tenant, or a mortgagor and a mortgagee; and (3) by blood, for example, privity in blood in
the case of ancestor and heir. Otherwise, in some conceivable cases, the provisions of Section
43, quoted above, would become otiose … As a result of these considerations, we have arrived
at the following conclusions: (1) That the question of addition of parties under Rule 10 of
Order 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the
court, but of a judicial discretion which has to be exercised in view of all the facts and
circumstances of a particular case; but in some cases, it may raise controversies as to the
power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of
jurisdiction in the limited sense in which it is used in Section 115 of the Code; (2) That in a
suit relating to property, in order that a person may be added as a party, he should have a
direct interest as distinguished from a commercial interest, in the subject-matter of the
litigation; (3) Where the subject-matter of a litigation, is a declaration as regards status or a
legal character, the rule of present or direct interest may be relaxed in a suitable case where
the court is of the opinion that by adding that party, it would be in a better position effectually
and completely to adjudicate upon the controversy; (4) The cases contemplated in the last
proposition, have to be determined in accordance with the statutory provisions of Sections
42 and 43 of the Specific Relief Act; … Applying the propositions enunciated above to the
facts of the instant case, we have come to the conclusion that the courts below did not exceed
their power in directing the addition of the Respondents 1 and 2 as parties-defendants in the
action. Nor can it be said that the exercise of the discretion was not sound. Furthermore, this
case comes before us by special leave, and we do not consider that it is a fit case where we
should interfere with the exercise of discretion by the courts below. The appeal is, accordingly,
dismissed. As regards the question of costs, we direct that it will abide the ultimate result of
the litigation, and will be disposed of by the trial court.”

Kasturi v. Iyyamperumal (2005) 6 SCC 733, (Tarun Chatterjee J. – FB)

In a suit filed by Appellant against Respondent Nos. 2 & 3 for specific performance of contract
for the sale of a property between them, Respondent Nos. 1 and 4 to 11 filed an application for
Impleadment claiming title to the property in question, independent of the Agreement to sell.
The same was allowed by all the courts below. However, the appeal by special leave preferred
by the plaintiff was allowed by the Supreme Court.

With regard to necessary party, His Lordship observed: “From a bare perusal of sub-rule (2)
of Order 1 Rule 10 CPC, we find that power has been conferred on the court to strike out the
name of any party improperly joined whether as plaintiff or defendant and also when the
name of any person ought to have been joined as plaintiff or defendant or in a case where a
person whose presence before the court may be necessary in order to enable the court
effectually and completely to adjudicate upon and settle all the questions involved in the suit.
In the present case, since we are not concerned with striking out the name of any plaintiff
or defendant who has been improperly joined in the suit, we will therefore only consider
whether the second part of sub-rule (2) Order 1 Rule 10 CPC empowers the court to add a
person who ought to have been joined or whose presence before the court may be necessary
in order to enable the court effectually and completely to adjudicate upon and settle all the
questions involved in the suit … In our view, a bare reading of this provision, namely, second
part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a
suit for specific performance of a contract for sale are the parties to the contract or if they
are dead, their legal representatives as also a person who had purchased the contracted
property from the vendor. In equity as well as in law, the contract constitutes rights and also
regulates the liabilities of the parties. A purchaser is a necessary party as he would be
affected if he had purchased with or without notice of the contract, but a person who claims
adversely to the claim of a vendor is, however, not a necessary party. From the above, it is
now clear that two tests are to be satisfied for determining the question who is a necessary
party. Tests are — (1) there must be a right to some relief against such party in respect of
the controversies involved in the proceedings; (2) no effective decree can be passed in the
absence of such party … We have carefully considered sub-sections (a) to (e) of Section 19 of
the Act. From a careful examination of the aforesaid provisions of clauses (a) to (e) of the
Specific Relief Act we are of the view that the persons seeking addition in the suit for specific
performance of the contract for sale who were not claiming under the vendor but they were
claiming adverse to the title of the vendor do not fall in any of the categories enumerated in
sub-sections (a) to (e) of Section 19 of the Specific Relief Act.”

With regard to proper parties, His Lordship observed: “[L]et us now consider who is a proper
party in a suit for specific performance of a contract for sale. For deciding the question who
is a proper party in a suit for specific performance the guiding principle is that the presence
of such a party is necessary to adjudicate the controversies involved in the suit for specific
performance of the contract for sale. Thus, the question is to be decided keeping in mind the
scope of the suit. The question that is to be decided in a suit for specific performance of the
contract for sale is to the enforceability of the contract entered into between the parties to
the contract. If the person seeking addition is added in such a suit, the scope of the suit for
specific performance would be enlarged and it would be practically converted into a suit for
title. Therefore, for effective adjudication of the controversies involved in the suit, presence
of such parties cannot be said to be necessary at all … a plain reading of the expression used
in sub-rule (2) Order 1 Rule 10 CPC “all the questions involved in the suit” it is abundantly
clear that the legislature clearly meant that the controversies raised as between the parties
to the litigation must be gone into only, that is to say, controversies with regard to the right
which is set up and the relief claimed on one side and denied on the other and not the
controversies which may arise between the plaintiff-appellant and the defendants inter se or
questions between the parties to the suit and a third party. In our view, therefore, the court
cannot allow adjudication of collateral matters so as to convert a suit for specific performance
of contract for sale into a complicated suit for title between the plaintiff-appellant on one hand
and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed,
would lead to a complicated litigation by which the trial and decision of serious questions
which are totally outside the scope of the suit would have to be gone into. As the decree of a
suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right,
title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view
of the detailed discussion made hereinearlier, Respondents 1 and 4 to 11 would not, at all, be
necessary to be added in the instant suit for specific performance of the contract for sale.”

Ramesh Hirachand v. Municipal Corpn. of Greater Bombay (1992) 2 SCC 524, (M.
Fathima Beevi J. – DB)

The Appellant in this case was a leaseholder from Respondent No. 2, Hindustan Petroleum
Corporation Ltd., in respect of a service station. Respondent No. 1 Municipal Corporation
issued notice to the Appellant for removal of certain unauthorised constructions on the
property. Thereupon a suit was filed by the appellant, challenging the notice and for an
injunction against demolition by the Municipal Corporation. In the said suit, Respondent No.
2 applied for Impleadment. The same was allowed by the Trial Court and upheld by the High
Court, but the appeal by special leave before the Supreme Court succeeded.

