Bombay High Court
Venkatrao A. Pai And Sons Ltd.
Narayanlal Bansilal And Ors.
on 2 August, 1960
Equivalent citations: AIR 1961 Bom 94, (1960) 62 BOMLR 947, ILR 1961 Bom 459
1. This is an application tiled by defendant No. 7 in a suit filed by respondents Nos. 1 and 2 in the Small Causes Court against an order passed by the Small Causes Court permitting the two respondents individually to be represented by two separate advocates and also permitting cross-examination of the defendants and their witnesses by each of these advocates.
2. The question involved in this application is a very important one and it is as to the validity on otherwise of a long standing practice prevailing both on the Original Side of the High Court as well as on its Appellate Side as also in all the subordinate courts. The question is, whether where more than one person join as co-plaintiffs in a suit, each of the plaintiffs has got an individual right of engaging his own advocate or counsel and conducting the case independently of the other plaintiffs. Mr. Bhabha, the learned counsel for respondents Nos. 1 and 2 was unable to cite any instance in this High Court on its Original Side, where he has been practising for a long number of years, in which in case of a suit filed by more than one person as co-plaintiffs different counsel were briefed for each of the plaintiffs. It cannot be gainsaid that the traditions and conventions of this High Court have all been inherited from the English Courts of justice.
Mr. Bhabha was unable to point out even a single instance of any case in England in which different counsel were engaged for different plaintiffs who had joined in one suit. On the other hand the learned Government Pleader, Mr. Chandrachud, invited my attention to a very old case Wedderburn v. Wedderburn, (1853) 51 ER 993, decided as far back as in 1853, where the Master of the Rolls observed;
“When persons undertake the prosecutions of a suit they must make up their minds whether they will become co-plaintiffs; for if they do, they must act together. I cannot allow one of several plaintiffs to act separately from and inconsistently with the others.”
In fact, I never expected any reported case on this question, because, in my opinion, the practice of one or more counsel appearing for all the co-plaintiffs in a suit jointly and not severally both here and in England has been so uniform and confirmed that there would not be any possibility of any question ever arising of different plaintiffs in one suit being represented by different counsel. The case cited by the learned Government Pleader, however, clears up any difficulty or doubt that might have never existed in regard to this question.
3. It is clear that two or more persons would agree to join as co-plaintiffs in a suit only if there is any common question of law or fact between them, and their respective claims arise out of the same transaction. The law permits these different plaintiffs to join in one action by filing one common plaint only with a view to save multiplicity of suits and consequent wastage of time of the Court. If this is the object of allowing several persons to join as plaintiffs in one action, the object would be frustrated if each of these persons is allowed to be represented by a separate counsel and each one of the counsel is also permitted to be in charge of the case for his own client. I fail to see how, if such things are permitted, the wastage of the time of the Court, which is otherwise intended to be saved by allowing several persons to join together as co-plaintiffs in one action, could at all be saved. On the contrary, far more time would be taken and a number of unnecessary complications would arise in trying one such action if every one of the plaintiffs is allowed to be represented by his own counsel and each counsel is allowed to conduct the case separately for his own client. It may be for this reason that the tradition has taken deep roots both in the courts here as in England that in cases where more persons than one join as co-plaintiffs in one action they should all be jointly represented by one or more counsel. It may be that at some stage or the other of the action some of the plaintiffs might feel that there is a conflict of interest between them and the other plaintiffs. Just for that reason, however, as was held by the Master of the Rolls in the case cited above, such plaintiffs cannot be allowed to engage a different counsel. If they so wish, they might well apply to the Court to transpose them as defendants.
