Deepak Gupta, J.
1. Both the matters are being disposed of by a common order since identical questions of law and fact are involved in the same.
2. Civil Suit No. 15 of 2009 has been filed by 31 plaintiffs. According to the plaintiffs they are owners of flats/plots/houses in New Shimla. Notices have been issued to them by the defendant Himachal Pradesh Housing & Urban Development Authority (HIMHUDA). In these notices issued separately to each of the plaintiffs separate amount was demanded from each of the plaintiffs on the ground that the cost of land acquired by the defendant for setting up of the colony known as 'New Shimla' has been enhanced by the High Court of Himachal Pradesh in proceedings under the Land Acquisition Act, 1894. The plaintiffs allege on various grounds that the defendant is not entitled to recover this amount from the plaintiffs. In para 11 of the plaint it is submitted that the plaintiffs are filing one single suit and they are not giving individual details with respect to each of the plaintiffs for the reasons that the core controversy is whether the defendant is entitled to claim the enhanced amount of compensation. It would be pertinent to mention that all the plaintiffs in this suit are holding the property on free hold basis.
3. Civil Suit No. 16 of 2009 has been filed on identical grounds by as many as 92 plaintiffs. The only difference is that in these cases the plaintiffs are in possession of the plots, flats and houses on lease hold/hire purchase basis.
4. The defendant HIMHUDA contested the suit on various grounds but one of the main contentions raised is that the suits of the plaintiffs are bad for mis-joinder of parties and cause of action and proper court fees has not been affixed on the plaints.
5. On 20th August, 2009, this Court had directed the plaintiffs to file the notices which are under challenge in respect of all the plaintiffs and they were also directed to file a chart depicting the amount claimed from each of the plaintiffs.
6. On 11.9.2009 the following preliminary issues were framed since this Court felt that these issues should be decided before entering into trial:
1.Whether suit filed by the plaintiffs is bad for mis-joinder of parties and cause of action and is, therefore, not maintainable?...OPD
2.Whether proper Court fee has been affixed on the plaint?..OPP
Issue No. 1
7. The main question which arises is whether all the plaintiffs could have joined in one suit and whether this Court should order separate trials. Order 1 Rules 1&2 of the CPC which are relevant for our purpose read as follows:
1. Who may be joined as plaintiffs.
All persons may be joined in one suit as plaintiffs where
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law or fact would arise.
2. Power of Court to order separate trial.
Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient.
8. Reliance has also been placed by Sh. Ajay Kumar on Order 2 Rule 3 CPC which reads as follows:
3. Joinder of causes of action
(1) Save as otherwise provided, a 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.
(2) Where 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.
9. On behalf of the plaintiffs it is urged that since the questions involved in the suit are common to all the plaintiffs it is not necessary to file separate suits and all the plaintiffs can join in one suit. On the other hand it is urged on behalf of the defendant that each of the plaintiffs has a separate cause of action since each plaintiff was served with separate notice and the amount claimed from each plaintiff is a different amount. It is, therefore, alleged that separate suits should have been filed by each of the plaintiffs.
10. A bare perusal of Order 1 Rule 1 shows that all persons can join in one suit as plaintiffs when the right to relief which they claim arises out of the same act or transaction or series of acts or transactions and if such persons brought separate suits, any common question of law or fact would arise. Even if the plaintiffs satisfy the rigors of Rule 1 the Court can still direct the plaintiffs to file separate suits in case it is of the opinion that the joinder of the plaintiffs may embarrass or delay the trial of the suit.
11. Sh. Ajay Kumar, relying on Order 2 Rule 3 submits that a plaintiff can join several cause of action in the same suit against the same defendant and several 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.
12. Both the parties have cited a number of judgments before me.
13. A Division Bench of the Bombay High Court in Chandulal Suklal Shet and Ors. v. Dagdu Mahadu Chaudhuri and Ors. : AIR 1925 Bombay 342, considered the impact of Order 2 Rule 3. In the case before the Bombay High Court, five persons had entered into five different contracts with one defendant. One suit was filed by all the plaintiffs. The Court held that it was quite impossible for the plaintiffs to join in one suit for five different causes of action for five different contracts made by five different plaintiffs.
14. In Sitaram Agarwalla v. Rajendra Chandra Pal and Ors. AIR 1956 Assam 7, the facts of the case were that the proforma defendant had transferred half share of the tenancy in favour of the plaintiff No. 1 and half share of the tenancy in favour of plaintiffs 2 to 4. A notice was jointly issued to vacate the house in question after the expiry of lease deed. The defendant contested the suit on the ground that the suit was bad for misjoinder of plaintiffs and causes of action. The High Court held as follows:
The requirements of the rule would be satisfied if any right to relief arises in favour of the plaintiffs out of the same act and if any common question of law or fact would arise if separate suits were instituted.