Holding that the Respondent No. 2 is neither a necessary party nor a proper party, His Lordship
observed: “Plaintiff is no doubt dominus litis and is not bound to sue every possible adverse
claimant in the same suit. He may choose to implead only those persons as defendants
against whom he wishes to proceed though under Order 1 Rule 3, to avoid multiplicity of
suit and needless expenses all persons against whom the right to relief is alleged to exist may
be joined as defendants. However, the Court may at any stage of the suit direct addition of
parties. A party can be joined as defendant even though the plaintiff does not think that he
has any cause of action against him. Rule 10 specifically provides that it is open to the Court
to add at any stage of the suit a necessary party or a person whose presence before the Court
may be necessary in order to enable the Court to effectually and completely adjudicate upon
and settle all the questions involved in the suit … Sub-rule (2) of Rule 10 gives a wide
discretion to the Court to meet every case of defect of parties and is not affected by the inaction
of the plaintiff to bring the necessary parties on record. The question of impleadment of a party
has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary
or a proper party may be added. A necessary party is one without whom no order can be made
effectively. A proper party is one in whose absence an effective order can be made but whose
presence is necessary for a complete and final decision on the question involved in the
proceeding … The case really turns on the true construction of the rule in particular the
meaning of the words “whose presence before the Court may be necessary in order to enable
the Court effectually and completely to adjudicate upon and settle all the questions involved in
the suit”. The Court is empowered to join a person whose presence is necessary for the
prescribed purpose and cannot under the rule direct the addition of a person whose presence
is not necessary for that purpose. If the inter-vener has a cause of action against the plaintiff
relating to the subject matter of the existing action, the Court has power to join the intervener
so as to give effect to the primary object of the order which is to avoid multiplicity of actions
… It cannot be said that the main object of the rule is to prevent multiplicity of actions though
it may incidentally have that effect. But that appears to be a desirable consequence of the
rule rather than its main objective. The person to be joined must be one whose presence is
necessary as a party. What makes a person a necessary party is not merely that he has
relevant evidence to give on some of the questions involved; that would only make him a
necessary witness. It is not merely that he has an interest in the correct solution of some
question involved and has thought of relevant arguments to advance. The only reason which
makes it necessary to make a person a party to an action is so that he should be bound by
the result of the action and the question to be settled, therefore, must be a question in the
action which cannot be effectually and completely settled unless he is a party. The line has
been drawn on a wider construction of the rule between the direct interest or the legal interest
and commercial interest. It is, therefore, necessary that the person must be directly or legally
interested in the action in the answer, i.e., he can say that the litigation may lead to a result
which will affect him legally that is by curtailing his legal rights. It is difficult to say that the
rule contemplates joining as a defendant a person whose only object is to prosecute his own
cause of action.”

Holding that Respondent No. 2 is neither a necessary party nor a proper party, His Lordship
observed: “The courts below have assumed that the subject matter of the litigation is the
structure erected by the respondent or in other words the service station which has been
allowed to be operated upon by the plaintiff under the terms of the dealership agreement. The
notice does not relate to that structure but is in relation to the two chattels stated to have been
erected by the present appellant unauthorisedly. According to the appellant these
chattels/structures are movables on wheels and plates where servicing and/or repairs are done
and used for storing implements of the mechanics. Respondent 2 has no interest in these
chattels and the demolition of the same in pursuance to the notice is not a matter which affects
the legal rights of the respondent. The courts below, therefore, failed to note that respondent 2
has no direct interest in the subject matter of the litigation and the addition of the respondent
would result in causing serious prejudice to the appllant and the substitution or the addition
of a new cause of action would only widen the issue which is required to be adjudicated and
settled. The joining of the party would embarrass the plaintiff and issues not germane to the
suit would be required to be raised. The mere fact that a fresh litigation can be avoided is no
ground to invoke the power under the rule in such cases.”

Kanaklata Das v. Naba Kumar Das (2018) 2 SCC 352 (A.M. Sapre J., DB)

The Appellants in this case filed an application for ejection of Respondent Nos. 2 to 5, tenants
from the property on grounds of non-payment of rent, sub-letting and bono fide need. The
Respondent No. 1 applied to be added as a co-plaintiff, on the ground that he was a member of
the family of the Appellants (plaintiffs) and thus, had a right in both the property in question
and other properties. The application was rejected by the Trial Court but allowed by High Court
and the Appellants preferred a Civil Appeal against the same.

Setting aside the decision of the High Court and rejecting the application, His Lordship
observed: “There are some well-settled principles of law on the question involved in this
appeal, which need to be taken into consideration while deciding the question which arose in
this appeal. These principles are mentioned infra: 1. First, in an eviction suit filed by the
plaintiff (landlord) against the defendant (tenant) under the State Rent Act, the landlord and
tenant are the only necessary parties. In other words, in a tenancy suit, only two persons are
necessary parties for the decision of the suit, namely, the landlord and the tenant … 4. Fourth,
the plaintiff being a dominus litis cannot be compelled to make any third person a party to
the suit, be that a plaintiff or the defendant, against his wish unless such person is able to
prove that he is a necessary party to the suit and without his presence, the suit cannot proceed
and nor can be decided effectively. In other words, no person can compel the plaintiff to
allow such person to become the co-plaintiff or defendant in the suit. It is more so when such
person is unable to show as to how he is a necessary or proper party to the suit and how
without his presence, the suit can neither proceed and nor it can be decided or how his
presence is necessary for the effective decision of the suit. 5. Fifth, a necessary party is one
without whom, no order can be made effectively, a proper party is one in whose absence an
effective order can be made but whose presence is necessary for a complete and final decision
on the question involved in the proceeding. … 6. Sixth, if there are co-owners or co-landlords
of the suit premises then any co-owner or co-landlord can file a suit for eviction against the
tenant. In other words, it is not necessary that all the owners/landlords should join in filing the
eviction suit against the tenant. … Keeping in mind the aforementioned well-settled principles
of law and on examining the legality of the impugned order, we find that the impugned order
is not legally sustainable and hence deserves to be set aside.”
 INSTITUTION OF SUIT

Representative Suit:

T.N. Housing Board v. T.N. Ganapathy (1990) 1 SCC 608, (L.M. Sharma – DB)

The Appellant Board had allotted a number of residential plots under a Housing Scheme.
However, nearly 12 years after the initial agreement, the Board raised a new demand for
payment of money and threatened dispossession in case of non-payment. The same was
challenged by the Respondent in a representative suit filed against the Board on behalf of the
allottees. The Respondent sought to contest the suit inter alia on the ground that the same was
not maintainable as separate demand was raised against each allottee and therefore the cause
of action arising against was not the same. The same was rejected by the Trial Court and the
High Court and the Supreme Court upheld the same.

