Holding

Misjoinder of parties or causes of action is a procedural defect and does not render a suit barred under Order VII Rule 11(d); the court may proceed with the suit and may order a joint trial.

Summary

The mother and daughter (appellants) sued the respondent for recovery of two separate loans of Rs 5 lakhs each, alleging the transactions were loans made through a third party. The respondent had earlier filed two suits against each of them, claiming the sums were part of business transactions, but those suits were withdrawn and ordered to be tried together with the appellants' suit because of common questions of fact and law. The respondent then moved to reject the plaint under Order VII Rule 11(d) of the CPC, alleging misjoinder of plaintiffs and causes of action. The trial judge dismissed the application, holding that misjoinder is a procedural defect and not a bar to the suit. The Calcutta High Court Division Bench held the suit was bad for misjoinder and directed the plaintiffs to elect one claim, which the appellants appealed. The Supreme Court held that misjoinder of parties or causes of action is merely procedural, does not make a suit barred under Order VII Rule 11(d), and the court may order a joint trial of the suits. Consequently, the appeal was allowed, restoring the trial judge’s order and directing a joint trial of the three suits.

Issues considered

The applicability of Order VII Rule 11(d) CPC to a suit alleged to be defective for misjoinder of plaintiffs and causes of action.
Whether misjoinder of parties or causes of action bars the suit from being entertained.
The court’s discretion to order joint trial of multiple suits despite alleged misjoinder.

Legislation cited

Code of Civil Procedure, 1908s. Order II Rule 3, s. Order II Rule 6, s. Order I Rule 10, s. Order I Rule 3A, s. Order I Rule 4, s. Order I Rule 5, s. Order I Rule 9, s. Order VII Rule 11(d), s. Section 24, s. Section 99

Subjects

misjoinder of partiesmisjoinder of causes of actionOrder VII Rule 11(d)Civil Procedure Codejoint trialprocedural defectconsolidation of suitsappeal

Judgment

j
J

PREM LALA NAHATA AND ANR. A
v.
CHANDI PRASAD SIKARIA

FEBRUARY 2, 2007

[S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.] B

Code of Civil Procedure, 1908-Section 99; Orders /, JI and Vll Rule
ll(d)

Misjoinder of plaintiff and cause of action-Nature and effect of- C
Held-They are not a bar entertaining of suit as (i) they were only procedural
(ii) defendant does not have an absolute right to contend that such a suit
should not be proceeded with (iii) Court has liberty to treat plaint in such
a case as relating to two suits (iv) Court was empowered to consolidate
different suits on basis of common questions of law or fact. D
Suit filed by mother and daughter together for recovery of two sums
separately lent by them to defendant-Claim based on their transactions
with defendant through another person-However, prior to that suit, defendant
had filed two suits against them for recovery of amounts, wherein he pleaded
thflt though money was paid to him, but as part of business transaction and E
not a loan-These two suits withdrawn on order of Court to be tried with
later suit ofplaintiffs since common questions offact and law arose therein-
At this stage, application for rejection of suit under Order Vil Rule 11 (d) of
Code on ground of misjoinder ofplaintiff and cause ofaction-Maintainability
of-Held-Plaintiff had only combined their respective claims which were in F
nature of counter claims or cross suits to suits filed by defendant, ultimate
question for decision in all suits being nature of transactions entered into
by defendant with each of plaintiff-Three suits directed to be tired jointly
since evidence would be common therein-It was not required that plaintiffs
elect to proceed with suit with one of them as plaintiff and one claim-It was
more so as two suits filed by defendant against then were withdrawan for a G
joint trial, and convenience of trial did not warrant separating of causes of
action.

Interpretation of statutes-Consolidating statute-Held-It is to be
construed by examining its language and by giving it its natural meaning
261 H
t

\
262 SUPREME COURT REPORTS [2007) 2 S.C.R.

A uninfluenced by consideration derived from previous state of /aw-Object of
consolidation is to collect law bearing upon particular subject and in bringing
it upto date.

Words and phrases-Suit being "barred by any law"-fn context of
Order Vil Rule ll(d) of Code of Civil Procedure, 1908.
B
Appellants, mother and daughter, together filed a suit in High Court
against respondent for recovery to two sums allegedly separately lent toi him
by them. There claims were based on transactions they allegedly had with
him through one MKN. However, prior to that suit, he had filed two filed two
·~

C suits for recovery of amounts allegedly due from them pleading that though
money had been paid to him by them, it was part of a business transaction and
not a loan. However, these two suits were withdrawn to be tried with the suit
of appellant by order of Court on their application that common questions of
fact and law arose therein and it would be in the interests of j'!stice to dispose
of the three suits together. At this stage, respondent made an application for
D rejection of the plaint of appellant under Order VII rule lt(d) of the Code of
Civil Procedure, 1908 on the ground of misjoinder of plaintiff as well as causes
of action. The appellants resisted the application. The trial judge held that
plaint could not be rejected as there was no law barring a suit for misjoinder
of parties or a misjoinder of causes of action. The respondent filed an appeal
challenging that order wherein Division Bench of High Court held that the
E suit was bad for misjoinder of causes of action. However, instead of rejecting
the plaint, opportunity was given to the appellants to elect to proceed with their
suit confining it to claim of one of them and the transaction relied on by that
plaintiff.

