JUDGMENT

Tek Chand, J. - The plaintiffs instituted a suit for recovery of Rs. 240 alleged to be due from three persons, Ghulam Hussain, Mohammad Hussain and Hassan sons of Madu. In the plaint it was alleged that the sum claimed was due on account of: (a), a balance struck by Madu, father of the defendants; and (b), a loan of 18 3/4 Pais of wheat borrowed by Ghulam Hussain, defendant 1, from the plaintiffs. A decree was claimed for the sum due on both these items.

2. The defendants resisted the suit alleging that nothing was due in either account and pleading that there was misjoinder of parties and of causes of action in the suit as framed. The Court framed two issues on the merits:

(1) Whether a balance had been struck relating to item (a) by the father of the defendants and (2) whether the quantity of wheat mentioned in (b) had been given by the plaintiffs to defendant 1.

3. No issue was framed as to the suit being bad for misjoinder of parties or of causes of action. Both the parties were directed to lead evidence on the issues framed. The plaintiffs after producing their evidence closed their case on 2nd April 1927, but the defendants' pleader stated that they had no evidence to give. At this stage the Court instead of deciding the suit on the issues framed passed an order holding that the plaintiffs had joined two different causes of action in a single suit and accordingly it returned the plaint to the plaintiffs with the direction that they should file two separate suits.

4. A petition for revision has been preferred by the plaintiffs and I have heard Dr. Nand Lal for the petitioners and Mr. Saim Das for the respondents. I am of opinion that the order of the lower Court is clearly erroneous and ought to be set aside. The defendants had no doubt pleaded that the suit was bad for multifariousness but no issue was framed on this point and the parties had proceeded to trial on the merits. The defendants had no doubt raised the objections, but they had clearly waived it. The suit was a simple one and no real embarrassment was or could be caused to the parties by the joinder of the two causes of action. Therefore the defendants never pressed the objection and for all practical purposes had abandoned it.

5. I, therefore, accept the petition, set aside the order of the lower Court and send the case back to it for disposal in accordance with law. Costs will be costs in the cause.