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.
4.The result, therefore, is that the constitution of this suit cannot be justified by reason of anything that took place at the meeting of the 18th of April 1909. That difficulty was, as I understand, admitted by Mr. Desai who, however, sought to remove it by reference to events that occurred after the filing of the suit; and the contention was that, although at the date of the filings of the suit, the plaintiffs were without that authority upon which they purported to base their suit, yet such authority was subsequently supplied to them by the circumstance that after the filing of the suit numerous members of the Mojumpur section communicated to the plaintiffs their adherence to the position which the plaintiffs were adopting. Thus by the application, Exhibit 73, 42 such members expressed their adherence. By the letters and postcards, Exhibits 74 to 87,14 other members gave a like expression of opinion. The total, according to Mr. Desai's calculation, would give 112 members consenting to the plaintiffs' action out of a total membership of 183. Now it was admitted in the course of the argument that in this matter there is neither statutory law nor custom which can guide us to a decision, and that in consequence under the Regulation of 1827 our determination must be founded upon equity and good conscience. But it seems to me that the rules of equity and good conscience forbid the inference that an expression of opinion obtained in private after a suit filed is on the same level as the open casting of a man's vote at a public meeting. For, at the public meeting there are his friends to support him, and there are his adversaries to correct him or any other member on his side if any misrepresentation or exaggeration should be used in argument; whereas opinions obtained by one party in private behind the back of the other party may be obtained by inducements or representations which, if they were known to the Court, would not be approved by the Court. I think, therefore, that it is not possible to call in aid these private expressions of consent obtained after suit filed so as to supply that authority which was admittedly lacking at the time when the suit was in fact filed. That being so, the suit as constituted must, I think, fail.
5. We have carefully considered whether under Order 6, Rule 17, we ought not to allow, even at this late stage of the litigation, the plaintiffs to amend their plaint. I am of opinion that permission ought not to be granted for the reason that if it were granted, it would expose the defendants to an injury which could not be compensated in costs. For the amendment of the plaint in the manner suggested would alter the whole fabric and character of the suit, and however the amended claims might be worded, the result would be that they would be claims now sprung upon the defendants for the first time, claims which the defendants up till now have never had any opportunity either of considering or of resisting.
6. In my opinion, therefore, the whole suit fails and should be dismissed with costs throughout.
7. I entirely concur.