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obtained before the first hearing 1) to sue for any of such remedies, he shall not afterwards sue for the remedy so omitted.

For the purpose of this section, an obligation and a collateral security for its performance shall be deemed to constitute but one cause of action 2.

Illustration.

A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1881 and 1882 is due and unpaid. A sues B only for the rent due for 1882. A shall not afterwards sue B for the rent due for 18813.

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 5, or to obtain a declaration of title to immoveable property, except

6

Only certain claims to be joined with suit

for re

covery of

(a) claims in respect of mesne profits or arrears of rent land.

in respect of the property claimed,

() 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 7.

8

Rule b.-No claim by or against an executor, administrator Claims by or against or heir as such, shall be joined with claims by or against executor, him personally, unless the last-mentioned claims are alleged administo arise with reference to the estate in respect of which the heir.

The application for leave is in time if made directly the case is called on, and before anything has been done towards the hearing, 5 Bom. 463, 465.

2 Where a mortgagee in execution of a decree for the satisfaction of any claim, whether arising under the mortgage or not, attaches the mortgaged property, he may, notwithstanding anything contained in this section, institute a suit for sale of the property, under sec. 67 of the Transfer of Property Act, supra, Vol. I. p. 780.

36 Cal. 793: 12 Cal. 50.

• In England leave has been given to join with an action for the recovery of land, (a) a claim to recover a deed relating to the land, and to recover personal estate comprised in the same

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trator or

Plaintiff

several

causes of

action.

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 1.

45. Subject to the rules contained in chapter II and in may join 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 2 interested against the same defendant, or the same defendants jointly, may unite such causes of action in the same suit 3.

Court may order

separation.

Defendant may apply

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 4.

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.

46. Any defendant alleging that the plaintiff has united to confine in the same suit several causes of action which cannot be

suit.

conveniently disposed of in one suit may at any time before the first hearing, or, where issues are settled, before any evidence is recorded 5, apply to the Court for an order confining

1 9 All. 221.

2

Jointly (not necessarily equally) interested as to the subject-matter of the suit which the causes of action have in contemplation, 6 Mad. 242. 'Joint interest in the main questions raised by the litigation is a condition precedent to the joinder of several causes of action against several defendants,' 6 All. 108, per Straight J.

3 It is a prerequisite of the right given by this section that the Court to which the plaint is presented should

have jurisdiction over all the causes of action, 7 Mad. 173. That this section is not a restrictive proviso to sec. 28, see 5 All. 178, per Mahmúd J.

48 Mad. 75. This power does not, of course, extend to the dismissal of certain defendants and ordering that a fresh suit be brought against them, 8 Bom. 619. As to the procedure of the Court where there is a misjoinder, see 7 Bom. 291.

5 but not afterwards, 7 All. 100.

the suit to such of the causes of action as may be conveniently disposed of in one suit1.

exclude

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

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

order

2

CHAPTER V.

OF THE INSTITUTION OF SUITS.

commenced

48. Every suit shall be instituted by presenting a plaint Suits to be to the Court or such officer as it appoints in this behalf. by plaint. 49. The plaint must be distinctly written in the language Language of plaint. of the Court; provided that, if such language is not English, the plaint may (with the permission of the Court) be written in English; but in such case, if the defendant so require, a translation of the plaint into the language of the Court shall be filed in court 3.

to be con

tained in

50. The plaint must contain the following particulars: Particulars (a) the name of the Court in which the suit is brought; () the name, description and place of residence of the plaint. plaintiff *;

1 Order xxiii. r. 8. This section enables a defendant who is embarrassed by a multifarious suit to get the trial confined to a reasonable aggregate of causes of action, and in such a case the other causes must needs be left over for another suit, 8 Bom. 619.

2 2 Bom. H. C., A. C. J. 42: 10 ibid. 495, overruling 5 ibid. 117.

A paper referred to in a plaint is

not part of the plaint, Bourke, O. C. J.
273.

Where A sues, under a power of
attorney on behalf of B, the suit must
be brought in B's name, 1 N. W. P.
277. See also 4 ibid. 59. Where the
plaintiff sells his rights pendente lite
the vendee's name should not be sub-
stituted; but the irregularity may be
cured by the defendant's consent, 3
Ben. A. C. J. 214.

In money suits.

