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2008 DIGILAW 18 (AP)

Avala Raja Reddy v. Gunti Radha Krishnaiah Chetty

2008-01-17

P.S.NARAYANA

body2008
JUDGMENT On 7-3-2000, this Court made the following order: "Admit. The following substantial questions of law arise:- 1. Whether the suit is not barred by limitation since it was filed beyond three years i.e., on 27 -3-1986 from the date of payment of endorsements Exs.A-4, A-7 and A-11 dated 27 -3-1998 in view of the judgment of this Court reported in 1998 (1) AL T 807? 2. Whether both the courts below have not committed error in holding that the appellant is not entitled to the benefit of A.P. Act 45 of 1987? 3. Whether the findings of both the courts below are correct in holding that disputed signatures on payment endorsements Exs.A-4, A-7 and A-11 are genuine, since both the courts arrived at a conclusion to that effect, without the aid of Hand Writing Expert?" 2. Sri Radha Krishna Reddy, learned counsel representing appellant as defendant had pointed out that apart from the substantial questions of law on the strength of which the Second Appeal had been admitted. Yet another substantial question of law would arise for consideration to the effect that, the suit is bad for mis-joinder of causes of action. The counsel also pointed out to the respective pleadings of the parties and the evidence available on record and would maintain that as can be seen from the endorsements, the suit in relation to one transaction is within limitation. The counsel also had demonstrated before this court how the endorsements cannot be believed at all. While elaborating the submissions the learned counsel had taken this court through certain findings recorded by the appellate court which are in favour of the appellant and would maintain that having recorded such findings, confirming the findings of the trial Court cannot be sustained. The learned counsel also pointed out that in the facts and circumstances inasmuch as the burden is on the respondent/plaintiff to prove the endorsements, respondent/plaintiff should have taken these documents to a handwriting Expert and inasmuch as respondent/plaintiff failed to do so, the suit should have been dismissed. The learned counsel also pointed out that in the facts and circumstances inasmuch as the burden is on the respondent/plaintiff to prove the endorsements, respondent/plaintiff should have taken these documents to a handwriting Expert and inasmuch as respondent/plaintiff failed to do so, the suit should have been dismissed. The learned counsel also pointed out that even though, two promissory notes were executed in favour of the respondent/plaintiff one promissory note was executed in favour of a third party, and on the strength of such promissory note, the present plaintiff on the ground of being holder in due course, cannot joint such causes of action in this suit and hence, the suit is bad for mis-joinder of causes of action as well. On this ground also the Second Appeal to be allowed. Incidentally, the learned counsel pointed out to several of the factual findings and also had taken this Court through the relevant portions of the depositions and would contend that in the light of the evidence available on record, findings recorded by the appellate court are perverse, and on this ground also the Second Appeal to be allowed. The counsel also relied upon certain decisions. 3. Per contra, Sri S.S. Bhatt, the counsel representing respondent/plaintiff would submit that the question of mis-joinder of causes of action and mis-joinder of parties would not arise at all. Even otherwise this question was not adjudicated at all before the court of first instance and also before the appellate court and concurrent findings had been recorded by both the courts below decreeing the suit with costs and hence, in a Second Appeal, the appellant-defendant cannot be permitted to raise such a ground. Even otherwise, it cannot be said to be an irregularity or illegality so as to dismiss the suit of the plaintiff on such a ground. While further elaborating the submissions, the learned counsel for the respondent/plaintiff pointed out to the relevant findings arrived at by the court of first instance and also by the appellate court and further pointed out that if the limitation to be reckoned carefully, all the suits are within limitation and clear positive findings had been recorded in this regard. The counsel also would submit that the view expressed in Sunkara Laxmaiah (died) per L.Rs. v. Vadlapudi Venkateswara Rao (died) per LRs.' is not the correct view. The counsel also would submit that the view expressed in Sunkara Laxmaiah (died) per L.Rs. v. Vadlapudi Venkateswara Rao (died) per LRs.' is not the correct view. Even otherwise, since the suits are within limitation and concurrent findings had been recorded in this regard and the question of limitation also being a mixed question of fact and law in the light of the concurrent findings recorded by both the courts, such findings not to be disturbed in a Second Appeal, in view of the limitations imposed on this court in relation to reappreciation of evidence at the stage of Second Appeal. The counsel also placed reliance on certain decisions to substantiate his submissions. 