BAYAJABAI GANPAT Vs. KEVAL RAMBHAU

JUDGEMENT

(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 coplaintiff.