15. In my opinion this judgment does not apply to the facts of the present case since in that case admittedly plaintiffs had joint interest in the entire property and the defendants were tenants in the same.
16. The Bombay High Court in Krishna Laxman Yadav and Ors. v. Narsinghrao Vithalrao Sonawane and Anr. : AIR 1973 Bombay 358, was dealing with a case where the house occupied by the tenants was extensively damages in a flood. This house was occupied by several tenants. The landlord proposed to construct a new building on the old site. All the tenants joined together to file one suit for re-occupation of the new tenements. The Bombay High Court held that the suit was not bad for mis-joinder of plaintiffs.
17. A Single Judge of the Bombay High Court in Paikanna Vithoba Mamidwar and Anr. v. Laxminarayan Sukhdeo Dalya and Anr. : AIR 1979 Bombay 298, was dealing with a matter in which a plot of land was partitioned amongst two persons. They filed one suit in respect of encroachment by one neighbour. The suit was held to be maintainable on the ground that when common question of fact or law is involved, identity of cause of action or interest is not necessary.
18. Sh. Bhupinder Gupta, learned Senior Advocate has relied upon a judgment of this Court in Lobsang Khampa etc. v. Sunam Ram ILR (Himachal Series) (1976) 5 Him. 534. In that case, 11 plaintiffs joined together to file one suit. The allegations of the plaintiffs were that they were Tibetan-refugees and had raised potato crops. They offered to sell the potatoes to the defendant and the defendant agreed to purchase the potatoes @ Rs. 70/- per bag for A-I quality and Rs. 60/- per bag for A-II quality of potatoes. Admittedly the contracts were separate. The defendant raised an objection that one suit by all the 11 plaintiffs jointly was not competent. This Court held as follows:
12.Under Order 1, Rule 1, Civil P. Code, all the plaintiffs could only be joined in one suit if the relief arose out of the same act or transaction, or series of acts or transactions, and if any common question of law or fact arose. It may be that a similar question of law and fact may have intended to arise in all the transactions, but certainly it could not be a common question of law or fact. The supply made by one plaintiff had no concern with the supply made by the other plaintiff. Each claim depended upon the supply made, shortage detected, rate claimed, payment received, and the price of manure to be deducted. This could be different in the case of each plaintiff and so a common question of law and fact cannot be stated to have arisen in all the acts or transactions. Similarly the relief did not arise out of the same act or transaction or series of acts or transactions. Each plaintiff had separate relief under his contract against the defendant. The case did not fall even under Order 2, Rule 3, Civil P. Code, although that provision was not quoted in the plaint or in the replication....
19. In the present cases no doubt that common questions of fact and law are involved. However, to satisfy the provisions of Order 1 Rule 1 the plaintiffs must satisfy the following two conditions:
(i) The right to relief in each plaintiff must arise out of the same act or transaction, or series of acts or transactions; and
(ii) If such persons brought separate suits, common questions of law or fact would arise.
20. The word 'and' between Clauses (a) and (b) makes it clear that both the conditions must be fulfilled. In other words, the requirements of Clauses (a) and (b) are cumulative and not alternative.
21. Order 2 Rule 3 does provide that 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. However, we must remember that Order 2 Rule 3 forms part of Order 2 which deals with the frame of the suit. Order 1 deals with the parties to the suit. Under Order 2 Rule 3 a plaintiff may unite in the same suit several causes of action against the same defendant and many plaintiffs having causes of action in which they are jointly interested can unite such causes of action in one suit.
22. Coming to the facts of the present case, the undisputed facts are that each of the plaintiffs is the owner/lease holder of a separate plot, flat or house. Each of the plaintiffs has entered into a separate contract with the defendant. The demand raised from each plaintiff is a separate demand. Each of the plaintiffs allegedly has to pay a separate amount. By means of these civil suits the plaintiffs pray that a decree for declaration be passed that the demand raised by the defendant vide notices issued between 14th May, 2008 to 18th November, 2008 are illegal. Each demand is separate. It may be true that the basis of the demands is similar but each of the plaintiffs has a totally separate cause of action and the relief does not arise out of the same transaction or series of transactions. The transaction of the defendant with each of the plaintiffs is a separate transaction. There may be other allottees who do not want to enter into any controversy and pay the amount.
