SHAMBHOO DAYAL Vs. CHANDRA KALI DEVI

JUDGEMENT

(1.) This is a tenant's second appeal from the concurrent decisions of the Courts below decreeing a suit filed jointly by three landlords, for his ejectment and recovery of rent from him. The facts which are somewhat peculiar are these. The defendant-appellant Shambhoo Dayal was originally the tenant of the house in dispute of which the landlords were three brothers whose-names are immaterial. The rent was Rs. 30/- per month. They divided the house into three separate portions and sold one portion each to the three ladies who are the plaintiffs in the present suit-Smt. Chandra Kali Devi., Smt. Sona and Smt. Raj Rani. The transfer of each portion was made by a separate-sale deed. Prior to the sale the husband of the plaintiff Chandra Kali Devi was a sub-tenant of the defendant in a portion of the house and the plaintiff Smt. Sona was herself a sub-tenant in another portion of the house. After acquiring the ownership of the house, the three plaintiffs made a joint, application under Section 3 of the U. P. Control of Rent and Eviction Act for permission to file a suit for the ejectment of the defendant which was granted by a common order. Thereupon they terminated his tenancy by means of a common notice under Section 106 of the Transfer of Property Act, and on his refusal to vacate, filed the present suit. The defendant resisted the suit and raised a number of pleas in defence, mostly of a technical nature. First, he contended that the order granting permission under Section 3 was void as it purported to give permission by a single decision to three different landlords in respect of three different portions of the house; secondly, the suit was bad for mis-joinder of parties because each plaintiff was not interested in the relief claimed by the other two and there should have been three separate suits; thirdly, the common notice under Section 106 was invalid and the tenancy could only be terminated by three separate notices; fourthly, the suit of the plaintiff Chandra Kali Devi was not maintainable because her husband was the sub-tenant of the defendant prior to the sale conferring rights of ownership on her and this sale could not infringe the rights of the defendant as the landlord of the sub-tenant, and similarly the suit of the plaintiff Smt. Sona was also bad as she was the defendant's subtenant before purchasing a portion of the house but the sale could not effect the relationship of landlord and tenant between the parties.

(2.) Both the Courts below held that the three plaintiffs had acquired separate portions of the house under three separate sale deeds, that the suit was not bad for mis-joinder of parties, that the permission under Section 3 of the U. P. Control of Rent and Eviction Act and the notice of termination of tenancy under Section 106 were valid and that the relationship of sub-tenancy between the defendant and the husband of the first plaintiff and the second plaintiff could not affect their rights as land-lords after they had become the owners of the property. All the pleas of the defendant were rejected and the suit decreed. He has now come to this Court in second appeal.

(3.) Mr. M. N. Shukla for the appellant raised the same pleas before me in Appeal. First, he contended that the suit was bad for mis-joinder of parties and relied on an old decision of this Court in Salima Bibi v. Sheikh Muhammad, ILR 18 All 131 in which it was held that a joint suit filed by three plaintiffs for possession of immovable property in which two were owners of one half and the third of the other half was bad for misjoinder of causes of action. But this decision was passed under the old Act and became ineffective after the amendment of the C. P. C. in 1908. Order I, Rule I of the new Code, which corresponds to Section 26 of the Old, provides that "all persons may be joined 'in one suit' as plaintiffs in whom 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 whether jointly or severally, or in the alternative, where, 'if such persons brought separate suits any common question of law or fact would arise' ". The words underlined (here into ' ') above did not exist in the old Section 26. It is, therefore, clear that the law was changed after the decision in ILR 18 All 131 and now it is possible for three plaintiffs to be joined in one suit even on the basis of different causes of action, provided any common question of law or fact would arise if the suit had been filed separately. The change in India was parallel to corresponding changes in English procedure and a joinder of plaintiffs on the same principle is permitted by the English and Indian Courts today. Universities of Oxford and Cambridge v. George Gill and Sons, 1899-1 Ch 55; Ramalingier v. Sub-ramania Pillai, AIR 1923 Mad 331 (2) Basharat Beg v. Hira Lal, AIR 1932 All 401, Monindra Lal v. Hari Pada, AIR 1936 Cal 650; Mohd. Khalil Khan v. Mahboob Ali, AIR 1942 All 122; and Sita Ram Agarwalla v. Rajendra Chandra Pal, AIR 1956 Assam 7. Furthermore, Section 99 of the new Code which corresponds to Section 578 of the old Code was also amended and it now provides that "no decree shall be reversed or substantially varied nor shall any case be remanded, in appeal on account of 'any mis-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 of the jurisdiction of the Court." The words underlined (here into ' ') are new and did not exist in the old Section 578. Today the question whether several plaintiffs should be permitted to join in a common suit is within the discretion of the trial Court and the appellate Court has been deprived of the power to interfere with this discretion. Muhammad Husain Khan v. Babu Kishva Nandan Sahai, AIR 1937 PC 233 and Ram Dhan Puri v. Lachmi Narain, AIR 1937 PC 42. This argument, therefore, fails,