MAHARAJ BAHADUR SINGH Vs. NARMADA CHARAN BANERJI

JUDGEMENT

(1.) This rule is directed against an order of the Subordinate Judge of Dinajpur by which an application for impleading two men as defendants was rejected. The plaintiff petitioner sued the defendant, his retained pleader, for accounts and also for compensation for loss caused by some specific wrongful acts. One of the specific wrongful acts alleged that the defendant had made an unauthorized substitution of the defendant in a certain suit brought by the plaintiff. The pleader admitted the substitution but set up the defence that the substitution had been made under the instructions of the plaintiff's Naib, Chintaharan Ganguly and Patwari Male Mahommad. The plaintiff thereupon applied to the Court to implead the Naib and the Patwari as defendants in the suit brought against the pleader. This application was rejected and the present rule is directed against that order of refusal. This rule,. in nay opinion, must succeed. The plaintiff claimed compensation for the loss incurred by him by the substitution of the defendant in the suit. If the substitution caused any loss to the plaintiff the question for determination by the Court would be whether the plea-der was liable for making the substitution without any authority of the Naib and the Patwari, and if with their instruction, whether the Naib and the Patwari had any authority of the plaintiff to give that instruction.

(2.) The plaintiff's right to relief as against the pleader, or in the alternative as against the Naib and the Patwari, arises out of the substitution of the defendant in the suit ? a substitution that was made either with or without any authority. If separate suits were brought, one against the pleader and another against the Naib and the Patwari, there would be at least two common questions of fact, namely whether there had been a substitution of the defendant in the suit and whether the substitution had been made with the authority of the Naib and the Patwari. I am therefore clearly of opinion that the case comes within the purview of Order 1, Rule 3, Civil P. C., and that being so the order refusing to implead the Naib and the Patwari in the suit originally brought against the pleader cannot be maintained. The result is that the rule is made absolute with costs, hearing fee being assessed at one gold mohur. Jack, J.

(3.) I agree.