F Allowing the appeal, the Court

HELD: 1.1. In a case where a plaint suffers from the defect of misjoinder
of parties or misjoinder of causes of action either in terms of Order I Rule 1
and Order I Rule 3 on the one hand, or Order II Rule 3 on the other, the Code
itself indicates that the perceived defect does not make the suit one barred by
G law or liable to rejection. This is clear from Rules 3A, 4 and 5 of Order I of
the Code, and this is emphasised by Rule 9 of Order I of the Code which
provides that no suit shall be defeated by reason of non-joinder or misjoinder
of parties and the eourt may in either case deal with the matter in controversy
so far as it regards the rights and interests of the parties actually before it.
This is further emphasised by Rule 10 of Order I which enables the court in
H
t4
PREM LALA NAHATA, . CHAND! PRASADSIKARIA 263
appropriate circumstances to substitute or add any person as a plaintiff in a A
suit. Order II deals with the framing of a suit and Rule 3 provides that save
as otherwise provided, a plaintiff may unite in the same suit several causes of
actions against the same defendant and any plaintiffs having causes of action
in which they are jointly interested against the same defendant may unite
such causes of action in the same suit. Rule 6 enables the Court to order
separate trials even in a case of misjoinder of causes of action in a plaint
B
filed. (Para 11) (270-B-D(

,. > Mahan! Ramdhan Puri v. Chaudhary Lachmi Narain, AIR (1937) Privy
Council 42, relied on.

Thomas v. Moore, (1918) l K.B. 555 referred to. c
1.2. Procedure is the handmaid of justice and not its mistrees. The
Scheme of Order I and Order II clearly shows that the prescription therein
are in the relam of procedure and not in the realm of substantive law or rights.
That the Code considers objections regarding the frame of suit of joinder of
D
parties only as procedural, is further clear from Section 99 of the Code which
specifically provides that no decree shall be reversed in appeal on account of
any misjoinder of parties or causes of action or non-joinder of parties unless
..i
' a Court finds that the non-joinder is ofa necessary party. (Para 13(
(271-C-D)
E
1.3. It is clear than an objection of misjoinder of plaintiffs or misjoinder
of causes of action, is a procedural objection and it is not a bar to the
entertaining of the suit or the trial and final disposal of the suit. The Court
has the liberty even to treat the plaint in such a case as relating to two suits
and try and dispose them off on that basis. (Para 13) (271-F-G)
~ F
2. When the matters rests with the discretion of the court, it could not
be postulated that a suit suffering from such a defect is something that is
barred by law. After all, it is convenience of the trial that is relevant and the
defendant may not even have an absolute right to contend that such a suit
should not be proceeded with. !Para 17) (273-G)
G
Halsbury's Law of England, Vol 37, paragraph 73 referred to.
~
3. When one considers Order VII Rule 11 of the Code with particular
reference to Clause (d), it is difficult to say that a suit which is bad for
misjoinder of parties or misjoinder of causes of action, is a suit barred by
any law. (Para 15] (272-G] H
264 SUPREME COURT REPORTS (2007 J 2 S. C.R.

A 4. If there is power in the court to consolidate different suits on the
basis that it should be desirable to make an order consolidating them or on
the basis that some common questions of law or fact arise for decision in
them, it cannot certainly be postulated that the trying of a suit defective for
misjoinder of parties or causes of action is something that is barred by law.
B The power to consolidate recognised in the court obviously gives rise to the
position that mere misjoinder of parties or causes of action is not something
that creates an obstruction even at the threshold for the entertaining of tbe
suit. (Para 1611273-C-DJ

Margo Trading & Six Ors. v. Om Credit Private Limited, (Unreported
C decision I overruled.
Harendra Nath v. Purna Chandra, AIR (1928) Calcutta 199. Assembly
ofGod Church v. Ivan Kapper and Anr., (2004) 4 Calcutta High Court Notes
360 approved.

Mayar (H.K.) Ltd. & Ors. v. Owners & Parties, Vessel M. V. Fortune
D Express & Ors., (20061 3 sec 100 distinguished.
Payne v. British Time, Recorder Co. Ltd., (1921) 2 K.B. I referred to.

Hals bury 's Law of England, Volume 37, paragraph 69 referred to.

