P.M. Srinivasa Chary and Others vs V. Rangachariar and Others

Shephard, J.—The issue which I have to try refers me to the written statements of the defendants and the objections therein stated to the

maintenance of this suit. The written statement of the 1st defendant states two grounds of objections. It says, that the suit is bad, as it was not

brought in conformity with Section 30 of the Civil Procedure Code,"" and the objection is taken that the sanction of the Advocate-General was not

obtained. This latter objection was abandoned by the defendants'' vakil in deference to the ruling of this Court in Rangasami Naickan v.

Varadappa Naichanl. In lieu of it, however, he took a point which is not raised in the pleadings, namely, whether the Advocate-General ought not

to be made a party to the suit. It will be convenient to dispose of that point at the outset. In England there can be little doubt that a suit framed as

this is, alleging no proprietary right in the plaintiffs and no particular injury suffered by them but complaining of a grievance common to an indefinite

number of persons, could not be maintained. A suit of such a character could only be instituted by the Attorney-General {The London Association

of Ship owners and Brokers v. London and India Docks Joint Committee ILR 8 C. 41 and cases cited). I think it is rather to be regretted that

there has been in the courts of this country a departure from the English practice; but that certainly appears to be the case, and the authorities cited

by the defendants'' vakil do not go beyond showing that the Advocate-General may be a party to suits relating to charitable endowments in the

same manner as the Attorney-General in England. In Attorney-General v. Brodie the question arose on a petition presented by a private individual,

entitled in a cause instituted by the Advocate-General for the administration of certain charitable trust created under a will. On this petition coming

before the Court, the Advocate General claimed the right to appear, and be heard. The Supreme Court held that he had no right to appear, and

accordingly refused to hear him. All that was decided by the Judicial Committee was that this singular decision, as they call it, was wrong.

In the Bombay case, Advocate-General v. Visvanath Atmaram I.L.R., 12 B., 221 the question was seriously argued before the Supreme Court

whether the Advocate-General could institute a suit for the administration of a Hindu religious trust.

While it was held that the suit was maintainable in the name of the Advocate-General, it was not decided that he was an indispensable party. In

more recent times, it has been distinctly held both in Calcutta and in Bombay that a suit, which in England would be instituted only in the name of

the Attorney-General, may be maintained by persons interested in a religious endowment in their own name and without joining the Advocate-

General (Panchcowrieniull and others v. Choormoolal I.L.R., 5 M.. 201 and others. Thaokersey Deivraj v. Hurbhum Nursey I.L.R., 5 M. . 201.

In the Calcutta case decided in 1878 the plaintiffs ware merely representatives of the sect interested in the temples benefited by the will, for the

construction of which the suit was instituted. In the Bombay case, the plaintiffs were subscribers to the temple fund and devotees of the idol. They

were held to have a sufficient interest to entitle them to sue in their own name for the proper administration of the. temple fund,

In the present case, the plaintiffs describe themselves as worshippers at the temple known as Sri Parthasarathy Swami Temple and entitled to

vote on the election of Dharmakartas. I am of opinion that the suit is maintainable, notwithstanding that the Advocate-General has not been joined.

I now come to deal with the objection founded on Section 30 of the Civil Procedure Code. If is objected that the suit cannot be allowed to

proceed in its present form and without notice being given to the other members of the class to which the plaintiffs belong. It is further objected that

the permission of the court indicated by the sections must be obtained before the institution of the suit and cannot be given afterwards.

Now in the first place, it is to be observed that the section is '' permissive and in no way prohibitive in its terms and, furthermore, that it is a

section dealing with procedure only and not affecting substantive rights.

The rule of the Court of Chancery to which the section owes origin, appears to have been made applicable in two classes of cases. There are

the cases in which the number of persons, claiming concurrent interests in the subject-matter, and therefore, according to strict rule, necessary-

parties to the suit, is so large that they cannot all be conveniently joined with any chance of bringing the suit to a conclusion. And there are the

cases in which numerous persons have distinct but similar rights which might be prosecuted in distinct suits. For instance, there is the case of

numerous creditors of the same person, or that of many persons claiming a right of common or right of fishing in respect of the same property.

(Smith v. Ear I.L.R., 5 M. 201. Brovmlow1, and Danniell''s Chancery Practice, p. 207;)

In the latter class of cases, for the sake of convenience and to prevent multiplicity of suits, the court allowed one person or a few persons to

prosecute or defend suits on behalf of all the persons similarly interested. The judgment obtained in a suit so framed is binding on all the parties so

represented in it. The present case appears to me to belong rather to the latter than the former class of cases. If I am right in considering that the

plaintiffs, as worshippers at the temple and entitled to vote on the election of Dharmakartas, possess an interest entitling them to sue, I think it is

clear that they can sue without joining the other persons similarly entitled. That being so, and there being on words either imperative or prohibitory

in the section, I think it cannot be a fatal objection to the suit that it is not expressed to be instituted on behalf of those other persons. If the course

prescribed by Section 30 is not followed in a case like the persent, the only consequence in my opinion is that the judgment does not bind the

persons whose names are no in the record. (See I.L.R., 14 M., 496 and May v. Naiuton I.L.R., 6 M.287 To obviate this inconvenient1

consequence, I think it is competent to the court with the view of adjudicating completely and definitely on the matter in dispute to require an

amendment of the plaint.

The language of the judgment chiefly relied on by the defend -dant''s vakil I.L.R., 8 C, 41 indicates a different view of the section, for it is said

that, inasmuch as the plaintiffs, claiming an interest in common with others, had not obtained leave u/s 30, their suit must necessarily be dismissed. It

seems to have been considered that the granting of leave under the section would have made up ''for the insufficiency of interest disclosed in the

plaint. With great deference that view appears to me incorrect. Nor do I fully understand the judgment in the Bombay case relied upon by the

plaintiff''s counsel I.L.R., 8 B.. 450. As far as I ascertain the facts of the case, I should have thought it was a case for the application of Section 30,

The conclusion at which 1 arrive is that the omission to apply u/s 30 is not by itself ground for dismissing the suit, but that, nevertheless, now

that the objection has been taken, it ought not to be allowed to proceed except on the terms of the plaint being amended and the requisite leave u/s

30 being obtained.

The granting of leave under the section is not made a condition precedent, and may, therefore, I think, take place after the institution of the suit

ILR 10 M., 185.

I understand there is no objection on the plaintiff''s'' part to the course which I indicate. If, as the defendants'' counsel suggests there are

worshippers who differ from the plaintiffs as to the propriety of the election, the court will know how to deal with them. See Watson v. Gavel.

Costs reserved.