SHRIPATI PANDU KAMBALE Vs. BAHU GANPATI KAMBALE

JUDGEMENT

(1.) [His Lordship after stating the facts, and dealing with them, proceeded,] Mr. S.R. Adik, the learned counsel for the appellants, contended that the findings of the learned district Judge on the point that the suit is bad for multifariousness and that the present suit was to be considered only with respect to the claim of plaintiff Nos. 1 and 2 relating to sub -division No, 1 of survey No. 333 and taking the suit as withdrawn in respect of sub -division No. 2 of survey No. 333 claimed by the plaintiff No. 3 with liberty to bring a fresh action, thereby meaning that the plaintiff No. 3 was not barred to bring a fresh action in respect of survey No. 333/2 on the same cause of action, are totally unwarranted. The learned district Judge failed to appreciate that the learned pleader Shri Sarlaskar, appearing for the plaintiffs Nos. 1, 2 and 3 in Civil Appeal No. 66 of 3970 had submitted that defendants Nos. 1 to 18 had united caused obstruction to the plaintiffs in respect of both the sub -divisions and, therefore, the plaintiffs can be joined together and claim relief in one suit. Apart from this submission the learned district Judge overlooked the fact that the trial Court had held in favour of the plaintiffs that the present suit was tenable in law. Mr. further submitted that the learned district Judge was wholly unjustified in making a choice on behalf of plaintiff No. 3 to prosecute the suit separately when his advocate did not concede the point and declined to make a choice. On the other hand, Mr. Abhyankar, the learned counsel for the respondent No. 3 -plaintiff No. 3 supported the findings of the learned district Judge and submitted that the order should be maintained as plaintiff No. 3 had filed a separate suit pursuant to the liberty granted to him.

(2.) IN my opinion, the entire approach of the learned district Judge is erroneous. He seems to have taken upon himself the onerous task of making out a case which was not urged on behalf of the plaintiff No. 3. The reasoning of the learned district Judge is that defendant Nos. 1 to 18 could not have united walked in a procession and tried to graze their cattle or exercise their right of dominion in respect of both pieces of lands at a time. In his opinion 'there is nothing like a single cause of action for all the plaintiffs. It is obviously a recurring cause of action arising from every act of any of the defendants grazing cattle or trying to exercise his rights of dominion over the piece of land.' This is how the learned district Judge seems to have bifurcated or separated the causes of action for plaintiff Nos. 1 and 2 on the one hand and plaintiff No. 3 on the other - In taking this view, he has not borne in mind either the pleadings or the evidence. In the plaint itself, it is specifically avered that defendant Nos. 1 to 18 caused obstruction on October 17, 1968 and that is made the basis of cause of action. On behalf of the plaintiffs, plaintiff No. 1 had entered the witness -box and deposed on the same lines. Thus the record shows that there was a single act of obstruction giving rise to the cause of action on which the plaintiffs founded their case. There is no material to show that the cause of action can be said to be of a recurring nature arising from day to day or from time to time.

(3.) IN order to exercise power under this rule, the Court should in the first place ascertain that the joinder of the plaintiffs is likely to 'embarrass the trial of the suit', that is, the trial may be impeded or complicated by joinder of plaintiffs or 'delay the trial of the suit' that is, the trial may have to be postponed or it would otherwise become tardy if the joinder of the several plaintiffs were to be continued. Unless the Court satisfies itself about these matters and comes to such a conclusion, the power envisaged under this rule cannot be exercised. This power seems to be meant for the trial Court, the Court of first instance, and not for the appellate Court. It is for the trial Judge before whom the trial opens or at the stage of settling the issues or even at an earlier stage to consider whether the joinder of the plaintiffs will embarrass or delay the trial of the suit if the plaintiffs were allowed to prosecute the suit together. When the Court makes up its mind that such a contingency is likely to arise by joining several plaintiffs together in one suit, then the Court is required to put the plaintiffs to election, or order separate trial or make such other order as it thinks expedient.