E 5.1. Suits filed by the respondent against the respective appellants based
on the transaction combined together by the appellants have already been
withdrawn for a joint trial with the present suit, C.S. No. 29 of 2003. In those
two suits, the nature of the transaction the respective appellants had with the
respondent have to be decided after trial. In the present suit, the appellants
F are claiming the payments which also form the basis of the claim of the
respondent against the respective appellants in his two suits. (Para 19)
[275-C-DJ

5.2. In the present suit, C.S. No. 29 of 2003, all that the appellants have
done is to combine their respective claims which ar~ in the nature of counter
G claims or cross suits to the suits filed by the respondent. The ultimate
question for decision in all the suits is the nature of the tranactions that was
entered into by the respondent with each of the appellants and the evidence
that has to be led, in both the suits, is regarding the nature of the respective
transcations entered into by the respondent with each of the appellants. To a
great extent, the evidence would be common and there will be no
H embarrassment if the causes of action put forward by the appellants in the
PREM LALA NAHATA "·CHAND! PRASAD Sf KARIA [P.K. BALASUBRAMANYAN, J.] 265
) present suit are tried together especially in the context of the two suits filed A
by the respondent against them and withdrawn for a joint trial. In the case on
hand, therefore, even assuming that there was a defect of misjonder of causes
of action in the plaint filed by the appellants, it is not a case where convenience
of trial warrants separating of the causes of action by trying them separately.
The three suits have to be jointly tried and since the evidence would be B
common in any event, the Division Bench was in error in directing the
appellants to elect to proceed with one of the plaintiffs and one of the claims.
On the facts and in the circumstances of the case one the appellants should
nto be asked to file a fresh plaint so as to put forward her claim. Even if such
a plaint weret to be filed, it will be a clear for a joint trial of that plaint with
the present suit and the two suits filed by the respondent. [Para 19] C
[275-E-H; 276-A[

5.3. A joint trial of the three suits based on the evidence to be taken
would be the proper course under this circumstances. [Para 20] [276-C]

6. The Code of Civil Procedure as its preamble indicates, is an Act to D
consolidate and amend the law relating to the procedure of the Courts of Civil
Judicature. No doubt it also deals with certain substantive rights. But as the
-', · the preamble vouchsafe, the object essentially is to consolidate the law relating
to Civil Procedure. The very object of consolidation is to collect the law bearing
upon the particular subject and in bringing it upto date. A consolidating Act
is to be construed by examining the language of such a statute and by giving E
it its natural meaning uninfluenced by considerations derived from the
previous state of the law. [Para 8] [69-A-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 446 of2007.

From the Final Judgment and Order dated 19.5.2005 of the High Court F
of Calcutta in G.A. No. 3029/2004, A.P.O.T. No. 447/2004, G.A. No. 4458/2004
and C.S. No. 29/2003.

Bhasker P. Gupta, Jaideep Gupta, O.P. Jhunjhunwala, Shruti Chaudhury
and Sanjeev Kumar (for Khaitan & Co.) for the Appellants.
G
Rana Mukherjee, Siddharth Gautam and Goodwill lndeevar for the
Respondent.

The Judgment of the Court was delivered by

P.K. BALASUBRAMANY AN, J. Leave granted. H
266 SUPREME COURT REPORTS (2007] 2 S.C.R.

A I. The appellants are the plaintiffs in C.S. No. 29 of 2003 filed on the r
original side of the Calcutta High Court. They are mother and daughter. They
together sued the respondent, the defendant, for recovery of sums allegedly
due to them from him. Appellant No. I sought recovery of a sum of Rs.
I0,93,863/- with interest thereon and appellant No. 2 sought recovery of a sum
B of Rs. I0,90,849/- with interest. Their claims were based on transactions they
allegedly had with the respondent herein, through Mahendra Kumar Nahata,
the husband of appellant No. I and father of appellant No.2. In essence, the
claim of appellant No. I was that a sum of Rs. 5 lakhs had been lent by her
to the respondent and the same had not been repaid and the same was liable {
to be repaid with interest and damages. The case of appellant No. 2 was also
C that she had lent a sum of Rs. 5 lakhs to the respondent and the same along
with interest and damages was due to her. It was their case that the
transactions had been entered into through Mahendra Kumar Nahata, and
that through Nahata, they have had prior dealings with the respondent. They
had averred thus in paragraph 4 of the plaint:

D "The said Nahata in his usual course of business was known to the
Defendant for many years and sometime in April, 2000 while acting on
behalf of the Plaintiffs, the said Nahata at the request of Defendant
had duly arranged for two loans of Rs.5,00,000/- to be lent and
advanced by each of the Plaintiffs to the Defendant and this Suit has
been brought to recover the said loans with interest and special
E damages arising from the Defendant's failure to repay the said loans
within the stipulated date therefor as is stated more-fully hereinafter."