4. In this case, the same procedure should have been followed, when a separate Vakalatnama was sought to be filed in the suit on behalf of each of the two plaintiffs in January last. The learned judge, however, not allowed the two plaintiffs to be represented by their own respective advocates but permitted each of the advocates to cross-examine the defendants and their witnesses to the obvious harassment of the latter. When this strange and unprecedented mode of cross-examination reached an intolerable pitch, the present applicant made an application to the learned judge to intervene and prevent its further exploitation. The learned judge, however, dismissed that application. It is really very strange that the learned judge should have countenanced the employment of different advocates for the plaintiffs in the suit on the most curious ground that there might be a difference in the views of the two plaintiffs as to the manner in which the case should be conducted on their behalf. Besides, J cannot understand the observation of the learned judge that he had no power to prevent the advocates of each of the plaintiffs from cross-examining the defendants and their witnesses and that all that he could do was to prevent any overlapping of the questions that might be put to them during their cross-examination. Even under the Code of Civil Procedure, for the purpose of saving the time of the Court, power is given to the Court under Order 1, Rule 11 in cases where the plaintiffs are not represented by any counsel or advocate to give the conduct of the case to any one of the plaintiffs. In face of this power, in my opinion, the learned judge was not right in his observation that he had no power to prevent double cross-examination of the same witnesses at the hands of two different counsel or advocates of the two plaintiffs. The Court must always see that its time is not unnecessarily wasted and the proceedings are not unduly protracted. Examination or cross-examination of witnesses should always be done by one of the counsel appearing on behalf of the plaintiffs where more than one appear and there is no reason to doubt the competence of any one of these counsel in that behalf and it is not right to allow more than one of their counsel to do it. It is a very healthy practice which has stood the test of over a century in the Courts of this country that in cases where more than one person have joined as co-plaintiffs, there should be only one counsel who should be in exclusive charge of the case on behalf of all of them. It is undoubtedly open to the plaintiffs to engage as many counsel as they want. It all depends upon the length of their purse. But all the counsel or advocates engaged by them must appear jointly for all of them and only one of such counsel or advocates has got the right to be in charge of the case on behalf of tell of them.
5. Mr. Bhabha, however, invited my attention to Order 1, Rule 12 of the Code of Civil Procedure and contended that by virtue of that rule each of the plaintiffs and each of the defendants had an independent right of appearing, acting and pleading for himself by necessary implication. The Rule in fact provides that where there are more plaintiffs than one or more defendants than one, the plaintiffs Or the defendants, as the case may be, may appoint one of them to act, appear and plead on their behalf. Sub-rule (2) provides that the authority so given should be in writing. On the construction of this Rule, it may appear as if each one of the plaintiffs or the defendants, as the ease may be, has got an independent right of acting, appearing or pleading for himself, but read in conjunction with Order 1, Rule 11 by which die Court has got the power to direct only one of the plaintiffs or one of the defendants as the Court might think fit to be in charge of the case irrespective of whether or not they appoint one of them to appear, act and plead on behalf of all of them, the implication of Rule 12 which Mr. Bhabha has tried to suggest cannot, in my opinion, lead to a conclusion that each one of the plaintiffs or each one of the defendants, as the case may be, is entitled also to appear, act and plead by his own advocate. Even where different advocates appear for different plaintiffs or different defendants whose defence is set out in one common written statement, the Court under Rule 11, in my judgment, has got the indisputable power to direct any of these advocates to be in charge of the case for all the plaintiffs or defendants, as the case may be.
6. After some arguments in this application, however, Mr. Bhabba, the learned counsel for respondents Nos. 1 and 2, appeared to be reluctant to strike a departure from the age old tradition of the Courts in this country and in England in tin’s behalf and agreed on behalf of his clients that lie would see that the two different advocates now appearing for the two plaintiffs in the suit before the Small Causes Courts appear for both the plaintiffs jointly by filing fresh Vakalatnama land that in case it appears to the second plaintiff that some embarrassment is likely to be caused by is continuing to be a co-plaintiff with plaintiff No. 1, it would apply for being transposed as defendants in the suit and that such application may be dealt with by the learned judge on metrits. The learned Government Pleader docs not seek anything more than what Mr. Bhabba has agreed to do on behalf of his clients. I feel that the healthy traditions of the Courts in this country must be upheld at any costs, and I am glad that Mr. Bhaba, a member of the Original Side Bar of the High Court, has rightly agrered to do on behalf of his clients what I have stated above.
7. It is stated in this civil revision application that defendant No. 8 who is a guarantor of the mortgage should not be allowed by the learned judge to cross-examine the defendants or their witnesses. The learned judge, however, has not passed any order in that behalf. It is open to the petitioner to raise this contention before the learned judge as and when the occasion arises and, therefore, I need not express any opinion upon that question at the moment.
8. In the circumstances, I pass no order on the application and no order as to costs either.
9. Opinion expressed: Counsel agreed.