1. This is a plaintiff's revision against the order dated 31-8-1954 passed by the Munsiff, Sehore in Small Cause Suit No. 23 of 1954.
2. The plaintiff is the successor of the landlord and the defendant is the successor of the original tenant of a house and continued to pay the monthly rent of Rs. 3/- per month to the plaintiff. The Plaintiff and one Mangilal, now non-applicant 2, had dealing with each other and the plaintiff asked the defendant to pay the rent to Mangilal and it was accordingly being paid and credited to the plaintiff's account with Mangilal. On 30-7-1951 the plaintiff gave a notice to the defendant asking him to cease paying the rent to Mangilal and to pay it to the plaintiff. The defendant did not pay to either and replied that Mangilal also claimed it and therefore he could not be sure to whom to pay. The Plaintiff then sued the defendant in the Small Cause Court for arrears of rent for 30 months and the defendant made the same contentions.
3. Mangilal, however, applied for being joined as plaintiff and was opposed by the latter. The Munsiff allowed the application but did not even state the reasons therefor, hence the revision. The first material irregularity committed by the Munsiff is that no reasons in support of the Older allowing the application are stated. It must be borne in mind that as a general rule an order by a Court of law is founded on objective consideration and as such the judicial order must contain discussion of the question at issue and the reasons which prevailed with the Court to pass the order.
4. Otherwise, firstly the order smacks of a mere executive order founded only on subjective consideration and secondly it is impossible to know if the consideration of the question by the Court was correct and supported by application of the correct law and findings of fact, if any. The order in question is therefore liable to be set aside on this ground alone.
5. The illegality of the order is again obvious. No Court is entitled to order a person to be added as a plaintiff without the consent of the plaintiff who is already on record, who has taken the trouble of incurring the cost, of preparing the brief, engaging a counsel and instituting the claim in Court.
6. The provisions of O. 1, R. 1 of the CPC. do not warrant joinder even in the alternative of plaintiffs who are rival claimants each of whom denies the right to relief of the other. Their Lordships of the Privy Council have in — ‘Mewa Singh v. Basant Singh’, AIR 1918 PC 49 (A), condemned the joinder of such plaintiffs even when willingly joined in order to obtain a decree against the defendant and then to divide its fruit if and when necessary.
7. The Court's power under O. 1, R. 10 of the Code to order joinder of Plaintiff is confined to a suit instituted in the name of a wrong person as plaintiff or where it is doubtful whether the suit has been instituted in the name of the right plaintiff & requires the satisfaction of the Court that the suit has been instituted through a bona fide mistake, etc. In the case of a suit for arrears of rent by a landlord against the tenant no person who challenges the right of the plaintiff to sue may be joined so as almost to convert the suit into one based on title. If the defendant challenges the right of the plaintiff and sets up another man's claim, it is for the defendant to prove that it is not the plaintiff but the other man who has the rightful claim. In so far as a suit between a landlord and tenant is concerned the former is entitled to a decree as soon as he proves the tenancy which the defendant is estopped from denying. In — ‘Rameshwar Pershad Singh v. Nauhku Mod’, AIR 1916 Cal 484 (2) (B), it has been held:
“When in a suit for rent, the tenant defendants set up the title of third person to the rent, such third person is not a necessary party to the proceeding.”
In — ‘Pravat Chandra v. Amulya Chandra’, AIR 1927 Cal 340 (C), it has been held:
“As a genera] rule a plaintiff cannot be added without the consent of the existing plaintiffs and such consent would be all the more necessary in the case of a substitution.
“A third party ought not to be made a party to a suit for rent so as to convert a simple suit for arrears of rent into one for determination of the title of the property in respect of which the rent is claimed.”
8. In — ‘Ambadas v. Pandu’, 57 Ind Cas 784 (Nag) (D), it has been held:
“The Code of Civil Procedure of 1908 does not give sanction to the joinder as plaintiffs of rival claimants, each of whom denies the right to relief of the other. It is essential that each co-plaintiff should be in harmony with the other.
Order 1, R. 10 of the Code does not empower a Court to add any person as plaintiff who could not have originally joined as such. Order 1, R. 8 does not conflict with this view.
An order allowing joinder of persons claiming, adversely to each other is illegal and of a kind which falls within the purview of Section 115 of the Code.”
9. In the circumstances the order of the Court below is not only irregular but also illegal and is liable to be set aside.
10. The revision is thus allowed with costs against non-applicants I and 2 who shall bear their own costs. Counsel's fee will be Rs. 10/- for each party. It is ordered that the application of Mangilal is rejected and the suit shall proceed according to law from that stage. The parties are directed to appear in the lower Court on 2-3-1955.
11. Revision allowed.