The respondent not having repaid the money and having repudiated their
claim by filing suits against them, the suit for recovery of the amounts was
F being filed.

2. The respondent had earlier filed two suits for recovery of amounts
allegedly due from the appellants. Money Suit No. 585 of2001 was instituted
by the respondent against appellant No. 2 herein claiming recovery of certain
amounts after setting off the amount of Rs. 5 lakhs taken from appellant No.
G 2. He had accepted that Rs. 5 lakhs had been paid by the appellant but
pleaded that it was not a loan, but it was as part of a business transaction
set out in that plaint. The respondent had also filed Money Suit No. 69 of
2002 against appellant No. I herein for recovery of certain amounts on the
same basis and after setting off the sum of Rs.5 lakhs alleged to have been
paid by her. The suits were filed in the City Civil Court at Calcutta. The said
H
,.
\

PREM LALA NAHATA •·.CHAND! PRASADSIKARIA [P.K. BALASUBRAMANYAN,J.] 267

suits were pending when the appellants together instituted their suit C.S. No. A

- 29 of 2003. Their suit, as noticed, was on the basis that the sums of Rs.
5,00,0001- each paid by them to the respondent were by way of loans.

3. The appellants moved A.LP. No. I0 of 2003 on the original side of
the Calcutta High Court invoking clause 13 of the Letters Patent read with
Section 24 of the Code of Civil Procedure (for short "the Code") seeking B
withdrawal of Money Suit No. 585 of 200 I and Money Suit No. 69 of 2002
for being tried with C.S. No. 29 of 2003 on the plea that common questions
of fact and law arise in the suits and it would be in the interests of justice
to try and dispose of the three suits together. Though the respondent
resisted the application, the court took the view that it would b~ appropriate C
in the interests of justice to transfer the two suits pending in the City Civil
Court at Calcutta to the original side of the High Court for being tried and
disposed of along with C.S. No. 29 of 2003 filed by the appellants. The said
order for withdrawal and joint trial became final.

4. While matters stood thus, the respondent herein, the defendant in D
C.S. No. 29 of2003, made an application G.A. No. 4458 of2003 praying that
the plaint in C.S. No. 29 of 2003 be rejected under Order VII Rule 11 of the
Code on the ground that the cause of action of each of the appellants, the
plaintiffs in that suit, did not emanate from any common source and there was
1
no interdependence or nexus between the causes of action put forward by
the respective plaintiffs in the suit and that there was no common foundation E
for the right to relief claimed by them. It was pleaded that the appellants, the
plaintiffs could not have joined as plaintiffs in one suit in terms of Order I
Rule I of the Code and could not have united their independent causes of
. action in the same suit in terms of Order II Rule 3 of the Code. It was
submitted that there was not only misjoinder of parties but there was also F
misjoinder of causes of action. It was on this basis that the prayer for
rejection of the plaint under Order VII Rule l l(d) of the Code was made. The
appellants, the plaintiffs, resisted the application. They contended that the
claim of the plaintiffs emanated from the dealings at the instance of Nahata,
husband of plaintiff No. I and father of plaintiff No.2 with the defendant and
that there was no defect of misjoinder of causes of action in the suit. They G
submitted that the plaint was not liable to be rejected under Order VII Rule
I l(d) of the Code.

5. The trial judge on the original side, considered the question whether
the plaint filed by the appellants was liable to be rejected under Order VII Rule H
268 SUPREME COURT REPORTS (2007) 2 S.C.R.

A 1l(d) of the Code on the basis that the suit appeared from the statements in
the plaint to be barred by any law. The learned Judge took the view that there
was no law barring a suit in which there was misjoinder of parties or a
misjoinder of causes of action, though, of course, for the purposes of
convenience, a court would avoid the misjoinder of causes of action or
B misjoinder of parties. But on the basis of such a defect, the plaint could not
be rejected by invoking Order VII Rule 11 (d) of the Code since it could not
be held that a suit which suffers from the defect either ofmisjoinder of parties
or misjoinder of causes of action or both, is barred by any law. Thus, the
application filed by the respondent here in, the defendant in C.S. No. 29 of
2003, was dismissed. t
c 6. The respondent purported to file an appeal challenging that order
under clause 15 of the Letters Patent. The Division Bench held that the suit
was bad for misjoinder of causes of action and hence the trial court was not
justified in not invoking Order VII Rule 11 (d) of the Code and in not rejecting
the plaint. The Division Bench, did not reject the plaint, but, gave the
D appellants an opportunity to elect to proceed with the present suit at the
instance of one of them and thus confine the plaint claim to one of them and
the transaction relied on by that plaintiff. Aggrieved by this decision of the
Division Bench this appeal has been filed by the plaintiffs.

