ORDER
[1] There wore two brothers, Ganpat and Rambhau. The petitioner is the widow of Ganpat and she filed a suit against opponent 2 for the return of furniture let out to him on hire. Opponent 1, who is the son of Rambhau, made an application to the trial Court to be added as a party-plaintiff alleging that the furniture did not belong to the widow of Ganpat but was joint family property and therefore be was entitled to it. The learned Judge granted the application and added opponent 1 as the second plaintiff to the Suit. It is from that order that this revision application is preferred.
[2] Now, the petitioner contested the right of opponent 1 to the furniture in question and therefore there was a conflict and a direct conflict between the petitioner and opponent 1. Notwithstanding this conflict the learned Judge agreed to Opponent 1 appearing on the record of the suit as plaintiff 2. I should have thought, apart from authorities, that in a case like this the proper order to make is to make opponent 1 a party, defendant to the suit. The learned Judge says that he is making this order in order to avoid multiplicity of litigation. That is a very laudable object, but the same object could have been served by making opponent 1 a party-defendant to the suit. In that case a direct issue would have arisen between the petitioner and opponent 1 as to the right of the parties to the furniture in question. Assuming that opponent 1 had succeeded, the suit need not have been dismissed totally, but the suit would have been dismissed as against the petitioner, opponent 1 could have been transposed as a plaintiff and a decree could have been passed in favour of the transposed plaintiff. This seems to me to have been the correct procedure for the learned Judge to have followed. A party is added as a co-plaintiff when the plaintiff does not dispute the right of the co-plaintiff to the decree which might be passed.
[3] The learned Judge has relied on a decision of this Court in Krishnaji v. Motilal A. I. R. 1929 Bom. 337 (A), but when one looks at the facts of that case they do not bear out the view taken by the learned Judge as to the true position in law. In that case the plaintiff filed a suit for redemption. He was an assignee of the equity of redemption and he had taken the assignment from defendant 9. Defendant 9 then sued the
plaintiff to have the deed of assignment set aside and the suit ended in a compromise by which defendant 9 was to receive certain consideration for one of the houses from the plaintiff and the plaintiff was to retain the other house, the subject-matter of the mortgage being two houses. Then defendant 9 applied to be a co-plaintiff in the redemption suit and his application was granted. Therefore, it will be noticed that by reason of the compromise decree between the plaintiff and defendant 9, the plaintiff admitted the right of defendant 9 to redeem one of the two houses. Therefore there was no conflict between the plaintiff and defendant 9 as to the title with regard to one of the two houses, and if a decree had been passed for redemption, it would have been passed both in favour of the plaintiff and the newly added co-plaintiff.
[4] Mr. Gokhale has drawn my attention to an English case in Emden v. Carte, (1881) 17 ch. d. 169 which seems to suggest that a co-plaintiff was added although the original plaintiff opposed that application. But when we look at the facts of that case, the facts are clearly distinguishable. There the plaintiff filed a suit for a money decree and pending the suit he became insolvent. The trustee in insolvency applied to be made a co-plaintiff and the application was granted. As Fry J. points out at p. 173 that if a decree for damages and remuneration was to be passed in favour of the original plaintiff, the amount would pass to the trustee, and therefore the trustee had the substantial right of action and therefore it was just and fit that he should be a co-plaintiff with the original plaintiff. Therefore, in that case there was no dispute between the two plaintiffs. The official trustee was added because in the event of the original plaintiff succeeding the decretal amount would go to the trustee and not to the original plaintiff.
[5] Then there is an old judgment of this Court in Pestonji Mancharji Wadia, v. Matchett et al, 7 Born. h. c. r. (A. C. J.) 10 (c). There one Matchett executed in favour of one Pestonji a letter of authority authorising Pestonji to recover a certain sum of money from Messrs. Windle & Nowell. Matchett ignoring the letter of authority sued Nowell for a certain sum of money. Pestonji then applied to be made a party to the suit. His application was granted and he was joined as a co-plaintiff, and this Court held that Pestonji was properly made a party, but as the validity of the letter of authority was disputed by Matchett, Pestonji should rather have been joined as a defendant than as a plaintiff. There is also a Calcutta case in Googlee Sahoo v. Premlall Sahoo, 7 cal. 148 (D) holding that where the plaintiff disputed the right of a party to have an interest in the property which the plaintiff was claiming, that party should be properly joined as a defendant and not as a co-plaintiff, because if he was
joined as a defendant, an issue could be raised between the plaintiff and the party newly joined. This seems to be really the principle underlying a party being joined to the suit in a case like the present. It is only if he is joined as a defendant that an issue can be legitimately raised between him and the plaintiff, when the plaintiff disputes the title of the party applying to be made a party to the suit. Therefore in this case as the widow disputes the right of opponent 1 to the furniture in suit, he should be made a party-defendant and not a party-plaintiff.
[6] I will, therefore, make the rule absolute with costs and permit opponent 1, if so advised, to apply to the Court below to be made a party, defendant to the suit. If the application is made, the learned Judge below will dispose of that application according to law, The learned Judge will consider any objections raised to that application by the petitioner.
[7] Rule absolute.
