Research › Browse › Judgment

Allahabad High Court · body

1985 DIGILAW 1227 (ALL)

Balram v. Fateh Singh

1985-12-26

M.M.GOPAL

body1985
JUDGMENT M.M. Gopal, Member. - This is a revision against the judgment of the trial court dated 29-8-1980 by which it decided in negative the issue of mis-joinder. The learned Additional Commissioner by his order dated 29-8-1981 recommended for quashing the order of the trial court dated 29-8-1980. 2. Heard the learned counsels and perused the file. 3. The facts of the case are that a suit under Section 229-A/209 of U.P.Z.A. and L. R. Act has been filed on 29-5-1979 by Fateh Singh against Om Prakash and others. In the present suit the plaintiff purchased the land in suit in auction proceeding on 8-8-1973 and this was confirmed on 17-9-1973. It was in respect of khasra no. 185 (area 9-5-3). Sale certificate was issued on 28-10-1974. Om Prakash judgment-debtor sold the property on 26-11-1974 to his defendants 7 to 11 and relative defendants 3 to 6, 12 and 13. The execution application was filed in the court of Munsif but it was dismissed on 4-5-1976. An appeal was filed against this order and that was also dismissed on the ground that there was an alternative remedy for filing the suit. Hence the present suit has been filed. No written statement was filed by Om Prakash. One written statement on behalf of defendants 3 to 13 has been filed on 12-7-1979. Several issues were framed one issue in respect of mis-joinder of parties was decided by the trial court. 4. The trial court decided the-issues on the basis that there was one cause of action and there is no question for filing separate suits against defendants separately. The learned Additional Commissioner is of the opinion that there are several causes of action and the suit is bad for mis-joinder of parties and causes of action. 5. The learned counsel for the revisionist has also contended that there were separate sale deeds by Om Prakash to different defendants, hence there were separate causes of action and the suit is bad for mis-joinder of parties. Thus in a way he supported the recommendation of learned Additional Commissioner, but I-am unable to accept this contention. 6. 5. The learned counsel for the revisionist has also contended that there were separate sale deeds by Om Prakash to different defendants, hence there were separate causes of action and the suit is bad for mis-joinder of parties. Thus in a way he supported the recommendation of learned Additional Commissioner, but I-am unable to accept this contention. 6. The cause of action is against Om Prakash judgment-debtor and the common question of fact or law in the present suit is to be decided whether after the auction sale and its confirmation Om Prakash was entitled to transfer the property to any other person or not ; whether the plaintiff is entitled to get relief against Om Prakash or the persons who have stepped into his shoes. The main question is not against the person to whom separate transfers were made by Om Prakash. Hence it cannot be said that on the basis of separate sale deeds separate suit should have been filed against the different defendants. No doubt when there is a separate contract between a person and his tenants, the suits should have been filed differently as there was separate cause of action on the basis of different agreements but in the present suit there is no such question. No action has been taken by one plaintiffs against the defendants separately but the defendants themselves have entered into some transactions and it cannot be said that there was a separate cause of action in the case of each defendants. 7. Rule 3 Order 1 of CPC runs as follows :- " Who may be joined as defendants :- All parents 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." 8. From the aforesaid provision it is clear that a common question of law and fact is to be decided and there are series of transactions between the defendants and the same can be decided in one suit. Hence no question of filing the separate suit arises. From the aforesaid provision it is clear that a common question of law and fact is to be decided and there are series of transactions between the defendants and the same can be decided in one suit. Hence no question of filing the separate suit arises. On the other hand if separate suits are filed, it will not only delay the trial but will also embarass the party. The plaintiff has to produce the same evidence in different suits without any fruitful result. Hence I am unable to accept the reasoning given by the learned Additional Commissioner and on the basis of the matter discussed above it is clear that the ruling cited by him are not applicable in the present suit. In the present case there is a common question of law and fact and common question of cause of action and it can be decided in a single suit. The main defendant judgment-debtor Om Prakash had not filed any written statement. The matter is to be seen between the auction purchaser and the judgment-debtor. The transaction between the defendants are immaterial in deciding the present suit, hence it cannot be said that there is different cause of action and there was no common question of law and fact. I, therefore, do not accept the reasoning given by the learned Addl. Commissioner. There is no force in the revision. Hence it is dismissed.