1. [His Lordship after stating the facts, and dealing with them, proceeded,] Mr. S.R. Adik, the learned counsel for the appellants, contended that the findings of the learned district Judge on the point that the suit is bad for multifariousness and that the present suit was to be considered only with respect to the claim of plaintiff Nos. 1 and 2 relating to sub-division No, 1 of survey No. 333 and taking the suit as withdrawn in respect of sub-division No. 2 of survey No. 333 claimed by the plaintiff No. 3 with liberty to bring a fresh action, thereby meaning that the plaintiff No. 3 was not barred to bring a fresh action in respect of survey No. 333/2 on the same cause of action, are totally unwarranted. The learned district Judge failed to appreciate that the learned pleader Shri Sarlaskar, appearing for the plaintiffs Nos. 1, 2 and 3 in Civil Appeal No. 66 of 3970 had submitted that defendants Nos. 1 to 18 had united caused obstruction to the plaintiffs in respect of both the sub-divisions and, therefore, the plaintiffs can be joined together and claim relief in one suit. Apart from this submission the learned district Judge overlooked the fact that the trial Court had held in favour of the plaintiffs that the present suit was tenable in law. Mr. further submitted that the learned district Judge was wholly unjustified in making a choice on behalf of plaintiff No. 3 to prosecute the suit separately when his advocate did not concede the point and declined to make a choice. On the other hand, Mr. Abhyankar, the learned counsel for the respondent No. 3-plaintiff No. 3 supported the findings of the learned district Judge and submitted that the order should be maintained as plaintiff No. 3 had filed a separate suit pursuant to the liberty granted to him.
2. In my opinion, the entire approach of the learned district Judge is erroneous. He seems to have taken upon himself the onerous task of making out a case which was not urged on behalf of the plaintiff No. 3. The reasoning of the learned district Judge is that defendant Nos. 1 to 18 could not have united walked in a procession and tried to graze their cattle or exercise their right of dominion in respect of both pieces of lands at a time. In his opinion 'there is nothing like a single cause of action for all the plaintiffs. It is obviously a recurring cause of action arising from every act of any of the defendants grazing cattle or trying to exercise his rights of dominion over the piece of land.' This is how the learned district Judge seems to have bifurcated or separated the causes of action for plaintiff Nos. 1 and 2 on the one hand and plaintiff No. 3 on the other- In taking this view, he has not borne in mind either the pleadings or the evidence. In the plaint itself, it is specifically avered that defendant Nos. 1 to 18 caused obstruction on October 17, 1968 and that is made the basis of cause of action. On behalf of the plaintiffs, plaintiff No. 1 had entered the witness-box and deposed on the same lines. Thus the record shows that there was a single act of obstruction giving rise to the cause of action on which the plaintiffs founded their case. There is no material to show that the cause of action can be said to be of a recurring nature arising from day to day or from time to time.
3. The learned district Judge seems to have passed the order under Order I, Rule 2 of the Code of Civil Procedure, as he has exercised power to order separate trial which is provided for under this rule. Rule 2 is in these terms:
Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient.
4. In order to exercise power under this rule, the Court should in the first place ascertain that the joinder of the plaintiffs is likely to 'embarrass the trial of the suit', that is, the trial may be impeded or complicated by joinder of plaintiffs or 'delay the trial of the suit' that is, the trial may have to be postponed or it would otherwise become tardy if the joinder of the several plaintiffs were to be continued. Unless the Court satisfies itself about these matters and comes to such a conclusion, the power envisaged under this rule cannot be exercised. This power seems to be meant for the trial Court, the Court of first instance, and not for the appellate Court. It is for the trial Judge before whom the trial opens or at the stage of settling the issues or even at an earlier stage to consider whether the joinder of the plaintiffs will embarrass or delay the trial of the suit if the plaintiffs were allowed to prosecute the suit together. When the Court makes up its mind that such a contingency is likely to arise by joining several plaintiffs together in one suit, then the Court is required to put the plaintiffs to election, or order separate trial or make such other order as it thinks expedient.
5. In the present case, the trial Court who tried the suit did not find that the joinder of the plaintiffs Nos. 1, 2 and 3 would either embarrass or delay the trial. The suit has been heard and disposed of by the trial Court without any kind of difficulty contemplated under this rule. The significant thing is that it has specifically held that the suit was tenable thereby holding that though the rights of the plaintiffs were different yet having regard to the cause of action and common question of law and fact involved there was no necessity to order separate trial. Factually also plaintiff No. 1 entered the witness-box and deposed on behalf of himself and other plaintiffs. Although plaintiff Nos. 1 and 2 had claimed right over survey No. 333/1 and plaintiff No. 3 had claimed right over survey No. 333/2 yet for the purpose of proving their case, the evidence of plaintiff No. 1 was tendered. Plaintiff No. 1 has stated in his evidence that the suit-lands were jointly or commonly enjoyed by all the plaintiffs. The trial of the suit indicates that the merits of the case had been satisfactorily disposed of and in the circumstances Order I, Rule 2 was not attracted.
6. There is another angle from which this aspect can be examined. The plaintiffs claim relief over survey Nos. 333/1 and survey No. 333/2 out of the same set of circumstances or circumstance involving a common question of law or fact. The right to relief arises out of the same act of obstruction committed on October 17, 1968 and if plaintiff Nos. 1 and 2 and plaintiff No. 3 had filed separate suits same common question of law or fact would have arisen. Thus both set of plaintiffs properly joined as plaintiffs to institute one suit. Sir D. F. Mulla on Code of the Civil Procedure, thirteenth edn., at p. 599 says after giving various illustrations and references to English cases, on English Rule I of Order XVI corresponding to Order I, Rule 1 of our Code says that.the test under the new English rule as well as the present Indian rule is no longer the identity of the cause of action, but the identity of the act or transaction, such a joinder of plaintiffs would now be perfectly legitimate both in England and India.
Thus in either view of the matter, the joinder of the plaintiffs in one suit was proper.
7. [The rest of the judgment is not material to this report.]