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Mazhar Ali Khan vs Sajjad Husain Khan

High Court Of Judicature at Allahabad|02 April, 1902


JUDGMENT Banerji and Aikman, JJ.
1. This is an appeal from a decree of the Subordinate Judge of Moradabad dismissing the plaintiff's suit on the ground of misjoindor of defendants and of causes of action, The property which was claimed originally belonged to one Munawwar Ali Khan. The plaintiff alleged himself to be the purchaser of the interests of Masit-un-nissa and Abdul Hasan, two of the heirs of Munawwar Ali Khan, and he claimed a portion of the shares purchased by him agaiust Sajjad Husain Khan, another heir of Munawwar Ali Khan, who, he asserted, had withheld possession from the plaintiff's vendors, and had transferred a portion of the property to the other defendants. The "plaintiff's title was acquired under two sale-deeds, one dated the 28th of May 1887, and the other dated the 10th of November, 1892. The Court below has held that the plaintiff had separate causes of action; that those causes of action had accrued separately against the different defendants; and that there was a misjoinder both of causes of action and of defendants.
2. In the first place, it may be observed that the Subordinate Judge is wrong in saying that the claims of different purchasers have been included in one suit." If the plaintiff's allegation be true, he is the purchaser under both the sale-deeds mentioned above, so that this is not a case of different purchasers claiming in one suit, but it is a claim made by the same person who purchased the property claimed under different sale-deeds. That is the Subordinate Judge's first mistake. In the next place, the reference to the second paragraph of Section 31 of the Code of Civil Procedure in the judgment of the Lower Court overlook; the important words which appear in that paragraph. The paragraph runs as follows: "Nothing in this section shall be deemed to enable a plaintiff to join in respect of distinct causes of action." The Subordinate Judge has read it as if it ran nothing shall be deemed to enable a plaintiff to join distinct causes of action. That is not the intention of the paragraph is clear from the provisions of Section 45, which distinctly enable a plaintiff to join in the same suit several causes of action against the game defendant or the same set of defendants. In the third place, the learned Subordinate Judge has overlooked the fact that the defendants other than Sajjad Husain derive title from and claim through that defendant, and have for that reason been made defendants to the suit. The plaintiff's action is justified by the ruling of this Court in Inder Kuar v. Our Prasad (1888) I.L.R. 11 All. 33. In no point of view, therefore, has there been a misjoinder either of causes of action or of parties. On the part of the respondents reference was made to Section 44 of the Code of Civil Procedure, and it was urged that as in this suit the plaintiff claimed both movable and immovable property, and had done so without obtaining the leave of the Court, the suit was bad as contravening the provisions of that section. A complete answer is afforded to the objection by the ruling of the Madras High Court in Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran (1886) I.L.R. 10 Mad. 375; at p. 506. We may also remark that the Court below showed a want of discretion in not acceding to the prayer of the plaintiff and the principal defendants for a short adjournment to enable them to compromise the suit. The result is that we allow the appeal, set aside the decree of the Court below, and remand the case to that. Court under Section 562 of the Code of Civil Procedure, with directions to readmit it under its original number in the register, and dispose of it according to law. Costs here and hitherto will abide the event.
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Mazhar Ali Khan vs Sajjad Husain Khan


High Court Of Judicature at Allahabad

02 April, 1902
  • Banerji
  • Aikman