4. Heard the counsel on record. Perused the oral and documentary evidence available on record and also the findings recorded by the court of first instance and also the findings recorded by the appellate court. 5. The substantial questions of law on the strength of which the Second Appeal had been admitted already had been referred to supra. The parties hereinafter would be referred to as plaintiff and defendant as shown in O.S. No.416 of 1986 on the file of Principal District Munsif, Punganur. The plaintiff filed a suit for recovery of Rs.6506-55 ps. Being the principal and interest repayable with interest at 12% per annum and for costs of the suit. It was averred in the plaint that the defendant borrowed Rs.200/- on 15-11-1976 and executed a pronote agreeing to repay the same at 24% per annum, it is 'A' marked pro note. The defendant paid Rs.5/- each on 12-11-1979,29-3-1982,27-8-1983 and endorsed. The defendant against borrowed Rs.1500/- on 30-4-1977 and executed B marked pronote agreeing to repay with interest at 24% per annum. The defendant paid Rs.5/- each on 7 -4-1980 and 27-3-1983 and endorsed on the pronote. On 30-4-1977 the defendant again borrowed Rs.1500/- from Viswanatham Chetty and executed 'C' marked pro note with interest at 24% per annum. He paid Rs.5/- on 7-4-1980 and 27-3-1983 and endorsed. On 15-1-1986 the plaintiff received Rs.2250/-, the said Viswanatham Chetty got 'C' marked pronote transferred in his favour. The defendant did not pay inspite of repeated demands. The defendant owns five acres of land. Hence, he is not a small farmer under Act 7 of 1977. 6. He paid Rs.5/- on 7-4-1980 and 27-3-1983 and endorsed. On 15-1-1986 the plaintiff received Rs.2250/-, the said Viswanatham Chetty got 'C' marked pronote transferred in his favour. The defendant did not pay inspite of repeated demands. The defendant owns five acres of land. Hence, he is not a small farmer under Act 7 of 1977. 6. Written statement and the additional written statement were filed by the defendant and it was pleaded that the suit is not maintainable. The defendant executed ABC marked promotes. The defendant made endorsement on 12-11-1979 on 'A' marked pronote and on 7-4-1980 on Band C marked promotes. The defendant did not endorsed on 29-3-1982,27-3-1983 on all the promotes. The defendant after harvesting ground nut crop in December, 1980 discharged the entire debts under the above promotes. The plaintiff and Viswanatham Setty did not returned the promotes. The plaintiff and Viswanatham Setty asked the defendant to sold jaggery to them. The defendant has not agreed. Aggrieved by his refusal the plaintiff might have forged and fabricated the endorsement dated 29-3-1982 and 27-3-1983 on the suit promotes. The transfer endorsement dated 15-1-1986 on 'C' marked pro note is not true. This defendant is a small farmer under Act 7 of 1977. He has ancestral property about six acres of dry land in Gaddamvaripalli. The defendant is entitled 1/3rd share in it along with his son and daughter. The plaintiff is a business man. The defendant is a small farmer under A.P. Act 45 of 1987. Hence, the suit may be dismissed with costs." 7. On the strength of the pleadings, the following issues were settled. 1. Whether the part payment and endorsement on 29-3-1982 'A' marked pronote is true? 2. Whether the part payment and endorsement dated 27-3-1983 on 'B' marked pronote is true? 3. Whether the part payment and endorsement dated 27-3-1983 on 'C' marked pronate is true? 4. Whether the discharge pleaded by the defendant is ture/ 5. Whether the defendant are entitled to the benefits of Act 7 of 1977? 6. To what relief? 8. 2. Whether the part payment and endorsement dated 27-3-1983 on 'B' marked pronote is true? 3. Whether the part payment and endorsement dated 27-3-1983 on 'C' marked pronate is true? 4. Whether the discharge pleaded by the defendant is ture/ 5. Whether the defendant are entitled to the benefits of Act 7 of 1977? 6. To what relief? 8. The court of first instance on verification of the signatures appreciated the documents Exs.A-1, A-5 and A-9, A-2, A-6 and A-1 a and came to the conclusion that the signatures are similar and further recorded reasons appreciating the other oral and documentary evidence available on record and ultimately decreed the suit with costs as prayed for with future interest at 6% per annum from the date of decree till the date of realization. Aggrieved by the same, the unsuccessful defendant preferred A.S. NO.131 of 1992 on the file of Additional District Judge, Madanapalli which was renumbered as A.S. NO.54 of 1998 on the file of Senior Civil Judge, Madanapalli. 9. the appellate court in the light of the rival submissions made by the parties framed the following points for consideration in appeal at para 18: 1. Whether Ex.A-3, EX.A-4, A-7 and A-11 payment endorsements are true? 2. Whether EX.A-8 transfer endorsement is true and if so, the plaintiff is a holder in due course? 3. Whether the discharge pleaded by the defendant is true? 4. Whether the suit is barred by limitation? 