HARISCHANDRA NARAYAN VINEKAR Vs. KUMMA VITHOBA KOMARPANT

JUDGEMENT

(1.) THIS application arises out of a small cause suit in the Court of the First Class Subordinate Judge at Karwar. It appears that the present defendant No. 2 Harischandra had filed Suit No. 562 of 1920 against Pandurang in which he obtained a decree against him. At that time it was pleaded by way of defence that Kumma bin Vithoba, the present defendant No. 1, had really paid rent to Harischandra Which was then claimed as being payable by Pandurang; but that defence was not believed and a decree was passed in favour of Harischandra. Thereafter the present plaintiff Pandurang and his daughter, who are Mulgenidars of the Devasthan, filed Suit No. 267 of 1921 in the same Court to recover the rent which would be payable by Kumma, defendant No. 1, to them. Defendant No. 1 is admittedly their tenant. The learned Judge finds that the rent was due by him to the plaintiffs and has passed a decree for Rs. 27 against defendant No. 1. But as it appeared from the evidence which was recorded in this suit that as a matter of fact defendant No. 1 had paid this amount previously to Harischandra, ho directed him to be joined as defendant No. 2 to this suit with a view to "secure justice." After joining him as a party, the learned Judge held that defendant No. 1 had paid the rent to defendant No. 2, exactly contrary to the conclusion which he had reached on that point in the previous suit; and in view of that finding he proceeded to pass a decree in favour of defendant No. 1 against defendant No. 2. It is difficult to justify the procedure adopted by the trial Court in this case, as regards the joinder of defendant No. 2, and the ultimate decree passed by the Court in favour of defendant No. 1 against defendant No. 2. The only question appropriate to this suit was whether defendant No. 1 was liable for the amount claimed by the plaintiffs. The questions as between defendant No. 1 and defendant No. 2 were not appropriate to this suit, and it seems to us that a simple suit has been unnecessarily complicated. Though we appreciate the desire of the learned Judge to do justice, which, no doubt, on the facts found in this case, would go to show that defendant No. 1 was the sufferer, it is difficult to ignore the fact that on a previous occasion the learned Judge did not believe defendant No. 1 on that point. Whatever the merits of the claim as between defendant No. 1 and defendant No. 2 may be, it is quite clear that in this suit such a decree in favour of defendant No. 1 against defendant No. 2 could not be passed. We, therefore, make the rule absolute and discharge that part of the decree of the lower Court which relates to the payment by defendant No. 2 to defendant No. 1. We also discharge the order of the lower Court with regard to the payment of costs by defendant No. 2 to defendant No. 1. We make no order as to costs in this Court and as to the costs of defendant No. 2 in the lower Court.