With regard to the object of rule 8 and meaning of common interest, His Lordship observed:
“The provisions of Order I of Rule 8 have been included in the Code in the public interest so
as to avoid multiplicity of litigation. The condition necessary for application of the provisions
is that the persons on whose behalf the suit is being brought must have the same interest. In
other words either the interest must be common or they must have a common grievance
which they seek to get redressed. … The court, while considering whether leave under the
rule should be granted or not, should examine whether there is sufficient community of
interest to justify the adoption of the procedure provided under the rule. The object for which
this provision is enacted is really to facilitate the decision of questions, in which a large
number of persons are interested, without recourse to the ordinary procedure. The provision
must, therefore, receive an interpretation which will subserve the object for its enactment.
There are no words in the rule to limit its scope to any particular category of suits or to
exclude a suit in regard to a claim for money or for injunction as the present one.”

Holding that separate causes of action in each plaintiff doesn’t rule out the applicability of
Order I Rule 8, His Lordship observed: “Coming to the relevant circumstances in the present
case it will be seen that all the allotments in Ashok Nagar were made under the same scheme
and all the relevant facts are common. The basis of the impugned demand of the appellant is
equally applicable to all the allottees and the plea of the plaintiff is available to all of them.
The trial court was, therefore, perfectly right in permitting the plaintiff to proceed under Order
I, Rule 8 of the Code of Civil Procedure. Nobody in this situation can complain of any
inconvenience or injustice. On the other hand, the appellant is being saved from being involved
in unnecessary repeated litigation … It is true that each of the allottees is interested
individually in fighting out the demand separately made or going to be made on him and, thus,
separate causes of action arise in the case, but, that does not make Order I Rule 8 inapplicable.
Earlier there was some doubt about the rule covering such a case which now stands clarified
by the Explanation”

Kumaravelu Chettiar v. Ramaswami Ayyar, AIR 1933 PC 183

The suit in this case was regarding the right to entry into a temple at Tiruchendur, Tamil Nadu.
Certain people belonging to the caste of the plaintiffs had filed a suit when they were forcibly
removed from the temple premises when trying to visit it. The decree in 1878 dismissed the
suit. Subsequently, another suit was filed by certain other members of the caste, as
representative of the caste. The defendants contended that the same was barred by res judicata,
which was dismissed by the Trial Court, which thereafter decreed the suit. The High Court in
appeal, reversed the finding on res judicata and thereby dismissed the suit. In Appeal, their
lordships of the Privy Council reversed the finding of the High Court and remitted back the
matter for decision on merits.

Holding that compliance with all the requirements of Rule 8 is necessary in order to make the
decision rendered in such a suit binding on all, His Lordship observed: “As to authority, they
are impressed by the fact that even before the Code of 1908 there were several decisions—
Thanakota v. Muniappa17 may be selected as typical—in which the view was taken that if what
may be called an Order I., r. 8, suit was to have the benefit of the explanation, the conditions
of the rule must have been complied with fully. … First of all, the learned judges in ignoring
the conditions imposed by the rule seem to have discounted altogether the requirements as
to notice thereby made so prominent. The observance of these requirements their Lordships
hold to be essential. They constitute the nearest available substitute when dealing with
numerous persons, scattered it may be throughout India, for the personal service upon a
defendant required in the case of an ordinary suit. It is no more permissible to dispense with
the one requirement than with the other if the person in view is to be bound by the decree. It
may indeed be the case that in some representative suits, however far-reaching the notice,
absent persons will have only a chance of knowing that litigation affecting their interests is
on foot. But of that chance they are not to be deprived. It will be as good a chance as the
Court can give, and they are entitled to rely on the due discharge by the Court of its duty in
this matter—one of the most responsible with which it could be entrusted … And the fact that
in very many instances the notice directed will not achieve its full purpose, and that many
persons concerned may remain in ignorance of the proceedings, may well have prompted the
further condition of the explanation that the decree in such a suit to be binding on absent
persons must follow a bona fide litigation. This condition the Full Court seem to regard as
the panacea for all irregularity. In their Lordships' judgment it is not so to be read. Bona
fide litigation will not excuse the neglect of statutory conditions. If the litigation be not bona
fide the most complete observance of these conditions will not give to the decree the force of
a res judicata.”
 INSTITUTION OF SUIT

Spitting of Claims and Reliefs:

“The rule in question is intended to deal with the vice of splitting a cause of action. It provides
that a suit must include the whole of any claim which the plaintiff is entitled to make in respect
of the cause of action on which he sues, and that if he omits (except with the leave of the Court)
to sue for any relief to which his cause of action would entitle him, he cannot claim it in a
subsequent suit. The object of this salutary rule is doubtless to prevent multiplicity of suits.”

- Sir George Lowndes J. in Naba Kumar Hazra v. Radhashyam Mahish, AIR 1931
PC 229

Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78, (Sir Madhavan Nair)

The suit concerned succession to the properties of one Rani Barkatunissa which she obtained
through the will of her husband. She was the third wife of her husband. The property was
claimed by three different groups, her cousins from father’s side (Appellants-plaintiffs), her
nephews and the descendants of her husband from his first wife. The properties were situated
at two different places, Oudh (Awadh) and Agra. The initial suit filed by the Appellants prayed
only with regard to the properties in Oudh, which was decreed in their favour and confirmed
ultimately by the Privy Council. They then filed a subsequent suit for the properties situated at
Awadh subsequently, which was dismissed by the trial court as also the High Court as being
barred by Order II Rule 2. Their appeal before the Privy Council too failed.

