C. Ramasamy vs The District Collector and Others

Ratnam, J.—This civil revision petition is directed against the order of the learned Subordinate Judge, Dindigul, in I.A. No.294 of 1989 in

O.S. No.12 of 1986, dismissing the application filed by the petitioner under Order I, Rule 8(5) and Section 151, C.P.C. praying that the petitioner

may be substituted in the place of the deceased plaintiff in the suit and to permit the petitioner to proceed with the suit. The father of the petitioner,

one Chelliah Naidu, Instituted O.S. No.12 of 1986, Sub Court, Dindigul, for himself and on behalf of the successors to the interest of the original

assignees of a. part of T.S.No.239 Dindigul against the respondents herein praying for the relief of permanent injunction restraining the respondents

from demolishing the structures in the suit property, or otherwise interfering with the peaceful possession and enjoyment of the property by the

plaintiff in the suit and other successors-in-interest of the property in question. There is no dispute that Chelliah Naidu instituted that suit in a

representative capacity under Order 1, Rule 8, C.P.C. after obtaining permission from the court to sue as such by an order dated 17.12.1986 in

I.A.No.40 of 1986. During the pendency of the suit, Chelliah Naidu, who had instituted the suit in a representative capacity, died on 29.10.1988

leaving the petitioner as his heir. In I.A. No. 294 of 1989, the petitioner prayed that he should be substituted in the place of his deceased father

and he should be permitted to further proceed with the suit on the ground that he succeeded to the property of his father and was in enjoyment of

the land along with the other successors-in-interest of the other assignees and that his interest in the suit property is similar and identical with that of

others. Though the respondents did not even file any counter setting out their objections to the application filed by the petitioner, the learned

subordinate Judge, Dindigul, held that the petitioner cannot pray for any of the reliefs under Order 1, Rule 8(5), C.P.C. and that the application by

the petitioner has also been filed beyond the prescribed period of limitation. In that view, the application was dismissed, the correctness of which is

questioned in this Civil Revision Petition.

From the facts set out earlier, it is clearly established that the deceased father of the petitioner instituted the suit in a representative capacity after

obtaining permission from the court in that regard. The right of the deceased father of the petitioner to represent a class of persons, having an

identical interest, is referable to the order of the Court in I.A.No.40 of 1986 permitting the deceased father of the petitioner to represent the

interests of others as well. When such permission or sanction is accorded to an individual eo nomine, it cannot be construed as one conferring any

right of his heirs or legal representatives, unless the order granting permission can be interpreted as conferring rights on them also. In this case,

nothing has been brought to the notice of the court to construe the sanction accorded to the deceased father of the petitioner in I.A.No.40 of

1986, as conferring a right to represent others, on his legal representatives also. Therefore, the petitioner cannot claim to be brought on record for

the purpose of further continuing the suit in his capacity as the legal representative of his deceased father. Even so, the question is, whether the

petitioner is precluded from approaching the court seeking directions for the continuation of the suit by substituting him in the place of his deceased

father. The court below was of the view that the provision of law quoted, viz., Order I, Rule 8(5), C.P.C. would be inappropriate and, therefore,

the petitioner is not entitled to any relief. The view so taken by the court below does not commend itself to me, for, though there was no lack of

diligence in the conduct of the suit or defence as contemplated under Order I, Rule 8(5), C.P.C., the relief prayed for in effect was one for

substitution of the petitioner in the place of his deceased father. In effect, the application filed by the petitioner has to be treated as one praying for

substitution of the petitioner in the place of his deceased father, though not on the grounds set out in the first part of Order I, Rule 8(5), C.P.C.

