JUDGMENT DINESH KUMAR SHARMA, J. I.A. 3411/2021 1. The present application has been filed under Order 2 rule 3 & 4 read with Section 151 CPC seeking permission to unite the cause of action against both the defendant and relief against both of them by filing a comprehensive suit. 2. The case of the plaintiff is that defendant No.1 who is the wife of defendant No.2 on the basis of General Power of Attorney executed an agreement to sale in respect of D-31, Ansal Villas, Satbari, Chhatarpur, New Delhi-110074 and the constructive possession of the property was given. However, simultaneously, the plaintiff executed a sale deed in favour of defendant No.2 i.e. the owner and husband of defendant No.1. The case of the plaintiff is that the defendants neither performed the specific performance of the contract nor have they handed over the possession in terms of the lease deed executed between the parties. 3. The present application has been moved on the ground that the sale transaction between the plaintiff and defendant No.1 and the lease deed executed between the plaintiff and defendant No.2 were executed simultaneously. It has been submitted that the relief sought in the present case arises out of the same act or transaction or series of acts or transactions, against the defendants, jointly, severally or in the alternative. Hence, it has been submitted that permission may be granted to unite the cause of action against both defendants by filing a comprehensive suit. 4. The defendants have not filed the reply. However, written submissions have been filed. 5. Learned counsel for the plaintiff has invited the attention of the Court to Order I Rule 3 & 4 as well as Order II Rule 3 & 4 read with Section 151 CPC. It has been submitted that the defendant no.1 and the defendant no.2 are the husband and wife. It has further been submitted that the erstwhile owner of the suit property executed an agreement to sell in favour of defendant no. 2 and general power-of-attorney in favour of defendant no.1 while executing sale documents in their favour. Being GPA holder of the erstwhile owner, defendant no.1, executed transfer documents with respect to the suit property in favour of the plaintiff on 24.01.2019 and to acknowledge that sale, defendant no.2 stood as a witness on those documents. 2 and general power-of-attorney in favour of defendant no.1 while executing sale documents in their favour. Being GPA holder of the erstwhile owner, defendant no.1, executed transfer documents with respect to the suit property in favour of the plaintiff on 24.01.2019 and to acknowledge that sale, defendant no.2 stood as a witness on those documents. It has further been submitted that the symbolic possession of the property was handed over to the plaintiff and at the same time defendant no.2 executed a lease deed dated 24.01.2019 to retain the possession of the suit property, till the time they find suitable accommodation for them. 6. Learned counsel for the plaintiff submits that the Execution of the sale documents as well as the lease deed is not denied by the defendants. Learned counsel for the plaintiff submits that however, the defendants, in their written statement, are claiming that these documents were executed only to secure the loan transaction between the plaintiff and the defendants. Learned counsel for the plaintiff submits that the plaintiff is also seeking consequential relief of possession of the suit property from defendant no. I, who being the GPA holder of the erstwhile owner, executed the sale documents in favour of the plaintiff. 7. It has further been submitted that as per the lease agreement, the plaintiff handed over the possession of the suit property to defendant no.2 under the lease agreement dated 24.01.2019, therefore defendant no.2 also becomes the necessary party for proper adjudication of the present case. It is submitted that the plaintiff has already performed its part of the contract by making the entire payment, and it is the defendants who have to perform their contract by executing the sale deed and they cannot be allowed to avoid their obligations by taking these baseless pleas. The cause of action for filing the suit for specific performance accrued in favour of the plaintiff on the basis of the agreement to sell executed by defendant no. 1 and witnessed by defendant no.2 as an acknowledgement. The cause of action for filing the consequential relief of possession accrues on the basis of the agreement to sale as well as the lease deed executed between the plaintiff and the defendants. 8. 1 and witnessed by defendant no.2 as an acknowledgement. The cause of action for filing the consequential relief of possession accrues on the basis of the agreement to sale as well as the lease deed executed between the plaintiff and the defendants. 8. Learned counsel for the plaintiff submits that in any suit for recovery of immovable property the plaintiff is entitled to join the claim of mesne profits or arrear of rent in respect of the property claimed. It is submitted that the facts of the case are so interconnected that even if the plaintiff would have filed two separate cases, with respect to the sale documents and the lease deed, the same would have been tried jointly as the cause of actions is also connected. 9. Sh. Kamal Choudhary, learned counsel for the defendants vehemently refuted the contentions raised by the learned counsel for the plaintiff and submitted that the plaintiff as per its own case on one hand is seeking relief against defendant No.1 on the basis of alleged agreement to sell and on the other is seeking the reliefs against the Defendant No.2 on the basis of an alleged lease deed. It has further been submitted that though Defendant No.1 and 2 are wife and husband as they are separate legal entities in law and the cause of actions are different arising out of the different alleged agreements. Learned counsel submits that the reliefs sought are also different and as such filing of one suit for different reliefs against different persons is not maintainable in the eyes of law and as such the application under Order II Rule 3 & 4 is liable to be dismissed. 10. Learned counsel for the defendants submits that cause of action qua the defendants is distinct in nature and are in no way interconnected to each other. Learned counsel for the defendants submits that the condition precedent to the applicability of Order IT Rule 3 & 4 CPC is that each defendant must be jointly liable in respect of each and every one of the causes of action sought to be joined. It has been submitted that a suit against several defendants on causes of actions 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 the cause of action. 11. It has been submitted that a suit against several defendants on causes of actions 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 the cause of action. 11. I have heard the submissions and perused the documents on record. 12. Order I rule 3 provides as under; 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. 13. Similarly, Order II rule 3 & 4 provides as under; 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 II 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. 