In such case, if the plaintiff so requires, the Court shall return the plaint with an endorsement thereon of the order staying proceedings. tion when to be made. Every such application shall be made at the earliest possible Applicaopportunity, and in all cases before the issues are settled; and any defendant not so applying shall be deemed to have acquiesced in the institution of the suit 1. of court-fee 21. Where the Court, under section 20, stays proceedings, Remission and the plaintiff re-institutes his suit in another Court, the where suit plaint shall not be chargeable with any court-fee: provided instituted that the proper fee has been levied on the institution of the Court. suit in the former Court, and that the plaint has been returned by such Court. in another where may be in 22. Where a suit may be instituted in more Courts than Procedure one, and such Courts are subordinate to the same appellate Courts in Court, any defendant, after giving notice in writing to the which suit other parties of his intention to apply to such Court to stituted transfer the suit to another Court, may apply accordingly; subordinand the appellate Court, after hearing the other parties, if appellate they desire to be heard, shall determine in which of the Court. Courts having jurisdiction the suit shall proceed2. ate to same ate. 23. Where such Courts are subordinate to different appel- Procedure where they late Courts, but are subordinate to the same High Court, any defendant, after giving notice in writing to the other parties subordinof his intention to apply to the High Court to transfer the suit to another Court having jurisdiction, may apply accordingly. If the suit is brought in any Court subordinate to a District Court, the application, together with the objections, if any, filed by the other parties, shall be submitted through the District Court to which such Court is subordinate. The High Court may, after considering the objections, if any, of the other parties, determine in which of the Courts having jurisdiction the suit shall proceed 3. 1 6 Mad. 349. Sec. 20 contains the only provision in the Code for staying proceedings. There is no express power to stay frivolous or vexatious suits, as there is in England under Order xxv. r. 4. VOL. II. I i 2 The order for transfer will not be made unless the suit is brought in a Court having jurisdiction, 9 All. 191, approving of 6 Cal. 30. 3 This is intended to provide for those cases where on the ground of Procedure are subor 24. Where such Courts are subordinate to different High where they Courts, any defendant may, after giving notice in writing to the other parties of his intention to apply to the High Court within whose jurisdiction the Court in which the suit is brought is situate', apply accordingly. dinate to different High Courts. suits. If the suit is brought in any Court subordinate to a District Court, the application, together with the objections, if any, filed by the other parties, shall be submitted through the District Court to which such Court is subordinate; and such High Court 2 shall, after considering the objections, if any, of the other parties, determine in which of the several Courts having jurisdiction the suit shall proceed 3. Transfer of 25. The High Court or District Court may, on the application of any of the parties, after giving notice to the parties and hearing such of them as desire to be heard, or of its own motion without giving such notice, withdraw any suit, whether pending in a Court of first instance or in a Court of appeal subordinate to such High Court or District Court, as the case may be, and try the suit itself, or transfer it for trial to any other such subordinate Court competent 5 to try the same in respect of its nature and the amount or value of its subject-matter ". expense or convenience or some other 1 that the suit may be transferred i.e. the High Court mentioned in the first clause of this section. 3 In 5 All. 60 it was held that this section does not empower a High Court to transfer a suit instituted within its own jurisdiction to the jurisdiction of another High Court, but only to declare in which Court a suit shall proceed and, if necessary, to stay all further proceedings within its own jurisdiction. If this had been the intention of the legislature, it would surely have given express power to stay proceedings, as in secs. 20, 476. * Unless the evidence is retaken there is no trial, 7 All. 342. i.e. having jurisdiction, 7 All. 239. 6 An order under this section transferring a suit in which an appeal would lie from the decree made therein is not subject to revision by the High Court, 6 All. 233. The High Court cannot under this section transfer an appeal unless the Court from which the transfer is sought to be made has jurisdiction to hear the appeal, 6 Cal. 30. Section 25 is applicable to cases of winding-up companies, 9 All. 182. For the purposes of this section, the Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court. The Court trying any suit withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. CHAPTER III. OF PARTIES AND THEIR APPEARANCES, APPLICATIONS AND ACTS. who may tiffs. 