23. Even if I was to hold that the joint suit is maintainable I am clearly of the view that such a joint suit would embarrass or delay the trial of the suit and the plaintiffs should file separate suits. Order 23 of the CPC deals with withdrawal and adjustment of suits. There are in all 31 plaintiffs in one suit and 92 in the other suit. Supposing any one of these plaintiffs wants to enter into a compromise with the defendant for any reason. It may be that the said plaintiff wants to dispose of his property and the defendant insists that till he pays the disputed amount it will not grant permission required to sell of the property. What will happen to this plaintiff because he cannot be permitted to withdraw his claim unless all other plaintiffs consent. This would embarrass the proceedings and delay the proceedings. Further more in a case where there are such a large number of plaintiffs, death or disability of any one of the plaintiffs can delay the proceedings for a very long time.
24. Pursuant to the directions of this Court the plaintiffs have filed the separate notices and also filed the amount demanded from each of the plaintiffs. In Civil Suit No. 15 of 2009 the maximum demanded from any one plaintiff is Rs. 1,52,006/-. In Civil suit No. 16 of 2009 the maximum demanded from any one of the plaintiffs is Rs. 1,68,845/-. The lowest demand in both the suits is only Rs. 6000/-. It is obvious that in case each of the plaintiffs was to file a separate suit, the suit would have to be filed in the Court of Sub Judge in terms of Section 15 of the CPC which lays down that every suit should be instituted in the lowest court of competent jurisdiction. If the plaintiffs have to file suits separately they can only be filed in the Court of Sub Judge.
25. In terms of Section 15 the suit should have been filed in the lowest court competent to try it. By illegally combining all these causes of action the plaintiffs cannot be permitted to join in one suit and bring the matter within the jurisdiction of the original side of this Court. Each one of them should file a separate suit.
26. In view of the above discussion, I am clearly of the view that the joint suit is not maintainable and even otherwise I feel that such a joint suit would embarrass and delay the trial and therefore each of the plaintiffs should be directed to file separate suits. Issue No. 1 is disposed of accordingly.
Issue No. 2
27. As far as Issue No. 2 is concerned Section 7(iv)(c) of the Himachal Pradesh Court Fees Act, 1968 provides as under:
7. Computation of fees payable in certain suits.
The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:
(i) xxxxx
(ii) xxxxx
(iii) xxxxx
(iv) In suits-
(a) xxxxxxx
(b) xxxxxxx
(c) for a declaratory decree and consequential relief.-to obtain a declaratory decree or order, where consequential relief is prayed;
(d) for an injunction.-to obtain an injunction ;
xxxxxxxxxxx
In all such suits the plaintiff shall state the amount at which values the relief sought:
Provided that the minimum court-fee in each case shall be thirteen rupees;
Provided further that in suit coming under Sub-clause (c), in cases here the relief sought is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by paragraph (v) of this section
28. According to the plaintiffs since they seek only a decree for declaration and injunction they are at liberty to fix the value of the suit and pay the court fees accordingly.
29. Section 16 of the H.P. Court Fees Act reads as follows:
16. Multifarious suits.
Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act. Nothing in the former part of this section shall be deemed to affect the power conferred by Order II-, Rule 6, of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).
30. No doubt the plaintiffs in a suit for declaration and injunction have a right to fix the amount at which they value the suit and accordingly pay court fee thereon. However, this must have some relevance to the relief claimed. In the case in hand each of the plaintiffs virtually seeks the quashing of the notice by which a specific amount has to be paid on it. Therefore, in such a situation the declaration for each of the plaintiffs would have relevance to the amount claimed from them by the Board and no artificial figure can be given. Section 16 provides that where a suit embraces two or more distinct subjects the plaint would be chargeable with the aggregate amount of fees to which the suits if separately filed would be charges. Therefore, each of the plaintiffs would have to pay court fees payable as per the value fixed by him and one common value could not have been fixed. Even if a joint suit is maintainable then each of the plaintiffs should pay separate court fees as it was to be paid on a separate suit to be filed by such plaintiff and the aggregate of such court fees should be affixed on the plaint. Therefore, I hold that the suits have not been properly valued for purposes of court fees and issue No. 2 is also answered in favour of the defendant and against the plaintiffs.
31. Normally in case of deficiency of court fees this Court would have granted time to the plaintiffs to make good the Court fees but in view of the fact that I have decided Issue No. 1 against the plaintiffs and have held that the joint suits do not lie there would be no point in granting them further time to make good the court fees.
32. In view of the above discussion, it is held that the joint suits are not maintainable. I would have normally directed one of the plaintiffs to elect which one of the plaintiffs should continue with the suit but I find that then the suit would not lie in this Court and suit would have to be filed in the Court of Sub Judge.
33. Consequently, it is held that the suits are not maintainable and are bad for mis-joinder of plaintiffs and causes of action and have also not been properly valued for the purposes of court fees and jurisdiction. The plaints are accordingly rejected as being not maintainable. It is however, clarified that the rejection of the plaints will not in any manner affect the rights of any of the plaintiffs in case they file separate suits for redressal of their grievances.