HARKISANDAS SHIVLAL Vs. CHHAGANLAL NARSIDAS

JUDGEMENT

(1.) The plaintiffs, who are the appellants before us are like the defendants members of a caste known as the Dasa Lad Banias of Broach, and the caste is divided into two sections known as the Mojumpurias, (Mojumpur being a hamlet of Broach in which certain members of the caste lived or used to live), and the Sheherias or the city section. The plaintiffs belonged to the Mojumpur section, while the principal defendants belonged to the Sheheria section. The plaintiffs in their plaint set out that they were authorized by the Mojumpur section on the 18th of April 1909 to bring this suit, which they accordingly did bring under Order I, Rule 8 of the Civil Procedure Code, as representing the members of the Mojumpur section. The object of the suit was to depose the 1st defendant from the position which he appears to occupy both in the Mojumpuria and in the Sheheria sections of the caste, and the principal prayers made in the plaint were that the accounts of the Mojumpur section should be settled from Samvat 1953, and that the 1st defendant should be compelled to pay to the plaintiffs the amount that might be found due upon those accounts being taken.

(2.) The trial Court made a decree in favour of the plaintiffs, but upon appeal that decree was amended by the learned District Judge who refused the prayer that the 1st defendant should be called upon to refund the moneys due to the Mojumpur section, though he allowed the plaintiffs claim to the extent that accounts should be taken from the 1st defendant. From that decree the plaintiffs bring this present appeal, while the respondents have filed cross objections in respect to that portion of the decree which was in the plaintiffs favour.

(3.) We have had a very careful argument from Mr. Desai on behalf of the plaintiffs-appellants but I am of opinion that this suit was misconceived and must fail. As I have shown, the plaintiffs purported to be suing on behalf of the whole Mojumpur section, or sub-caste, by virtue of Order I, Rule 8. But it seems to me clear upon the very face of things that the plaintiffs could not, under Order I, Rule 8, sue on behalf of those numerous members of the Mojumpur section who admittedly were and are in diametrical opposition to them in this present controversy. In no sense could those persons be said, I think, to be represented by the plaintiffs in this suit. For in no sense could it be said, as the language of the Rule requires, that they and the plaintiffs held the same interest in the suit and that the plaintiffs in bringing this suit were suing for or on behalf of these dissentient members. But then it was said that in any event the suit was good, considered as brought by the plaintiffs for themselves and for those members of the Mojumpur section who at the meeting of 18th of April 1909 recorded their opinions in favour of the plaintiffs views. There, however, the difficulty is the learned appellate Judge s finding of fact that this meeting was irregularly convened, and Mr. Desai has very properly and candidly admitted that that finding of fact is binding upon him in second appeal.