5. Whether the defendant is a small farmer and entitled to the benefits of Act 7 of 1977 and if so the suit debt is deemed to have been abated? 6. To what relief? 10. The appellate court from para 19 appreciated the oral and documentary evidence available on record and ultimately dismissed the appeal without costs. Aggrieved by the same, the present Second Appeal had been preferred. 11. No doubt the appellate court observed that the court of first instance should not have placed the burden of proving the genuineness of the signatures on the defendant and the observation made by the court of first instance that the defendant should have taken steps to send the documents to Expert, cannot be sustained. 11. No doubt the appellate court observed that the court of first instance should not have placed the burden of proving the genuineness of the signatures on the defendant and the observation made by the court of first instance that the defendant should have taken steps to send the documents to Expert, cannot be sustained. The appellate court also observed that the defendant denied his signature even in the written statement and taking the conduct of the parties into consideration certain reasons in detail had been recorded and came to the conclusion that the endorsements also had been proved. The appellate court also observed that the suit was filed on 29-3-1986 and Exs.A-4, A-7 and A-11 payment endorsements dated 27 -3-1983 are true and the suit was filed within three years from the date of aforesaid payment endorsements and hence, the suit is within limitation. The appellate Court also recorded reasons in detail and came to the conclusion that the defendant is not entitled to the benefits of Act 7 of 1977. 12. In State (Delhi Administration) v. Pali Ram, the Apex Court observed: "Just as in English Law, the Indian Evidence Act recognizes two direct methods of proving the handwriting of a person: (1) By an admission of the person who wrote it. (2) By the evidence of some witness who saw it written. These are the best methods of proof. These apart, there are three other modes of proof by opinion. They are: (i) By the evidence of a handwriting expert. (Sec.45) (ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (SecA7) (iii) Opinion formed by the Court on comparison made by itself. (Sec.73) All these three cognate modes of proof involve a process of comparison. In mode (i), the comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned document. In (ii), the comparison takes the form of a belief which the witness entertains upon comparing the writing in question, with an exemplar formed in his mind from some previous knowledge or repetitive observance of the handwriting of the person concerned. In (ii), the comparison takes the form of a belief which the witness entertains upon comparing the writing in question, with an exemplar formed in his mind from some previous knowledge or repetitive observance of the handwriting of the person concerned. In the case of (iii), the comparison is made by the Court with the sample writing or exemplar obtained by it from the person concerned. A sample writing taken by the Court under the second paragraph of S.73, is, in substance and reality, the same thing as "admitted writing" within the purview of the first paragraph of S.73, also. The first paragraph of the Section, as already seen, provides for comparison of signature, writing, etc. purporting to have been written by a person with others admitted or proved to the satisfaction of the Court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of the English Law on the subject, which is the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the Court. The two mutually exclusive. They are complementary to each other. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert." 13. It is no doubt true that the appellate court had made certain observations finding fault with certain of the findings which had been recorded by the court of first instance. It is no doubt true that the appellate court had made certain observations finding fault with certain of the findings which had been recorded by the court of first instance. But, however, the appellate court had taken certain suggestions made and also the denials made and the conduct of the parties into consideration and also on appreciation of the oral and documentary evidence available on record came to the conclusion that the payment endorsements are true, valid and binding and if the period to be reckoned with the suit is within the period of limitation and accordingly decreed the suit. 14. In Sunkara Laxmaiah (Died) per L. Rs. v. Vadlapudi Venkateswara Rao (Died) per L.Rs. case (1 supra), while dealing with question of limitation the learned Judge observed that while a suit promissory note was executed on 2-11-1968 and the suit was filed on 2-11-1971 the same being beyond the period of three years, the suit to beheld as having barred by limitation. 15. In Baijunth Narain Mishra v. Mt. Kesar Kali Kuer and another while dealing with Section 18 of the Limitation Act, 1908 and the computation of period of limitation it was held that when computation is made from particular date, such date can be excluded from the computation. 