AI Structured Summary
Not yet generated for this judgment
Judgment
Dev Darshan Sud, J.—This petition has been preferred by the defendant against the order passed by the learned trial Court granting permission under Order 23, Rule (1) 3 of the CPC (hereinafter referred as to the CPC) to the plaintiff to withdraw the suit preferred by the plaintiff-respondent. Before the learned trial Court, it is pleaded by the plaintiff that the suit out of which these proceedings arise. in order to comply with the order passed by this Court on 5.8.2011, the plaintiff/applicant has filed an application u/s 151 of the CPC (CPC for short) seeking permission to file the latest revised list of the right holders of Village Apka, to whom notice under Order 1, rule 8 of the CPC were to be served and the conditions therein complied with. The material part of the pleadings is that in case notice is allowed to be served on the right holders of Village Apka as on 26.6.1987, subsequent to that date many new right holders having subsisting rights have replaced those who are there in 1987 and some of the right holders have already expired. In this event, there being a formal defect, the suit be allowed to be withdrawn. Application was resisted by the respondent on the ground of maintainability as the suit was filed under the provisions of Order 1, rule 8 (4) of the CPC in a representative capacity and cannot be allowed to be withdrawn.
I have heard learned counsel appearing for the parties on the basic submission that in case this application is allowed the very provisions of Order 1, rule 8 would be defeated. Adverting to the law on the point learned Senior Counsel for the petitioner submits that in a suit filed in a representative capacity, it does not abate as it is against very jural concept of a representative suit. Learned Senior counsel has reiled upon the decision of the Supreme Court in Charan Singh and Another Vs. Darshan Singh and Others, where the Supreme Court holds:
Mr. Bishan Narain, learned Counsel for the appellant, urged the following points in support of the appeal:
(1) The judgment of the High Court in relation to the Section 92 of the Code is erroneous in law. The suit was barred under the said provision of the Code.
(2). The Plaintiffs had no locus standi to institute the suit as the property of the institution vested in the Panchayat under Punjab Act 18 of 1961.
(3) On the death of one of the plaintiffs appellants during the pednency of the second appeal in the High Court the whole of the appeal abated and ought to have been dismissed as such.
The Last two points may be shortly disposed of as they have to be stated merely to be rejected. Point No. (2) was eventually given up as it was completely devoid of substance. Since the suit had been filed in a representative capacity, it is clear that on the death of one of the plaintiff it did not abate. In AIR 1921 123 (Privy Council) it has been said by Lord Dunedin at page 16:
There was also a point that the person who originally raised the suit and got the sanction having died the suit could not 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 interests, but as representatives of the general public.
It is plain that the second appeal did not lose its competency on the death of one of the plaintiffs appellants. The only point which requires discussion and determination in this appeal is whether the suit filed by the plaintiff s was barred under sub-section (2) of Section 92 of the Code.
(p.301-302)
He also places reliance upon the decision in G. Christhudas and Another Vs. Anbiah (Dead) and Others, holding:
Fact remains that an application had been filed before the Court on 13-3-1974 by Anbiah and Dharmakhan in the said appeal. The High Court after adverting to the decision of this Court in Charan Singh and Another Vs. Darshan Singh and Others, and C. Ramasamy Vs. The District Collector and Others, set out the law correctly to the effect that if a suit had been filed in a representative capacity, there can be no abatement on the death of any one of the plaintiffs or the appellants; that only Article 137 of the Limitation Act is applicable and within the period set out therein an application for impleadment could be made inasmuch as no particular provision is made therein as to the period within which such application can be filed. If we reckon the time from the time the last surviving appellant died that is from 7.10.1973, the application filed by Anibiah and Dharmakhan was within time and, therefore, the Division Bench could not have passed the order made on 10.12.1975 that the party concerned is not diligent in prosecuting the appeal even on the statement of law made by the High Court.
(p.304-305)
In these circumstances, there was no question of formal defect being there as the in body of the plaint the number of plaintiffs and defendants would keep on increasing or decreasing because of death of the parties etc. The petition is allowed and stands disposed of accordingly. All the miscellaneous applications also stand disposed of.