P L D 1976 Quetta 1 (PLP)

Basharatullah for Petitioner. Munawar Ahmed Mirza for Respondents Nos. 1 to

4. Muhammad Ahmed Mirza, A.-G. for Respondents Nos. 6 and

7. Dates of hearing : 10th and 15th September 1975. This revision turns on a short point of practice. The applicant has filed a suit against seven defendants which is pending in the Court of the District Judge, Quetta. Some of these defendants filed an application that the suit was bad for misjoinder of causes of action and of parties, and the learned District Judge allowed this application by his order dated 15-2-1971. The learned District Judge held in this order that there were three sets of defendants, and that separate suits should have been filed against defendants Nos. 1 to 4, against defendant No. 5 and against defen dants Nos. 6 and 7 ; therefore, the order directed the plaintiff to elect "to proceed against defendants 1 to 4, or defendant No. 5, or defen dants Nos. 6 and

7. The plaintiff shall make known election before 22-3-1971". Aggrieved by this order, the plaintiff' filed a revision, which I bad admitted more than four years ago, and this application has now been heard by me.

2. The; dispute in the suit relates to a truck, of which the particulars are given in paragraph 1 of the applicant's plaint, I shall refer to this truck as the said truck, and, according to the plaint, the applicant is its regis tered owner. Further, the applicant had employed his own son (respon dent No. 2) as the chauffeur for this truck. But, instead of carrying out his duties as chauffeur, the applicant's son (respondent No. 2) rented out the bus to the first respondent. The applicant objected to this arrangement effected by his son and demanded the return of the said truck from the first respondent. Both this respondent and his son kept on putting off the matter. But the applicant was successful in re-obtaining possession of the said truck in May 1967. However, according to the plaint, on 28-5-1967, respondents 3 and 4 filed a criminal complaint against him, his son and four other persons in the Court of the District Magistrate, Quetta, Pishin, under sections 392, 394, 342 and 323, P. P. C. read with section 34, P. P. C. The contention of these respondents in this complaint was that they had purchased the said truck from the first respondent. According to the plaint, this complaint was referred to the 5th respondent, as he was serving as the Extra Assistant Commissioner and Magistrate First Class for Quetta Sub-Division. This respondent, in turn, referred the complaint to a Tehsildar, and, according to the plaint, the Tehsildar's report fully supported the applicant's claim to the said truck. However, instead of acting on this report and returning the said truck to him, the 5th respondent, by his order dated 29-6-1967, handed over possession of the said truck to the 4th respondent on 'supardari'. Then, on furnishing security, the 4th respondent obtained possession of the said truck and began plying it, but, according to the plaint, this order of the 5th respondent, releasing the truck to the 4th respondent, was illegal and amounted to misconduct. Next, accord ing to the plaint, shortly after the complaint was filed against him, his son and others, the applicant, in turn, had filed a counter-complaint against respondents 3 and 4, but, that complaint, according to Mr. Basharatullah has still not been disposed of, nor has the applicant taken any steps in the matter. Be that as it may, the complaint of respondents 3 and 4 against the applicant and others was dismissed on 12-12-1967, by the 5th respondent on account of the non-appearance of the complainants ; therefore, respondents 3 and 4 had filed a revision in the Sessions Court, Quetta, against the order, dismissing their complaint for default. This revision was allowed with a direction to the 5th respondent to conduct further investigations. Then, it would appear from the plaint that the 5th respon dent was transferred from Quetta, and both the applicant's complaint as well as the complaint filed by respondents 3 and 4 were transferred t another Magistrate, who, by his order dated 9-6-1969, held that the charge against the applicant and others had not been proved ; therefore, they were discharged. As the applicant and others were thus discharged in the case against them, the learned Magistrate had directed the 4th respondent to produce the said truck in compliance with the security bond executed by shim on 29-6-1967, but, the 4th respondent did not obey this order. On the other band, as I pointed out, the complaint filed by the first applicant remained undisposed of. The plaint does not state what steps the applicant has taken to prosecute his own complaint. Instead, it states that the applicant tried to make enquiries about the said truck and found that the first four respondents, or some of them, were using it for smuggling in Dera Ghazi Khan District; therefore, the said truck, as well as the goods in it, were seized at Dera Ghazi Khan, and the said truck was con fiscated either by the 6th or by the 7th respondent, and the applicant's grievance against these two respondents is that they had confiscated the said truck without notice to him. On these allegations, he filed his suit for the recovery of Rs. 80,000 as damages and/or compensation from the 7 .respondents jointly and severally.

