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HIGH COURT OF CALCUTTA
SEN GUPTA, K. C. CHUNDER
SHEW NARAYAN SINGH - Appellant
Versus
BRAHMANAND SINGH - Respondent
Civil Revn. Case 1832 Of 1949
Decided On : JUNE 02, 1950
CIVIL PROCEDURE CODE - Order 1, Rule 3 - Joinder of parties and causes of action - Suit for damages for breach of contract and conspiracy - Whether misjoinder of parties and causes of action - Held, no misjoinder.
Fact of the Case:
Plaintiff instituted a suit against defendant 1 for damages for breach of contract. Plaintiff later applied to amend his plaint by alleging conspiracy between defendant 1 and defendants 2-5 and adding them as defendants. The application was rejected by the Subordinate Judge. Plaintiff moved the High Court, which allowed the amendment and added defendants 2-5 as parties. Defendants 2-5 then applied to the High Court for expunging their names from the record. The High Court held that they had no locus standi and rejected the application. Defendants 2-5 then applied to the Subordinate Judge for striking out their names. The Subordinate Judge refused the application. Defendants 2-5 obtained a rule from the High Court praying that their names and those of the other added defendants be struck out.
Finding of the Court:
The High Court held that the suit was properly framed and there was no misjoinder of parties or causes of action. The Court observed that the plaintiff's claim against defendant 1 was for breach of contract, while his claim against the other defendants was for damages for the tort of conspiracy. However, the Court held that these claims arose out of the same act or transaction, namely, the breach of contract. The Court further held that the right to relief existed against all the defendants jointly, severally, or in the alternative, and that a common question of law or fact would arise if separate suits were brought against each of the defendants.
Issues: 1. Whether there was a misjoinder of parties and causes of action in the suit. 2. Whether the plaintiff's claim against defendant 1 was for breach of contract, while his claim against the other defendants was for damages for the tort of conspiracy. 3. Whether these claims arose out of the same act or transaction. 4. Whether the right to relief existed against all the defendants jointly, severally, or in the alternative. 5. Whether a common question of law or fact would arise if separate suits were brought against each of the defendants.
Ratio Decidendi: The Court held that there was no misjoinder of parties or causes of action in the suit. The Court observed that the plaintiff's claim against defendant 1 was for breach of contract, while his claim against the other defendants was for damages for the tort of conspiracy. However, the Court held that these claims arose out of the same act or transaction, namely, the breach of contract. The Court further held that the right to relief existed against all the defendants jointly, severally, or in the alternative, and that a common question of law or fact would arise if separate suits were brought against each of the defendants.
Final Decision: The rule was discharged with costs.
( 1 ) THE facts giving rise to this rule briefly ate as follows : The present plaintiffs are the heirs and legal representatives of the original plaintiff Bishwanath Singh. For the sake of brevity and convenience I shall deal with this rule as if Bishwanath Singh is still alive and shall describe him as the plaintiff.
( 2 ) THE plaintiff instituted a suit in the Court of the Second Subordinate Judge, Hooghly against Ram Narain Singh for damages for breach of contract, alleging that Ram Narain Singh had entered into a contract with him agreeing to supply him with 10 lakhs of manufactured bricks in return for 250 tons of coal which the plaintiff would supply to him. The plaintiff carried out his part of the contract but Ram Narain Singh in collusion with one Bindeswari Singh removed a large number of bricks which were manufactured by Ram Narain Singh for the purposes of the contract. In spite of repeated demands Ram Narain Singh refusel to perform his part of the contract and the plaintiff claimed damages to the extent of Rs. 20,000/-for breach of contract. This was the suit as originally framed. Thereafter the plaintiff applied for attachment before judgment of the bricks and at this stage he came to know that the defendant Bam Narain Singh Bindeswari Prosad Singh, Hazari Singh, Rajen Singh and Thakur Shew Narayan son of Bindewari Prosad had conspired together and pursuant to that conspiracy, Ram Narayan Singh broke the aforesaid contract. Having obtained this knowledge the plaintiff applied to amend his plaint by alleging this conspiracy and by adding Bindeswari Singh Hazari Singh, Rajen Singh and Thakur Shew Narayan as defendants. He amended his claim by claiming Rs. 20,000/- as damages against all the five defendants. The application was rejected by the Subordinate Judge. The plaintiff then moved this Court but did not make the defendants proposed to be added par-ties to this rule. The rule was heard ex parte and made absolute, the amendments were, allowed and the proposed defendants were made defendants 2-5 These defendants then applied to this Court for expunging their names from the record. This Court held that they had no locus standi in the rule as they were not parties at the time when the rule was disposed of and rejected the application. This Court stated that these added defendants were not bound by the order and it was open to them to agitate the matter before the trial Court. This last order was passed by my brother Chunder. The added defendant 2 then applied before the Subordinate Judge for striking out the names of the added defendants. The learned Judge has refused the application stating that no good ground has been made out for striking out the added defendants' names, Against this order the present rule has been obtained by the defendant Thakur Shew Narayan praying that his name and those of the other added defendants be struck out.
( 3 ) THE only question which falls for decision in this rule is whether the plaintiff should be allowed to amend his plaint in the manner stated above and add the petitioner and the other three persons viz. , Bindeswari, Hazari Singh and Rajen Singh as defendants in the Suit.
( 4 ) THE contention on behalf of the petitioner is that the amendment to the plaint and the aforesaid addition of parties makes the suit bad for multifariousness and that this course is not sanctioned by the provision of the Code of Civil Procedure. In developing this argument learned advocate points out that the plaintiff's claim against the defendant l Ram Narayan Singh is one for breach of contract whereas his claim against the others is for damages for the tort of conspiracy. These claims, he argues, are based on different causes of action which are not common as against all the defendants and therefore they cannot be united in the same suit. He refers to Order 2, Rule 3 (1), Civil P. C. , which is in the following terms"save as otherwise provided, a plaintiff may unite in the same suit sev
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