Summarizing the principles regarding Order II Rule II, His Lordship observed: “The principles
laid down in the cases thus far discussed may be thus summarized: (1.) the correct test in cases
falling under Or. 2, r. 2, is “whether the claim in the new suit is, in fact, founded on a cause
of action distinct from that which was the foundation for the former suit.” (2.) The cause of
action means every fact which will be necessary for the plaintiff to prove, if traversed, in
order to support his right to the judgment. (3.) If the evidence to support the two claims is
different, then the causes of action are also different. (4.) The causes of action in the two
suits may be considered to be the same if in substance they are identical. (5.) The cause of
action has no relation whatever to the defence that may be set up by the defendant, nor does
it depend on the character of the relief prayed for by the plaintiff. It refers “to the media
upon which the plaintiff asks the Court to arrive at a conclusion in his favour.””
Holding that the subsequent suit to be barred, His Lordship observed: “Applying the above
principles, their Lordships have to decide what is the plaintiffs' cause of action to recover the
Shahjahanpur and Oudh properties; is it the same or distinct? The plaintiffs' cause of action
to recover the properties consists of those facts which would entitle them to establish their title
to the properties. These facts are the same with respect to both properties, these being, that
Rani Barkatunnissa was the owner of the properties; that she died on April 13, 1927, that she
was a Sunni by faith and that they are her heirs under the Mahomedan law. It is undisputed
that if they prove these facts they will have established their right to both properties. A
comparison of para. 1 of the plaint in suit No. 2 (Shahjahanpur suit) with paras. 13 and 17 of
the plaint in suit No. 8 (Oudh suit) will show that substantially the same set of facts is alleged
in those paragraphs as constituting their title to the properties. The other paragraphs of the
plaint give information about the history of the case and connected matters, but the essence of
the claim to the properties is what is contained in the paragraphs already mentioned, and it is
the same in both suits … The appellants' argument may be met by another reply also. In an
earlier portion of the judgment their Lordships have shown that reliefs by way of declaration
and possession were asked against Mahbub brothers in the Oudh suit, and the same reliefs
have been asked against them in the present suit also against Shahjahanpur properties. Both
suits have been treated substantially alike by the plaintiffs and claims in respect of both
properties could well have been included in the earlier suit … For the above reasons, their
Lordships hold that the plaintiffs are barred by reason of Or. 2, r. 2, C.P.C., from maintaining
the present suit having regard to suit No. 8, in which they omitted to claim the Shahjahanpur
property.”

Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, (N. Rajagopala Ayyangar J. – CB – 5J)

The Respondent plaintiff had initially filed a suit in 1954 for mesne profits in respect of an
immovable property. Subsequently he filed another suit for recover of possession and mesne
profits. The Appellant defendant contended that the subsequent suit was barred by the rule of
Order II Rule 2. The Trial Court upheld the preliminary objection and dismissed the suit. On
appeal, the First Appellate Court reversed the decision on the ground that since the pleadings
in the first suit were not before the Court, it cannot hold that the subsequent suit was therefore
barred by Order II Rule 2. The second appeal preferred before the High Court as also the appeal
by special leave preferred before the Supreme Court both failed.
Holding that the burden to prove that a subsequent suit is barred by Order II Rule 2 is upon the
defendant, His Lordship observed: “In order that a plea of a Bar under Order 2 Rule 2(3) of
the Civil Procedure Code should succeed the defendant who raises the plea must make out;
(i) that the second suit was in respect of the same cause of action as that on which the
previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled
to more than one relief; (3) that being thus entitled to more than one relief the plaintiff,
without leave obtained from the Court omitted to sue for the relief for which the second suit
had been filed. From this analysis it would be seen that the defendant would have to establish
primarily and to start with, the precise cause of action upon which the previous suit was
filed, for unless there is identity between the cause of action on which the earlier suit was
filed and that on which the claim in the latter suit is based there would be no scope for the
application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be
traceable to a particular cause of action but this might, by no means, be the universal rule.
As the plea is a technical bar it has to be established satisfactorily and cannot be presumed
merely on basis of inferential reasoning. It is for this reason that we consider that a plea of
a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the
defendant files in evidence the pleadings in the previous suit and thereby proves to the Court
the identity of the cause of action in the two suits … It is common ground that the pleadings
in CS 28 of 1950 were not filed by the appellant in the present suit as evidence in support of
his plea under Order 2 Rule 2 of the Civil Procedure Code. The learned trial Judge, however,
without these pleadings being on the record inferred what the cause of action should have been
from the reference to the previous suit contained in the plaint as a matter of deduction. At the
stage of the appeal the learned District Judge noticed this lacuna in the appellant's case and
pointed out, in our opinion, rightly that without the plaint in the previous suit being on the
record, a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code was not maintainable
… Learned Counsel for the appellant, however, urged that in his plaint in the present suit the
respondent had specifically referred to the previous suit having been for mesne profits and that
as mesne profits could not be claimed except from a trespasser there should also have been an
allegation in the previous suit that the defendant was a trespasser in wrongful possession of
the property and that alone could have been the basis for claiming mesne profits. We are unable
to accept this argument. In the first place, it is admitted that the plaint in the present suit was
in Hindi and that the word ‘mesne profits’ is an English translation of some expression used
in the original. The original of the plaint is not before us and so it is not possible to verify
whether the expression ‘mesne profits’ is an accurate translation of the expression in the
original plaint. This apart, we consider that learned Counsel's argument must be rejected for
a more basic reason. Just as in the case of a plea of res judicata which cannot be established
in the absence on the record of the judgment and decree which is pleaded as estoppel, we
consider that a plea under Order 2 Rule 2 of the Civil Procedure Code cannot be made out
except on proof of the plaint in the previous suit the filing of which is said to create the bar.
As the plea is basically founded on the identity of the cause of action in the two suits the
defence which raises the bar has necessarily to establish the cause of action in the previous
suit. The cause of action would be the facts which the plaintiff had then alleged to support
the right to the relief that he claimed. Without placing before the Court the plaint in which
those facts were alleged, the defendant cannot invite the Court to speculate or infer by a
process of deduction what those facts might be with reference to the reliefs which were then
claimed. It is not impossible that reliefs were claimed without the necessary averments to justify
their grant.”

Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited (2013)
1 SCC 625, [Ranjan Gogoi J. (as His Lordship then was) – DB]

The Respondent in the matter filed two different suits praying for the grant of injunction
restraining the Appellant from alienating the properties subject matter of the suit in favour of
someone else. He subsequently filed another suit when the first one was still pending, praying
for specific performance. Appellant contended that the same was barred by Order II Rule 2.
The High Court rejected the contention. The Supreme Court however allowed appeal by special
leave.

