JUDGMENT Arnold White, C.J. 1. In this case, the plaint alleges that an agreement of partnership was entered into between the first Plaintiff and the third Defendant, for the purpose of carrying on business at a place called Silangoor, that a further agreement was entered into that the first Defendant should be sent as agent to Silangoor, and that he should conduct the business there. The plaint also alleges that the first Defendant failed to carry out his instructions and failed to furnish accounts, and that an agreement was then entered into between the first Plaintiff and the third Defendant that the third Defendant should proceed to Silangoor, should receive the accounts and the cash and assets of the firm and that the business of the firm should be wound up in six months. The plaint also alleges that the third Defendant, acting in collusion with the first Defendant, wound up the business, returned to India with the assets of the firm and failed to render accounts to the first Plaintiff or to hand over to him his share in the partnership assets. The plaint alleges that the course of action is the Defendants not rendering proper accounts and not paying the amounts due to the Plaintiffs after the arrival of the Defendants in India, and the Plaintiffs ask for a decree, (1) ordering the first to third Defendants to deliver over all the accounts relating to R.M.M.A., a firm belonging to the Plaintiffs and third to fifth Defendants and to furnish proper vouchers, (2) ordering the Defendants to pay to the Plaintiffs the capital, profit, etc., appertaining to the proportionate share of the Plaintiffs after examining the accounts upon their being produced by the first to third Defendants and after striking accounts, and (3) ordering the Defendants to stand responsible for the damages, which might have been caused to the firm through any negligent or wrongful act of the first to third Defendants. 2. It will thus be seen that the Plaintiffs sue the first Defendant for damages for his breach of contract as an agent of the firm. They sue the third Defendant for dissolution of the partnership. The fact that they also make a claim for damages against the third Defendant does not prevent the cause of action against the first Defendant from being distinct from that against the third. Mr. They sue the third Defendant for dissolution of the partnership. The fact that they also make a claim for damages against the third Defendant does not prevent the cause of action against the first Defendant from being distinct from that against the third. Mr. Sandara Ayyar argued that the case fell within Section 28 of the Code, and that inasmuch as the Plaintiff was not in a position to know whether the first Defendant had or had not handed over the accounts and assets of the firm to the third Defendant, he was entitled to sue them jointly or in the alternative. He laid stress upon the fact that whereas Section 26, which deals with the joinder of Plaintiffs, allows all persons to be joined as Plaintiffs in whom the right to the relief claimed is alleged to exist, whether jointly, severally, or in the alternative in respect of the same cause of action, Section 28 which deals with the joinder of Defendants allows all persons to be joined as Defendants against whom the right to relief is alleged to exist whether jointly, severally, or in the alternative in respect of the same matter. He also relied upon the fact that the limitation to the application of Section 31 is, in terms, restricted to the joinder of Plaintiffs in respect of distinct causes of action. 3. Section 28 corresponds to Rule 4 of Order XVI of the Rules of the Supreme Court except that the words "in the same matter" occur in the section of the Code, whilst they do not occur in the English rule. The terms of the English rule would thus seem to be wider and more general than the terms of the section, and it is in England settled law that two separate causes of action cannot be charged against two Defendants in one section. See the judgment of the House of Lords in, Sadler v. Great Western Railway Co. [1896] I.A.C. and of the Court of Appeal in Burstall v. Beyfus R. 26 Ch.D. 35. The case of Walters v. Green (sic) is clearly distinguishable. There the Plaintiff sued several Defendants in respect of a joint tort. To my mind, the plaint in the present case can only be construed as alleging two distinct causes of action against the Defendants Nos. 1 and 3. The case of Walters v. Green (sic) is clearly distinguishable. There the Plaintiff sued several Defendants in respect of a joint tort. To my mind, the plaint in the present case can only be construed as alleging two distinct causes of action against the Defendants Nos. 1 and 3. Even if the Plaintiff is entitled to rely on the words "in respect of the same matter" in Section 28 as warranting a different construction being placed upon the section from that which the English Courts have adopted with reference to the corresponding rule, it cannot be said that the right to relief alleged to exist against the first Defendant is in respect of the same matter as the right to relief alleged to exist against the third Defendant. Mr. Sundara Aiyar was bold enough to argue that the claim for damages was a claim for damages in the winding up, and that, reading the third prayer of the plaint by the light of the allegations in paragraphs 8 and 12, the winding up was the same matter in respect of which the right to relief was alleged to exist against the two Defendants. It seems to me the matters are essentially different. The matter in the one case is an alleged breach of contract by an agent of the firm. In the other case, it is the right of one partner in the firm as against the other partner, to have accounts taken, and the partnership wound up. 4. There is further objection to the plaint in the present suit. As against the first Defendant the cause of action is breach of contract by the agent of the firm. This being so, the Plaintiff cannot sue in his own name. If the cause of action had been collusion by the agent with the other partner, it may be that the Plaintiff could have brought the suit in his own name against the agent and joined the other partner as a Defendant. See Longman v. Pole (sic); Lindley on Partnership, Sixth Edition, p. 289. 