Where

sues as

(c) the name, description1 and place of residence of the defendant, so far as they can be ascertained;

(d) a plain and concise statement of the circumstances constituting the cause of action, and where and when it arose;

(e) a demand of the relief which the plaintiff claims 2; and

(f) if the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished. If the plaintiff seeks the recovery of money, the plaint must state the precise amount, so far as the case admits.

In a suit for mesne profits, and in a suit for the amount which will be found due to the plaintiff on taking unsettled accounts between him and the defendant, the plaint need only state approximately the amount sued for.

When the plaintiff sues in a representative character 3, plaintiff the plaint should show, not only that he has an actual existing representa- interest in the subject-matter but that he has taken the steps necessary to enable him to institute a suit concerning it.

tive.

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Illustrations.

(a) A sues as B's executor. The plaint must state that A has proved B's will.

1 Where the Government has recognised a person as having a right to bear particular titles, a plaint in a suit against him should mention the titles, 12 Ben. 443; and the Judicial Committee remarked that it was against the policy of the law that anything should be done which tends to increase one of the great social evils of India, viz. the indisposition of persons of consequence to appear as suitors in Courts of justice. Their lordships even said (ibid 449) that 'description' includes all those titles by which the party is generally known. A Hindú widow sued as representing her deceased husband should be so described, 8 Bom. 309.

2 That under a prayer for general relief, the plaintiff is not entitled to any relief inconsistent with his plaint, see 5 Ben. 682, 689. The Court must take into consideration all the rights of the parties and by its decree give

effect to those rights as far as possible; but it should confine itself to granting such relief as is prayed by the plaint, I Mad. H. C. 477. Thus in a suit to establish a right of ownership over certain land, the Court should not enter into, and decide upon, the plaintiff's right to an easement over the same, 2 Bom. H. C. 176. However, in 6 Cal. 485 White J. seems to have granted an injunction for which there had not been a specific prayer. As to interest on the amount of mesne profits decreed, though not prayed for in the plaint, see 3 Moo. I. A. 220. That the plaintiff is limited to the sum laid in his plaint as mesne profits, though by the evidence a larger sum appears due to him, see 2 Moo. I. A. 113.

3 This applies not only to executors, administrators and guardians, but to the manager of a Hindú family, 7 Bom. 470.

(b) A sues as C's administrator. The plaint must state that A has taken out administration to C's estate.

(c) A sues as guardian of D, a Muhammadan minor. A is not D's guardian according to Muhammadan law and usage. The plaint must state that A has been specially appointed D's guardian.

dant's in

The plaint must show that the defendant is or claims to be Defeninterested in the subject-matter, and that he is liable to terest and be called upon to answer the plaintiff's demand.

Illustration.

A dies, leaving B his executor, C his legatee, and D a debtor to A's estate. Csues D to compel him to pay his debt in satisfaction of C's legacy. The plaint must show that B has causelessly refused to sue D, or that B and D have colluded for the purpose of defrauding C, or other such circumstances rendering D liable to C.

liability to be shown.

from limit

If the cause of action arose beyond the period ordinarily Grounds of allowed by any law for instituting the suit, the plaint must exemption show the ground upon which exemption from such law is ation-law. claimed.

51. The plaint shall be signed by the plaintiff and his Plaints to be signed pleader (if any), and shall be verified at the foot by the and veriplaintiff or by some other person proved to the satisfaction fied. of the Court to be acquainted with the facts of the case1:

Provided that if the plaintiff is, by reason of absence or for other good cause, unable to sign the plaint, it may be signed by any person duly authorised by him in this behalf 2.

verifica

52. The verification must be to the effect that the same is Contents of true to the knowledge of the person making it, except as tion. to matters stated on information and belief, and that as to those matters he believes it to be true 3.

The verification shall be signed by the person making it 4. Verifica

1 In the case of a person holding a general power of attorney, or of any other recognised agent, the Court will not insist on any extreme stringency of proof, 4 Bom. 468.

2

e.g. by a person holding a general power of attorney to sue on behalf of the plaintiff, 4 Bom. 468. But see 9 All. 505 (allegations of fraud). That a person added as co-plaintiff should

verify the plaint, see 1 Ben. A. C. J.
100. As to the practice of the Cal-
cutta High Court when a suit is
brought by a firm, see 12 Ben. 35.
3 6 Cal. 675.

It is expedient, though not neces-
sary, that it should be made in the
presence of an officer of the Court, 4
Bom. 468.

tion to be signed.

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