Differentiating between sub-rule (2) and (3), His Lordship observed: “Order 2 Rule 1 requires
every suit to include the whole of the claim to which the plaintiff is entitled in respect of any
particular cause of action. However, the plaintiff has an option to relinquish any part of his
claim if he chooses to do so. Order 2 Rule 2 contemplates a situation where a plaintiff omits to
sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the
plaintiff so acts, Order 2 Rule 2 CPC makes it clear that he shall not, afterwards, sue for the
part or portion of the claim that has been omitted or relinquished. It must be noticed that Order
2 Rule 2(2) does not contemplate omission or relinquishment of any portion of the plaintiff's
claim with the leave of the court so as to entitle him to come back later to seek what has been
omitted or relinquished. Such leave of the court is contemplated by Order 2 Rule 2(3) in
situations where a plaintiff being entitled to more than one relief on a particular cause of
action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from
bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave
of the court had been obtained. It is, therefore, clear from a conjoint reading of the provisions
of Order 2 Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order 2 Rule 2
contemplate two different situations, namely, where a plaintiff omits or relinquishes a part
of a claim which he is entitled to make and, secondly, where the plaintiff omits or
relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in
the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted
in the earlier suit proved that at the time of omission to claim the particular relief he had
obtained leave of the court in the first suit”

Holding that the cause of action was the same for both the suits, His Lordship observed: “”The
object behind the enactment of Order 2 Rules 2(2) and (3) CPC is not far to seek. The Rule
engrafts a laudable principle that discourages/prohibits vexing the defendant again and again
by multiple suits except in a situation where one of the several reliefs, though available to a
plaintiff, may not have been claimed for a good reason. A later suit for such relief is
contemplated only with the leave of the court which leave, naturally, will be granted upon due
satisfaction and for good and sufficient reasons.”

Holding that the cause of action for both the suits were same, His Lordship observed: “A
reading of the plaints filed in CSs Nos. 831 and 833 of 2005 show clear averments to the effect
that after execution of the agreements of sale dated 27-7-2005 the plaintiff received a letter
dated 1-8-2005 from the defendant conveying the information that the Central Excise
Department was contemplating issuance of a notice restraining alienation of the property. The
advance amounts paid by the plaintiff to the defendant by cheques were also returned.
According to the plaintiff it was surprised by the aforesaid stand of the defendant who had
earlier represented that it had clear and marketable title to the property. In Para 5 of the plaint,
it is stated that the encumbrance certificate dated 22-8-2005 made available to the plaintiff did
not inspire confidence of the plaintiff as the same contained an entry dated 1-10-2004. The
plaintiff, therefore, seriously doubted the claim made by the defendant regarding the
proceedings initiated by the Central Excise Department. In the aforesaid paragraph of the
plaint it was averred by the plaintiff that the defendant is “finding an excuse to cancel the sale
agreement and sell the property to some other third party”. In the aforesaid paragraph of the
plaint, it was further stated that “in this background, the plaintiff submits that the defendant is
attempting to frustrate the agreement entered into between the parties” … The averments made
by the plaintiff in CSs Nos. 831 and 833 of 2005, particularly the pleadings extracted above,
leave no room for doubt that on the dates when CSs Nos. 831 and 833 of 2005 were instituted,
namely, 28-8-2005 and 9-9-2005, the plaintiff itself had claimed that facts and events have
occurred which entitled it to contend that the defendant had no intention to honour the
agreements dated 27-7-2005. In the aforesaid situation it was open for the plaintiff to
incorporate the relief of specific performance along with the relief of permanent injunction
that formed the subject-matter of the above two suits. The foundation for the relief of permanent
injunction claimed in the two suits furnished a complete cause of action to the plaintiff in CSs
Nos. 831 and 833 to also sue for the relief of specific performance. Yet, the said relief was
omitted and no leave in this regard was obtained or granted by the Court.”

Holding that the bar under Order II Rule 2 applies even in cases where the first suit is not yet
dismissed i.e. where the subsequent suit is instituted during the pendency of the first suit, His
Lordship observed: “[w]e are unable to agree with the same in view of the object behind the
enactment of the provisions of Order 2 Rule 2 CPC as already discussed by us, namely, that
Order 2 Rule 2 CPC seeks to avoid multiplicity of litigations on the same cause of action. If
that is the true object of the law, on which we do not entertain any doubt, the same would
not stand fully subserved by holding that the provisions of Order 2 Rule 2 CPC will apply
only if the first suit is disposed of and not in a situation where the second suit has been filed
during the pendency of the first suit. Rather, Order 2 Rule 2 CPC will apply to both the
aforesaid situations.”

Pramod Kumar v. Zalak Singh (2019) 3 SCC 621, (K.M. Josheph J. – DB)

The husband and father of the Respondent-plaintiffs executed two different sale deeds in
respect of two parts of the same land. In the initial suit, they pleaded for the relief of
cancellation of only the first sale deed and not the second one, on the ground that the property
in question was ancestral property and the sale was made for immoral purposes of the karta
and not for the benefit of the family. The same was dismissed by the Trial Court holding the
property to be a separate property. Subsequently, the Respondents filed another suit for setting
aside the second sale deed. The same was held by the Trial Court and the First Appellate Court
to be barred by Order II Rule. However, on second appeal, the High Court reversed the
decision. The Supreme Court allowed the appeal by special leave, reinstating the decision of
the Trial Court.
Differentiating between sub-rule (2) and (3), His Lordship observed: “Order 2 Rule 2(1)
provides that a plaintiff is to include the whole of the claim, which he is entitled to make, in
respect of the cause of action. However, it is open to him to relinquish any portion of the claim.
Order 2 Rule 2 provides for the consequences of relinquishment of a part of a claim and also
the consequences of omitting a part of the claim. It declares that if a plaintiff omits to sue or
relinquishes intentionally any portion of his claim, he shall be barred from suing on that
portion so omitted or relinquished. Order 2 Rule 2(3), however, deals with the effect of
omission to sue for all or any of the reliefs in respect of the same cause of action. The
consequences of such omission will be to preclude plaintiff from suing for any relief which is
so omitted. The only exception is when he obtains leave of the court … Thus, in respect of
omission to include a part of the claim or relinquishing a part of the claim flowing from a
cause of action, the result is that the plaintiff is totally barred from instituting a suit later in
respect of the claim so omitted or relinquished. However, if different reliefs could be sought
for in one suit arising out of a cause of action, if leave is obtained from the court, then a
second suit, for a different relief than one claimed in the earlier suit, can be prayed for. There
are three expressions which are found in Order 2 Rule 2. Firstly, there is reference to the word
“cause of action”, secondly the word “claim is alluded to” and finally reference is made to
“relief””

