Case No.:

HC-REV-166-1961

Court:

The High Court

Issue No.:

1962

Principles

·  Civil Procedure—Joinder of defendants—CO-Owner plaintiff in eviction action need not join his co-owners as defendants

·  Civil Procedure—Notice—-Action cm behalf of others similarly situated—Civil Justice Ordinance 1929, Ord. vll, r. i (i)—Co-owner plaintiff in eviction action must serve notice on his co-owners

One of three co-owners brought this eviction action under Rent Restriction Ordinance 1953. S. II (d), against tenant who requested alternatively that plaintiff’s two co-owners be joined as co-defendants or served with notice under Civil Justice Ordinance Ord. VII, r. i (1).
Held: (i) A suit for eviction brought by one co-owner is not defective for misjoinder of plaintiff’s co-owners as defendants.

(ii) A co-owner bringing an eviction action must serve his co-owners with
notice under Civil Justice Ordinance 1929, Ord. VIL r. i (t).

Judgment

(HIGH COURT)

MAGZOUB MOHAMED ALl v. NIJRGO EL FAKKI ALl

HC-REV-166-1961

Advocates: Haroun Shawgi.... for defendant-applicant

Ahmed Suleiman ... for plaintiff-respondent

Abdel Mageed lmam J. June 1, 1961: —This is a claim which was begun by plaintiff-respondent who is one of three co-owners of the premises now in dispute asking for recovery of possession of the same as against defendant-applicant, the tenant, on the ground of want for personal use under Rent Restriction Ordinance, s. 11 (d). It is noteworthy that the other co-owners who were not re in the Suit, were the only parties to the tenancy by force of which defendant-applicant had entered into possession.

In the court below, defendant-applicant asked for either:

(a) Joining both of them as co-defendants, or

b) The serving of the other co-owners by notice under Civil Justice Ordinance, Ord. VII, r. i.

He was refused both and against this refusal this application is made.

Before this court the learned advocate for defendant-applicant orally explained that in case these co-owners were to be join as co-defendants then if they oppose defendant-applicant’s claim it will be open to the latter to proceed with a partition suit.

As I see it this application should fail in so far as (a) above is concerned. In fact I cannot fully understand or appreciate the argument submitted in this connection by the learned advocate for defendant-applicant. I cannot see either how such a joinder could possibly be in-his interest especially if it results in a partition case! Had such an application been forwarded on the part of plaintiff-respondent it could have been allowable and feasible; for in such a case the claim for partition would be ancillary to the original claim for recovery of possession. 1 Mulla, Code of Civil Procedure 500—501 (12th ed. i9 states’

“Where the relief claimed against some of the defendants is merely ancillary to the relief claimed against others, the suit is not bad for misjoindier, provided the suit is not in respect of distinct causes of action. A, and B are co-sharers of certain lands in the occupation of C and D. A is entitled to two-thirds of the lands and B to one-third. A sues B, C and D, asking as against C and D that they may be ejected from his share of the land and as against B that the lands may, if necessary, be partitioned between him and B. The suit is not bad for misjoinder, for though the relief claimed s against C and D is for possession, and that claimed as against B is for partition, the latter relief is auxiliary to the principal relief which is for possession. The inclusion of B in this suit is, merely as that of a person properly a party to the proceedings in the circumstances of the case, and not as a litigant against whom a separate claim having no necessary connection with the ejectment of C and D is made. B, in fact, is a necessary party to the suit, for an actual division between A and B is essential to the ejectment of C and D.”

As for (b) above I think it is obligatory on the court to serve notice on these two co-owners in accordance with the above-mentioned rule. The case j therefore sent back to the court below for carrying out such notice.

No order as to costs.