3. Even a casual perusal of the plaint is sufficient to show that, as held by the learned District Judge, the applicant's cause of action against the first four respondents is quite different from his cause of action against the 5th respondent, and similarly his cause of action against the 6th and the 7th respondents is totally different from his cause of action against all the other respondents. It is true, as submitted by Mr. Basharatullah, that different causes of action can be combined in a suit. Similarly, as submitted, the relief sought against the defendants in a suit may be different, and it is so expressly, stated in Order I, rule 5, C. P. C. (hereinafter called the Code). However, will it serve the ends of justice to allow the applicant to combine against different defendants such diverse causes of action? Mr. Basharatullah relied on Order I, rule 3 of the Code, but what is the object of this Rule, and, in any case, it has to be construed with the provisions for the joinder of parties in Order

11. Long ago, Mookerji, J., observed in Rarnendra Nath Roy v. Brajendra Nath Dass (I L R 45 Ca1. 111): "On the one band, we have the fundamental principle that needless multi plicity of suits should be avoided ; on the other hand, we have the equally essential principle that the trial of the suit should not be embarrassed by the simultaneous investigation of totally unconnected controversies. The Legislature has effected a compromise of these two principles by means of the rules embodied in Orders I and II which may possibly overlap to some extent in their application to concrete cases". By the test laid down in these observations, I have no doubt that the combination of the causes of action c in the respondent's plaint relates to totally unconnected controversies. However, as Mr. Basharatullah thought that his case was supported by Order 1, rule 3, I would examine it.

4. This rule reads : "

3. 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 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." Obviously, as submitted by Mr. Basharatullah, a suit can be against several defendants, all of whom may not be interested to the same extent in the relief sought but, as the question is in the discretion of the Court, the rule contains two further guidelines. Defendants can be joined in a suit, provided the relief claimed in the suit arises out of the same act or trans action or the same series of acts or transactions, and provided the claims against the different defendants involve a common question of la-V or fact. But it will not be enough for a plaintiff to show that his joinder of parties and of causes of action is in accordance with these two guidelines, n because the opening words of the rule are "all persons may be joined as defendants". This rule has to be read with rule 9 of the Order, and it is clear that the word "may" in the rule imports discretion. Accordingly, the question will always be in the discretion of the Court. and, with this observation, I would examine the question of the impleader of the 5th respondent.

5. According to the applicant, this' respondent's order, directing the release of the said truck to the 4th respondent on security, pending the investigation of the charges against the applicant, amounted to miscon duct. On the other hand, the applicant -seeks relief against the first four respondents on the basis of his ownership of the said truck and its alleged illegal seizure by these respondents. So, judicial order is treated as a part of the same series of transactions as the alleged tortious acts of the other respondents. The submission does not appeal to reason, and I would respectfully agree with the view of the Calcutta High Court in Anukul Chandra Chakravarty v. The Province of Bengal. Pabna Collectorate and others (A I R 1947 Cal. 374), that acts or transactions can be said to be part of the same acts' or series of transactions only if there is some link or nexus between them. And, as the 5th respondent's order is a judicial order, I cannot see any link or connection between it and the illegal acts attributed to the other respondents ; therefore, I invited Mr. Basharatullah to show how these various acts were connected with one and other. Mr. Basharatullah's only reply was that the order of the 5th respondent, was based on a misreading of evidence. Assuming, only for the sake of argument. that the appli cant's allegation is correct, how can it possibly establish a connection between a judicial decision and a series of tortious acts by some other persons, except on the assumption that the .judicial decision had been pro cured by those other persons for their own benefit? Therefore, the impleader of the 5th respondent in the suit against the first four respondents would have been justified if the cause of action against the 5th respondent had been that his order had been obtained collusively by the first four respondents. - However, as there is no such allegation. I agree with the learned Advocate-General that the applicant's suit does not satisfy the first guideline laid down in Order I, rule 3.

