Ananad Prakash Sharma and Another vs Sushil Kumar Sharma and Others

Virendra Kuamr, J.—This is a revision against the order of 1st Additional District Judge, Muzaffarnagar, allowing the application of the Plaintiff No. 3 (who is opposite party No. 3 in these proceedings) to this effect that he did not want to prosecute the suit any further and the suit be dismissed. The suit was filed u/s 92 CPC by all the three Plaintiffs, who are opposite parties No. 1 to 3, in representative capacity.

The Plaintiff-opposite parties No. 1 to 3 after taking the permission to institute the suit u/s 92 CPC filed the suit, which was proceeding in the court of First Additional District Judge, Muzaffarnagar. Subsequently, the Plaintiff opposite party No. 3 moved an application to this effect that he did not want to prosecute the suit any further against the Defendants revisionists and, therefore, the suit should be dismissed on his behalf. The Defendant revisionist No. 1 Anand Prakash moved an application to this effect that in view of the fact that the Plaintiff opposite party No. 3 did not wish to proceed with the case, the suit should be dismissed. The trial court allowed the application of the Plaintiff opposite party No. 3 to withdraw from the suit and further ordered to transpose him as a Defendant in the suit. Instead of dismissing the suit the Court ordered that the plaint be amended accordingly and the suit was to proceed on.

The contention raised by the revisionists is that the requisite permission to sue u/s 92 CPC having been obtained jointly by all the three Plaintiff-opposite parties, continuance of the suit after withdrawal of one of them from the array of Plaintiffs in the suit, was not warranted, and so the entire suit deserves dismissal. Further, it is contended that the trial court was not competent to order to transpose the Plaintiff opposite party No. 3 as a Defendant to the suit. Contentions of the revisionists have been challenged by the contesting opposite parties.

Section 92 of the CPC provides that "...two or more persons having an interest in the trust and having obtained the leave of the court, may institute a suit, whether contentions or not in the principal Civil Court of original jurisdiction..." Thus the leave required to be obtained is for instituting a suit Where the suit had been properly instituted according to Section 92 Code of Civil Procedure, there exists nothing in the section which says that the suit cannot be continued if one of the original Plaintiffs, who obtained permission and filed the suit alongwith the other Plaintiffs in the manner laid down by the law happens to die or withdraw from the suit subsequent to the institution. Section 92 imposes a bar for filing a suit without prior permission, but once suit is filed with requisite permission, the bar stands finally removed. There remains no further bar in proceeding with the suit, nor any fresh permission is required u/s 92 CPC for the same suit. Hence on withdrawal of one of the three Plaintiffs, who had originally obtained and filed the instant suit with requisite permission the remaining Plaintiffs can very well prosecute the suit.

The Privy Council observed in Raja Anand Rao v. Ramdas Daduram 1921 Privy Council 123 "...There was also a point that the persons, who originally raised the suit and got the sanction having died the suit cannot go on, but there does not seem any force in that point either, it being a suit which is not prosecuted by individuals for their own interest, but as representative of the general public."

The contrary view taken by the High Court earlier in the case of Chhabila Ram and Another Vs. Durga Prasad and Others, was held to be no more the correct law on the point after the decision of the Privy Council. A Division Bench of this Cnurt in the case of Ram Ghulam and Another Vs. Shyam Sarup and Others following the law laid down by the Privy Council in the case of Raja Ananad Rao (Supra) held "where the suit has been properly instituted according to Section 92 Code of Civil Procedure, there is nothing in that section which says that the suit cannot be continued if one of the original Plaintiffs, who instituted the suit in the manner laid down by law happens to die at a further stage of the suit or appeal." The same view was taken up in the case of Ajai Prakash Singh v. Abhai Prakash Singh 1984 AWC 289 by this Court. In the case of Ajai Prakash Singh (Supra) transposition of one of the Defendants as Plaintiff under Order 1 Rule 10 CPC in the suit relating to the public trust after the death of one of the original Plaintiffs, who had obtained requiste permission to file the suit and had accordingly instituted the suit, was found to be in order and proper. The suit on account of death of one of the Plaintiffs was held to have neither abated nor fresh sanction u/s 92 CPC was found necessary.

Learned Counsel for the revisionists has relied on the case of Uma Shanker and Others Vs. Salig Ram and Others, to support his contentions that on account of withdrawal of one of the original Plaintiffs from the suit filed u/s 92 CPC the suit abated or was to be dismissed, unless a fresh permission could be obtained by the remaining Plaintiffs. This Full Bench case is quite distinguishable. The Full Bench was constituted to give its answer to the following three questions only which were referred to it:

Whether a relief for declaration that a property is endowed property so as to bind strangers to the trust can be granted in a suit u/s 92 of the Code of Civil Procedure?

Whether the Plaintiffs in a suit u/s 92 of CPC can claim reliefs, which do not find a mention in the permission or sanction granted by the Advocate General u/s 92 of the CPC and

Whether Clause (c) of Sub-section (1) of Section 92 of the CPC contemplates only vesting a title in the property in a trustee?

The Full Bench answered the first two questions in the negative and third question in the affirmative. In that case it was found that after obtaining requisite permission u/s 92 CPC new reliefs were being sought. The reliefs claimed did not find mention in the sanction obtained and those fresh reliefs were changing the character of the suit. The Full Bench held that the suit in such changed nature could not be said to be a validly instituted suit on the basis of original permission obtained but on the other hand fresh sanction was required. Circumstances of the instant are quite different. Hence the case of Uma Shankar (Supra) is of little avail to the revisionists.

Besides allowing the withdrawl of the Plaintiff (opposite party No. 3) from the array of Plaintiffs at his instance, the trial court allowed the remaining two Plaintiffs to transpose the Plaintiff No. 3 as a Defendant to the suit. It was done under Order 1 Rule 10 Code of Civil Procedure. The lower court had jurisdiction and authority for it. In exercise of this jurisdiction the trial court has not acted illegally or with material irregularity. Interference with this order is not warranted in this revision.

In the result, the revision petition having no merits, is dismissed with costs. Revision dismissed.