Case: Kushro S. Gandhi &amp; Ors Vs. N.A. Gajdar &amp; Ors

The four plaintiffs, out of which three are appellants before us, the fourth having died, brought a suit for damages against the six defendants (one defendant had in the meantime died and four are respondents before us). The allegations in the plaint, in brief, were that the plaintiffs and the defendants were members of an association called Parsi Zoroastrian Anjuman; that the defendants, along with some other members of the association, formed a group and each of them conspired among themselves to injure and harass the plaintiffs and a few others in various ways, that at a meeting held on May 5, 1954, in connection with the election of Trustees, when defendant N. A. Guzder occupied the chair, he gave a ruling that the plaintiffs Kershasp S. Gandhi and B. T. J. Shapoorji, since deceased, were unfit candidates for the office of Trustees and thus prevented them from seeking election, any contrary to the rule of the Anjuman and without taking votes declared the defendant, F. J. Gandhi, and one A. F. Cama duly elected. It was further alleged that on July 3, 1954, another meeting of the Anjuman was held when the plaintiffs Khushro S. Gandhi and Framroze S. Gandhi were candidates for election to the office of the trustees, and defendant F. J. Gandhi gave a perverse ruling rejecting the nominations of the above plaintiffs and after taking votes declared G. T. Shappoorjee as duly elected trustee; that by the aforesaid rejections the plaintiffs had suffered an injury for which defendants Nos. 1 to 6 were jointly and severally liable and the plaintiffs were entitled to recover damages from the defendants.3. The plaint was filed on January 21, 1955. Before any written statement was submitted, on February 13, 1955, the sixth defendant S. Rabadi, entered into a compromise with the plaintiffs. The terms of the compromiseI, Shavak Dorabjee Rabadi, defendant No. 6 have considered the subject matter of the suit and am sincerely sorry and apologise to the plaintiffs unconditionally for whatever I have done. I realise that I was in error and was misguided.2. The plaintiffs above named accept the apology tendered by Shri Shavak Dorabjee Rabadi defendant No. 6 and the suit against him may be disposed of treating the aforesaid apology and its acceptance by the plaintiffs as a settlement of the dispute between the plaintiffs and the defendant No. 6.3. The plaintiffs do not claim any costs against the defendant No. 6 and defendant No. 6 will bear his own costs.It is therefore prayed that the claim against defendant No. 6 may be disposed of in terms of the abovedecree was passed in terms of this compromise against defendant No. 6.4. On May 14, 1955, the other defendants filed a written statement and inter aliathe release of defendant No. 6 Sri S. Rabadi, an alleged joint tortfeasor and the compromise entered into behind the back of the answering defendants with him in full settlement of their suit for damages, appears to be collusive and dishonest and the release by the plaintiffs of defendant No. 6 from his joint liability as a tort feasor has in law extinguished the plaintiffs rights to sue the other remaining defendants and claim damage fromwas further alleged that the four plaintiffs could not be legally allowed to totalise the sum of their individual damage, alleged to have been suffered, any thereby procure the trial of the suit in the court of higher jurisdiction, and that the suit had been purposely overvalued.5. In a statement dated March 17, 1956, the plaintiffs clarified that the damages are being claimed by the plaintiffs in respect of all the facts mentioned in the plaint and particularly as a result of the fact that have been mentioned in paragraphs 17 and 19 of the plaint, and further that on account of all the facts complained of each plaintiff is entitled to claim Rs. 10,100 as damages but the plaintiffs have claimed only Rs. 10,100 and have given up rest of claim.6. Two of the issues framed by the Civil Judge, may be setNo. 5. What is effect of the compromise between plaintiffs and defendant No. 6, as against rights of the other defendants? Is the suit not maintainable against other defendants? Issue No. 11. Is the court-fee paid by the plaintiffsorder dated September 18, 1956, the Civil Judge held that the court- fee paid by the plaintiffs was insufficient and that there was a deficiency of Rs. 905/12/- in the court-fee which the plaintiffs had to make good. The plaintiffs were given 15 days time to make good the deficiency. Instead of paying the money the plaintiffs applied under O. VI R. 17, Civil P. C., for amendment of the plaint. The plaintiffs stated in this application that they would in consideration of the order of the Court split the amount of Rs. 10100/- into two portions claiming Rs. 5050/- each in respect of the two separate incidents dated July 3, 1955, and May 5, 1955, respectively. The defendants filed an application contending that as the plaintiffs had failed to make good the deficiency in the court-fee within the time given, the plaint should be rejected in view of the provisions of the O. VII R. 11 C. P. C. and S. 6 U. P. Court-Fees Act. By order dated November 28, 1956, the Civil Judge allowed the plaintiffs application for amendment on payment of Rs. 30 as costs, and also rejected the defendants application. Against this order the defendants filed a revision.rst dealt with the point whether the plaintiff could renounce a part of the claim instead of making good the deficiency in court-fee. He came to the conclusion that the suit contained four causes of action, and that the plaintiffs had to pay court-fee on four separate causes of action of the value of Rs. 2525 each. As the learned counsel for the plaintiffs had given an undertaking to make good any deficiency in court-fee, Dhavan, J., directed the plaintiffs to pay court-fee on the four separate causes of action valued at Rs. 2525 each. He also directed an amendment to be made in the plaint.8. The learned Judge felt that it would be in the interest of justice that the question covered by issue No. 5 being one of law should be decided by him in the revision. It appears that the counsel for both parties conceded that the Court had power to decide the issue as the entire record was there, although the learned counsel for the plaintiffs felt that the decision should be left to the Trial Court.

Reasoning:
9. The learned counsel for the appellants contends before us that the High Court had no jurisdiction to decide issue No. 5 in a revision.He says that the subject-matter of the revision was the order of the civil Judge dated November 28, 1956, and the High Court could not decide any other point and covert itself into an original court. The learned counsel for the respondents tried to justify the decision regarding jurisdiction of the High Court under S. 24, C. P. C. This section, inter alia, provides that the High Court may withdraw any suit, appeal or other proceeding pending in any court subordinate to it and try and dispose of the same.We are unable to appreciate how the order of the learned Judge can be justified under S. 24. He has not purported to withdraw any suit and try the same. What he has done is to try an issue arising in a suit in a revision arising out of an interlocutory order. It seems to us that the High Court, even if the parties conceded, had no power to decide the issue.But if we set aside the order of the High Court and remit the case to the Civil Judge to try it according to law, the Civil Judge would feel handicapped in deciding the case properly because he will feel bound to follow the opinion given by the learned Judge on issue No. 5. Under the circumstances we heard arguments on thesecond ground on which the rule is defended is, that by the judgment against one joint trespasser, the title of the property concerned is vested in the defendant in that action, and therefore no suit can afterwards be maintained by the former owner for the value of that property, or for any injury done to it.In this case an apology was received from the defendant Rabadi and accepted and embodied in a decree.This cannot be treated to be a full satisfaction for the tort alleged to have been committed by the appellants-defendants.But this must be treated as an election on the part of the plaintiff to pursue his several remedy against the defendant Rabadi.20. The learned counsel for the appellants urges that if a decree is passed against them for damages, the defendant Rabadi, who compromised, would be liable to contribute in accordance with the rule laid down in Dharni Dher v. Chandra Shekhar, ILR (1951) 1 All 759 = (AIR 1951 All 774  ) (FB) in which it was held that the rule in Merryweatherv. Nixon, (1799)8 T. R. 186did not apply in India. It is not necessary to decide whether the Full Bench decision of the Allahabad High Court lays down the law correctly, because even if it is assumed that this is the law in India it would not affect the rights of the plaintiffs.