Holding that the cause of action of both the suits is the same in the present matter, His Lordship
observed: “The principle underlying Order 2 Rule 2 is that no man can be vexed twice over
the same cause of action. All claims and reliefs, which arise from a cause of action, must be
comprehended in one single suit. Order 2 Rule 2 provides for the principle of repose. If this
be the underlying object of Order 2 Rule 2, the fact that at the time when the first suit was
filed even though the second alienation could be challenged and it stemmed from one single
cause of action and not two different causes of action, the mere fact that a different period
of limitation is provided, cannot stand in the way of the bar under Order 2 Rule 2 … In this
case, we have noticed the pleadings. The case of the plaintiffs appears to be that the property
is ancestral property. Their late father Tikaram was given to wasteful ways and addicted to
drink and otherwise. He was given to selling properties. His well-wishers intervened and
partition ensued. However, 8.22 ac falling in Khasra No. 189 was kept out of the partition
deed. He decided to sell 8.22 ac without there being any legal necessity and without any benefit
to the joint family. The first part of the transaction, which consisted of two parts, pertained to
sale deed dated 21-1-1959 and that was the subject-matter of the first suit. At the time of filing
of the said first suit, late predecessor-in-interest of the plaintiff, had also executed another sale
deed which constituted the remaining portion which consisted of the 8.22 ac as already noticed.
The suits contained virtually identical averments in regard to both the transactions. The first
suit was filed in 1963 and the second suit filed in the year 1971 … We are of the view that in
such circumstances, this is a case where the plaintiff ought to have included relief in the form
of setting aside the second sale deed also. This is not a case where the second sale deed had
not been executed when the plaintiff instituted the first suit. We are not, for a moment, declaring
the effect of the sale deed having been executed subsequently to the institution of the suit as we
do not have to pronounce on the effect of such a sale. We are only emphasising that it was open
to the respondent-plaintiff to seek relief in respect of the second sale executed by their
predecessor-in-interest and what is more important in favour of the same parties (defendants)
who are the appellants before us”

Differentiating between Rule 2 and Rule 3, His Lordship observed: “It is undoubtedly true
that the law does not compel a litigant to combine one or more causes of action in a suit. It
is open to a plaintiff, if he so wishes, however to combine more than one cause of action
against same parties in one suit. However, it is undoubtedly true that the embargo in Order
2 Rule 2 will arise only if the claim, which is omitted or relinquished and the reliefs which
are omitted and not claimed, arise from one cause of action. If there is more than one cause
of action, Order 2 Rule 2 will not apply. It is undoubtedly also true that Order 2 Rule 2
manifests a technical rule as it has the effect of posing an obstacle in the path of a litigant
ventilating his grievance in the courts. But as already noted, there is an equally important
principle that no person shall be vexed twice on the same cause of action.”
 INSTITUTION OF SUIT

Sucha Singh Sodhi v. Baldev Raj Walia (2018) 6 SCC 733, (Abhay Manohar Sapre J. – DB)

The Appellant and the Respondent entered into an agreement to sell, pursuant to which the
Appellant was also put into the possession of the property in question. Subsequent to that
however, the Respondent attempted to dispossess the Appellant by force. As a result, he filed
a suit praying for a permanent injunction to restrain the Respondent from disposing him.
However, subsequently the Appellant made a statement before the Respondent praying the
Court to allow him to withdraw the suit in order for him to file a suit for specific performance
of the agreement to sell. In the second suit, the Respondent contended that the same was barred
under Order II Rule 2 since the plaintiff could have asked for the relief in a previous suit.

With regard to Order II Rule 2, His Lordship observed: “In our considered opinion, the trial
court and the High Court erred in allowing the application filed by Respondent 2 under Order
7 Rule 11 of the Code and thereby erred in dismissing the suit as being barred by the provisions
of Order 2 Rule 2 of the Code by taking recourse to the provisions of Order 7 Rule 11 of the
Code. In our opinion, the provisions of Order 2 Rule 2 of the Code are not attracted to the facts
of this case and, therefore, civil suit should not have been dismissed as being barred under
Order 2 Rule 2 of the Code … It is clear from the reading of Order 2 Rule 2(1) of the Code that
whenever the plaintiff files a suit on the basis of a cause of action pleaded in the plaint, he is
under a legal obligation to include and claim all the reliefs against the defendant, which have
accrued to him on the cause of action pleaded by him in his plaint. In other words, if on the
basis of cause of action pleaded by the plaintiff in the plaint, he is entitled to claim two reliefs,
namely, ‘A’ and ‘B’ against the defendant(s), then he is under an obligation to claim both ‘A’
and ‘B’ reliefs together in the suit. Order 2 Rule 2(1) of the Code enables the plaintiff to
relinquish any portion of his relief with a view to bring the suit within the jurisdiction of any
court … Order 2 Rule 2(2) of the Code, however, provides that where a plaintiff omits to sue
or intentionally relinquishes, any portion of his claim/relief in his suit, then in such event, he
shall not be allowed afterwards to sue in respect of the claim/relief so omitted or/and
relinquished by him in his suit. In other words Rule 2(2) does not permit the plaintiff to file
second suit to claim the omitted or/and relinquished relief … In our opinion, the sine qua non
for invoking Order 2 Rule 2(2) against the plaintiff by the defendant is that the relief which
the plaintiff has claimed in the second suit was also available to the plaintiff for being
claimed in the previous suit on the causes of action pleaded in the previous suit against the
defendant and yet not claimed by the plaintiff … Therefore, we have to examine the question
as to whether the plaintiff was entitled to claim a relief of specific performance of agreement
in the previous suit on the basis of cause of action pleaded by the plaintiff in the previous suit
against the respondents/defendants in relation to suit property.”

