1. This is an application for the revision of an order of the Munsif of Mirzapur rejecting the plaintiff's application for amendment of the plaint. The circumstances are as follows : The suit was brought by a firm named Sheo Prasad and Co., but the plaint was signed by one partner, Har Prasad, and he sued the contesting defendant Shankar Lal, for settlement of accounts as his agent. The defence was among other things that the account had already been settled with the three brothers of Har Prasad who were said to be partners in the firm, and that nothing was due to the plaintiff. The alleged cause of action arose on 26th January 1925 when Shanker Lal resigned his position as agent of the firm. After the filing of the written statement the plaintiff applied to implead the three brothers in order that he might in the alternative obtain a decree against them for any amount that might wrongfully have been obtained by them from the agent Shanker Lal. This application has been refused by the Munsif in the following words:
I reject the plaintiff's application for amendment as it will give rise to multifariousness,
2. It has been pointed out that under Order 2, Rule 6 the Court has been given discretion to order a separate trial where:
any causes of action joined in one suit cannot be conveniently tried or disposed of together,
and it is suggested on behalf of the opposite party that the Munsif was justified in passing his order by the provision of that Rule. It is perfectly true that the rule is so worded as to give the Court full discretion in the matter, but it has been held over and over again that where discretion is given to a Court in such matters it has to be exercised judicially and not arbitrarily, and that it is open to this Court to interfere in revision where such Court appears to have exercised this discretion without applying its mind to the case. The order of the Munsif is so briefly worded that it is impossible to see whether discretion was duly exercised or not and we have therefore been compelled to go into the merits of the case. Under Order 1, Rule 3, Civil P.C:
All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where if separate suits were brought against such persons any common question of law or fact would arise.
3. In the present case the plaintiff's plea was that the defendant was his agent, and that a sum of money was due from him on accounts, and the defendant's plea was that the accounts had been settled with Har Prasad's brothers, who were partners in the firm. It was necessary for the defendant to prove that there had been a settlement and that the brothers were partners. If he succeeded in both these pleas, the plaintiff's suit as orginally framed must fail, and the plaintiff would be compelled to bring a separate suit against the brothers on account of the fact which would have been proved in this suit that they had wrongly received money from Shanker Lal that was properly due to the plaintiff. It is quite clear that some issue would be common to both the suits, and it is equally clear that there might be a conflict of decision in the Court, i.e., it might be held in the present suit as framed that the brothers were partners and that the money had been paid, whereas it might be held in another suit that the brothers were not partners or that the money had not been paid. The whole of the question between the parties belonged, it appears to us, clearly to the same set of transactions, and the plaintiff had a right under Order 1, Rule 3 to join the brothers as parties if he wished to do so; and if the order of the trial Court were to be maintained it would mean in the first place that the plaintiff's suit against the brothers may be barred by limitation--though we are informed that it is not--and that the same issues would be tried in separate suits without a complete array of the necessary parties in either. We do not think that the opinion of the Court that the amendment of the plaint would give rise to multifariousness is well founded, and we find on the other hand that the addition of these further par-ties will have the result of settling the questions at issue between the parties once for all in a single case. We consider therefore that the' order of the Court is open to revision, and we therefore accept the application with costs, set aside the order of the learned Munsif, and direct that the plaintiffs application be allowed and that the plaint be amended accordingly.