Plaintiff's father sued to recove one-third of joint property. Held, plaintif could not subsequently sue for property which had not been included in the father's suit-Sooraj Pershad Tewary vs. Saheb Lal Tewary, 3 W. R., 25; but see above, Ram Hury Mondul vs. Mothoor Mohun Mondul, 20 W. R., 450. The test between the same parties is whether the acts of dispossession are separate and distinct, though the title be the same in both suitsRam Soondur Shaha vs. Delanney, 20 W. R., 103; Jardine, Skinner & Co. vs. Shama Soonduree, 13 W. R., 196. Plaintiff claimed two estates in two districts as belonging to her husband, alleging dispossession by the principal defendant and persons claiming under her. She got a decree in one district for the lands lying within it, and then sued in the second for the land lying within it; alleging a different act of dispossession from that alleged in the other suit. It was held that there was but one cause of action, as the object of the suit was to establish the plaintiff's husband's title, and to obtain possession of the land as his representative; that the allegation of separate acts of dispossession did not affect the case, for all the acts of ouster complained of were prior to the institution of the first suit and would not form distinct causes of action so long as they were committed by the same persons and as part of the same contest-Jumoona Dassee Choudhranee vs. Bama Soonderee Dassee, 2 W. R., 148; approved of in Sooruj Pershad Tewary vs. Saheb Lal Tewary, 3 W. R., 25. This decision has not been followed in Madras in so far as it decides that immoveable property in different districts must be sued for in the same suit; and it has been held that where the property is situated in different districts separate suits will lie, as this section was only intended to prohibit a second suit when the whole claim arising out of the cause of action was within the ordinary jurisdiction of the Court in which the first suit had been brought-Subba Rau vs. Rama Rau, 3 Mad., 376. A sued B for certain inam lands forming portion of a joint family property, and it was contended that the suit was barred, inasmuch as the plaintiff had previously sued for the joint property, but had not included the inam land. The question raised was whether, the permission of Government being necessary before the lands could be made the subject of a suit, this section applied. Holloway, J., following the above decision, said :-"There is a case at 3 H. C. R., 376, in which it was decided that where there were parcels of property within the jurisdic tion of different Munsifs, all recoverable in the same right, the plaintiff was not barred because he had sued before one Munsif and recovered a part. Without saying that I should have arrived at that decision, it seems to me precisely to meet the present case. There, as here, to enable the plaintiff to comply with the provisions of the Civil Procedure Code, something more than the bare existence of the cause of action was required, and it may as well be said here as there that he was not bound to take such a step unless he chose. In deference to that decision, I think that in this case the suit should be restored to the filePattaravy Mudali vs. Audimula Mudali, 5 Mad., 419; 6 Mad. Jurist, 15.

The result of the foregoing cases may perhaps be stated as follows:

(a) Unconnected parties may be joined as plaintiffs or defendants where there is one interest common to them all, centering in the main issue in the case.

(b). A plaintiff is not bound to add, as defendants, persons having no privity with others, or even persons holding under others, who have been made defendants. (c). The parties being the same, and the act oue-as conversion, misappropriation, illegally retaining possession-the whole claim must be put forward in one suit.

(d). Even where the parties are the same and the object the same, still if the transactions are several and distinct, this section will not apply.

Omit to sue for, or intentionally relinquish. This includes accidental or involuntary omissions, as well as acts of deliberate relinquishment-Buzloor Ruheem vs. Shumsoonnissa Begum, 8 W. R., P. C., at p. 12; Ram Churn Bundopadhya vs. Dropo Moyee Dossee, 17 W. R., 122; Bulwunt Sing vs. Chittan Sing, 3 Alla., 27, which also seems to assert as a principle that if, after plaintiff has filed his suit, another cause of action arises regarding the same property, and he does not amend his plaint so as to include it, he is out of Court. A plaintiff cannot reserve his right to sue again by asserting in his plaint that he intends bringing a second suit for the portion omitted-Mussamut Soondar Bebee vs. Khilloo Mull, 2 Alla., 90.

Afterwards. This section only bars the second suit, and not the first-Choe Sing vs. Bahadoor Sing, 1 Agra, 55; Mussamut Soondar Bebee vs. Khilloo Mull, 2 Alla., 90. If then it is held in the first suit, that there is no cause of action, it cannot bar the secondRam Soondur Sein vs. Krishno Chunder Goopto, 17 W. R., 380.