7. Though arguments were addressed on the maintainability of the
E appeal filed by the respondent before the Division Bench under clause 15 of
the Letters Patent, (in which one of us, Balasubramanyan, J. finds considerable
force) counsel for the appellant fairly brought to our notice the decision in
Liverpool & London S.P. & I Association Ltd. v. M.E. Sea Success I and
Anr., [2004) 9 SCC 512·to which one of us (Sinha J.) was a party, which has
p taken the view that an appeal under clause 15 of the Letters Patent lies even
in a case where the trial judge refuses to accede to the prayer of a defendant
to reject a plaint under Order VII Rule 11 of the Code. Of course, that was
a case where the rejection was sought under Order VII Rule 11 (a) of the Code
on the basis that the plaint did not disclose a cause of action. For the
purpose of this case, we accept the position enunciated therein. We also do
G not think it necessary to consider whether there is any distinction between
prayers for rejection sought under clause (a) of Rule 11 of Order VII of the
Code and clause (d) of Rule 11 of Order VII of the Code and we proceed on
the basis that the Letters Patent Appeal under clause 15 filed by the p.
respondent herein was maintainable.
H
PREM LALA NAHA TA" CHAND! PRASADSIKARIA [P.K. BALASUBRAMANYAN, J.) 269
8. But it is a different question whether a suit which may be bad for A
misjoinder of parties or misjoinder of causes of action, is a suit barred by law
in terms of Order VII Rule 11 (d) of the Code. The Code of Civil Procedure
as its preamble indicates, is an Act to consolidate and amend the laws relating
to the procedure of the Courts of Civil Judicature. No doubt it also deals with
certain substantive rights. But as the preamble vouchsafes, the object
essentially is to consolidate the law relating to Civil Procedure. The very B
object of consolidation is to collect the law bearing upon the particular
subject and in bringing it upto date. A consolidating Act is to be construed
by examining the language of such a statute and by giving it its natural
meaning uninfluenced by considerations derived from the previous state of
~~ c
9. Based on this understanding, we can consider the respective positions
of Order I and Order JI in the scheme of things. Order I deals with parties
to a suit and provides who may be joined as plaintiffs and who may be joined
as defendants. It also deals with the power of the Court to direct the plaintiffs
either to elect with reference to a particular plaintiff or a particular defendant D
or to order separate trials in respect of the parties misjoined as plaintiffs or
defendants. It also gives power to the Court to pronounce judgment for or
.~ against one of the parties from among the parties who have joined together
or who are sued together. The order also specifies that a suit shall not be
defeated by reason of the misjoinder or non-joinder of parties, so along a:s E
in the case of non-joinder, the non-joinder is not of a necessary party. The
Code also gives power to the Court to substitute the correct person as a
plaintiff<'oor add parties or strike out parties as plaintiffs or defendants, at any
stage, if it is found necessary.

I0. Order II deals with frame of suits. It provides that every suit shall F
be framed as far as practicable so as to afford ground for final decision upon
the subjects in dispute and to prevent further litigation concerning them. it
is also insisted that every suit shall include the whole of the claim that a
plaintiff is entitled to make in respect of its subject matter. There is a further
provision that the plaintiff may unite in the same suit several causes of action
against the same defendant and plaintiffs having causes of action in which G
they are jointly interested against the same defendant, may unite such causes
of action in the same suit. It provides that objection on the ground of
misjoinder of causes of action should be taken at the earliest opportunity. It
also enables the Court, where it appears to the Court that the joinder of
causes of action may embarrass or delay the trial or otherwise cause H
270 SUPREME COURT REPORTS [2007) 2 S.C.R.

A inconvenience, to order separate trials or to make such other order as may <
be expedient in the interests of justice.

11. Thus, in a case where a plaint suffers from the defect of misjoinder
of parties or misjoinder of causes of action either in terms of Order I Rule
I and Order I Rule 3 on the one hand, or Order II Rule 3 on the other, the
B Code itself indicates that the perceived defect does not make the suit one
barred by law or liable to rejection. This is clear from Rules 3A, 4 and 5 of
Order I of the Code, and this is emphasised by Rule 9 of Order I of the Code
which provides that no suit shall be defeated by reason of non-joinder or
misjoinder of parties and the court may in either case deal with the matter in
C controversy so far as it regards the rights and interests of the parties actually
before it. This is further emphasised by Rule I 0 of Order I which enables
the court in appropriate circumstances to substitute or add any person as a
plaintiff in a suit. Order JI deals with the framing of a suit and Rule 3 provides
that save as otherwise provided, a plaintiff may unite in the same suit several
causes of actions against the same defendant and any plaintiffs having
D causes of actions in which they are jointly interested against the same
defendant may unite such causes of action in the same suit. Rule 6 enables
the Court to order separate trials even in a case of misjoinder of causes of
action in a plaint filed.

