1. This Rule is directed against an order of the Subordinate Judge of Tipperah transferring the plaintiff No. 2 from the category of plaintiffs to that of defendants. I have patiently heard the learned Vakil who appears for the petitioner and have gone through all the relevant documents in the case but I am not satisfied that the petitioner has been able to make out a case for our interference under Section 115) Civil Procedure Code. It is argued that the learned Subordinate Judge had no jurisdiction to pass the order he passed under Order 1, Rule 10, Civil Procedure Code. There is no substance in this contention. As has been observed in the case of Bhairabendra Narain Deb v. Udai Narain Deb : AIR1924Cal251 ; such an order is within the jurisdiction of the Court in the exercise of its inherent powers or as is remarked in the case of Brojendra Kumar Das v. Gobinda Mohan Das (1916) 20 C.W.N. 752, the Court has jurisdiction to pass such an order under Order 1, Rule 10. In any event, it cannot be said that the order is without jurisdiction.
2. It is next contended that the Subordinate Judge was wrong in making this order under Order 1, Rule 10 as he should have proceeded under Order 32, Rule 15 read with Rule 9. I do not think that this contention ought to prevail. No doubt the language used by the Subordinate Judge is rather loose as has been pointed out by Mr. Garlic, the District Judge but what he meant to say was that it would be to the interest of the second plaintiff to have been transferred to the list of defendants.
3. Again it is argued that the learned Subordinate Judge's order is without jurisdiction inasmuch as it overrides the order of the District Judge passed on the 17th August, 1922, in the lunacy proceedings. The District Judge by that order directed the then manager of the estate of the lunatic to sign the present plaint. It is, therefore, maintained that the learned Subordinate Judge had no right to allow the application of the plaintiff No. 2 to be made a defendant in the suit. It is not necessary for me to consider whether the Subordinate Judge who had seisin of the suit bad exceeded his jurisdiction in allowing the application of a party before him in the suit thus virtually modifying the order of the District Judge passed in his extraordinary jurisdiction. But whatever substance there might be in this contention has now been removed by the subsequent order of the District Judge on the application of the petitioner. It is alleged that the petitioner moved this Court sometime ago and he was asked to apply to the District Judge to direct the guardian representing the lunatic to continue to act as a plaintiff and in pursuance of that suggestion the petitioner moved the present District Judge who upheld the order of the learned Subordinate Judge. He has observed that it is clear that the interests of the first plaintiff are adverse to those of the lunatic in some respects and that there are considerable objections to the lunatic's joining the suit as a co-plaintiff. This has set the matter right. The District Judge in his capacity as a District Court under the Lunacy Act is entitled to pass order for the management of the lunatic's estate and in course of management to revise his order. No doubt the officer who passed the second order is not the same officer who passed the first order, but that does not in any way curtail the power of the District Judge.
4. Lastly it is argued that the order that has been passed by the Subordinate Judge is calculated to cause injury to the petitioner. There is no question that there will be some change in the frame of the suit, but according to the lunatic's case it is unavoidable.
5. Apart from all the questions that have been raised I am not satisfied that the petitioner has been able to make out a case for our interference in the exercise of our extraordinary jurisdiction under Section 115, Civil Procedure Code.
6. The Rule is, therefore, discharged with costs to Opposite Party No. 10. The hearing-fee is assessed at three gold mohurs.
7. I agree with the order that my learned brother proposes to pass. I would only make one remark on one point in connection with this case and that is as to the way in which the guardian of the lunatic came into the case as a plaintiff and has been transferred to the position of a defendant. It appears that on the application of the plaintiff No. 1 Padma Lochan Pal, the then guardian of the lunatic Gobindo, was ordered by the District Judge to become a plaintiff on certain allegations mainly made by Padma Lochan Pal. It also appears that the plaint itself was not before the District Judge when he passed that order and I doubt, when we consider the nature of the plaint and the pleadings of the parties, whether if he had considered them the District Judge would have passed any such order at all, as it appears to me to be very clear that the interests of the plaintiff No. 1 and plaintiff No. 2 are adverse to one another and that, to no inconsiderable extent, and though no doubt it was proposed in the suit to leave open the question of the exact share of these two brothers inter se in the partnership property, there was no reason why that matter should not be decided in this litigation. I feel, however, that when the Subordinate Judge found that the District Judge in his lunatic jurisdiction ordered the plaint to be signed, he has no power on his own motion to permit one party or the representative of that party to withdraw from category of the plaintiff and I consider that technically he acted without jurisdiction. But the matter did at the instance of this Court go back to the Court below to be looked into the merits by the learned District Judge as to whether the lunatic ought to be yoked with Padma Lochan Pal as a co-plaintiff in a suit of this nature and the present learned District Judge of Tipperah went fully into the question and decided that it was not desirable that the two should be co-plaintiffs, nor has anything in the argument of the learned pleader for the petitioner before me convinced me that the order of the District Judge in this respect is wrong; in this view, therefore, it is only just that the parties should not be yoked together as plaintiffs in this particular litigation. I, therefore, agree that the Rule should be discharged.