16. In Someshwar Bapurao v. Nivritti Baburao Golave it was held that the day on which acknowledgment was made is to be excluded in computing the period of limitation. The provisions of the Limitation Act and the provisions of the General Clauses Act as well had been discussed. 17. In Vinayak Narayan Oeshmukh V. Kasabai Ramchandra Pokale and others" it was held that where the first acknowledgment was on 13-12-1975, the second acknowledgment was on 30-12-1978, the same be within time. 18. In the light of the convincing reasons which had been recorded both by the court of first instance and also the appellate court the suit is within limitation, especially in the light of the concurrent findings and also in the light of the fact that question of limitation also always necessarily not to be taken as a pure question of law and the same being a mixed question of fact and law, this court is not inclined to disturb the said findings recorded by both the court of first instance and also the appellate Court. However, the learned counsel representing appellant had raised a question for the first time in the Second Appeal relating to the mis-joinder of causes of action on the ground that a suit on the strength of transferred promissory note cannot be joined with the other two claims, on the strength of the promissory notes executed in favour of the plaintiff. This plea was not raised in the written statement nor an issue was settled in this regard and for the first time by way of surprise, this plea is being put forth. Even otherwise the plaintiff as a holder in due course filed the suit while instituting the suit on the strength of the other suit promissory notes executed in his favour as well. The endorsements were made on the promissory notes in question by the same defendant and even if this question to be considered at the best this may be an irregularity and not an illegality touching the very maintainability of the suit. No doubt the learned counsel for appellant placed strong reliance in Kota Sreevalli and others v. Chinni Seetharamaiah and others wherein it was observed: "It is not in dispute that the 17 pronotes, on the basis of which the suit was filed, were executed at different points of time, in favour of different persons. Rule 3 of Order 2 CPC, permits joinder of causes of action. It reads a under: "Joinder of causes of action: (1) Save a 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 are 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'. A reading of the same, discloses that a plaintiff may unite several causes of action, against the same defendant, in the same suit. It does not permit several persons, having claims against different persons, to join together and bring about a single suit. A reading of the same, discloses that a plaintiff may unite several causes of action, against the same defendant, in the same suit. It does not permit several persons, having claims against different persons, to join together and bring about a single suit. In the particular context of money suits, it is absolutely impermissible for different persons, claiming under different promotes, to joint together and file a single suit. A perusal of the paragraph relating to causes of action, furnished in the plaint, discloses that each and every pronote was referred to, separately, vis-a-vis the amount borrowed under it. Therefore, it was not permissible to joint such different causes of action. The trial Court did not bestow its proper attention, as regards the complaint of the petitioners, in this regard." "The third and most important aspect is about the proof of the promotes, marked as Exs.A-1 to A-17. Here again, the effort is not to delve the extent of proof, but the very absence of it. The Evidence Act mandates that any document can be said to have been proved, only when the party to it, deposes orally. Section 67 thereof prescribes the procedure in this regard in certain cases, apart from the executants of the documents, the witnesses, or attestors, to the same, are required to be examined. The Evidence Act does not extend the facility of mere filing of the documents and drawing an inference, as to proof thereof, except where they fall into the category of documents referred to, in Sections 79 to 90. There may be exceptional cases, where the defendant in a suit may admit the execution of the document. In such an event, the plaintiff does not have to undertake the exercise of proving it. Even in such cases, the documents are required to be introduced, through a witness. Taking the document on record, otherwise than through a witness, is almost unknown to law. The exception is where, both the parties agree for certain documents to be taken on record, with consent. The record in this case does not disclose that there was such a consent. In fact, there were serious disputes about the genuinety, binding nature, legality and enforceability of all these documents. The exception is where, both the parties agree for certain documents to be taken on record, with consent. The record in this case does not disclose that there was such a consent. In fact, there were serious disputes about the genuinety, binding nature, legality and enforceability of all these documents. That being the case, it was not at all proper on the part of the trial Court to have decreed the suit, though not a single person was examined as a witness." 