12. Alter the amendment of Order XVI Rule I in England, it was held
E by the Court of Appeal in England in Thomas v. Moore, (1918) I K.B. 555]
thus:

"Whatever the law may have been at the time when (1894) AC 494
was decided, joinder of parties and joinder of causes of action are
discretionary in this sense, that if they are joined there is no absolute
F right to have them struck out, but it is discretionary in the Court to
do so if it thinks right."

The Privy Council in Mahan/ Ramdhan Puri v. Chaudhwy Lachmi Narain,
A.LR. (1937) Privy Council 42 pointed out:
G "It is desirable to point out that under the rules as they now stand,
the mere fact of misjoinder is not by itself sufficient to entitle the
defendant to have the proceedings set aside or action dismissed."

Of course, their Lordships were speaking in the context of Section 99 of the
H Code. Their Lordships referred to the above quoted observation of the Court
PREM LALA NAHATA,., CHAND! PRASAD SI KARIA [P.K BALASUBRAMANYAN,J.] 271
of Appeal in Thomas v. Moore (supra) in that decision. It is therefore clear A
that a suit that may be bad for misjoinder of causes of action is not one that
could be got struck out or rejected by a defendant as a matter of right and
the discretion vests with the court either to proceed with the suit or to direct
the plaintiff to take steps to rectify the defect. In fact, the Privy Council in
that case noticed that the suit was bad for misjoinder of causes of action. It
further noticed that the trial judge had in spite of the complications created B
thereby, tried and disposed of the suit satisfactorily. Therefore, there was no
occasion for the court to dismiss the suit on the ground of misjoinder of
causes of action at the appellate stage.

13. It is well understood that procedure is the handmaid of justice and C
not its mistress. The Scheme of Order I and Order ll clearly shows that the
prescriptions therein are in the realm of procedure and not in the realm of
substantive law or rights. That the Code considers objections regarding the
frame of suit or joinder of parties only as procedural, is further clear from
Section 99 of the Code which specifically provides that no decree shall be
reversed in appeal on account of any misjoinder of parties or causes of action D
or non-joinder of parties unless a Court finds that the non-joinder is of a
necessary party. This is on the same principle as of Section 21 of the Code
which shows that even an objection to territorial jurisdiction of the Court in
which the suit is instituted, could not be raised successfully for the first time
in an appeal against the decree unless the appellant is also able to show E
consequent failure of justice. The Suits Valuation Act similarly indicates that
absence of pecuniary jurisdiction in the Court that tried the cause without
objection also stands on the same footing. The amendment to Section 24 of
the Code in the year 1976 confers power on the Court even to transfer a suit
filed in a Court having no jurisdiction, to a Court having jurisdiction to try
it. In the context of these provisions with particular reference to the Rules F
in Order I and Order II of the Code, it is clear that an objection of misjoinder
of plaintiffs or misjoinder of causes of action, is a procedural objection and
it is not a bar to the entertaining of the suit or the trial and final disposal of
the suit. The Court has the liberty even to treat the plaint in such a case as
relating to two suits and try and dispose them off on that basis.
G
14. Order VII Rule 11 (d) speaks of the suit being "barred by any law".
According to the Black's Law Dictionary, bar means, a plea arresting a law
suit or legal claim. It means as a verb, to prevent by legal objection. According
to Ramanatha Aiyar's Law Lexicon, 'bar' is that which obstructs entry or
egress; to exclude from consideration. It is therefore necessary to see whether H
272 SUPREME COURT REPORTS [2007] 2 S.C.R.
A a suit bad for misjoinder of parties or of causes of action is excluded from
consideration or is barred entry for adjudication. As pointed out already, on
<
the scheme of the Code, there is no such prohibition or a prevention at the
entry of a suit defective for misjoinder of parties or of causes of action. The
court is still competent to try and decide the suit, though the court may also
B be competent to tell the plaintiffs either to elect to proceed at the instance
of one of the plaintiffs or to proceed with one of the causes of action. On
the scheme of the Code of Civil Procedure, it cannot therefore be held that
a suit barred for misjoinder of parties or of causes of action is barred by a
law, here the Code. This may be contrasted with the failure to comply with
Section 80 of the Code. In a case not covered by sub-section (2) of Section
C 80, it is provided in sub-section (I) of Section 80 that "no suit shall be
instituted". This is therefore a bar to the institution of the suit and that is
why courts have taken the view that in a case where notice under Section
80 of the Code is mandatory, if the averments in the plaint indicate the
absence of a notice, the plaint is liable to be rejected. For, in that case, the
entertaining of the suit would be barred by Section 80 of the Code. The same
D would be the position when a suit hit by Section 86 of the Code is filed
...
without pleading the obtaining of consent of the Central Government if the
suit is not for rent from a tenant. Not only are there no words of such import
in Order I or Order II but on the other hand, Rule 9 of Order I, Rules I and
3 of Order I, and Rules 3 and 6 of Order II clearly suggest that it is open to
E the court to proceed with the suit notwithstanding the defect of misjoinder
of parties or misjoinder of causes of action and if the suit results in a decision,
the same could not be set aside in appeal, merely on that ground, in view of
Section 99 of the Code, unless the conditions of Section 99 are satisfied.
Therefore, by no stretch of imagination, can a suit bad for misjoinder of
parties or misjoinder of causes of action be held to be barred by any law •.
F within the meaning of Order VII Rule 1l(d) of the Code.
15. Thus, when one considers Order VII Rule 11 of the Code with
particular reference to Clause (d), it is difficult to say that a suit which is bad
for misjoinder of parties or misjoinder of causes of action, is a suit barred by
G any law. A procedural objection to the impleading of parties or to thejoinder
of causes of action or the frame of the suit, could be successfully urged only
as a procedural objection which may enable the Court either to permit the
continuance of the suit as it is or to direct the plaintiff or plaintiffs to elect
to proceed with a part of the suit or even to try the causes of action joined
in the suit as separate suits.
H
PREM LALA NAHA TA,., CHAND! PRASAD SIKARIA [P.K BALASUBRAMANYAN, J.l 273
16. It cannot be disputed that the court has power to consolidate suits A
in appropriate cases. Consolidation is a process by which two or more causes
or matters are by order of the Court combined or united and treated as one
cause or matter. The main purpose of consolidation is therefore to save costs,
time and effort and to make the conduct of several actions more convenient
by treating them as one action. The jurisdiction to consolidate arises where B
there are two or more matters or causes pending in the court and it appears
to the court that some common question of law or fact arises in both or all
the suits or that the rights to relief claimed in the suits are in respect of or
arise out of the same transaction or series of transactions; or that for some
other reason it is desirable to make an order consolidating the suits. (See
Halsbury's Laws of England, Volume 37, paragraph 69). If there is power in C
the court to consolidate different suits on the basis that it should be desirable
to make an order consolidating them or on the basis that some common
questions of law or fact arise for decision in them, it cannot certainly be
postulated that the trying of a suit defective for misjoinder of parties or
causes of action is something that is barred by law. The power to consolidate D
recognised in the court obviously gives rise to the position that mere misjoinder
of parties or causes of action is not something that creates an obstruction
even at the threshold for the entertaining of the suit.

