Delhi High Court
Geeta Mohan vs Baldev Raj Hasija And Anr. on 5 February, 1998
Equivalent citations: 71 (1998) DLT 790
Author: J Goel
Bench: J Goel
JUDGMENT
J.B. Goel, J.
1. The plaintiff has alleged that she is the owner of property No. 2287/1 situated at More Sarai Barafkhana, Koriapul, Delhi and had agreed to let out her share of the property - 4000 sq. feet in area to the defendant No. 1 by means of an agreement dated 1.6.1993 at a monthly rent of Rs. 4,500/-; for this a regular lease deed was to be executed and registered, but the defendant failed to do so and is in unauthorised possession as a trespasser. In the alternative, it is alleged that the tenancy of the defendant was terminated under Section 106 of the Transfer of Property Act on 18.10.1996. The plaintiff in this suit has claimed the following reliefs against defendant No. 1:
1. Decree for possession of the premises.
2. Decree for recovery of Rs. 1,62,000/- as damages for use and occupation.
2. In the plaint it is further alleged that the property was inspected by the officials of defendant No. 2 on 19.11.1997 and they are threatening to demolish and/ or seal the property in connivance with defendant No. 1, which cannot be done without notice as contemplated under Section 343 of the Delhi Municipal Corporation Act. A separate decree of injunction is sought against defendant No. 2 for restraining from demolishing and/or sealing the aforesaid property or any portion thereof without serving show cause notices as required under Sections 343(1) and 345-A of the Delhi Municipal Corporation Act.
3. In para 18 of the plaint different and separate dates of causes of action have been alleged against defendant No. 1 and defendant No. 2.
4. Prima facie it appeared that the suit was bad for misjoinder of parties as well as causes of action and accordingly I have heard the learned Counsel for the plaintiff on the following two preliminary points :
1. Whether the suit is not bad for misjoinder of the parties?
2. Whether the suit is not bad for misjoinder of causes of action?
5. Relevant provisions of Order 1 Rule 3 and Order 2 Rules 3 and 4 of the CPC read as under:
"Order I Rule 3:
Who may be joined as defendants--All persons may be joined in one suit as defendants where-
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise.
Order II Rule 3 :
Joinder of causes of action--(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they were jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject matters at the date of instituting the suit.
Order 11 Rule 4 :
4. Only certain claims to be joined for recovery of immovable property-No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except -
(a) claims for mesne profits or arrear of rent in respect of the property claimed or any part thereof;
(b) claims for damages for breach of any contract under which the property or any part thereof is held; and
(c) claims in which the reliefs sought is based on the same cause of action:
Provided that nothing in this Rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.
6. As a general rule only those persons can be joined as defendants to a suit against whom any right to relief is alleged to exist on the same cause of action.
7. Order 1, Rule 3 provides that all persons may be joined in one suit as defendants where any right to relief is alleged to exist, provided that--(a) such right arises in respect of the same act or transaction or series of acts or transactions, and (b) the case is one where if separate suits were brought against separate defendants any common question of law or fact would arise.
8. A right to relief cannot be said to arise out of the same act or transaction, if the case against each defendant is entirely distinct and separate in its subject matter from that of other defendants. It follows that a plaintiff would not be entitled under this rule to join several defendants in respect of right to relief not arising out of the same act or transaction or series of acts or transactions.
9. Under Order 2, Rule 3, save as otherwise provided in the Code, several causes of actions arising against the same defendant or the same defendants jointly can be joined in the same suit.
10. It is a condition precedent to the applicability of this rule that each defendant must be jointly liable in respect of each and every one of the causes of action sought to be joined. A suit against several defendants on causes of action accrued against each of them separately and in respect of which they are not jointly liable is not permissible and would be bad for misjoinder of causes of action.
11. It follows that separate causes of action against separate set of defendants cannot be joined in one suit .
12. In the present suit the right to relief against defendants No. 1 and 2 does not arise out of same act or transaction or series of acts or transactions and the causes of action against them are also separate and independent.
13. The cause of action against defendant No. 1 is the wrongful occupation and continuation in occupation of the premises giving rise to two reliefs one relief for recovery of possession and the other for damages for such occupation. Defendant No. 2 is neither liable nor is concerned in respect of this cause of action and thus is neither necessary nor a proper party to be entitled to be joined in the suit with defendant No. 1.
14. The cause of action alleged against defendant No. 2 is their threat to demolish or to seal the premises or part thereof alleged to have been or likely to be unauthorisedly constructed. Under Order 2 Rule 4 this cause of action cannot be joined in the suit for recovery of possession against defendant No. 1. Joining of these two independent and separate causes of action will embarrass and delay the trial of the suit.
15. The present suit is thus bad for misjoinder of parties as well as causes of action. The plaint is liable to be rejected. However, the plaintiff is given an opportunity to separate the two causes of action and the two parties within two weeks.
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