P L D 1966 (W (PLP)

(7) Did defendant No. I conspire or defendant No. 2‑collude with officers of defendant No. 3? (8) Have defendants No. 3 taken away account books of the Firm; and did they hand them over to defendant No. 4? (9) Have defendants 1, 3 and 4 in conspiracy destroyed the books of accounts of the firm? (10) Are defendants Nos. 3 and 4 liable for plaintiff's claim on ground of conspiracy? (11) Has plaintiff no locus standi to institute this suit against defendant Nos. 3 and 4? (12) Is the suit collusive between plaintiff and defendant No. 2 and maintained by defendant No. 2? (13) Are any of the defendants liable for plaintiff's claim? If so, which of them? (14) In the alternative are defendants liable to account to the plaintiff? If so, which of them? (15) What relief?" My findings and reasons are as follows:

5. Issues Nos. 3 and 4.‑It was urged on behalf of the contesting defendants, that the suit was bad for multifariousness as there was misjoinder of causes of action and parties. It is evident from the facts stated above that she has filed this suit not against the firm but against defendants Nos. 1 and 2 for recovery of her loan amount and against defendants Nos. 3 and 4 who have destroyed the account books in conspiracy with each other. Thus there are two sets of defendants and there are different causes of action against them as alleged by the plaintiff in her plaint. Order I of Civil Procedure Code relates to parties to suits and for our purpose its rule 9 is relevant and it is reproduced below: "No suit shall be defeated by reason of the mis jonder or non joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it." Mr. Moulvi Advocate for the plaintiff had urged before me that even if the suit was bad it could not be dismissed because common questions of law and facts were involved in this suit against the two sets of defendants. Rule 3, Order I refers to persons who could be joined as defendants and this rule reads as follows: "All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise." The main object of Order I, rule 9 is to regulate the business and procedure of the Courts so that justice may be done between the parties according to their rights and interest by law and by their contracts. Misjoinder of the parties is not fatal to the suit. In such a case Court has powers under Order 1, rule 10(2) to strike out the names of persons improperly joined and to allow the suit to be proceeded with, but this rule does not apply to cases where there is misjoinder of causes of action as well as parties. Even in such a case the suit should not be dismissed and plaintiff should be given an opportunity to amend the plaint and to confine the suit to one set of defendants. But where the plaintiff does not amend the plaint the suit may be dismissed and the dismissal will be considered to be on merits and not by way of penalty. Contesting defendants in support of their case had also relied upon Order II, rule 3 which deals with joinder of causes of action and it is reproduced below: "(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. (2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of agregate subject‑matters at the date of instituting the suit." I was referred to several decisions of various High Courts in support of their case that suit is bad for misjoinder of causes of action and defendants and as such it must be dismissed specially because plaintiff even though she was given opportunity to amend her plaint has not availed of it. Case reported in Bhaiyalal Baliram Reli v. Remchandra Hamraj Mahesri and another (A I R 1937 Nag. 99) lays down that a mortgagee cannot bring one suit in respect of mortgages of the same property executed in his favour by two different persons. They cannot even be joined under Order II, rule 3 as they are not jointly liable on each mortgage. It was held in a case reported in Khundrakpam Muhon Singh v. Haorungbam Amujao Singh and others (A I R 1954 Man, 5) that the suit suffered from multi fariousness inasmuch as there were some causes of action alleged against defendants Nos. 1 and 2 and some against defendants Nos. 3 and 4 and thus resulting in misjoiner of defendants and causes of action. Next case is reported in R. Nilakanta lyer v. Ramanarayana lyar and others (A I R 1949 Mad. 410). Order 1, rule 3 and Order 11, rule 3 and multi fariousness have been discussed in a case reported in Sm. Nagendra Bala Debi and others v. Provash Chandra and others (A I R 1953 Cal. 185). Last case relied upon by the defendants is reported in Brajbala Barua and others v. M/s. Gaunati Bank Ltd. and others (A I R 1962 Assam 85). It is clear from the facts stated above that defendants 1 and 2 have been sued for recovery of loan while her case against defendants 3 and 4 is of conspiracy for destruction of account books. Plaintiff's Advocate had failed to satisfy me that same questions of law] and fact are involved in this case. She was given opportunity to amend the plaint when these arguments were heard and till today she has not availed of it. I, therefore agree with the contesting defendants that suit is bad for misjoinder of parties and causes of action. Apart from it I find that it is also time‑I barred against defendants Nos. 3 and

4. They have been joined, for mal‑feaseness, mis‑feaseness or non‑feaseness and under Article 36 of the Limitation Act period allowed to the plaintiff for filing a suit is two years. Paragraph 15 of the plaint recites that the cause of action accrued to her on 1‑12‑1957 and 4‑3‑1958 when defendants 1, 3 and 4 conspired to destroy the account books. Present suit was filed by her on 21‑11‑1960 and as such it is time‑barred under Article 36 of the Limitation Act, referred to above against defendants Nos. 3 and 4 for conspiracy. Findings accordingly.

