IMPORTANT POINT
A suit which is bad for misjoinder of parties or misjoinder of causes of action is a suit not barred by any law.

Headnote:(i) Civil Procedure Code, 1908—Section 24; Order VII Rule 11, Order 1, Rules 1, 3A, 4, 5 and 9—A suit which is bad for misjoinder of parties or misjoinder of cause of action, not barred by law—Appellants, mother and daughter together sued respondent defendant for recovery of sums allegedly due to them from him—Respondent had earlier filed two suits for recovery of amounts allegedly due from appellants—Those suits were transferred for being tried and disposed of along with suit filed by appellants—Respondent made an application praying that suit filed by appellant be rejected under Order VII Rule 11 of the Code on ground that cause of action of each of the appellants plaintiffs in that suit, did not emanate from any common source—It was submitted that there was not only misjoinder of parties but there was also misjoinder of causes of action—Whether plaint was liable to be rejected under Order VII Rule 11(d) of the Code—(No)—A joint trial of the three suits based on the evidence to be taken would be the proper course under the circumstances.
       Held : It is well understood that procedure is the handmaid of justice and not its mistress. The Scheme of Order I and Order II 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.(Para 13)
       Thus, when one considers Order VII 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.(Para 15)
       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. (See Halsbury’s Laws of England, Volume 37, paragraph 69). 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.(Para 16)
       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, C.S. 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, C.S. No. 29 of 2003, all that the appellants have done is to combine their respective claims which are in the nature of counter claims 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. (Para 19)
       (ii) WORDS AND PHRASES—Word ‘bar’—Means as a verb, to prevent by legal objection.(Para 14)

JUDGMENT

P.K. Balasubramanyan, J.—Leave granted.

1. The appellants are the plaintiffs in C.S. No. 29 of 2003 filed on the original side of the Calcutta High Court. They are mother and daughter. They together sued the respondent, the defendant, for recovery of sums allegedly due to them from him. Appellant No.1 sought recovery of a sum of Rs.10,93,863/- with interest thereon and appellant No. 2 sought recovery of a sum of Rs.10,90,849/- with interest. Their claims were based on transactions they allegedly had with the respondent herein, through Mahendra Kumar Nahata, the husband of appellant No.1 and father of appellant No.2. In essence, the claim of appellant No. 1 was that a sum of Rs. 5 lakhs had been lent by her to the respondent and the same had not been repaid and the same was liable to be repaid with interest and damages. The case of appellant No. 2 was also that she had lent a sum of Rs. 5 lakhs to the respondent and the same along with interest and damages was due to her. It was their case that the transactions had been entered into through Mahendra Kumar Nahata, and that through Nahata, they have had prior dealings with the respondent. They had averred thus in paragraph 4 of the plaint:

“The said Nahata in his usual course of business was known to the Defendant for many years and sometime in April, 2000 while acting on behalf of the Plaintiffs, the said Nahata at the request of Defendant had duly arranged for two loans of Rs.5,00,000/- to be lent and advanced by each of the Plaintiffs to the Defendant and this Suit has been brought to recover the said loans with interest and special damages arising from the Defendant’s failure to repay the said loans within the stipulated date therefor as is stated more-fully hereinafter.”

The respondent not having repaid the money and having repudiated their claim by filing suits against them, the suit for recovery of the amounts was being filed.

2. The respondent had earlier filed two suits for recovery of amounts allegedly due from the appellants. Money Suit No. 585 of 2001 was instituted by the respondent against appellant No. 2 herein claiming recovery of certain amounts after setting off the amount of Rs. 5 lakhs taken from appellant No. 2. He had accepted that Rs. 5 lakhs had been paid by the appellant but pleaded that it was not a loan, but it was as part of a business transaction set out in that plaint. The respondent had also filed Money Suit No. 69 of 2002 against appellant No.1 herein for recovery of certain amounts on the same basis and after setting off the sum of Rs.5 lakhs alleged to have been paid by her. The suits were filed in the City Civil Court at Calcutta. The said suits were pending when the appellants together instituted their suit C.S. No. 29 of 2003. Their suit, as noticed, was on the basis that the sums of Rs. 5,00,000/- each paid by them to the respondent were by way of loans.

3. The appellants moved A.L.P. No. 10 of 2003 on the original side of the Calcutta High Court invoking clause 13 of the Letters Patent read with Section 24 of the Code of Civil Procedure (for short “the Code”) seeking withdrawal of Money Suit No. 585 of 2001 and Money Suit No. 69 of 2002 for being tried with C.S. No. 29 of 2003 on the plea that common questions of fact and law arise in the suits and it would be in the interests of justice to try and dispose of the three suits together. Though the respondent resisted the application, the court took the view that it would be appropriate in the interests of justice to transfer the two suits pending in the City Civil Court at Calcutta to the original side of the High Court for being tried and disposed of along with C.S. No. 29 of 2003 filed by the appellants. The said order for withdrawal and joint trial became final.

4. While matters stood thus, the respondent herein, the defendant in C.S. No. 29 of 2003, made an application G.A. No. 4458 of 2003 praying that the plaint in C.S. No. 29 of 2003 be rejected under Order VII Rule 11 of t

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2007 Supreme(SC) 128

IMPORTANT POINTA suit which is bad for misjoinder of parties or misjoinder of causes of action is a suit not barred by any law.

Cases Referred (3)

IMPORTANT POINT
A suit which is bad for misjoinder of parties or misjoinder of causes of action is a suit not barred by any law.