Holding that the causes of action in both the two suits were different, His Lordship observed:
“In other words, the question that arises for consideration is whether Sucha Singh (original
plaintiff) could claim the relief of specific performance of agreement against the
respondents/defendants in addition to his claim of permanent injunction in the previously
instituted suit … Our answer to the aforementioned question is in favour of the plaintiffs
(appellants) and against the defendants (respondents). In other words, our answer to the
aforementioned question is that the plaintiff could not claim the relief of specific performance
of agreement against the defendants along with the relief of permanent injunction in the
previous suit for the following reasons: 1. First, the cause of action to claim a relief of
permanent injunction and the cause of action to claim a relief of specific performance of
agreement are independent and one cannot include the other and vice versa. In other words,
a plaintiff cannot claim a relief of specific performance of agreement against the defendant
on a cause of action on which he has claimed a relief of permanent injunction. 2. Second,
the cause of action to claim temporary/permanent injunction against the defendants from
interfering in the plaintiff's possession over the suit premises accrues when Defendant 1
threatens the plaintiff to dispossess him from the suit premises or otherwise cause injury to
the plaintiff in relation to the suit premises. It is governed by Order 39 Rule 1(c) of the Code
which deals with the grant of injunction. The limitation to file such suit is three years from the
date of obstruction caused by the defendant to the plaintiff (see Part VII Articles 85, 86 and 87
of the Limitation Act). On the other hand, the cause of action to file a suit for claiming specific
performance of agreement arises from the date fixed for the performance or when no such
date is fixed, when the plaintiff has noticed that performance is refused by the defendant.
The limitation to file such suit is three years from such date … 3. Third, when both the
reliefs/claims, namely, (1) permanent injunction, and (2) specific performance of agreement
are not identical, when the causes of action to sue are separate, when the factual ingredients
necessary to constitute the respective causes of action for both the reliefs/claims are different
and lastly, when both the reliefs/claims are governed by separate articles of the Limitation
Act, then, in our opinion, it is not possible to claim both the reliefs together on one cause of
action.”
Objections against joinder or misjoinder or nonjoinder of parties and causes of action:

Prem Lal Nahata v. Chandi Prasad Sikaria (2007) 2 SCC 551, (P.K. Balasubramanyan J. –
DB)

The Appellants, mother and daughter, preferred a common suit before Calcutta High Court
against the Respondent for certain sums of money alleged to be due to them, on account of
money lent to him. The Respondent had earlier also had filed two different suits against the
Appellants for moneys owed by them to him, before the City Civil Court, Calcutta. On
application by the Appellants, the High Court transferred to its original side, the suits from City
Civil Court, to be tried and disposed of along with the suit filed by Appellants. In the meanwhile
the Respondent filed an application in the suit filed by the Appellants, pleading for rejection
under Order VII Rule 11, on the ground that due to misjoinder of parties and misjoinder of
causes of action, the suit was barred by law. The Single Judge dismissed the Application, but
on appeal, the Division Bench allowed the same. The Supreme Court set aside the decision of
the Division Bench and dismissed the Application.

With regard to the contention under Order VII Rule 11, His Lordship observed: “But it is a
different question whether a suit which may be bad for misjoinder of parties or misjoinder of
causes of action, is a suit barred by law in terms of Order 7 Rule 11(d) of the Code … Order 1
deals with parties to a suit and provides who may be joined as the plaintiffs and who may be
joined as the defendants. It also deals with the power of the court to direct the plaintiffs either
to elect with reference to a particular plaintiff or a particular defendant or to order separate
trials in respect of the parties misjoined as the plaintiffs or the defendants. It also gives power
to the court to pronounce judgment for or against one of the parties from among the parties
who have joined together or who are sued together. The order also specifies that a suit shall
not be defeated by reason of the misjoinder or non-joinder of parties, so along as in the case
of non-joinder, the non-joinder is not of a necessary party. The Code also gives power to the
court to substitute the correct person as a plaintiff or add parties or strike out parties as
plaintiffs or defendants, at any stage, if it is found necessary … Order 2 deals with frame of
suits. It provides that every suit shall be framed as far as practicable so as to afford grounds
for final decision upon the subjects in dispute and to prevent further litigation concerning
them. It is also insisted that every suit shall include the whole of the claim that a plaintiff is
entitled to make in respect of its subject-matter. There is a further provision that the plaintiff
may unite in the same suit several causes of action against the same defendant and the
plaintiffs having causes of action in which they are jointly interested against the same
defendant, may unite such causes of action in the same suit. It provides that objection on the
ground of misjoinder of causes of action should be taken at the earliest opportunity. It also
enables the court, where it appears to the court that the joinder of causes of action may
embarrass or delay the trial or otherwise cause inconvenience, to order separate trials or to
make such other order as may be expedient in the interests of justice … Thus, in a case where
a plaint suffers from the defect of misjoinder of parties or misjoinder of causes of action
either in terms of Order 1 Rule 1 and Order 1 Rule 3 on the one hand, or Order 2 Rule 3 on
the other, the Code itself indicates that the perceived defect does not make the suit one barred
by law or liable to rejection. This is clear from Rules 3-A, 4 and 5 of Order 1 of the Code,
and this is emphasised by Rule 9 of Order 1 of the Code which provides that no suit shall be
defeated by reason of non-joinder or misjoinder of parties and the court may in either case
deal with the matter in controversy so far as it regards the rights and interests of the parties
actually before it. This is further emphasised by Rule 10 of Order 1 which enables the court
in appropriate circumstances to substitute or add any person as a plaintiff in a suit. Order 2
deals with the framing of a suit and Rule 3 provides that save as otherwise provided, a
plaintiff may unite in the same suit several causes of actions against the same defendant and
any plaintiffs having causes of actions in which they are jointly interested against the same
defendant may unite such causes of action in the same suit. Rule 6 enables the court to order
separate trials even in a case of misjoinder of causes of action in a plaint filed … It is well
understood that procedure is the handmaid of justice and not its mistress. The scheme of
Order 1 and Order 2 clearly shows that the prescriptions therein are in the realm of
procedure and not in the realm of substantive law or rights. That the Code considers
objections regarding the frame of suit or joinder of parties only as procedural, is further
clear from Section 99 of the Code which specifically provides that no decree shall be reversed
in appeal on account of any misjoinder of parties or causes of action or non-joinder of
parties unless a court finds that the non-joinder is of a necessary party … Order 7 Rule 11(d)
speaks of the suit being “barred by any law”. According to Black's Law Dictionary, bar means,
a plea arresting a law suit or legal claim. It means as a verb, to prevent by legal objection.
According to Ramanatha Aiyar's Law Lexicon, “bar” is that which obstructs entry or egress;
to exclude from consideration. It is therefore necessary to see whether a suit bad for misjoinder
of parties or of causes of action is excluded from consideration or is barred entry for
adjudication. As pointed out already, on the scheme of the Code, there is no such prohibition
or a prevention at the entry of a suit defective for misjoinder of parties or of causes of action.
The court is still competent to try and decide the suit, though the court may also be competent
to tell the plaintiffs either to elect to proceed at the instance of one of the plaintiffs or to
proceed with one of the causes of action. On the scheme of the Code of Civil Procedure, it
cannot therefore be held that a suit barred for misjoinder of parties or of causes of action is
barred by a law, here the Code. This may be contrasted with the failure to comply with Section
80 of the Code. In a case not covered by sub-section (2) of Section 80, it is provided in sub-
section (1) of Section 80 that “no suit shall be instituted”. This is therefore a bar to the
institution of the suit and that is why courts have taken the view that in a case where notice
under Section 80 of the Code is mandatory, if the averments in the plaint indicate the absence
of a notice, the plaint is liable to be rejected. For, in that case, the entertaining of the suit would
be barred by Section 80 of the Code. The same would be the position when a suit hit by Section
86 of the Code is filed without pleading the obtaining of consent of the Central Government if
the suit is not for rent from a tenant. Not only are there no words of such import in Order 1 or
Order 2 but on the other hand, Rule 9 of Order 1, Rules 1 and 3 of Order 1, and Rules 3 and 6
of Order 2 clearly suggest that it is open to the court to proceed with the suit notwithstanding
the defect of misjoinder of parties or misjoinder of causes of action and if the suit results in a
decision, the same could not be set aside in appeal, merely on that ground, in view of Section
99 of the Code, unless the conditions of Section 99 are satisfied. Therefore, by no stretch of
imagination, can a suit bad for misjoinder of parties or misjoinder of causes of action be held
to be barred by any law within the meaning of Order 7 Rule 11(d) of the Code … Thus, when
one considers Order 7 Rule 11 of the Code with particular reference to clause (d), it is
difficult to say that a suit which is bad for misjoinder of parties or misjoinder of causes of
action, is a suit barred by any law. A procedural objection to the impleading of parties or to
the joinder of causes of action or the frame of the suit, could be successfully urged only as a
procedural objection which may enable the court either to permit the continuance of the suit
as it is or to direct the plaintiff or plaintiffs to elect to proceed with a part of the suit or even
to try the causes of action joined in the suit as separate suits.”

