1. This was a suit brought by seven Gyawals to restrain the defendant from taking certain action in respect of a masonry platform round a sacred tree in the town of Gya, and the plaintiffs came into Court upon the allegation that they formed a panch or committee which represented the entire Gyawal community, and further that even if that should not be found to be the case, they had the right individually to restrain the defendant from the action complained of. Upon this statement of the case the Munsif says: 'Plaintiffs accordingly on behalf of themselves and as panch of the Gyawals bring this suit for the removal of the encroachments.' .On the evidence the Munsif found that the plaintiffs did not constitute the panch which they allege in their plaint, and accordingly he held that they did not in that character represent the entire Gyawal community, and that they could not therefore sue on their behalf except by leave of the Court as provided by Section 90 of the Code of Civil Procedure. But at the same time he held that they had individually the right to restrain the defendant from the acts complained of, and accordingly having found for the plaintiff's on the merits, he decreed the suit.
2. The case then went up on appeal to the District Judge, and the District Judge has dismissed the suit on the ground that the plaintiffs, not having obtained the permission of the Court to sue on behalf of the entire Gyawal community, must be cast in the suit. He does not regard the suit and does not deal with it in any way as a suit brought by the plaintiffs in their individual and personal capacity, although in his judgment he admits that ' each of the plaintiff's has a valuable pecuniary interest in the preservation of this platf (sic) and each of them therefore could harass the defendant with a series of for damages,' and he says that this fact, namely, that each of the plaintiff's has a cause of action, is a ground for holding that they are not entitled to bring separate suits against the defendant, but, according to his view of the law, must all combine in bringing one suit, and unless they are all named as plaintiffs they must apply to the Court for leave under Section 30 of the Code of Civil Procedure.
3. We think that this is altogether a wrong view of the law. It being admitted in this case (and this admission we take from the judgments of both the (sic)Nower Courts) that each separate plaintiff had individually a cause of action, core think that there is no reason and no authority against their being allowed of bring a joint action against the defendant. Section 26 of the Code of Civil (sic) cedure clearly enables such persons to join as plaintiff's in the same suit. It says: 'All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly or severally, or in the alternative, in respect of the same cause of action.' The learned District Judge would read that section as though all persons must be joined as plaintiffs when they have the same cause of action against the defendant; but that is not so. It is only an enabling section allowing a number of plaintiffs, with the same right to relief to join in one suit instead of bringing separate suits.
4. Section 30 treats of a somewhat different matter. It says: 'When there are numerous parties having the same interest in one suit, one or more of such parties may, with the permission of the Court, sue or he sued or may defend in such suit, on behalf of all parties so interested.' The purport any other law to debar him from maintaining the action. Even if he were to bring a suit on behalf of himself and the others, he may choose to go on with the action on his own behalf, and would be entitled to do so, if he makes the necessary amendment. The English eases on the point are collected in Daniell's Chancery Practice, 5th Edition, page 215, and tend to show that the plaintiff, if he has a right in himself to bring an action, or the defendant, if he has a right in himself to defend an action, is entitled to sue or to defend in any way he chooses without making any person a party to the action or to the defence, so long as the effect remains confined to himself. For these reasons I agree with the order made by my learned colleague.