BHAUDIN BABA SHAIKASAN Vs. IBRAHIM ALLISAHEB SHAIKASAN

JUDGEMENT

(1.) IT is argued that the joinder of defendant No. 2 more than a year after the suit was brought, makes the decree against him under Section 9 of the Specific Relief Act one that it was beyond the jurisdiction of the lower Court to pass. This is based on Section 22 of the Indian Limitation Act; it is said the suit must be deemed to have been instituted as against him when he was made a party and that would be beyond the six months prescribed for a suit under a 9 of the Specific Relief Act by Art. 3 of the Schedule to the Indian Limitation Act. The Subordinate Judge has found that defendant No. 2 was not a necessary party; that the dispossession was by defendant No. 1 who is defendant No. 2's son; and that defendant No. 2 was merely joined for the purpose of safeguarding his own interest upon the application, Exhibit 33. Accordingly, under the principle followed by this Court in Guruvayya V/s. Dattatraya (1903) I.L.R. 28 Bom. 11, s. c. 5 Bom. L.R. 618 and similar cases, he held that Section 22 does not apply to this case. Undoubtedly, defendant No 2 was added on his own application, in which he urged that he ought to be joined to protect his own interest; and, in these circumstances, we are not prepared to say that the Subordinate Judge has erred in law in the view he took, Therefore, the point of jurisdiction, in our opinion, fails, and we do not think that there is any sufficient reason to interfere.

(2.) TO limit the decree to one against defendant No. 1 would obviously encourage further litigation: defendant No. 2 would obstruct the execution of the decree against defendant No. 1, and a fresh suit would have to be brought against him Defendant No. 2 asked to be joined as a party, and he cannot, in our 1928 opinion, have it both ways, i. e., "heads I win, tails you lose." He has got the advantage he sought of being joined as a party, and he must suffer the disadvantage entailed, viz., the risk he took of a decree being passed against him. We, therefore, dismiss the application with costs.