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1985 DIGILAW 176 (KER)

C. S. KRISHNA IYER v. OFFICIAL LIQUIDATOR

1985-06-20

BALAKRISHNA MENON, BHASKARAN NAMBIAR

body1985
Judgment :- 1. The short point that arises in this Civil Revision Petition is: Pending suit some of the plaintiffs defect and side with the defendants. What should the court do? Can those plaintiffs be transposed as defendants? Should not the court order separate trial? 2. Plaintiffs 1 to 3 in a suit for a permanent injunction restraining defendants 1 and 2, a Coir Co-operative Society and its Secretary from trespassing upon the plaint schedule properties and committing mischief therein, are the petitioners in this Civil Revision. Plaint schedule properties A to E belong separately to plaintiffs 1 to 6. The defendant Co-operative Society doing soaking of cocoanut husks and producing coir yarn attempted to take soaked husks into the lagoons in the plaint schedule properties and to process the same in the properties. Then the plaintiffs who own and possess separate portions of the plaint schedule properties, filed the suit as co-plaintiffs as all of them had the identical cause of action against the same defendants and it arose from the same transaction. When the case came up for trial plaintiffs 4 to 6 who are respondents 3 to 5 in this Revision sided with the defendants and were not prepared to co-operate with the other plaintiffs, the petitioners in the Civil Revision. So the petitioners moved the trial court for transposing plaintiffs 4 to 6 as defendants. The trial court simply rejected the request holding that those plaintiffs 'could not be removed from the party array on the mere allegation of the other plaintiffs that they were siding with the defendants.' It is the above order of the trial court that has been challenged in this Revision. 3. Order I R.1 and 2 of the Code of Civil Procedure, 1908 reads: 1. Who may be joined as plaintiffs: All persons may be joined in one suit as plaintiffs 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 in such persons, whether jointly, severally or in the alternative; and (b) if such persons brought separate suits, any common question of law or fact would arise. 2. 2. Power of Court to order separate trials - Where it appears to the court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient." 4. A party who has got a cause of action can file a suit and get his relief through court. Parties whose causes of action are identical can file separate suits even if they arise out of the same transaction and the relief is claimed against the same party. But Order T R.I permits the filing of a single suit by all such parties. That does not mean that if circumstances change separate trials cannot be had in such a suit. In fact Order I R.2 provides for that. The only condition is that it should appear to the court that the joinder of plaintiffs may embarrass or delay the trial of the suit. Separate trial is the only way out. No question of transposing a plaintiff as defendant arises as it is impossible. The Code only permits the transposing of a defendant as a plaintiff and that too only under certain circumstances. In this case the plaintiffs-petitioners allege that the other plaintiffs have sided with the defendants. Even if it is denied such allegation is enough for the court to invoke Order I R 2. No proof need be insisted because it was to avoid multiplicity of suits that the plaintiffs joined together and filed one suit. The Court was bound to order separate trials even though what the plaintiffs requested for was a transposition of some of the plaintiffs as defendants. A court should not forget that it exists for meting out justice. It goes without saying that the order impugned has resulted in a failure of justice. In the result, the order impugned is set aside. The trial court should try the cases of plaintiffs 1 to 4 and the other plaintiffs separately. No costs.