More than one remedy.-Section 7, Act VIII, 1859, did not apply to the remedy, but only to the cause of action. Plaintiff sued on two registered mortgage bonds to enforce his charge against the mortgaged property, but got ex-parte, a mere money decree. It was held that he was not debarred from enforcing his lien against the mortgaged land in the hands of a purchaser-Muluk Fuqeer Buksh vs. Lalla Monohur Dass, 2 Alla., 29; and a suit for a declaration of right to and distribution of a fund, did not bar a suit for a share of the fund-Sabeer Khan vs. Kalli Doss Dey, 1 W. R., 199; though a suit for specific performance barred one for damages on account of failure to perform-Shib Krishto Dah vs. Abdool Sobhan, 15 W. R., 408. It appears that a prayer to enforce registra tion could not be combined with any other form of relief in the same suit-Hakim Khadar Saib vs. Khadar Bibi, 3 Mad., 149; Sheikh Rohmutullah vs. Shurintollah Kagchee, 10 W. R. (F. B.), 51; see on this case-Krishna Behari Roy vs. Brojeswari Chowdranee, L. R., 2 Ind. App., 286. It has always been the law in Bengal that where a person to whom property has been pledged for a debt, does not sue to enforce his lien against the property and only

obtains a money decree, though he cannot execute the decree to the prejudice of a subsequent bond fide purchaser, he may enforce his lien by a separate action-Gopeenath Singh vs. Sheo Sahoy Singh, 1 W. R., 315; Goluck Monee Debia vs. Ram Soondar Chuckerbutty, 9 W. R., 82; Radha Gobind Surmah vs. Syud Umber Ali, 15 W. R., 27; Mowla Buksh vs. Bhyrab Doss, 5 W. R., 115; Bindabun Chunder Shaha vs. Janee Bibi, 6 W. R., 312; Achambit Thakoor vs. Choonee Lall, 10 W. R., 27. See on this subject-Syud Emam Momtazooddeen vs. Raj Coomar Dass, 14 B. L. R., 408, and Narsidas vs. Joglekar, I. L. R,, 4 Bom., 57. It is not certain how far this procedure will continue under the new CodeGrish Chunder Mookerjee vs. Ramessuree Debia, 22 W. R., 308; but it has been decided that a mortgagee does not in this country lose his lien by charging his debt into a judgment debt-Jonmejoy Mullick vs. Dossmoney Dossee, I. L. R., 7 Cal., 714; 8 Cal., 700; but see the European Cent. Ry. Co., 4 Ch. D., 33. If a plaintiff mortgagor from negligence or other cause omits to prefer the portion of his claim which would charge the mortgaged property, or having preferred it accepts a mere money decree, a subsequent suit to charge the land is barred-Muluk Fuqeer Buksh vs. Lalla Mandhun Doss, 2 Alla., 29; Hassakh vs. Meghraj, I. L. R., 2 Alla., 345; Gumani vs. Ram Padarath Lal, id., 839, and the general rule is that plaintiff should join all causes of action when they accrue at the same time and in respect of the same subject-matter-Mohan Lal vs. Ram Dyal, id. at p. 849. See note on section 206 post, as to money decree.

In the mofussil a suit against an agent for a declaration to account does not bar a subsequent suit for the amount found due-Gobind Mohun Chuckerbutty vs. Sheriff, I. L. R., 7 Cal., 169; Kalidhun Chuttopadhya vs. Shiba Nath Chuttopadhya, I. L. R.. 8 Cal., 483.

Where the holder of a bond in which property is hypothecated brings a suit for all his remedies and obtains a decree which is unfructuous on account of the Court's want of jurisdiction over the land, he can bring a second suit to enforce the unfructuous part of the decree against a third party-Grish Chunder Mookerjee vs. Ramessuree Debia, 22 W. R., 308, and see Bungshee Sing vs. Sudist Lal, 10 C. L. R., 263.

This section applies to the case of a party applying to have an arbitration award filed-Grish Chunder Chooramonee vs. Brojonath Bhuttacharjee, 20 W. R., 56; and to revenue suits-Purbhoo Tewaree vs. Ramjeawan Patuck, 1 Alla., 119; Ram Soondar Sein vs. Krisno Chunder Goopto, 17 W. R., 380.

44. Rule a.-No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immoveable property, or to obtain a declaration of title to immoveable property, except

Only certain claims to be joined with suft for recovery of land.