19. Section 99 of the Code of Civil Procedure dealing with no decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction reads as hereunder:- "No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any mis-joinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or jurisdiction of the Court. Provided that nothing in this Section shall apply to non-joinder of necessary party. Order 1 Rule 1 of the Code of Civil Procedure dealing with who may be joined as plaintiffs reads as hereunder:- 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. It is pertinent to note that Order I Rule 1 (b) of the Code of Civil Procedure specifies that all persons may be joined in one suit as plaintiffs where if such persons brought separate suits, any common question of law or fact would arise. It is pertinent to note that Order I Rule 1 (b) of the Code of Civil Procedure specifies that all persons may be joined in one suit as plaintiffs where if such persons brought separate suits, any common question of law or fact would arise. Likewise, Order I Rule 3 of the Code of Civil Procedure deals with who may be joined as defendants and the same reads as hereunder:- 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. It is pertinent to note that even in Order I Rule 3 (b), it is specified that all persons may be joined in one suit as defendants where if separate suits ware brought against such persons, any common question of law or fact would arise. Order I Rule 9 of the Code of Civil Procedure dealing with mis-joinder and non-joinder reads as hereunder:- No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: Provided that nothing in this rule shall apply to non-joinder of a necessary party. Order I Rule 13 of the Code of Civil Procedure dealing with objections as to non-joinder or misjoinder reads as hereunder:- All objections on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. Order II Rule 1 of the Code of Civil Procedure deals with frame of suit. Order II Rule 2 of the Code of Civil Procedure deals with suits to include the whole claim. Order II Rule 1 of the Code of Civil Procedure deals with frame of suit. Order II Rule 2 of the Code of Civil Procedure deals with suits to include the whole claim. Order II Rule 3 of the Code of Civil Procedure dealing with joinder of causes of action reads as hereunder:- (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 are 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 II Rule 7 of the Code of Civil Procedure deals with objections as to mis-joinder and the said provision reads as hereunder:- All objections on the ground of mis-joinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not to so taken shall be deemed to have been waived. 20. In Union of India v. M/s. Ashok Kumar Rasiklal & Co. (AIR 1987 Orissa 264) the Division Bench of Orissa High Court at para 190bserved:- "There is no merit in this part of the argument as well. No objection as to the mis-joinder of the causes of action as taken in the written statement. R-7 of O.2 of the Code of Civil Procedure specifically provides that all objections on the ground of mis-joinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues at settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. R.3 of O.2 entitles the plaintiff to unite in a same suit several causes of action against the same defendant. Therefore, the plaintiff in this case was entitled to join the causes of action in question when the nature of the allegation was similar and the parties were the same. R.3 of O.2 entitles the plaintiff to unite in a same suit several causes of action against the same defendant. Therefore, the plaintiff in this case was entitled to join the causes of action in question when the nature of the allegation was similar and the parties were the same. That apart, the plaintiff had already issued one notice under S.78-B of the Railways Act for all the nine consignments and, therefore, the present suit for recovery of damages for wrong delivery of all the consignments was maintainable. In support of this view, we also find a Bench decision of the Patna High Court in the case of E/. Railway Co. v. Ahmadi Khan (AIR 1924 Patna 596). In that case, the plaintiff had issued only one consolidated notice to the defendant Railway Company in respect of 30 consignments of different rates. It was held that the notice being a part of the cause of action, separate suits did not lie." 21. In Ramdhan Puri v. Lachmi Narain (AIR 1937 Privy Council 42) their Lordhsips of the Privy Council speaking through Sir George Rankin at page 44 observed:- "The dispute with reference be property No.2, the smaller share in this village of Rupau, can be more shortly disposed of. When Gopal Narain, in 1917, sold this property to the plaintiffs' mother, she was acting, as the Courts in India