' The petitioner filed a suit under Order 37, rule 2, C.P.C. For the recovery of a sum of Rs,9,00,000 from the respondents on the basis of three different pronotes executed by the respondents in the sum of Rs,3,00,000 each on 30-3-1992. The respondents filed an application dated 23-12-1992 for leave to appear and defend. Another application dated 11-1-1993 was filed by the respondents under. Order 1, rule 10, C.P.C. Alleging that as the suit is based on three separate pronotes each executed by a different respondent, one suit was not maintainable and that the names of any two respondents may be struck off and the suit may proceed against one remaining respondent. This application was contested on the ground that the claim of the petitioner was based upon the cause of action that all the three respondents were co-owners in the Gurgaig Cotton Ginning Factory situated in Mouza Musa Khokhar Uch Road Tehsil Ahmadpur East alongwith, lqbal, Fazal Iqbal, Mst. Amina Iqbal, Jan Muhammad, Masud-ul-Hasan, Mst. Anwari Begum, Nabi Bux and Muhammad Nasir.
According to the plaint, the petitioner supplied Cotton weighing about 17,000' maunds of the value of Rs,43,00,000. It was further averred that all the other co-owners except the respondent had admitted their liability and had even transferred their proportionate share in the business in favour of the petitioner corresponding to their liability towards the plaintiffs/petitioner. It was stated that the respondents in acknowledgement of the remaining amount of Rs,9,00,000 had executed the three pronotes in the sum of Rs,3,00,000 each. The learned lower Court after considering the respective contentions of both the parties accepted the application of the respondents vide.Order, dated 21-9-1995. According to the said order it was held that as the suit was based upon three separate pronotes executed by the three defendants/respondent, one suit was not maintainable and that the suit could only proceed against one of the defendants/respondents and directed to strike off the names of any other two respondents.
2. Rana Sardar Ahmed, Advocate, appearing for the petitioner submitted that the cause of action has been described in detail in the plaint. According Jo him the cause of action accrued to the petitioner upon the non-payment of the due amount by the respondents. The bundle of facts as disclosed in the plaint depicting the supply of Cotton by the petitioner to the respondent and other co-owners of their Gurgaig Cotton Ginning Factory, was the consideration for which all the co- owners were liable jointly and severally' In fact the co-owners other than the respondent had in acknowledgement of their liability transferred their share proportionate to their liability in favour of the petitioner. Although the three respondents had issued three separate pronotes yet the claim against them was based upon the same cause of action, the same transaction and one suit against all the three respondents was competent. In support of his contention the learned counsel placed reliance upon the case of Saleem Begum and others v. Olad Ali Shah and others NLR 1981 SCJ 598 to contend that it is in the interest of administration of justice and to avoid multiplicity of litigation that the claim arising from the same cause of action should be made through a single suit and against all necessary and proper parties to the suit. He placed reliance upon the provision of Order 1, rule 3 to contend that all persons may be joined as defendants against whom any right of relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist whether jointly, or severally and in case if separate suits were brought against such persons, a common question of law and fact would arise.
3. On the other hand, Sardar M. Hussain Khan, Advocate, the learned counsel for the respondents supported the judgment of the learned Additional District Judge, Bahawalpur and stated that under the provisions of Order 1, rule 10(2), C.P.C., the Court always has the power to strike out the names of any person or persons who have been improperly joined. He also submitted that a suit under Order 37 is filed on negotiable instruments. In the present case there are three separate pronotes which were executed by the three defendants/respondents separately and thus, it would amount to three separate causes of action. He also maintained that the course adopted by the petitioner was to defraud the Government of the Revenue by not paying Court-fee which would have been leviable if three suits have been filed.
4. Arguments have been heard and record perused.
5. The plaint had been based upon the primary averments that the petitioner had supplied cotton to the Gurgaig Cotton Ginning Factory which was owned by three respondents alongwith other co- owners.
' According to the averments in the plaint, the Cotton so supplied was of the value of Rs,43,00,000. It is also\ contended that the other co-owners have in acknowledgement of their liability sold their shares in proportion to their liability in favour of the petitioner. It is specifically alleged that the respondent had executed the three pronotes in satisfaction of the amount due for the supply of the said Cotton. The respondents filed an application for leave to appear and defend. A perusal of the contents of the said application would show that the respondents have not denied the execution of the pronotes but have on the contrary gave out a different version. In view of the divergent pleas of both the parties, it was necessary for the learned lower Court to have directed its attention towards the main controversy and should have proceeded to decide the application for leave to defend on merits. The learned trial Court misdirected itself in accepting the application of the respondents under Order 1, rule 10(2), C.P.C. On the wrong presumption that the cause of action was not as pleaded in the plaint but arose because of the execution of the pronotes. It may beneficial to reproduce Order 1, rule 3, C . P. C .
"All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of act or transactions 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."
6. Viewed in this perspective it is clear that to avoid multiplicity of litigation and miscarriage of justice, the relevant transaction or series of act or transactions have to be ascertained in respect of which it can be determined as to who are necessary or proper parties. I am not in agreement with the contention of the learned counsel for the respondent when he submits that the act of each defendant executing a separate pronote would give rise to a separate cause of action which would warrant the filing of separate suit against them. The execution of the pronotes, albeit separately by the respondent cannot lead to the conclusion that each such act amounted to a different cause of action. All that is provided under Order 37, rule 2, C.P.C. Is that suits upon bills of exchange hundies or promisory notes may be instituted in a specific manner in a procedure which is prescribed to be summary in nature. Once leave to defend is granted a suit filed under Order XXXVII partakes the nature and character of a normal civil suit for recovery of money. Indeed under Order XXXVII, rule 7 the procedure save as provided by Order XXXVII shall be the same as the procedure in suits instituted in the ordinary manner.
7. The upshot of the above discussion is that as the cause of action of the suit under Order 37 filed by the petitioner against the respondents was one and the same, it was permissible for the petitioner to have filed the suit against all the three respondents together notwithstanding that there were three pronotes executed by each of the respondents. The cause of action is relateable to the transaction or the series of transactions according to which the impleading of necessary parties is to be determined. The making of al pronote is only a presumptive evidence of the transaction or the cause of action..
8. The next contention of the learned counsel for the respondents that the result of filing only one suit would be to deprive the Government Exchequer of a requisite Court-fee, suffice it to say that proper Court-fee depends upon form of the suit. If one suit is maintainable under law, it cannot be allowed to be split in number in order to yield more Court-fee. In any case the respondent has no vested right to raise this issue.
9. In view of the above, the order; dated 21-9-1995 passed by the Additional District Judge, Bahawalpur cannot be sustained. The learned /lower Court had exercised its jurisdiction with material irregularity, the civil revision is allowed and the impugned order, dated 21-9-1995 is set aside leaving the parties to bear their own costs. The case is remitted to the lower Court for expeditious trial on merits.