(a) claims in respect of mesne profits or arrears of rent in respect of the property claimed,

(b) damages for breach of any contract under which the property or any part thereof is held, and

(c) claims by a mortgagee to enforce any of his remedies under the mortgage.

Claims by or against exeoutor, administrator or heir.

Rule b.-No claim by or against an executor, administrator or heir as such, shall be joined with claims by or against him personally, unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator or heir, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents.

Judicature Acts, Order 17, Rules 2, 5. This applies to H. C. and except Rule a, to M. 8. C. C.

An objection for mis-joinder of causes of action must be taken in the Court of first instance-Dhandiba Krisnaji Patel vs. Ram Chunder Bhagbut, I. L R., 5 Bom., 534.

492.

As to when application for leave should be made, see Pilcher vs. Hinds, 11 Ch. D.,

(a).-This clause refers to a suit formed upon an existing title in which the plaintiff asks for a declaration of such title or for possession-Brown vs. Cutts, 5 C. L. R., 487; I. L. R., 6 Cal., 328. In England it has been held that a suit for foreclosure is not a suit for and under this section, and leave has been given to join in one suit claims for the adminis

tration of the trusts of a mortgage deed, and for foreclosure of the mortgage-Tarrell vs. Slate Company, 3 Ch. D., 629; but see as to the Indian practice, pp. 28-32, supra. In England an action to establish title to land" but not claiming possession is not an action for land-Gadhill vs. Hunter, 14 Ch. D., 492; this case has been specially provided for in this section. A suit for specific performance of an agreement to sell a share of a house may be joined with a suit to recover a sum of money due from a defendant on promissory notesCutts vs. Brown, 7 C. L. R., 171; I. L. R., 6 Cal., 328.

Leave will be given to join whenever it is sought to recover 'immoveable and moveable property comprised in the same instrument. I hus leave has been given to join in one suit, claims for recovery of possession of land, an injunction to restrain the defendants from receiving the rents of the land, the appointment of a receiver, delivery up and cancellation of a deed under which the defendant claimed to be entitled to the land sought to be recovered -Cook vs. Enchmarch, 2 Ch. D., 111. Claims for the administration of personal estate and to establish a title to real estate have been joined, where both estates rested on a common gift in the same will-Whetstone vs. Devis, 1 Ch. D., 99.

Under the old procedure a suit was allowed for the recovery of a sum contracted, for cancellation of a kistbundee alleged to have been executed under duress, and for a sum of money deposited on account of the kistbundee-Kinnoo Monee Debia vs. Shohoram Sirkar, 3 W. R., 128; for a julkur, or land, with mesne profits-Mussamut Jossoda Koonwar vs. Gourie Byjonath Sohae Sing, 6 W. R., 139; Huro Chunder vs. Issur Chunder Roy, id., 297; or a house plus the rent-Jugo Mohun vs. Money Lal Chowdhry, 11 W. R., 542; and claims against the same person might be joined and tried by a Judge, although the value of one of the items was below the amount cognizable by him-Luchmee Pershad Doobey vs. Mussamut Kallassoo, Ben. F. B. R., 620.

(b). The meaning of the clause is this :-In suing an executor or administrator it frequently becomes a question whether he should be sued as legal representative or personally, and the minds of the framers of that rule were directed to Ashby vs. Ashby, 7 B. & C., 444, and cases of the same class-see Farhall vs. Farhall, L. Rep., 7 Ch., 123-where the executor or administrator has been dealing with the assets, or making contracts, in the course of the administration, properly and fairly in his character of executor or administrator; and then it becomes a question whether the contracts being personally entered into by him, he should be sued in his character of legal personal representative, or in his personal character, being left afterwards to get payment, if he could, out of the assets, in the course of administration. The object of the clause was to get over such difficulties. The rule is one of a series of rules allowing different causes of action to be combined together, and they are guarded by certain restrictions. Thus, by the 8th Rule of Order XVII (section 46):-"Any defendant alleging that the plaintiff has united in the same action several causes of action which cannot be conveniently disposed of in one action, may at any time (before issues are settled) apply to the Court or Judge for an order confining the action to such of the causes of action as may be conveniently disposed of in one proceeding." And rule 9 (section 47) provides:-"If on the hearing of such application as in the last preceding rule mentioned, it shall appear to the Court or a Judge that the causes of action are such as cannot be conveniently disposed of in one action, the Court or a Judge may order any of such causes of action to be excluded, and may direct the statement of any claim to be amended accordingly, and may make such order as to costs as may seem just"-Padwick vs. Scott, 2 Ch. D., 743. See also Smith vs. Richardson, 4 C. P. D., 112.