With regard to the consolidation of suits, emphasising upon the discretionary power of the
Court, His Lordship observed: “It cannot be disputed that the court has power to consolidate
suits in appropriate cases. Consolidation is a process by which two or more causes or matters
are by order of the court combined or united and treated as one cause or matter. The main
purpose of consolidation is therefore to save costs, time and effort and to make the conduct
of several actions more convenient by treating them as one action. The jurisdiction to
consolidate arises where there are two or more matters or causes pending in the court and it
appears to the court that some common question of law or fact arises in both or all the suits
or that the rights to relief claimed in the suits are in respect of or arise out of the same
transaction or series of transactions; or that for some other reason it is desirable to make an
order consolidating the suits … If there is power in the court to consolidate different suits on
the basis that it should be desirable to make an order consolidating them or on the basis that
some common questions of law or fact arise for decision in them, it cannot certainly be
postulated that the trying of a suit defective for misjoinder of parties or causes of action is
something that is barred by law. The power to consolidate recognised in the court obviously
gives rise to the position that mere misjoinder of parties or causes of action is not something
that creates an obstruction even at the threshold for the entertaining of the suit … It is
recognised that the court has wide discretionary power to control the conduct of proceedings
where there has been a joinder of causes of action or of parties which may embarrass or
delay the trial or is otherwise inconvenient. In that situation, the court may exercise the power
either by ordering separate trials of the claims in respect of two or more causes of action
included in the same action or by confining the action to some of the causes of action and
excluding the others or by ordering the plaintiff or plaintiffs to elect which cause of action is
to be proceeded with or which plaintiff should proceed and which should not or by making
such other order as may be expedient … Surely, when the matter rests with the discretion of
the court, it could not be postulated that a suit suffering from such a defect is something that
is barred by law. After all, it is the convenience of the trial that is relevant and as the Privy
Council has observed in the decision noted earlier, the defendant may not even have an
absolute right to contend that such a suit should not be proceeded with.”

Ultimately allowing the appeal and holding that a joint trial as ordered by the single judge is
right, His Lordship observed: “In the case on hand, we have also to reckon with the fact that
the suits filed by the respondent against the respective appellants based on the transactions
combined together by the appellants, have already been withdrawn for a joint trial with the
present suit, CS No. 29 of 2003. In those two suits, the nature of the transaction the respective
appellants had with the respondent have to be decided after trial. In the present suit, the
appellants are claiming the payments which also form the basis of the claim of the respondent
against the respective appellants in his two suits. In the present suit, CS No. 29 of 2003, all
that the appellants have done is to combine their respective claims which are in the nature of
counterclaims or cross-suits to the suits filed by the respondent. The ultimate question for
decision in all the suits is the nature of the transactions that was entered into by the respondent
with each of the appellants and the evidence that has to be led, in both the suits, is regarding
the nature of the respective transactions entered into by the respondent with each of the
appellants. To a great extent, the evidence would be common and there will be no
embarrassment if the causes of action put forward by the appellants in the present suit are tried
together especially in the context of the two suits filed by the respondent against them and
withdrawn for a joint trial. In the case on hand, therefore, even assuming that there was a
defect of misjoinder of causes of action in the plaint filed by the appellants, it is not a case
where convenience of trial warrants separating of the causes of action by trying them
separately. The three suits have to be jointly tried and since the evidence, according to us,
would be common in any event, the Division Bench was in error in directing the appellants to
elect to proceed with one of the plaintiffs and one of the claims. We do not think that on the
facts and in the circumstances of the case one of the appellants should be asked to file a fresh
plaint so as to put forward her claim. Even if such a plaint were to be filed, it will be a clear
case for a joint trial of that plaint with the present suit and the two suits filed by the respondent.
In any event, therefore, the Division Bench was not correct in interfering with the decision of
the learned Single Judge. The effect of withdrawal of the two suits filed by the respondent
against the appellants for a joint trial has not been properly appreciated by the Division Bench.
So, on the facts of this case, the decision of the Division Bench is found to be unsustainable
and the course adopted by it unwarranted.”