Abdul Satar Sait vs Kunhu Moidu and Others

Govinda Pillai, J.—The Defendant is the revision Petitioner. The suit, O.S. 271 of 1950 on the file of the District Judge of Anjikaimal, was filed by two Plaintiffs u/s 92, CPC for the removal of the Defendant from his office as trustee of a Mohammadan Trust and for other reliefs. These two Plaintiffs had obtained the necessary sanction to institute the suit. While the case was pending trial, the first Plaintiff died and three other persons claiming to be interested in the trust applied to get themselves impleaded as Plaintiffs. The Defendant objected to the same. His main objections were that the persons who obtained sanction to institute the suit were alone competent to continue the same, that the Petitioners were not persons interested in the trust, and that the petition was not presented with ''bona fide'' motives.

The Court below held that, where persons initially obtaining permission die during the pendency of the suit, the competency of other members of the public to continue the suit cannot be questioned and that as the status of the Petitioners as those interested in the trust is questioned by the Defendant, the third Petitioner who was a party to the petition for sanction can alone be impleaded. This revision petition is to get this order vacated.

Sanction to file the suit was given to two persons and they alone were competent to institute the suit. But when the suit is once validly filed by these two persons, it becomes a representative suit subject to all the incidents affecting suits in general and representative suits in particular. See the decision in- AIR 1938 184 (Privy Council) When one of the two Plaintiffs dies, no question of abatement would arise even if Ors. are not impleaded in his place. It is open to the temaining Plaintiff to continue the suit. None of the provisions of Order 22 CPC can be availed of for the representative of a deceased Plaintiff to come in, in suits of this nature.

It is only by virtue of the provisions of Order 1 Rule 10(2), Code of Civil Procedure. that the Court, if at all can implead other persons as parties. The Court can, at any stage of the proceedings, add the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectively or completely to adjudicate upon or settle all questions involved in the suit. These are conditions which should have been in existence at the time of the suit or which should have arisen while the suit was pending. The Petitioners in the Court below had no case that they were persons of the category mentioned above, while the first Plaintiff was alive. The lower Court also was apparently not of that opinion. The cause was argued to have arisen on the death of the first Plaintiff. There is no case that the second Plaintiff was colluding with the Defendant or that he will not conduct the case properly. On the other hand, he is one of the signatories to the petition to implead additional parties. So there is no case of indifference to the conduct of the suit.

If all the Plaintiffs who obtained the sanction died alter the valid institution of the suit, there is no doubt that members of the public interested in the trust can get themselves impleaded in the case and prosecute it. The decisions in-Anand Rao v. Ramdas Daduram AIR 1921 PC 123 (B),-Musthava Kunju v. Aithrose 1951 KLT 342 (C), and-Lekshmanpetumal Pillai v. Ulakcanatha Pillai (sic), 28 Trav. L.J. 932 (D) lay down the proposition only to this extent. The decision in-Ananda Theertha. v. Kumaraswami AIR 1952 TC 134 (E) dealt only with the question of the right of appeal of a person who would be bound by a decree in a representative suit. That right was recognised, though this question did not directly arise in that case; for the appeal, dealt, with there, was filed by a party Defendant, and so it was observed thus at page 136: "In this case however we need not go to that extent because the Appellant was a party on record and as such in any view he is entitled to prefer the appeal."

The learned Judge had stated that the deft had not admitted that the Petitioners were persons interested in the trust. No finding on this question was also recorded. It was mentioned that the third Petitioner was one of the signatories to the petition to Government for granting sanction to the two Plaintiffs to institute the suit. It was on this ground that he alone was allowed to be added as a party. No allegation in a petition advancing a claim is not prima facie proof of his interest in the trust. That is a matter that has to be tried and decided.

In view of the matters mentioned and dealt with above, the counter-Petitioner had not made out a case for being impleaded as a Plaintiff in the case. The order of the lower Court is therefore, set aside and this revision petition allowed, but in the circumstances without costs.