I7. It is recognised that the court has wide discretionary power to
control the conduct of 'proceedings where there has been a joinder of causes E
of action or of parties which may embarrass or delay the trial or is otherwise
inconvenient. In that situation, the court may exercise the power either by
ordering separate trials of the claims in respect of two or more causes of
action included in the same action or by confining the action to some of the
causes of action and excluding the others or by ordering the plaintiff or
plaintiffs to elect which cause of action is to be proceeded with or which F
plaintiff should proceed and which should not or by making such other order
as may be expedient. (See Halsbury's Laws of England, Vol. 37, paragraph
73). Surely, when the matter rests with the discretion of the court, it could
not be postulated that a suit suffering from such a defect is something that
is barred by law. After all, it is the convenience of the trial that is relevant G
and as the Privy Council has observed in the decision noted earlier, the
defendant may not even have an absolute right to contend that such a suit
should not be proceeded with.

I8. The Division Bench has mainly relied on an unreported decision of
a learned Single Judge of the same High Court in Margo Trading & Six Ors. H
274 SUPREME COURT REPORTS [2007] 2 S.C.R.

A v. Om Credit Private Limited, a copy of which was provided for our perusal.
On going through that decision it is seen that the learned Judge has not
<
adverted to or considered Rule 9 of Order I or its effect on the aspect of
misjoinder of parties and has also not given due importance to the effect of
the other provisions in that Order. Nor has the learned judge given due
B importance to the effect of the rules in Order II and in particular to Rule 6.
We find that there have been very many decisions of the same High Court
on the aspect of misjoinder of parties or of causes of action. But it is difficult
to say that any of those decisions has taken the view that a plaint was liable

C
to be rejected under Order VII Rule I l(d) of the Code on such a defect being
pointed out. On the other hand, in Harendra Nath v. Purna Chandra, A.LR.
(1928) Calcutta 199 the Division Bench quoted from Payne v. British Time,
-
Recorder Co. LTd. (1921) 2 K.B. I, the following passage:

