Joinder of causes of action.

This petition seeks to revise the order of Second Assistant Judge of the City Civil Court, Madras in O.S. No. 426 of 1957 directing the petitioner who was the plaintiff in the suit to elect as to against which of the two sets of defendants he would prefer to continue the suit.

The petitioner despatched certain goods to Howrah through the Railway. Respondents 1 to 3 represent the three zones of the Railway through which the goods had to travel. The 4th respondent is an insurance company with whom evidently the petitioner had entered into a contract of insurance. The petitioner claimed that the goods which he sent to Howrah were tampered with during the course of transit, and alleging misconduct on the part of the Railway Servants sued to recover damages. The 4th defendant, the insurer, was also made a party to the suit and a decree was sought against the insurer as well. There was however no complaint on the part of the latter that the precise nature of the cause of action against it had not been disclosed. Mr. Vedamanickam, who appears for the insurance company, made it clear before me that it was never the case of the insurer that there had been any misjoinder of causes of action or that the suit should be dismissed on that account. Such a plea however appears to have been taken by defendants 1 to 3. Issue 1 is:

“ Is the suit bad for mis-joinder of parties and causes of action ?”

There is however no indication in the order of the lower Court that it was trying the first issue. The learned Judge only states that there was a preliminary objection on the part of defendants 1 to 3 as to whether there has been a proper joinder of causes of action and defendants in the suit. The contention on the part of the Railway administration was that the claim against the Railway could not properly be joined in the same suit with the claim against the insurance company. The learned Assistant City Civil Judge found that the plaint did not specify how the plaintiff was entitled to a decree against the 4th defendant as well. Instead of directing the plaintiff to clarify the position in regard to the two sets of claims, the learned Judge proceeded to assume what, in his opinion, must have been the basis of the claim and held that in the suit which was laid against both the Railway administration as well as the insurer, the cause of action against the former was the loss of goods in relation to the contract of carriage while the cause of action in respect of the latter was the contract of insurance. The learned Judge therefore held that the joinder of claims based on those causes of action was improper and that the plaintiff should be called upon to elect as to which of the two sets of defendants he wanted to proceed against.

I find it difficult to follow the line of reasoning adopted by the learned Judge. There is no evidence, in the case, of the terms of the contract of insurance. If the learned Judge really wanted to take up Issue No. 1 and try it as a preliminary issue it was his duty to have allowed the parties an opportunity to adduce evidence that they might have on the point. In that case the plaintiff would have produced the contract of insurance. If it were found after taking such evidence that the claim based on the contract of insurance could not properly be joined with the claim based on the liability of the carrier the 1st issue could be answered in the affirmative. That however was not done in the present case. That issue has in effect been decided without even the plaint specifying the nature of the cause of action against the 4th defendant and without there being any evidence. It is well known that where goods are lost in the course of transit by the Railway, the carrier would be liable only in certain circumstances. The liability of the Railway administration is regulated by the statute and the Risk Note executed by the consignor. A person, who consigns goods by Railway in order to cover the risk in all cases, might insure