Even on the assumption that Order I, Rule 8(5), C.P.C. cannot be invoked by the petitioner, it is seen that the powers of the court u/s 151, C.P.C.

had also been invoked. Therefore, the refusal of the relief prayed for by the petitioner on the ground that the petitioner had invoked Order I, Rule

8(5), C.P.C. and that would not be applicable, is incorrect. The other ground for refusing the relief to the petitioner is also erroneous, for, that

proceeds upon a total misconception of the nature and scope of a representative suit. Such a suit is in the nature of an exception to the general rule

that all persons interested in a suit should be parties thereto. The representative character of the person representing the interests of many and the

very nature of the suit as a representative suit are referable to an order of court permitting such representation as a well as institution of

proceedings. In that sense, there is no question of the prosecution of the proceedings by an individual for his own interest, but the prosecution is a

representative of several persons with a common or identical interest in the subject matter of the suit. Moreover, when the suit was instituted by the

deceased father of the petitioner, he could not have represented the interest of the petitioner, for, if at all, the petitioner could have succeeded to

the interest of his father in the property only on his death and not before. Therefore, on the death of the person, who haft been permitted to institute

or defend a suit in a representative capacity, there is no question of his legal representative succeeding to the interest represented by the deceased

and there is no need to bring on record the legal representative in such a situation within time and it would suffice to make an application to the

court bringing to the notice of the court that the person who was originally permitted to institute the suit in a representative capacity is no more and

seeking direction regarding the further conduct of the suit The application filed by the petitioner has to be construed as one praying for such

directions for the substitution of the petitioner in the place of his deceased father and to permit him to proceed with the suit. On such an application

being presented the court is bound to consider the same and give appropriate directions regarding the continuation of the suit at the instance of the

person or persons making the application of otherwise. Without doing so, such an application cannot be dismissed. That this is the well established

position of law is also clearly laid down in several decisions. In Raja Anand Rao v. Ramdas Daduram 48 I.A. 12, the Privy Council had occasion

to consider the effect of the death of a defendant, whose legal representatives were later brought on record, pending a suit instituted after obtaining

permission u/s 539 of the Code of Civil Procedure, 1882. The Privy Council pointed out that there is no force in the point that the person who

originally instituted the suit and got the sanction having died, the suit could not go on, as the suit was one which was not prosecuted by individuals

for their own interests, but as representatives of the general public. In Mahomed Kanni v. Naina Mohamed AIR 1931 Mad. 590. One Musafar

Rowther instituted a representative suit after obtaining permission of court under Order I, Rule 8, C.P.C. and subsequently died and his son

intervene with two applications to be added as a plaintiff, but both the applications were dismissed on the ground that in a representative suit, the

son could not claim that the right to sue survived to him and that he was also not a member of the community on whose behalf the suit was filed.

Not only the applications were dismissed, but the court proceeded to dismiss the suit itself. Subsequently, the respondent filed applications under

Order I, Rules 8 and 10 and Section 151, C.P.C., which were granted by the court below and those orders were challenged before this Court.

Sundaram Chetty, J. held that on the death of Musafar Rowther, who filed the suit on behalf of himself and others having the same interest as

members of the community, any person on whose behalf also that suit was filed, can apply to the court to be added as a plaintiff for continuing the

suit and in the absence of specific Article in the Limitation Act providing for the period of time within which such an application shall be made, the

residuary Article 181 of the Limitation. Act. (Article 137 now) would apply to such an application. It was also further clearly laid down that any

person seeking to be added as a party on the ground that the person who filed the suit is dead, must make an application to the court for that

purpose and he must be brought on record eo nomine a party, who can continue and conduct the suit. The principle of this decision would squarely

apply to this case also. Again, in Venkatakrishna Reddi v. Srinivasachariar 61 M.LJ. 135 it was pointed out that where sanction was originally

given by the court to a certain number of persons either to prosecute or defend a suit and one of them dies, his heirs are not competent to

prosecute or defend a suit because the sanction was accorded to certain individual persons eo nomine and not to their heirs, and unless the order

can be construed so as to confer the right on the legal representatives also, the right does not survive and in such a case, the proper procedure will

be for the remaining persons to apply to the court for directions, bringing to the notice of the court that one of the persons to whom the original

sanction was given is dead and praying for directions whether the court will be pleased to permit the remaining persons to continue to prosecute or

defend the suit or if it thinks fit, directions should be given authorizing other persons, who need not be the legal representatives of the deceased

person, to prosecute or conduct the suit. It was also further pointed out that to say that in all such cases, first the legal representatives should be

brought on record and secondly, if they are not brought on record, the suit abates, seems to defeat the ends of justice. In Subbaya Naicker v.

