ORDER
Ramachandra Iyer, J.
1. This petition seeks to revise the order of the Second Assistant Judge of the City Civil Court, Madras in O. S. Wo. 426 of 1957, directing the petitioner who was the plaintiff in the suit to elect as to against which of the two sets of defendants he would prefer to continue the suit.
2. The petitioner despatched certain goods to Howrah through the railway. Respondents 1 to 3 represent the three zones of the railway through which the goods had to travel. The 4th respondent is an insurance company with whom evidently the petitioner had entered into a contract of insurance. The petitioner claimed that the goods which he sent to Howrah were tampered with during the course of transit, and alleging misconduct on the part of the railway servants sued to recover damages. The 4th respondent, the insurer, was also made a party to the suit and a decree was sought against the insurer as well. There was however no complaint on the part of the latter that the precise nature of the cause of action against it had not been disclosed. Mr. Vedamanickam, who appears for the insurance company, made it clear before me that it was never the case of the insurer that there had been any misjoinder of causes of action or that the suit should be dismissed on that account. Such a plea however appears to have been taken by defendants 1 to 3. Issue 1 is:
'Is the suit bad for misjoinder of parties and causes of action?'
There is however no indication in the order of the lower Court that it was trying the first issue. The learned Judge only states that there was a preliminary objection on the part of defendants 1 to 3 as to whether there has been a proper joinder of causes of action and defendants in the suit. The contention on the part of the railway administration was that the claim against the railway could not properly be Joined in the same suit with the claim 'against the insurance company. The learned Assistant City Civil Judge found that the plaint did not specify how the plaintiff was entitled to a decree against the 4th defendant as well.
Instead of directing the plaintiff to clarify the position in regard to the two sets of claims, the learned Judge proceeded to assume what, in his opinion, must have been the basis of the claim and held that in the suit which was kid against both the Railway Administration as well as the insurer, the cause of action against the former was the loss of goods in relation to the contract of carriage while the cause of action in respect of the latter was the contract of insurance. The learned Judge therefore held that the joinder of claims based on those causes of action was improper and that the plaintiff should be called upon to elect as to which of the two sets of defendants he wanted to proceed against.
3. I find it difficult to follow the line of reasoning adopted by the learned Judge. There is no evidence, in the case, of the terms of the contract of insurance. If the learned Judge really wanted to take up issue No. 1 and try it as a preliminary issue it was his duty to have allowed the parties an opportunity to adduce evidence that they might have on the point. In that case the plaintiff would have produced the contract of insurance. If it were found after taking such evidence that the claim based on the contract of insurance could not properly be joined with the claim based on the liability of the carrier the first issue could be answered in the affirmative.
That however was not done in the present case. That issue has in effect been decided without even the plaint specifying the nature of the cause of action against the 4th defendant and without there being any evidence. It is well known that where goods are lost in the course of transit by the railway, the carrier would be liable only in certain circumstances. The liability of the Railway Administration is regulated by the statute and the risk note executed by the consignor. A person, who consigns goods by railway in order to cover the risk in all cases, might insure the goods whereby the insurer would take the liability of the loss etc., whether the Railway Administration could be made liable in such loss or not.
Generally in such cases the insurer insists on the consignor proceeding against the carrier first and if the carrier is found liable, the insurer is absolved; if the former is held not liable, the latter's liability will arise. In either case the liability arises by reason of the loss of goods in transit. The claims against the railway and the insurer would thus be in the alternative. The learned Judge has evidently failed to notice that Order 1 Rule 3 C. P. C. permits joinder of several defendants against whom any right to relief in respect of or arising out of the same act or transaction is alleged to exist whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise.
The words used in Order 1 Rule 3 C. P. Code relate to the same act or transaction and not the same cause of action. The substantial case for the plaintiff before the lower court was that he lost the goods on transit. The loss would be the act or transaction giving rise to liability of the defendant. Whether the loss took place in circumstances which would render the Railway Administration liable or otherwise can only be ascertained at the trial. The common question to be decided in the circumstances of the case is the loss and the right to relief will be in the alternative depending on tho finding of the court.
The learned Judge observed that the cause of action in the case of the railway was the loss and that in the case of the insurer was the contract. This however is not wholly correct. In either case, there was a contract, in the case of railway the contract of carriage, in the case of the insurer the contract of insurance. The contract alone would not be sufficient to sustain the suit. The principal cause of action is the loss, though the liability of the respective defendants would depend on the reason or the circumstances under which the loss was incurred. It may be that in certain cases both the sets of defendants arc jointly and severally liable; certinly they would be liable in the alternative.
In Payne v. British Time Recorder Co., Ltd., 1921 2 KB 1, it was held that as a general rule where claims by ar against different parties involved or might involve a common question of fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time, the court would allow the joinder of plaintiffs or defendants subject to its discretion as to how the action should be tried. That decision was rendered under Order XVI Rule 4 of the Supreme Court Rules in England. In that case the plaintiff had entered into a contract to supply certain goods with the first defendant.
In order to carry out that contract he had entered into another contract with the 2nd defendant for supplying him with the goods which he agreed to supply to the first defendant. The purchaser refused to accept the goods on the ground that they did not conform to the samples. The plaintiff thereupon brought an action against the first defendant for price of goods on the ground of non-acceptance. In that action he impleaded the 2nd defendant who had agreed to supply him with goods claiming damages for breach of contract in not supplying the goods in accordance with the samples. It was held that the joinder of two causes of action in the circumstances of the case was proper.
4. In Sarajul Huq v. Abdul Rahman, I.L.R. Cal. 257, a purchaser of property filed a suit to recover possession thereof against a third party. To that suit he impleaded his vendor and made an alternative claim against him for refund of purchase money in case it were to be found that the third party was the owner and the vendor had no title to convey. The Calcutta High Court held that such joinder of causes of action was proper or at any rate desirable. That decision was given under Sec-tion 28 of the C. P. C. of 1882. Order 1 Rule 3 of the Civil Procedure Code, 1908, which took its place is even wider in that the joinder could be in respect of the same act or transaction and not necessarily within the term 'matter'.
5. The order of the learned Judge suffers froma more vital infirmity as well. The contract of insurance had not been produced before him and hewas not justified without reference to its terms inholding that the joinder of causes of action wasimproper. The learned Judge himself noticed thefact that the plaint was not specific about the liability of the 4th defendant. If the learned Judge hadany doubts that the suit might be bad for multi-fariousness he should have called upon the plaintiffto particularise his cause cf action against the twosets of defendants and proceeded to decide preliminarily issue No. 1. Rules of procedure are intended to aid justice and not as short cuts for disposal. Thelower court has, in an attempt to direct the partiesto conform to the rules of procedure, itselfignored them. The order of the lower court cannotbe sustained and is set aside. Respondents 1 to 3will pay the costs of the petitioner.