have found, on behalf of the joint family. This property was put up for sale in execution of the partition decree in suit No.23 of 1913, already mentioned, and on 26th July 1920 it was sold to appellant 3 on behalf of Bipat Ram, appellant 2, as being the property of Gopal Narain. That is to say what passed to Bipat Ram by the sale was the right, title and interest of Gopal Narain. At this date however Gopal Narain had no interest left in him by reason of his transfer to the plaintiff's mother in 1917. The Courts in India have rightly rejected the suggestion that Bipat Ram can claim to have taken good title by his purchase by reason that Kashinath is stopped from denying that the title was in Gopal Narain by his failure to bring this fact to notice on the occasion of the execution sale. The Courts in India have rightly rejected the suggestion that Bipat Ram can claim to have taken good title by his purchase by reason that Kashinath is stopped from denying that the title was in Gopal Narain by his failure to bring this fact to notice on the occasion of the execution sale. The reasons which induced the Courts in India to find in favour of the plaintiffs and against the title set up by the present appellants have now been explained. The complaint made by Mr. Eddy on behalf of the appellants is really two-fold. He complains first that so many parties and so many causes of action should never have been joined in one suit under the provisions of 0.1 R.3 and 0.2 R.3 and that the misjoinder is not merely a technical objection but one which in the language of 8.99 of the Code, affected the merits of the case. His second complaint is that the purchase by Durga Prasad on 29th May 1920 of property NO.1 should not be relied upon in any way by the Courts as against the appellants, because in the plaint it was part of the plaintiffs' case that the loan taken by Kashinath from Durga Prasad was for immoral purposes; that his clients by their written statement had admitted this allegation and had at the trial treated this as common ground between the plaintiffs and themselves not calling evidence to establish it, and not cross-examining witnesses called to establish the contrary. Upon the first contention their Lordships are of the opinion that the joinder of so many distinct causes of action against so many sets of defendants might well have led the trial Court to decline to entertain so many matters in one suit, even if they were within a sound construction of the rules. There is good reason to think that the inconvenience and expense avoided by the plaintiffs who sued in forma pauperis has been much exceeded by the inconvenience and expense caused to the defendants. There is good reason to think that the inconvenience and expense avoided by the plaintiffs who sued in forma pauperis has been much exceeded by the inconvenience and expense caused to the defendants. The written statement of the present appellants (as is common in India) contained a plea that the suit was bad for misjoinder or multi furiousness, but their Lordships have not been satl3fied that at any time before the commencement of the trial any appropriate and serious application was made to the Court upon the face of the pleading for an order requiring the plaintiffs to amend by discarding portions of their claim. They are satisfied, however, that the heavy task which fell to the learned trial Judge of dealing with so many matters in one trial was ably and fairly discharged and that he arrived at a correct view of the facts. It is desirable to point out that under the rules as they now stand the mere fact of mis-joinder is not by itself sufficient to entitle the defendant to have the proceedings set aside or action dismissed. 8.99 of the Code is in plain words, but their Lordships may repeat what was said by Lord Justice Pick ford in (1918) 1 K.B. 555 at p.565: Whatever the law may have been at the time when (1894) A C 494 was decided, joinder of parties and joinder of causes of action are discretionary in this sense that if they are joinder there is no absolute right to have them struck out, but it is discretionary in the Court to do so if it thinks right. Their Lordships are of opinion that in the present case no effect can be given to this objection of mis-joinder, the merits of the case having bee. Satisfactorily disposed of in spite of the complication of the proceedings." In Ghanshyam Das v. Ragho Singh (AIR .1931 Patna 64) at page 68 it was observed as hereunder:- "That is no doubt the general rule, Radha Kunwar v. Reoti Singh (AIR 1916 P.C.18), where their Lordships of the Privy Council observed that the joinder of such parties was irregular and could only tend to confusion. So it was held in Monmohini Ghose v. Parvati Nath Ghose (1905) 32 Cal. 746) that persons claiming a paramount title and not interested in the equity of redemption are not necessary parties. So it was held in Monmohini Ghose v. Parvati Nath Ghose (1905) 32 Cal. 746) that persons claiming a paramount title and not interested in the equity of redemption are not necessary parties. In Nilkanta Banarji v. Suresh Chandra Mullick (1885) 12 Cal. 414) a