Treyelyan and Stevens, JJ.
1. In the suit out of which this appeal arises, the plaintiff Padarath Ahir sued to recover Rs. 304-12-9 dams, which he had to pay into Court, in order to obtain the release of his crops from attachment, together with Rs. 7-0-9 dams, the costs alleged to have been incurred in making the attachment. The plaintiff's case was that the principal defendant Jagdeo Singh had wrongfully caused the crops to be distrained under colour of Section 121 of the Bengal Tenancy Act, 1885, as the crops of the second defendant Anarath Rai, falsely alleging that the latter was the tenant of the plaintiff's holding on which the crops had been grown. Both the Courts below have found in favour of the plaintiff on the facts.
2. The plaint was filed within one month of the date when the attachment was made, but for some reason, which has not been explained to us, there appears to have been very great delay in disposing of the suit, and at a very late stage of the trial, some fourteen months after the filing of the plaint, a supplementary written defence was filed, in which for the first time the plea of defect of parties was taken. It was urged that inasmuch as Padarath's brother Kirtarath had an interest in the holding, he should have joined in bringing the suit. The obvious reply to this plea was that under Section 34 of the Code of Civil Procedure it was not admissible at that stage of the proceedings, but the plaintiff unfortunately for himself attempted to cure the defect to which objection had been taken, and what was done was that Kirtarath applied with Padarath's consent to be added as a co-plaintiff. This was done with the result, which might have been expected, that a fresh plea of limitation, based upon Section 22 of the Limitation Act, was at once taken by the defendants. That plea was allowed by the Court of First Instance so far as the interest of Kirtarath was concerned, and a decree was given only for one-half of the amount claimed, excluding the sum alleged to have been paid as the costs of the deposit, which was disallowed as not proved.
3. The defendant Jagdeo Singh appealed, and Padarath also appealed in respect of the moiety disallowed as the share of Kirtarath, but both appeals were dismissed by the Lower Appellate Court.
4. The defendant Jagdeo Singh only has come up to this Court in second appeal. The grounds which have been argued before us are, first, that the plaintiff had no right of suit, and; secondly, that the whole of the claim ought to have been held to have been barred by limitation.
5. A preliminary objection was taken for the respondent that no second appeal lies in the case, inasmuch as it is in reality not a suit for compensation for illegal distress such as is contemplated by Article (35) (j) of the second schedule of the Provincial Small Cause Courts Act, but is merely a suit for the recovery of the amount which the plaintiff-respondent had had to pay in order to procure the release of his crops from attachment. We think that objection is untenable, because the claim was not only for the recovery of the sum paid, but also for damages, namely the cost alleged to have been incurred in paying it. It is therefore a suit for compensation.
6. We proceed to deal with the appeal.
7. It is contended in the first place that the suit will not lie at all because such a suit can be brought only under the provisions of Section 140 of the Bengal Tenancy Act, and under that section a suit for compensation, where property has been distrained on an application made under Section 121 of the Act, lies only in a case in which such an application is not permitted by the latter section. It is contended that in the present case the distraint was made on an application made under Section 121 and permitted by the section. We think that there is nothing in Section 140 to exclude an action of this kind in a case like that before us in which the landlord is found to have abused his power of distraint by distraining the crops which belong to the tenant on the pretence that they belong to another person in collusion with himself. There has been an invasion of the rights of the tenant for which he is entitled to a remedy, and if the case is not one of the kind contemplated by Section 140 he is not, so far as we can see, deprived by the provisions of that section of the ordinary right of action which any person who suffers from a tortious act has against the tortfeasor. We may observe that this objection appears to have been taken for the first time in this Court.
8. With reference to the question of limitation we have first to see whether the addition of Kirtarath as a co-plaintiff was, in the circumstances of the case, legally made, looking to the provisions of Section 34 of the Code of Civil Procedure. No doubt the objection taken by the defendants for want of parties was inadmissible under that section, as not having been made before the first hearing. The difficulty is that that objection was not made in the proper manner, as we have already noticed, but Kirtarath made an application, with the consent of the original plaintiff Padarath, to be added as a co-plaintiff. Under the provisions of Section 32 this could be done at any time, and we think that the validity of the act of the Court, which was done at the instance of Kirtarath and Padarath, cannot be affected by the fact that in moving the Court to do it they are influenced by the defendants having made an objection which was not sustainable and which Padarath might have successfully resisted on that ground. The addition of Kirtarath was perfectly legal in itself, and we think that Padarath and he are bound by their own act in causing it to be made.
9. The contention for the appellant on the point of limitation is that the two brothers had a joint cause of action upon which they could only sue jointly, and therefore the bar against Kirtarath's claim must apply to that of Padarath also. No provision of law has been cited in support of this argument, but we have been referred to the following reported cases, several of which appear to have been cited in the Courts below: Obhoy Churn Nundi v. Kritartha Moyi Dossee (1881) I.L.R. 7 Cal. 284 Ramsebuk v. Ramlall Koondoo (1881) I.L.R. 6 Cal. 815; Ramdoyal v. Junmenjoy Coondoo (1887) I.L.R. 14 Cal. 791; Imamuddin v. Liladhar (1892) I.L.R. 14 All. 524: Jibanti Nath Khan v. Gokool Chunder Chowdry (1891) I.L.R. 19 Cal. 760, 764 and Kalidas Kevaldas v. Nathu Bhagvan (1883) I.L.R. 7 Bom. 217.
10. None of these cases seems to us to be in point. No doubt there are certain classes of cases in which persons having the same cause of action must sue jointly, such as suits upon a contract; but we are not aware of any authority for the application of this rule to actions on tort in every case in which several persons have been damnified by the same tortious act.
11. The non-joinder of a plaintiff in an action for wrong independent of contract may be a ground for insisting on the person being joined as plaintiff; but if that objection be not taken at the time and in the way provided by law, the defendant is liable for such portion of the damages as have been incurred by the plaintiff alone.
12. We do not think that there was anything to prevent Padarath in the present case from suing alone for compensation for the illegal distraint, as far as he was injuriously affected by it, and in this view his claim, which was certainly brought in time, would not be barred by the subsequent addition of Kirtarath as a co-plaintiff.
13. We dismiss this appeal with costs.