Plaintiff may joint several causes of action.

45. Subject to the rules contained in chapter II and in section 44, the 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 are jointly interested against the same defendant, or the same defendants jointly, may unite such causes of action in the same suit.

Court may order separation.

But if it appear to the Court that any such causes of action cannot be conveniently tried or disposed of together, the Court may, at any time before the first hearing, of its own motion or on the application of any defendant, or at any subsequent stage of the suit, if the parties agree, order separate trials of any such causes of action to be had, or make such other order as may be necessary or expedient for the separate disposal thereof.

When 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, whether or not an order has been made under the second paragraph of this section.

Judicature Acts, Order 17, Rule 1. This section applies to H. C. and M. S. C. C.

This section is meant to meet cases in which there are many persons interested and many interests involved, and to give the Courts power once for all to dispose of those cases and of all the interest of the several parties-Cox vs. Barker, 3 Ch. D., 369 Any abuse of the power can be met by ordering separate trials under this section, or striking out causes of action under sections 46 and 47.

The present procedure may be different from that under Act VIII, where separate trials were only allowed in suits in which the causes of action were by and against the same parties-Prahlad Sein vs. Mussamut Gopee Bebee, 4 Alla., 40; Kosella Koer vs. Beharee Patuck, 12 W. R., 70, &c.

Where plaintiff joined in one suit a claim against A, with a distinct claim against A, B, and C jointly, Held, that the proper way to try such a suit was to proceed with the joint claim, and exclude the separate claim against A entirely from consideration-Ram Coomar Mytee vs. Kumar Narain Doss, 20 W. R., 482. If a plaintiff has got a decree for possession against several parties, severally in possession, he cannot join them as defendants in a subsequent suit for mesne profits-Koondon Lall vs. Rae Himmut Singh, 3 Alla., 86; otherwise, if the several parties have been in joint possession-Suttya Nundo Ghosal vs. Suroop Chun ter Doss, 14 W. R., 76; so in a suit for possession of certain land under a lease as against the person to whom a similar lease was subsequently granted, and also for registration of the lease and for damages as against the lessor, it was held that the three causes of action were improperly joined-Prabhuram Hazra vs. Robinson, 3 B. L. R., App., 49.

Where a suit against a number of defendants on the allegation of dispossession was dismissed for multifariousness by a Judge, on the ground that the ouster was made on different dates and by different defendants. Held, that the Judge was right, and that he was not compelled to order separate trials on his own motion-Ranee Surut Soonduree Debia vs. Soorja Kant Acharjee Chowdry, 31 W. R., 197.

A stranger to a contract of which specific performance is sought, cannot be a party to the suit-Lukhum Dey vs. Fagulla, I. L. R., 5 Bom., 177,

Consolidation of Suits.-Plaintiff purchased 7 annas of a tenure and sued for enchancement. He afterwards purchased the remaining 9 annas and instituted another suit for enhancement of that. That cases having been set down for hearing it was held that the lower Court was right in consolidating the two suits and trying them as one-Enayetoollah vs. Radha Churn Roy, 15 W. R., 395.

The plaintiff sued for possession of a house and for rent, which were two causes of action that could be properly joined; the suit was properly brought in the Court of the Munsiff, as the Small Cause Court, which could try the suit for rent, could not give all the relief sought-Jagomahan Sahu vs. Mani Lall Chowdhry, 3 B. L. R., App., 77.

Where several plaintiffs instituted separate suits against the same defendant in respect of the same subject-matter, Held that the proper course was to consolidate the suits, and try them as one, as the defendant requested, or to try each case separately on the merits; and that it was wrong to try only one case, and treat the others as governed by it-Nehal Sing vs. Syud Ali Ahmed, 15 W. R., 110.

This section does not require that the plaintiff should file separate plaints in each_case separately tried. No such order should be made-Mussamut Rutta Bebee vs. Dumree Lal, 2 Alla., 153.

An Appellate Court, in Regular Appeal, had power under section 37, Act XXIII of 1861, to order separate trials-Shoroop Chunder Paul vs. Mothoor Mohun Paul Chowdhry, 4 W. R., 109; and probably the same power is given under this Act. See section 582.