6. Turning to the second guide line contained in Order I, rule 3 Mr. Basharatullah had to show the common question of law or fact, which was required to be decided in the claims against the three sets of respon dents, and his contention was that this common question was the appli cant's claim to the ownership of the said truck. This question will no doubt be crucial to the applicant's claim against the first four respondents, but the question is of its relevance to the claims against the 5th respondent and against the last two respondents. Now, the 5th respondent's order, against which relief is sought in the suit, was passed in a complaint under sections 323, 342, 392 and 394, P. P. C. read with section 34, P. P. C , therefore, the learned Advocate-General's submission was that the question of the ownership of the said truck was not in issue before the 5th respondent ; accordingly this was not a question of claim against the 5th respondent. And similarly with regard to the other respondents the learned Advocate- General submitted that the question of the ownership of the said truck was not relevant to the applicant's cause of action against these respondents, as the said truck had been confiscated, because it had been used for smuggling.

7. Whilst the Advocate-General's submissions merit serious examina tion, I am reluctant to do so, because they relate to the merits of the applicant's claim. I will, therefore, assume that the question of the ownership of the said truck will arise for consideration in the applicant's claim against the 5th respondent. But, even though it may be one of the questions in issue in the applicant's claim against the 5th respondent, would it be a material issue? The applicant is only aggrieved by the interlocutory order passed by the 5th respondent in a case under sections 323, 342, 392 and 394, P. P. C. I do not see how the title to the said truck would be relevant to the charges under the first two sections, and as to sections 392 and 394, P. P. C. what would be material would be the possession of the said truck at the relevant time, and not its ownership. This means that, even if the question of ownership is relevant, it will be a very minor and unimportant question in the applicant's case against this respondent, and, on the other hand, this respondent has no concern with the dispute between the applicant and the first four respondents. Therefore, I would not exercise discretion in the applicant's favour under Order I, rule 3, C. P. C. and I see no error, much less any error, which could attract the revisional jurisdiction of this Court, in the order of the learned District Judge.

8. Mr. Basharatullah then sought refuge in the authorities as he called them, and he submitted that, on the basis of these authorities, the appli cant was entitled to join the 5th respondent in his suit, whether or not the common question in issue between the respondents was important or unimportant. Now, as I observed earlier, Order 1, rule 3 confers discretion on the Court, and this means that the judgments cited are of limited value, because each of them turns on the facts of that case. However, in deference to learned counsel's industry, I will examine three cases which learned counsel thought supported his submission to the hilt.

