V.S. Venugopal vs K V. Nataraja Iyer and 3 others

K.M. Natarajan, J.—This revision is directed against the order passed by the Court below in I.A.No.50 of 1993 in O.S.No.110 of 1988.

The brief facts, which are necessary for disposal of this revision, can be stated as follows The respondents 1 to 3 herein/plaintiff''s filed a suit for

settling a scheme for the administration of Dwadasi Kattalai and water pandal charities with the endowment of the schedule mentioned properties

consistent with the endowment deeds dated 2.3.1895 and 17.4,1900, to remove the first defendant from the trusteeship and appointing fresh

trustees with due regard for hereditary rights as per the trust deeds, for directing the first defendant to render true and proper accounts for the

period of their management and for costs. The revision petitioner/second defendant filed an application under O.I. R. 10, C.P.C., to transpose him

as the fourth plaintiff on the allegation that he is the brother of the first respondent/first plaintiff and he is also interested in the removal of the first

defendant from trusteeship and for framing a scheme. In fact, on his application subsequent to the suit he was impleaded as the second defendant.

Hence, since he is interested in the removal of the first defendant and in the interest of justice he should be transposed as the fourth plaintiff. Hence

the application. The said application was resisted and in the counter the fourth respondent/first defendant, while denying the allegations in the

affidavit, inter alia contended that it is only the petitioner, who alone, to spite and harass him, has inspired the suit to be filed with false allegations.

The three plaintiff''s in the suit are his stooges and he has set them up to file the suit. Subsequently, finding that they have been misled by the second

defendant and that they are used only as parties by the second defendant to satisfy his own vendetta against him, the plaintiff''s have issued notices

to their counsel clearly stating that they were not interested in prosecuting the suit. The petitioner/second defendant and his counsel have also been

duly intimated that the plaintiff''s resolved to withdraw from the suit. In such circumstances, the allegations in the affidavit that the first defendant is

pressurizing the plaintiff''s not to proceed with the case is distorted. Having known that the plaintiff''s are no longer willing to pursue the suit the

petitioner docs not mention the fact in his affidavit. In view of the communication by the plaintiffs, they cannot continue on record and they have to

be struck off from the record. Only after they are struck off, the question of transposition of the petitioner can be canvassed. It is also submitted

that notice of the application will have to be taken by the petitioner. At any rate, there is no ground made out to transpose the petitioner as a

plaintiff. The application is liable to be dismissed as it is devoid of merits.

Learned trial Judge, for the reasons stated in the impugned order, dismissed. Aggrieved by the same this revisions is filed.

Learned counsel for the petitioner submit that the only reason given by learned trial Judge for rejecting the application is that the plaintiff''s 1 to 3

obtained a sanction under S.92(1), C.P.C. for filing the suit, while the petitioner, who wants to transpose himself as the fourth plaintiff, has not

obtained any sanction under S.92(i) and as such the relief prayed for by him cannot be granted and subsequently since the plaintiff''s 1 to 3 do not

wish to prosecute the suit, the suit was also dismissed. Learned counsel also submitted that since this is a suit instituted in a representative capacity,

it cannot be dismissed for default and the suit has to be restored after the transposition of the petitioner as the fourth plaintiff. Learned counsel drew

the attention of this Court to a decision of the Apex Court in Narain Lal and Others Vs. Sunder Lal (Dead) and Others, which reads as follows:

An authority to sue is given by the Advocate-General under S.92 to several persons is a joint authority and must be acted upon by all jointly. A suit

by some of them only cannot be in conformity with the provisions of S.92( 1). Where, therefore, sanction is given to four persons and one of them

dies before the institution of the suit, the suit by the remaining three is incompetent. In such a case a fresh sanction must be obtained by the

survivors for the institution of the suit.

It is clear from the ratio laid down in the above decision that sanction given under S.92(1) is a joint one and in the circumstances a fresh sanction is

not necessary even though he is impleaded as a defendant and this has not been properly appreciated by learned trial Judge. This decision has

been considered by the Kerala High Court in the decision in Krishna Pillai Vs. Pazhuckamattom Devaswom and Others, wherein is held as

follows:-

Where a suit under S.92 for settling a scheme for the management and administration of a public trust was validly instituted by a group of persons

after obtaining the leave of the court, the subsequent withdrawal of one of the plaintiff''s or a removal ordered by the court in respect of one of the

plaintiff''s could not in any manner affect the continuity of the suit.

There is much difference between the institution of a suit and continuation thereof, as regards the consequences resulting from the withdrawal of a

party in the institution and conduct of the suit covered by S.92. Sanction of leave granted under S.92 to two or more persons for the institution of

the suit is a joint and integral one. If, therefore, any one of the parties in whose favour the leave is so granted, is absent (sic) on the party array at

the time of the institution of the suit the absence would be fatal. Once, however, the suit is instituted the vicissitudes undergone by that litigation

would not affect the institution which has already taken effect and the continuation of the suit.

Learned counsel also relied on the decision in Anand Prakash Sharma and Another Vs. Sushil Kumar Sharma and Others, wherein it has been

held as follows:

Where the suit had been properly instituted according to S.92, 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 along with the other plaintiff''s 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 nay fresh permission is required

under S.92 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 plaintiff''s can very well prosecute the suit. Further the order of trial Court allowing the remaining two plaintiff''s to

transpose the plaintiff who sought withdrawal as defendant in the suit was done under O.1R. 10 and it had authority for it. In exercise of this

jurisdiction, trial Court did not act illegally or with material irregularity and hence interference with this order was not warranted in revision. AIR

1975 All 36 (FB) Disting.

In AIR 1921 123 (Privy Council) ) it is held as under:

Where persons initially obtaining permission die during the pendency of the suit, other members of the public can continue the suit.

In view of the ratio laid down in the above decisions no fresh permission is required under S.92 for transposing the second defendant as a plaintiff

and the Court below has not properly appreciated the above ratio. In view of the above ratio the reasoning of the learned trial Judge in dismissing

the application is not sustainable and on that ground alone the application has to be allowed. As regards the dismissal of the suit, since the suit is

one filed under O.I. R. 8, C.P.C., in view of the decision of the Apex Court in R. Venugopala Naidu and Others Vs. Venkatarayulu Naidu

Charities and Others, the said dismissal of the suit is not proper as no notice has been given before-ever it was dismissed. It has been held in R.

Venugopala Naidu and Others Vs. Venkatarayulu Naidu Charities and Others, as follows:

A suit whether under S.92 Civil P.C., or under O.1 R.8 of Civil P.C. is by the representatives of large number of persons who have a common

interest. The very nature of a representative suit makes all those who have common interest in the suit as parties.

It is admitted by learned counsel for the respondents also that since the suit has been disposed of without giving notice as required under O.I R.8

sub-rule (4) C.P.C., the said dismissal has to be set aside and the suit has to be restored. In the result, the civil revision petition is allowed, the

impugned order passed in I.A.No.50 of 1993 is set aside and the said application is allowed. The Court below is directed to restore the suit to file,

transpose the second defendant as the fourth plaintiff, try the suit and dispose of on merit according to law. No costs.