14. 14. The basic jurisprudence behind these provisions is that if the cause of action can be joined in one suit, the parties should not be flout to inconvenience by filing different suits. Order 2 of the CPC provides that every suit must include the whole of the claim which the plaintiff is entitled to make in respect of the cause of the action. However, the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Thus, the law requires that the plaintiff instituting a suit must include the entire whole of the claim in respect of the entire cause of action. The cause of action is a bundle of facts which vest a party with the right to institute a cause. 15. In Shivnarayan vs. Manikalal 2019 SCC OnLine SC 136, the Supreme Court upheld the decision of the trial court wherein the trial court dismissed the suit petition on the ground that there was the plaintiff has clubbed different causes of action which is to be deleted from the suit. The trial court further held that the plaintiff is not justified in combining different properties and separate causes of action in a single suit. The Supreme Court affirmed that for uniting in the same suit several causes of action, the essential condition is that it be against the same defendant or defendants jointly. 16. Similarly, in Umbai v. Bhau Balwat and Others 1908 SCC OnLine Bom 4, the Bombay High Court held that the plaintiff has clearly misjoined both the parties and the causes of action in the suit and for the plaintiff to do so the defendants must be jointly interested or liable with respect to all causes of action. 17. In Microsoft Corporation & Anr. v. Mr. Sujan Kumar & Ors. the Coordinate Bench of this Court inter alia held that in law, it needs to be stated, that uttering of mantras of the existence of common questions of law and facts, by only reproducing the legal language of Order I Rule 3 and Order II Rule 3 CPC, cannot and does not mean that requirements of law stands complied with. the Coordinate Bench of this Court inter alia held that in law, it needs to be stated, that uttering of mantras of the existence of common questions of law and facts, by only reproducing the legal language of Order I Rule 3 and Order II Rule 3 CPC, cannot and does not mean that requirements of law stands complied with. The Court further inter-alia held that requirements of law are complete only when such factual and legal averments are made in the pleading which will show the existence of common questions of law and fact which are said to arise. The Court further inter-alia held that no cause of action qua joinder of causes of action and defendants is complete unless it is stated as to which would be the common questions of facts and law qua each of the defendants who are joined in the suit. 18. In the present suit, learned counsel for the plaintiff has not made any averment which could show common questions of law and fact. In Microsoft Corporation (supra), it was also inter-alia held that the joinder of cause of action is allowed has inter alia held as under; "5. It is trite that joinder of causes of action is allowed provided that if separate defendants are joined in one suit with their separate causes of action, then qua these defendants which are joined in one suit, common questions of law and fact arise. Merely because defendants-companies are under the same management or are sister concerns or are operating from the same address cannot mean that there are common questions of law and facts because of such grounds. Common questions of law and facts are relatable to averments of the causes of action qua existence of rights of plaintiffs and their violation by the defendants, and nothing for and on this aspect is looked into except the averments made in the plaint with respect to the causes of action......" 19. In K. A. Paul v. K. Natwar Singh DLT 698: 2009, while dealing with a similar proposition, it was inter-alia held that the attempt at joining two separate causes of action in one suit must fail in terms of Order II Rule 3 CPC. In K. A. Paul v. K. Natwar Singh DLT 698: 2009, while dealing with a similar proposition, it was inter-alia held that the attempt at joining two separate causes of action in one suit must fail in terms of Order II Rule 3 CPC. Under Order I Rule 3 CPC Defendant No.1 and Defendants 2 to 3 can be joined in the same suit only if the relief claimed is in respect of the same act or transaction or series of acts of transactions. 20. In the present case, there are two separate transactions i.e. Agreement to Sell by the Attorney and the secondly, the Lease Deed executed by the plaintiff in favour of defendant No.2. The Order II rule 3 and 4 CPC also came up for discussion before the Coordinate Bench of this Court in Geeta Mohan V. Baldev Raj Hasija & Anr. 1998(71) DLT 790 where this Court after enumerating Order II Rule 3 & 4 inter alia held as under: 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. 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. 21. Even at the cost of repetition, it may be restrained that the basic rule is that if one suit can be filed by joining the cause of action, the parties should not be unnecessarily compelled to file a separate suit. However, to join the cause of action, there must be a common question of law and fact. The Court has also to see whether it would be inconvenient to lead the evidence and decide the question of law arising thereof, if the cause of actions are joined. 22. In the present case, the cause of action against defendant no. 1 is in respect of not performing of contract, whereas the cause of action against defendant no. 2 is regarding vacation of premises. Merely because defendants no. 1 and 2 are husband and wife and the subject matter of the suit is the same the cause of action cannot be joined. The conjoint reading order 1 rule 3 and order 2 rule 3 indicates the question of the joinder of parties also involves the joinder of cause of action. The basic proposition is that a person is made a party in suit, if there is a cause of action against and if the cause of action is joined the parties are also joined. Reliance can be placed upon Ishwar Bhai C. Patel V. Haribal Behara AIR 1999 SC 1341 . 23. In suit of specific performance, the person who is not the executor cannot be joined by virtue order 1 rule 3 CPC. I consider that in the present case, the application for joining the cause of action is liable to fail for the reasons discussed above. Hence, the same is dismissed. 24. 23. In suit of specific performance, the person who is not the executor cannot be joined by virtue order 1 rule 3 CPC. I consider that in the present case, the application for joining the cause of action is liable to fail for the reasons discussed above. Hence, the same is dismissed. 24. In view of the above, the present application stands disposed of. CS(OS) 140/2021 25. Learned counsel for the plaintiff submits that in view of the above, she will take instruction regarding moving an appropriate application for amendment of suit and waiving one of the causes of action. 26. List on 19.03.2024.