9. In Velugubantla Papamma v. Ravula Ramaswami and another (A I R 1933 Mad. 622), with reference to Order I, rude 3, Madhavan Nair, J., observed at p. 623: "Under this provision a plaintiff can in the same suit combine distinct causes of action against several defendants provided that the relief claimed should arise from a series of acts or transactions and that there is some common question of law or fact arising in the suit". These observations, at first sight, appear to support Mr. Basharatullah's submission because no distinc tion is drawn between a common question which is important and material to the decision of the claims in the suit and such a question, which is unimportant and immaterial to the decisions of the claims in the suit. However, as observations in a case always have a reference to the facts of that case, 1 would quote here the statement of the facts by Madhavan Nair, J.: "The plaintiff's suit is to enforce a mortgage-deed dated 4th June 1924, executed by defendant I with reference to certain lands mentioned in Sched. A to the plaint, and his share in the mill referred to in Sched. & situated at Ramachandrapur. The machinery of the mill was subsequently removed to Cocanada where a new mill was constructed with the same materials. This new mill is mentioned in Sched. C, before the removal, the mill lay within the jurisdiction of the Rajahmundry Sub-Court. The plaintiff who seeks a decree against the lands and defendant 1's share in the mill at Cocanada in place of that at Rajahmundry. Defendant 2 is an assignee of the Sched. C property. Defendant 3 obtained a decree against defendant t in a suit for money . . . . . and in execution, attached defendant 1's share in the mill at Cocanda. Defendant 4 obtained a money-decree against defendant 3 and . . . . . attached the decree obtained by defendant 3 and proceeded to sell the property, whereupon the plaintiff intervened as a claimant . . . . . and objecting to the attach ment. Her claim was dismissed. In the present suit the plaintiff asked the Court to set aside this summary order also along with the other reliefs .claimed by her." The impleader of defendants in this suit was challenged only by the third and the fourth defendants on the ground that the cause of action against them was different from that against the first two defen dants. No doubt, the cause of action against the various defendants was different, but the claim of the third defendant and of the fourth defendant, who claimed through him, was that the properties, which had been attached by them were not the properties subject to the first defendant's mortgage in favour of the plaintiff; therefore, the only question in issue between the plaintiff and these defendants was, whether, as claimed by the plaintiff, the properties, which were the subject-matter of the suit were the mortgaged properties, and that was also the only question in the plaintiff's claim against the first two defendants, because the suit was for the enforcement of the plaintiff's rights as a mortgagor. Thus, the question, which was common to his claim against the various defendants in the suit, was probably the only question in the entire suit ; therefore, Madhavau Nair, J., did not have occasion to examine the contention, that a plaintiff is entitled under Order I, rule 3 to implead different defendants, merely because a minor and unimportant question was common to his claims against the various defendants. But, a3 that is the contention of Mr. Basharatullah, the judgment cited is totally irrelevant to it.

10. Mr. Basharatullah also relied on judgments of the Bombay High Court reported ire Dattaraya Gavind Saligram v. Gopal Sakharam Pandhare (A I R 1931 Bom. 330) and Bhagvan Gokulji & Co. v. Balku Babaji and another (A I R 1932 Bom. 1). The facts in the first case, according to the plaint, were that the first defendant was a lessee of the plaintiff for limited period and the lease had expired Further, according to the plaint, the first defendant was his tenant and the other defendants were the sub-tenants of the first defen dant, or claimed through him. The first defendant admitted the correctness of the allegations in the plaint, but some of the other defendants pleaded that they claimed in their own right, whilst some defendants stated that they had no connection with the land. On these pleadings, the trial Court directed the plaintiff to prosecute his suit only against the first .defendant and ordered the name of the other defendants to be struck off. This order was set aside in appeal on the ground that common questions of fact would arise in the determination of the claims against the various defendants. These common questions of fact were the plaintiff's title and his claim to possession, and, on the facts stated in the plaint not merely would these questions be common questions, but would also be the principal .questions in the claims against all the defendants ; therefore, I do not see how this judgment lends any support to the case of the plaintiff in the instant case. No doubt, some of the observations in the judgment are wide, but they had reference to the facts of the case, which are totally differ ent from those in the instant case.

