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1931 Supreme(SC) 52
Privy Council At Calcutta
Sir Dinshah Mulla, Sir George Lowndes, Justice Lord Russell Of Killowen, JJ.
Naba Kumar Hazra and another -Appellant
Versus
Radheshyam Mahish and others -Resopndent
Privy. Council Appeal No. 138 of 1929, Bengal Appeals Nos. 24 and 25 of 1928
Decided On : 19-05-1931
H.R. Majid, McNair, E.B. Raikes
A suit is barred under Order 2, Rule 2 of the CPC if the relief sought arises from the same cause of action as a previous suit. Additionally, non-joinder of necessary parties is fatal if it prevents the legal discharge of a trustee's obligations to all beneficiaries.
Headnote:(A) Code of Civil Procedure, 1908 - Order 2, Rule 2 - Splitting of cause of action - 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; if a plaintiff omits 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 rule is to prevent multiplicity of suits.
(B) Code of Civil Procedure, 1908 - Order 1, Rule 9 - Non-joinder of parties - Where a party acts as a trustee for multiple beneficiaries and the properties belong in severalty, the failure to join all necessary parties is fatal if payment to only some beneficiaries would not discharge the trustee - Order 1, Rule 9 does not apply in an appeal where the defect was brought to the party's notice from the outset and ample opportunity to remedy it was provided.
Facts of the case:
In previous litigation, the appellants were held to be trustees for several mortgagors regarding a mortgage decree and properties purchased in execution. Subsequently, some of the mortgagors filed a suit seeking an account of rents and profits received by the appellants between the purchase of the properties and their conveyance. The plaintiffs in this suit did not join the other co-mortgagors as parties. A separate suit was also filed by the appellants for the recovery of sums disbursed for the protection of the properties after the date of the former proceedings.
Findings of Court:
The suit for rents and profits is barred by Order 2, Rule 2 of the Code of Civil Procedure as the relief could have been claimed in the previous suit based on the same cause of action. Furthermore, the suit is not maintainable due to the non-joinder of co-mortgagors who were necessary parties, as the appellants held the properties as trustees for all mortgagors and not just the plaintiffs.
Issues: Whether the claim for rents and profits was barred by the rule against splitting a cause of action under Order 2, Rule 2 of the Code of Civil Procedure, and whether the non-joinder of co-mortgagors rendered the suit maintainable.
Ratio Decidendi: The court reasoned that the right to rents and profits vested on the same foundation of facts and law as the right to have the purchases declared for the mortgagors, making the cause of action identical to the previous suit. Regarding non-joinder, since the properties belonged in severalty to different mortgagors, the appellants were trustees for all; therefore, the absence of co-mortgagors meant the appellants could not be legally discharged by payment to only a few.
Result: Decree of the High Court set aside and the decrees of the Subordinate Judge dismissing both suits restored.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- joinder of parties
- splitting of cause of action
- res judicata
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civil procedure
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property law
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mortgages
- trusteeship
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mortgages
Sir George Lowndes.—
These appeals are the sequel of a case which came before the Board in November 1923, and is reported as Nagendrabala Dasi v. Dinanath Mahish , AIR 1924 PC 34=81 IC 752=51 IA 24-51 Cal 299 (PC). The facts are stated in the judgment then delivered, by Lord Dunedin, and it is not necessary to repeat them in detail.
The result of that case was that the present appellant was held to be a trustee for the mortgagors of a mortgage decree, and also of certain properties which he had purchased at a sale in execution of the decree, in the name of his wife, the present appellant 2, and was ordered to transfer the decree and the properties to one set of mortgagors, the plaintiffs in the suit, upon their recouping to him the sum he had paid for the purchase of the decree plus the amount of some additional payments which he had made to save the properties from being taken for other executions. There were three other sets of mortgagors who were defendants to the suit; the accounts between them were evidently of a complicated nature, and they offered no objection to a decree in this form.
The two suits now before the Board were instituted in 1924: one by the mortgagor plaintiffs in the former suit, who are the present respondents; and the other by the unsuccessful appellants in the preceding litigation, who are again the appellants to His Majesty in Council. Their Lordships will deal first with the respondents' suit in which the main questions for adjudication arise.
At the date when the former suit was instituted the appellants had purchased only the mortgage decree. The execution purchase of the properties by them was made a few months later during the pendency of the suit. In the trial Court the plaintiffs in that suit (the present respondents) had not, in the first instance, asked for the assignment of the mortgage decree, but only for declaratory relief. They subsequently amended their plaint, and prayed for its assignment to them. This prayer was granted by the trial Judge, but being dissatisfied with his decree they appealed to the High Court, and by their memorandum of appeal specifically asked also for the conveyance of the properties "with necessary accounts." The High Court varied the decree of the lower Court by including in it a direction that the properties should also be conveyed to the respondents, but made no order for accounts, the claim for which seems to have been abandoned, or, at all events, not to have been pressed. The decree of the High Court was affirmed as a result of the appeal to the Board.
The present suit of the respondents is based upon the allegation that after the execution purchase of the properties by the appellants the latter were for some time in receipt of the rents and profits for which they have not accounted, and the prayer of the plaint is for account and payment. There was also a claim for damages, but that was abandoned.
The Subordinate Judge, by whom the suit was tried held that the matter was res judicata by reason of the decision in the previous suit. The High Court, on appeal was of opinion that as the profits claimed had not been received at the time the previous suit was instituted, there could be no question of res judicata. They held that the respondents were entitled to the profits which came to the hands of the appellants during their possession of the properties, and ordered an account.
Whether or not the second suit was strictly res judicata within the provisions of S. 11, Civil PC and on this question their Lordships must not be taken to express any opinion-it is, they think, plainly barred by O. 2, R. 2, of the Code. An issue was raised as to this at the trial, but the Subordinate Judge, having regard to his finding, on res judicata, thought it unnecessary to decide it, and the High Court did not apparently take it into their consideration.
The rule in question is intended to deal with the vice of splitting a cause of action. It provides that suit must include the whole o