26. All persons may be joined as plaintiffs in whom the Persons right to any relief claimed is alleged to exist, whether jointly1, be joined severally 2 or in the alternative 3 in respect of the same cause as plainof action 4. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though unsuccessful, shall 19 All. 486. 2 Thus where eight trustees of a charity brought an action for a libel contained in a letter written by the defendant, it was held in England that they might rightly join, though no joint injury was shown, Booth v. Briscoe, 2 Q. B. D. 496. Each had a separate right to sue arising out of the same cause of action. But in II Cal. 524, where thirteen deserters committed to jail under one warrant and for the same offence jointly sued the gaoler for wrongful detention after the expiry of their term of imprisonment, the plaint was taken off the file, because the causes of action, though similar in nature, were in fact distinct and separate.' This decision ignored the word 'severally' and seems erroneous. The Madras High Court once said that in a suit to recover property, in the absence of a special provision, all the co-owners should be joined as plaintiffs, or, if they refuse, as defendants, 3 Mad. 234. 3 The words 'in the alternative' apply to cases in which there is a doubt as to who is the person entitled From the English Order xvi. r. 1, Court may substitute or add plaintiff for or to plaintiff suing. Persons who may be joined as defendants. Joinder of parties liable on same con tract. be entitled to his costs occasioned by so joining any person who is not found entitled to relief, unless the Court in disposing of the costs of the suit otherwise directs. 27. Where a suit has been instituted in the name of the wrong person as plaintiff 1, or where it is doubtful whether it has been instituted in the name of the right plaintiff 2, the Court may, if satisfied that the suit has been so commenced through a bona fide mistake 3, and that it is necessary for the determination of the real matter in dispute so to do, order any other person or persons to be substituted or added as plaintiff or plaintiffs upon such terms as the Court thinks just 5. 4 28. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative, in respect of the same matter®. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment. 29. The plaintiff may, at his option, join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange, hundís and promissory notes7. 1 e.g. by beneficiary instead of trustee, by mortgagor instead of mortgagee. 2 e.g. in an action for breach of a contract made by an agent. 3 of law or of fact, Ducket v. Gover, 6 Ch. D. 82. It has been held in England that a new plaintiff cannot be substituted for the original plaintiff except by consent of the latter, Emden v. Carte, 17 Ch. D. 169, where the Court added a plaintiff and gave him the conduct of the suit. 5 See Turquand v. Fearon, Q. B. D. 280. From the English Order xvi. r. 4, with the addition of the words 'in respect of the same matter,' 8 Cal. 172. Sec. 28 is not imperative, 8 Cal. 238. It does for defendants what sec. 26 does for plaintiffs. It was said in Council that sec. 28 would enable a landlord defend on all in same interest. 30. Where there are numerous parties1 having the same One party interest in one suit, one or more of such parties may, with the may sue or permission of the Court, sue or be sued, or may defend, in behalf of such suit, on behalf of all parties so interested 2. But the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such parties either by personal service or (if from the number of parties or any other cause such service is not reasonably practicable) by public advertisement, as the Court in each case may direct 3. reason of 31. No suit shall be defeated by reason of the misjoinder Suit not of parties, and the Court may in every suit deal with the to fail by matter in controversy so far as regards the rights and interests misjoinder. of the parties actually before it 4. Nothing in this section shall be deemed to enable plaintiffs to join in respect of distinct causes of action 5. add parties. 32. The Court may, on or before the first hearing, upon Court may the application of either party, and on such terms as the dismiss or Court thinks just, order that the name of any party, whether as plaintiff or as defendant, improperly joined, be struck out; and the Court may at any change may join the drawer and the acceptor as co-defendants in the same suit, 3 Cal. 541. 1i.e. persons, 9 Cal. 606. The first part of this section implies that the plaintiff therein contemplated wishes to sue on behalf of other persons similarly interested in suing, they also wishing the same, 5 All. 606. That when there is community of interest among a large number of persons a few should be allowed to represent the whole, see 3 Mad. H. C. 229. 2 See Order xvi. r. 9. 3 This section applies to a case where many persons are jointly interested in obtaining relief, 7 All. 182, per Petheram C.J.; as, for instance, where one part-owner of a ship sues on behalf of himself and his coowners for freight, De Hart v. Stevenson, f Q. B. D. 313, or where one co-owner of a patent sues for an time either upon or without infringement, Sheehan v. G. E. Ry. |