11. I now turn to the other Bombay case, and Mr. Basharatullah natu rally placed great stress on it, as the judgment was by Beaumont, C. J. (as he then was). The plaintiffs in Bhagvan Gokulji & Co.'s case had been the partner of a firm, and, on fits dissolution they had taken over its assets. But, prior to the dissolution, the second respondent, who was the manag ing partner of the firm, had agreed to sell some land of the firm to the first respondent for Rs. 9,000.00. That was the consideration stated in the sale agreement. But, according to the firm's books, the consideration was only Rs. 5,000.00. As the vendee, namely, the respondent No. 1 did not pay the sale price, the plaintiffs filed a suit against both respondents, the suit against the first respondent being for specific performance, and for payment of the sale price of Rs. 9,000.00, and the plaintiffs pointed out in the plaint that, as they were not certain about the correct sale consideration, in view of the entries in the books of account by the second respondent, the further plea in the plaint was that, if the Court held that the agreement for sale was for Rs. 5,000.00 only, then they sought specific performance of this agreement against the first respondent, and a money decree for the balance of Rs. 4,000.00 from the second respondent. Beaumont, C. J. held that the joinder of parties was justified, and Mr. Basharatullah referred me to the express observation by Beaumont, C. J., that the two causes of action against the two respondents could be joined in the same suit, although they arose out of totally distinct and different contracts. Now, although the causes of action in the suit arose out of distinct and different contracts, these contracts, arose out of the same series of transactions, namely, the sale by the second respondent to the first respondent, the consideration for the sale and also the errone ous entry made by the second respondent in the defunct firm's books of account, and this means that the common questions involved its the claim against the two respondents were the principal, if not the only questions, in the entire suit; therefore, the observations of Beaumont, C. J. had refer ence to the peculiar facts of the case and must be confined to those facts, the more so. as Beaumont, C. J., himself made the position very clear by pointing out that he was only following the judgment of the Calcutta High Court in Harendra Nath Singha Ray v. Purna Chandar Goswami and others (A I R 1928 Cal. 199), and the judgment of the Court of Appeal in Payne v. British Time Recorder Co. Ltd. and another (1921 All E L R 388).

12. In the Calcutta case, Mukerji, J., held that causes of action could not be combined even against the same defendant when that defendant was sued in different capacities. The express approval of this judgment by Beaumont, C. J., is completely inconsistent with the submission that the observations of Beaumont, C. J., were meant to apply to any case in which there was a common question involved in the plaintiff's causes of action against different defendants. And further, as Mukerji, J., based his decision on the judgment of the Court of Appeal in Payne's case, I would turn to that judgment. The question was of construing the provisions of Order XVI of the English Supreme Court, and as the relevant provisions, thus construed, are in pari materia with ours. I would only quote here the passage from the judgment of Scrutton, L. J., at page 393 : "It is impossible to lay down any rule as to how the discretion of the Court ought to be exercised. Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matter should be disposed of at the same time, the Court will allow the joinder of plaintiffs or defendants subject to its discretion how the action should be tried". In my humble opinion, these observations state the correct law, and I would re-examine the applicant's case in the light of these observations.

13. I pointed out earlier that, even on the assumption that the owner ship of the said truck was relevant to the applicant's claim against the 5th respondent, it would be a very minor and unimportant question, in the claim against that respondent ; therefore it is not a question, which, in the a words of Scrutton, L. J., would bear "sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matter( should be disposed of at the same time". Accordingly, I see no reason to interfere with the order of the learned District Judge, Next, as to the appli cant's claim against the 6th and the 7th respondents, even though the question of the ownership of the said truck will be relevant to this claim, there will be other questions of greater importance, on which the applicant's claim will turn. As submitted by the learned Advocate-General, one of these questions will be, whether the said truck was used in smuggling. As I do not wish to prejudge the claims of the parties, I would only observe that other questions, which would obviously, arise, would be, whether the applicant is entitled to file a suit against these respondents, and whether he has exhausted his statutory remedies under the Sea Customs Act before filing the suit. Once again, this means that the question of the ownership of the said truck will not be a question of sufficient importance to justify the impleader of respondents 6 and 7 in the applicant's claim against the first four respon dents. Accordingly, I see no reason to interfere with the learned District Judge's direction that a separate suit should be filed against these respondents also. The application is without merit and is dismissed with costs. S. A. H. Application dismissed.