Sankarappa Ndicker 66 M.L.J. 175 after referring to Venkata Krishna Reddi v. Srinivasachariar, 61 M.LJ. 135 Ramesam, J. laid down that

strictly it is not a matter of bringing legal representatives on record because the case is not prosecuted in respect of any personal rights of the

deceased person, but it is a matter for the court to consider whether the parties on record, if any, are competent to represent the interests of others

and that if it is found that the parties on record, if any, are competent to represent the interests of others and that if it is found mat the presence of

other persons would also be necessary to represent the interest, an opportunity should be given to supplement the existing number by the addition

of other persons, according to directions of Court. This decision also shows that if there are other persons on record already in a representative

suit, the court may consider whether their presence would be sufficient or not and if necessary, other persons can also be added, but in a case like

this where there was only one person on record and he also died, it is entirely for the court to consider whether the person who had come forward

with an application alone should be permitted to continue the suit in a representative capacity or some others also should be joined along with him.

In Jagdam Ram Vs. Asarfi Ram and Others, the difference between a suit instituted by a person relating to individual rights and one relating to

rights asserted or defended on behalf of the public has been emphasised and it has also been pointed out that the authority granted by the court to

a person to bring a representative suit is a personal authority eo nomine and cannot be utilised by their personal legal representatives and the

provisions of Order 22, C.P.C... relating to the death of a plaintiff or a defendant cannot be applied to a case instituted or defended by a few

persons on behalf of numerous persons not on record under Order I, Rule 8, C.P.C. as, in ordinary cases, the parties act independent of any

permission of any authority, while in suits under Order I, Rule 8, C.P.C., the authority either to conduct or defend is derived from the order of the

court. This decision also would clearly establish that the petitioner cannot succeed in bringing himself on record as a legal representative within

time, even if he had wanted, but that directions will have to be obtained from court for the further conduct of the suit either by himself alone or with

others, as the court may consider fit. In G.F.F. Foulkes and Others Vs. A.S. Suppan Chettiar and Another, , Rajamannar, C.J., observed at page

300 as follows:

There is authority for the position that when a suit is brought by several persons in a representative capacity, and if one of them dies, the suit does

not abate, because, the right to represent others of a class is not a right which ipso facto survives to the legal representatives of the deceased party.

The source of that right is the order of the court permitting the party to represent others. In such a contingency, namely, the death of one of the

parties to whom originally permission was granted to institute a suit in a representative capacity, it is for the court to decide whether the suit can be

allowed to be continued by the surviving person or persons or whether other person or persons should be joined....

Though the aforesaid observations would appear to have been made with reference to a suit instituted in a representative capacity by several

persons, they will apply to this case also where the only person who was granted permission by court to institute a suit in a representative capacity

died and even in such a case, it is for the court to consider the question whether the suit can be allowed to be continued by the petitioner alone or

he should be joined by others. In Charan Singh and Another Vs. Darshan Singh and Others, , considering the effect of the death of a party in a suit

u/s 92, C.P.C., the Supreme Court pointed out that since the suit had been filed in a representative capacity, there was no abatement on the death

of one of the plaintiffs and in so holding the Supreme Court referred to with approval a passage in the decision of the Privy Council in Raja Anand

Rao v. Ramdas Deduram 48 LA. 12, earlier referred to. The principle of this decision would be applicable to this case as well, though originally

there was only one plaintiff in the suit and he had died and there would be no abatement owing to the omission to bring on record his legal

representative. The view taken by the court below that the application filed by the petitioner was out of time is also not correct, inasmuch as in the

absence of any specific provision, only Article 1. 7 of the Limitation Act would apply and the application filed by the petitioner was, therefore, in

time.

Thus, on a due consideration of the facts and circumstances of the case, it is seen that the court below was in error in having rejected the

application of the petitioner without considering whether the petitioner should now be brought on record in order to enable him to further prosecute

the suit or whether other persons would also be necessary to be joined with him for representing the interests of others in the further conduct of the

suit. Consequently, the Civil Revision Petition is allowed and the order of the court below is set aside and I.A.No.294 of 1989 is remitted to the

court below for a consideration of the only question whether the petitioner should be impleaded in the place of his deceased father in order to

enable him to further continue the representative suit or the joinder of other persons, along with the petitioner, should be necessary in order to

effectively represent the interests of others and to further proceed with the suit. There will be no order as to costs.