6. Issues Nos. I and 5.‑‑I have already referred to the pleas raised by defendants Nos. 1 and

2. No finding on issue No. 1 appears relevant for deciding this suit. Defendant No. 2 who is the husband of the plaintiff has admitted her claim and it is denied by the contesting defendant No.

1. The case of the plaintiff and her husband is that after the partnership between defendant No. I and Rokaria Brothers was dissolved it was found on settlement of accounts that some amount was due to Rokaria Brothers. Defendant No. 1 had no amount available and hence he offered to take defendant No. 2 as his partner provided he invested the amount and paid the amount to Rokaria Brothers which was due to them. Defendant No. 2 agreed and accordingly borrowed a sum of Rs. 50,000 from his wife in his own name and the amount due to Rokaria Brothers was paid. Subsequently he and defendant No. 1 had entered into partnership but later on the licence granted to defendant No. 1 was cancelled by defendant No. 3 and it was granted to defendant No. 4 and in conspiracy the account books have been destroyed by them. No evidence has been adduced that the new partnership entered into between defendants 1 and 2 undertook to pay this loan to the plaintiff or that she was a party to the agreement when this loan taken by defendant No. 2 was transferred to this firm. Ali Muhammad is her brother and he has power of attorney executed by her in his favour. His evidence is that he knows the facts of this case personally and hence he has given this evidence. Plaintiff is at Karachi and she is alive. There is nothing on record to suggest that she is ill. In spite of these reasons she was not examined as a witness though as it appears from the facts stated above that she is the only material and relevant witness. Ali Muhammad Exh. 8 had stated before me that this amount of Rs. 50,000 was a loan by her to this new partnership between defendant No. 1 and 2 and the deed was executed on 1‑12‑1957. A sum of Rs. 48,500 was transferred as a loan by her to this new firm. He had further added that this loan of the plaintiff is shown in the monthly statement which was prepared by the accountant of this firm. He had admitted during his cross‑examination that she has no accounts with the bank, that he did not know whether this sum of Rs. 50,000 was given by her to her husband in one sum or in instalments. He has admitted that "No separate deed was executed by the partnership in her favour excepting the fact that partnership deed mentions this loan . . . . .It was settled between her and the partnership firm at the house of Rashid that this amount would be as a loan from her to this firm. I was not present when this amount was paid by her to Rashid . . . . She has no document to prove this loan of Rs. 50,

000. She does not maintain any personal accounts . . . I do not know if any loan agreement in connection with this amount." This is the entire evidence given by plaintiff's attorney who is also her brother to prove her claim against this firm. Anisul Haque Exh. 9 is the Ex‑accountant. His evidence is to the effect that he used to prepare monthly statements which show that a sum of Rs. 48,500 was shown as loan by her to the Firm. He has admitted that this amount was not given to the Firm in his presence but he had simply learnt about it. During his cross examination he had stated that "I see the statement of accounts Exh. 8/2 and say that if this amount of Rs. 48,500 did not belong to her, the name of Munawwar Sultana would not have been entered in it. But this statement does not show her name on this page. Her name appears on second leaf of this statement." Next witness examined on her behalf is Mr. Abbasi Advocate Exh. 10 who is alleged to have drafted the partnership deed. He does not refer to the loan. Last witness is her husband, namely, Abdul Rashid defendant No.

2. His evidence Exh. 12 shows that "There was a written agreement between me and KS Ehsanullah Khan in respect of this loan of Rs. 48,

000. She was also a party to this agreement. That agreement is not traceable now as it has been misplaced. It is not with her." This is the entire evidence which has been adduced by the plaintiff to make the firm liable for her loan originally given to her husband defendant No.

2. There is neither documentary evidence nor ocular evidence sufficient and satisfactory to prove her claim. As a result of this discussion and the reasons stated above I decide this issue also against the plaintiff.

7. Issues Nos. 2, 6, 7, 8, 9, 10, 11, 12, 13 & 14.‑No finding is necessary on these issues in view of my findings on the above issues.

8. Issue No. 15.‑I have held that suit against defendants Nos. 3 and 4 is bad and further that it is time‑barred. It has also been held by me that the plaintiff has failed to prove that the new and alleged firm between defendants Nos. 1 and 2 is responsible for the loan. Accordingly I dismiss the suit against defendants Nos. 1, 3 and 4 with costs. Defendant No. 2 has admitted her claim. Decree shall therefore follow against defendant No. 2 for a sum of Rs. 50,000 and costs with interest at 6%. per annum from the date of suit till payment. K. E. A. Suit partly decreed.