Appeal.-Where separate trials are ordered, it appears that the order should be looked on as directing the institution of a new suit in each case, and the Court to which the appeal lies will be determined by the amount in dispute in each trial-Mussamut Rutta Bebee vs. Dumree Lal, 2 Alla., 153; Ram Coomar Das vs. Bidho Mookhee Dassee, 15 W. R., 31.

Stamps :-See section 17 of the Courts Fee Act, and Malchand vs. Shib Churn Lal, I. L. R., 2 Alla., 676; Chedi Lal vs. Kerath Chand, id., 682; Kishori Lal Roy vs. Shorut Chunder Mozumdar, 10 C. L. R., 359.

Defendant may apply to confine suit.

46. Any defendant alleging that the plaintiff has united in the same suit several causes of action which cannot be conveniently disposed of in one suit may at any time before the first hearing, or, where issues are settled, before any evidence is recorded, apply to

the Court for an order confining the suit to such of the causes of action as may be conveniently disposed of in one suit. This section applies to H. C. and M. S. C. C. See note b., section 44, ante.

Court on hearing application may exclude some causes and order amendment.

47. If, on the hearing of such application, it appears to the Court that the causes of action are such as cannot all be conveniently disposed of in one suit, the Court may order any of such causes of action to be excluded, and may direct the plaint to be amended accordingly, and may make such order as to costs as may be just.

Every amendment made under this section shall be attested by the signature of the Judge.

CHAPTER V.

OF THE INSTITUTION OF SUITS.

48. Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.

Suits to be commenced by

plaint.

This section applies to H. C. and M. S. C. C.

Where a plaint was presented on the 29th, and the endorsemeut said it was accepted on the 31st, the 29th and not the 31st was considered the day of institution-Young vs. Mac Corkindale, 19 W. R., 159.

A plaint may be received and admitted on Sunday or any other holiday-Ununta Ram Chatterjee vs. Protab Chunder Shiromonee, 16 W. R., 230; but there is no necessity to do so; for under the Limitation Act, if the period of limitation expires when the Courts are closed, the suit may be admitted on the day that the Court re-opens. In the North-West a plaint must be presented in office; and where a suit was admitted by a Munsiff at his private residence after he had left office, it was considered as filed on the following day when the Court re-opened-Jai Kuar vs. Heera Lal, 7 Alla., 5; but in lower Bengal a plaint delivered at the private residence of the clerk of a Small Cause Court has been held to have been properly filed-Mudden Mohun Chuckerbutty vs. Fakeer Biswas, Suth., S. C. Ref., 36. The Nazir of a Small Cause Court is not authorised to receive plaints; they cannot be filed with him-Raj Chunder Gope vs. Joogul Gope, 18 W. R., 272.

When a plaint, already filed, is returned to be amended, and again returned, or filed in another Court, the date of the suit must be taken to be the date on which the plaint was originally filed-Mengar Munder vs. Horee Mohun, 23 W. R., 447; Khellat Chunder Ghose vs. Nusseebunnissa Bibee, 16. W. R., 37; and so where a plaint improperly stamped is given back to have a proper stamp affixed and be returned, the date of the suit is the date on which it was first filed-Mussamut Bebee vs. Syud Yusuf Ali, 6 Alla., 139. See also Skinner vs. Orde, I. L. R., 2 Alla., 241; Ram Sahai Sing vs. Maniram, I. L. R., 5 Cal., 810; Khem Karan vs. Har Dyal, I. L. R., 4 Alla., 37.

North-West.-Plaints should be first filed with the clerk of the Court to report whether the necessary conditions as to the stamp, time, accompaniments and the like have been duly attended to; the petition should then be returned to the pleader or party to present to the Court for admission-2 Civ. L. (N. W.), 1872.

Where a plaint under Act X, 1859, was presented to an Assistant Collector, and not to the Collector, all subsequent proceedings were declared invalid, and the plaint was returned to be properly filed-Roopa vs. Anwarali, 4 Alla., 35; in Bengal the proceedings are voidable at the option of the defendant only-Mackintosh vs. Kashee Nath Biswas, 21 W. R., 450. No plaint should ordinarily remain unregistered for more than one day, for it is the duty of every Judge to take up, at latest on the day following their presentation, all plaints filed in his Court-Sud. Civ. O. (N. W.), 1865; 11 Civ. Cir. (N. W.), 1865.

The Court. When the Court of a Subordinate Judge is temporarily closed, the Court of the District Judge does not become the Court of first nstance in which the origi