defendant claiming adverse title was dismissed from the action and given his costs. The same was done in Jaggeswar Duff v. Bhuban Mohan Mitra (1906) 33 Cal. 425), which was followed in Lokenath Singh v. Santoki Missir (AIR 1927 Pat. 45); the defendants who had set up that they were not necessary parties should be dismissed from the action. The suit in such a case would be considered as bad for misjoinder of parties and causes of action. The decision in Jogeshwar Dutt's case (supra) following Sarala Sundari v. Sarada Prasad (1904) 12 C.L.J. 602) and Ss.44 and 45, Code of Civil Procedure, 1882, proceeded on the ground that there could not be a joinder of causes of action of this description, and in Sarala Sundari v. Sarada Prasad (1904) 12 C.L.J. 602) the ground of decision was that such multifariousness was fatal to the suit. But eve, under the old Code it was recognized that this general rule was subject to exceptions, and in the Code of 1908 the rule as expressed in O.2, R.4, is much less rigid. Causes of action may be joined with the leave of the Court and under O.2, R.7, all objections on the ground of misjoinder of causes of action are to be taken at the earliest possible opportunity and in all cases where issues are settled at or before such settlement unless the ground of objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived. S.99 further enacts that no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court. S.99 further enacts that no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court. The principle of the exceptions admitted before 1908 was that where a party had without objection gone to trial on issues on the merits, he was not allowed to plead after failing on the merits that his paramount title should not have been adjudicated on; Hare Krishna v. Robert Watson (1904) 8 C.W.N. 365) : see also Bhaja Chaudhary v. Chuni Lal Marwari (1906) 5 C.L.J. 95). In Syed Fakir Raza v. Madhusudan Oas (1918) 45 I.C. 691), Sir Jwala Prasad expressed the view that issues of paramount title can in' certain cases be properly tried in a mortgage suit. These three cases were relied on in Khub Lal Upadhya v. Jhapsi Kundu (AIR 1924 Pat. 613); the parties having gone to trial on an issue of title on the merits; defendants were not allowed to succeed in appeal on the contention that there was multifariousness. It is settled law that where paramount title has been adjudicated on, in a mortgage or redemption suit the defeated party will not be allowed to raise the contention that the Court was wrong to decide the question, their in appeal or in a subsequent litigation." In Mst. Ulfat v. Zubaida Khatoon (AIR 1955 Allahabad 361) the Division Bench of the Allahabad High Court at Lucknow while dealing with Order II Rule 7 of the Code of Civil Procedure observed that where an objection on the ground of rejoinder of causes of action was taken at the earliest opportunity, i.e., in the written statement, but it was subsequently not pressed, it cannot be allowed to defeat the suit at a later stage. 22. In Pachakhan v. H.D. Gopalakrishna (AIR 1975 Karnataka 179) the learned Judge at paras 7 and 8 observed:- "Mr. 22. In Pachakhan v. H.D. Gopalakrishna (AIR 1975 Karnataka 179) the learned Judge at paras 7 and 8 observed:- "Mr. Ramachandra Rao next relied on a decision in Padmanabha v. Aiyappan Pillai, AIR 1951 Trav-Co 133, in which it is held that in a suit to enforce a mortgage, ordinarily the necessary parties are those interested in the properties primarily, viz., the mortgagors and their successors in interest and that persons claiming title independently of the mortgagors are ordinarily not necessary or even proper parties to a mortgage suit. In that case, the plaintiff himself raised the objection that defendants 20 and 21 were unnecessary parties to the suit. Then it was held that it would be improper to go into the question of paramount title since it was considered to be neither just nor convenient. The portions of the judgment of the Court below relating to title paramount were deleted and the question was left open. It is apparent from the observations made in the judgment in that case that it was not laid down as an inflexible rule that the question of paramount title cannot be gone into in a mortgage suit. The observations in AIR 1941 Nag. 133 cited by the learned single Judge also how that under certain circumstances the question of paramount title can be gone into in a suit on mortgage, for example, - when all the parties desire it. This also shows that even according to the learned Judge it is not a matter going to the root of the jurisdiction of the Court to try the issue of paramount title in a mortgage suit. The nine principles stated in AIR 1970 Andh. Pra. 153, represent, in may opinion, the correct statement of the position of law. I may also add that under Order 1, Rule 13 of the Code of Civil Procedure, unless objection with regard to misjoinder has been taken at the earliest opportunity and, at or before settlement of issues, the party shall be deemed to have waived it. Similarly if the objection with regard to misjoinder of causes of action has not been taken at