"Broadly speaking, where claims by or against different parties involve
or may involve a common question of law or fact bearing sufficient
importance in proportion to the rest of the action to render it desirable
D that the whoie of the matters should be disposed of at the same time
the Court will allow the joinder of plaintiffs or defendants, subject to
its discretion as to how the action should be tried."

and continued:

E "This is a good working rule for practical purposes and, applying it
to the present case, it seems to us clear that the action as framed is
justified by 0.1, Rr. I and 3, Civil P.C. Looking at the matter, however,
from the point of view of 0.1, R.2, we are of opinion that the trial of
thi: suit as laid is likely to be somewhat embarrassing, especially as
F some of the questions that will arise so far as property A is concerned,
will have no bearing upon the claim as regards properties B, C, D and
E and also because the question of costs, in so far as the deity is
concerned will arise, which, if possible, must be kept separate from
these which the plaintiff will incur or be entitled to recover in his
personal capacity.
G
We, accordingly, set aside the orders passed by both the Courts
below and direct that the plaint be treated as comprising two suits:
one at the instance of the plaintiff as shebait of the deity Nandadulal
Thakur in respect of property A and the other at the instance of the
plaintiff in his personal capacity in respect of the properties B, C, D,
H and E, and the two suits be separately tried."
)
~.

PREM LALANAHATA '·CHAND! PRASAD SIKARJA [P.K. BALASUBRAMANYAN, J.] 275
The legal position in an identical situation as ours has been considered by A
a learned judge of that Court in Assembly of God Church v. Ivan Kapper &
Anr., (2004) 4 Calcutta High Court Notes 360. The learned judge has held that
a defect of misjoinder of parties and causes of action is a defect that can be
waived and it is not such a one as to lead to the rejection of the plaint under
Order VII Rule l l(d) of the Code. As we see it, the said decision reflects B
the correct legal position. The decision in Margo Trading (supra) does not
lay down the correct law. The decision of this Court in Mayar (H.K.) Ltd.
& Ors. v. Owners & Parties, Vessel M V. Fortune Express & Ors., [2006] 3
S.C.C. I00 does not touch on this aspect and is concerned with a case of
suppression of material facts in a plaint.

19. In the case on hand, we have also to reckon with the fact that the
c
suits filed by the respondent against the respective appellants based on the
transactions combined together by the appellants, have already been withdrawn
for a joint trial with the present suit, C.S. No. 29 of 2003. In those two suits,
the nature of the transaction the respective appellants had with the respondent
have to be decided after trial. In the present suit, the appellants are claiming D
the payments which also form the basis of the claim of the respondent against
the respective appellants in his two s-.iits. In the present suit, C.S. No. 29 of
2003, all that the appellants have done is to combine their respective claims
which are in the nature of counter claims or cross suits to the suits filed by
the respondent. The ultimate question for decision in all the suits is the E
nature of the transactions that was entered into by the respondent with each
of the appellants and the evidence that has to be led, in both the suits, is
regarding the nature of the respective transactions entered into by the
respondent with each of the appellants. To a great extent, the evidence would
be common and there will be no embarrassment if the causes of action put
forward by the appellants in the present suit are tried together especially in F
the context of the two suits filed by the respondent against them and withdrawn
for a joint trial. In the case on hand, therefore, even assuming that there was
a defect of misjoinder of causes of action in the plaint filed by the appellants,
it is not a case where convenience of trial warrants separating of the causes
of action by trying them separately. The three suits have to be jointly tried G
and since the evidence, according to us, would be common in any event, the
Division Bench was in error in directing the appellants to elect to proceed
with one of the plaintiffs and one of the claims. We do not think that on the
facts and in the circumstances of the case one of the appellants should be
asked to file a fresh plaint so as to put forward her claim. Even if such a plaint
H
276 SUPREME COURT REPORTS (2007) 2 S.C.R.

A were to be filed, it will be a clear case for a joint trial of that plaint with the ':"
present suit and the two suits filed by the respondent. In any event, therefore,
the Division Bench was not correct in interfering with the decision of the
learned single judge. The effect of withdrawal of the two suits filed by the
respondent against the appellants for a joint trial has not been properly
B appreciatf:d by the Division Bench. So, on the facts of this case, the decision
of the Division Bench is found to be unsustainable and the course adopted
by it unwarranted.

20. We are of the view that on the facts and in the circumstances of the
case and the nature of the pleadings in the three suits that are now before
C the Original Side of the Calcutta High Court, it would be just and proper to
try them together and dispose them of in accordance with law for which an
order has already been made. A joint trial of the three suits based on the
evidence to be taken, in our view, would be the proper course under the
circumstances.

D 21. We, therefore, allow this appeal and reversing the <lecision of the
Division Bench restore the decision of the learned single judge. We request
the learned single judge of the High Court to try and dispose of the three
suits expeditiously in accordance with law.

vs Appeal allowed.