5. There is no doubt an allegation in paragraph 7 of the plaint, but it is clear from the allegations in paragraph 5 that the Plaintiffs alleged cause of action against the first Defendant accrued prior to, and was quite independent of, the alleged collusion. 6. See Longman v. Pole (sic); Lindley on Partnership, Sixth Edition, p. 289. 5. There is no doubt an allegation in paragraph 7 of the plaint, but it is clear from the allegations in paragraph 5 that the Plaintiffs alleged cause of action against the first Defendant accrued prior to, and was quite independent of, the alleged collusion. 6. As regards Section 578 of the Code, and the merits of the case not being affected by the error or irregularity it seems to me that the observations made by the judges of this Court in the case of Namasivaya Gurakkal v. Kadirammal I.L.R. 17 Mad. are applicable in the present case.-"As the case of each Defendant must be decided on its own merits without any reference to the case of another, and as the cases of each will be different (as even the plaint itself shows) we are of opinion that the misjoinder has affected and must affect the merits of each mans case and cannot therefore be passed over as a mere irregularity and condoned as such under Section 578 of the Code of Civil Procedure." The case of Mohuna Chandra Roy Choudry v. Atil Chandra Chakravarti Choudry I.L.R. 24 Cal. 540 to which Mr. Sundara Ayyar referred is certainly not an authority for his proposition that misjoinder of causes of action can be cured by Section 578. Without deciding the point the judges suggest that it cannot (see page 544). 7. Mr. Sundara Ayyar further contended that the objection as to misjoinder of causes of action could not be properly taken in the issues or raised at the hearing of the suit and he relied on the provisions of Sections 46 and 53. Section 46 applies when there are several causes of action against the same Defendant or the same Defendants jointly (see Khadar Saheb v. Chotibibi (sic). Section 45 gives the right to construe several causes of action against the same Defendant or the same Defendants jointly, whilst Section 46 empowers the Court to order that the suit be confined to such of the causes of action as may be conveniently disposed of in one suit. For the reasons which I have stated it seems to me that the present case, where separate causes of action are alleged against the two Defendants, does not come within the section. 8. For the reasons which I have stated it seems to me that the present case, where separate causes of action are alleged against the two Defendants, does not come within the section. 8. Section 53 gives to the Court a discretionary power at, or at any time before, the settlement of issues to return a plaint for amendment if it joins causes of action which ought not to be joined in the same suit. The Code apparently does not contemplate an application by a party that a plaint be amended/and proceedings stayed till the amendment is made. No dout, in the present case, the proper course for the Court of First Instance to have adopted would have been to have returned the plaint for amendment under Section 53. But the power given to the Court by Section 53 is only a discretionary power, and if it is shown that the form of a suit is bad by reason that there has been a misjoinder of parties or of causes of action which is not warranted by the provisions of the Code which deal with this branch of the law of procedure, I do not think it can be said that a party is precluded from raising the objection and taking it at the hearing of the suit or on appeal. The authorities are the other way. See for instance Mohuna Chandra Roy Choudry v. Atil Chandra Chakravarti Choudryi I.L.R. 24 Cal. 540. I can find nothing in the provisions of the Code to warrant Mr. Sundara Ayyars proposition that, when a Court of First Instance decides a question of misjoinder in favour of the Plaintiffs, there is an end of the matter and the Defendant is precluded from raising the question in appeal. The present law of procedure may be defective, but this can only be cured by amending the law. 9. Mr. Sundara Ayyar contended that, in any view, the District Judge was wrong in dismissing the suit and that he ought to have returned the plaint for amendment. I think the Judge was right in dismissing the suit. See Kachar Bhojvaija v. Bai Rathore I.L.R. 7 Bom. 289; Ram Narain But v. Annoda Prosad Joshi I.L.R. 14 Cal. 681. In Ramanuja v. Devanayaka I.L.R. 8 Mad. 361 and Salima Bibi v. Sheikh Muhammad I.L.R. 18 All. I think the Judge was right in dismissing the suit. See Kachar Bhojvaija v. Bai Rathore I.L.R. 7 Bom. 289; Ram Narain But v. Annoda Prosad Joshi I.L.R. 14 Cal. 681. In Ramanuja v. Devanayaka I.L.R. 8 Mad. 361 and Salima Bibi v. Sheikh Muhammad I.L.R. 18 All. 131 the suit was held to be bad on the ground of misjoinder of Plaintiffs, not, as in the present case, on the ground that distinct causes of action have been joined against different Defendants in the same suit. I think this appeal should be dismissed with costs. Boddam, J. 10. I agree.