the earliest opportunity, it shall be deemed to have been waived as provided under Order 2, Rule 7 of the Code of Civil Procedure. In the present case no such objections were taken by the 4th defendant. Similarly if the objection with regard to misjoinder of causes of action has not been taken at the earliest opportunity, it shall be deemed to have been waived as provided under Order 2, Rule 7 of the Code of Civil Procedure. In the present case no such objections were taken by the 4th defendant. On the other hand, he wanted the issue as to his title to be tried and also adduced evidence in support of the same. It is only after the suit was decreed against him and it was remanded in appeal that he attempted to amend his written statement by raising objections as to misjoinder of parties and causes of action. From the decisions referred to above, it is clear that the rule that the question of paramount title should not be tried in a suit on a mortgage is not an inflexible rule and if the Court finds that it is necessary to try such an issue in order to give complete relief to the plaintiff, in case he succeeds in a suit for redemption, it would be just and proper for the Court to decide that question also. In the present case, the 4th defendant claims to be in adverse possession of the mortgage property. Hence, it is a fit case in which the title of the 4th defendant should also be decided in this suit itself. Hence, I do not find any good grounds to interfere with the finding of the lower appellate Court in this regard." 23. In Chanana Steel Tubes Pvt. Ltd. v. M/s. Jaitu Steel Tubes Pvt. Ltd. (AIR 2000 Himachal Pradesh 48) while answering issue No.4 whether the suit is bad and not maintainable on account of mis-joinder of causes of action, the learned Judge of the Himachal Pradesh High Court observed at paras 10 and 11:- "The case of the defendants is that the present suit is bad for mis-joinder of causes of action and as such not maintainable. According to the defendants, two separate cheques furnish separate causes of action, therefore, two separate suits should have been filed. Rule 3 of Order 2, Code of Civil Procedure provides that the plaintiff may unite in one suit several causes of action against the same defendant(s). Therefore, in view of the said specific provisions, the present suit cannot be said to be bad for mis-joinder of causes of action. Rule 3 of Order 2, Code of Civil Procedure provides that the plaintiff may unite in one suit several causes of action against the same defendant(s). Therefore, in view of the said specific provisions, the present suit cannot be said to be bad for mis-joinder of causes of action. The issue is decided against the defendants." Thus, in the light of the aforesaid provisions and also the decisions referred to supra, the contention advanced that the suit to be defeated either for mis-joinder of causes of action or mis-joinder of parties, as the case may be, cannot be entertained at the stage of Second Appeal. 24. On a careful analysis of the facts, the said decision is distinguishable and is not applicable to the facts of the present case. Here is a case where the plaintiff instituted the suit within the period of limitation on the strength of promissory notes executed in his favour and on the strength of a promissory note executed in favour of P.W.2 who made 15 a transfer endorsement in favour of the plaintiff and the said promissory note also was made the subject matter of the present suit. This cannot be taken as a mis-joinder of causes of action in view of the question involved being common the defendant being common and even otherwise when as a holder in due course the self-same plaintiff in whose favour the other promissory notes had been executed by the self-same defendant if one suit is brought, no prejudice as such is caused to the defendant and in a way inasmuch as common questions of fact and common questions of law being involved, the multiplicity of litigation had been avoided. It is needless to say that Section 9 of the Negotiable Instruments Act, 1881 deals with holder in due course. 25. Hence, viewed from any angle since for the first time this question is being raised in a Second Appeal on the strength of such a ground the appellant cannot be succeeded. It is needless to say that Section 9 of the Negotiable Instruments Act, 1881 deals with holder in due course. 25. Hence, viewed from any angle since for the first time this question is being raised in a Second Appeal on the strength of such a ground the appellant cannot be succeeded. Hence, in the light of the concurrent findings recorded by the court of first instance and also the appellate court, though, the appellate Court deviated and found fault in certain aspects the reasons recorded by the court of first instance, this court is not inclined to disturb the other factual findings relating to the genuineness of the endorsements and also relating to the aspect of reckoning the period of limitation. 26. Hence, the Second Appeal being devoid of merit, the same shall stand dismissed. However, in the peculiar facts of the case, the parties to bear their own costs.