Ajai Prakash Singh v. Abhai Prakash Singh — 1983 DIGILAW 762 (ALL)

JUDGMENT K.N. Misra, J. 1. This civil revision under section 115 of the Code of Civil Procedure (hereinafter referred to as the Code) is directed against the order dated 8-12-1982 passed by Sri B.P. Gupta, 1st Additional District Judge/Special Judge, Sitapur, in Regular Suit No. 1 of 1980, in re Suresh Prakash Singh and others v. Ajai Prakash Singh and others. By this order defendants 6 to 8 namely Ajai Prakash Singh, Udai Prakash Singh and Vinai Prakash Singh were ordered to be transposed as plaintiffs from the array of defendants. This suit was initially instituted on 2-2-1980 against defendants 1 to 8 with a prayer that plaintiff No. 1 Suresh Prakash Singh be appointed as Sarvarahkar of Ulra trust in village and Post Office Ultra, Pargana and Tahsil, Biswan, District Sitapur and that such further directions be given for the management of the affairs of trust as the court may deem just and proper for its proper functioning regarding possession of trust property and financial matters etc. Along with this plaint an application under section 92 of the Code was filed seeking permission to file the suit. District Judge, Sitapur granted this application to file the suit in exercise of powers under section 92 of the Code. The suit was mainly contested by defendant Ajai Prakash Singh against whom in para 11 of the plaint it was mentioned that he had recently moved an application in the court for appointment of trustee but later on did not press the said application. It was further averred in the plaint that due to death of Sri Vijai Prakash Singh who was earlier appointed as Sarvarahkar of the trust by the District Judge a vacancy had occurred and a new appointment of trustee was necessary for the management of the affairs of the trust. It was further averred that applicant No. 1 namely, Suresh Prakash Singh was entitled to be appointed as Sarvarahkar by virtue of deed of trust and that he was the proper person to manage the trust. During pendency of the said suit Suresh Prakash Singh, plaintiff No. 1, died on 5-5-1982. It was further averred that applicant No. 1 namely, Suresh Prakash Singh was entitled to be appointed as Sarvarahkar by virtue of deed of trust and that he was the proper person to manage the trust. During pendency of the said suit Suresh Prakash Singh, plaintiff No. 1, died on 5-5-1982. An application was thereupon moved by defendants 6 to 8 on 2-12-1980 under Order 1 Rule 10 of the Code for their transposition as plaintiffs, from the array of defendant, asserting that they were the persons capable of being appointed as trustees according to the trust deed and that they are interested in continuing the suit for appointment of trustee to manage the affairs of the trust. This application was opposed by defendant No. 1 Ajai Prakash Singh asserting that defendants 6 to 8 could not be transposed as plaintiffs because they had not obtained any permission to sue as is required by Section 92 of the Code. It was further contended that since plaintiff No. 1 had only personal right to sue, and, as such, defendants 6 to 8 could not be transposed as plaintiffs in his place and that the consent of plaintiffs 2 and 3 for allowing the transposition of defendants 6 to 8 was illegal and unauthorised. It was further asserted that the suit being void be dismissed. The aforesaid application for transposition was allowed by learned Additional District Judge by the impugned order dated 8-12-1982 as he found that it would be just and proper to transpose the defendants 6 to 8 as plaintiffs so that they may continue the suit. The argument of defendant-revisionist regarding the suit having abated on account of the death of plaintiff No. 1 did not find favour with the learned court below. Learned court below observed that this suit which was filed after obtaining requisite permission under section 92 of the Code, deserves to be continued and decided on merits as it relates to management of trust property of which defendant No. 1 Ajai Prakash Singh claims to be defacto Sarvarahkar. Since the suit relates to public trust, and the applicants, have already been arrayed as defendants in the suits, and, as such, it was found to be just and proper that the defendant-applicants be transposed as plaintiffs. The application was allowed on payment of Rs. 50/- as costs. Since the suit relates to public trust, and the applicants, have already been arrayed as defendants in the suits, and, as such, it was found to be just and proper that the defendant-applicants be transposed as plaintiffs. The application was allowed on payment of Rs. 50/- as costs. Aggrieved by this order, defendant No. 1 Ajai Prakash Singh has preferred this revision. 2. Learned counsel for the opposite parties 5 and 6 Sri R.K. Sharma raised a preliminary objection urging that the revision against the impugned order is not maintainable under section 115 of the Code as the impugned order does not amount a case 'decided'. I am unable to agree with his contention. Similar question cropped up for consideration in Bhagwat Prasad v. Mata Prasad, 1977 ALJ 894, wherein Hon'ble T.S. Misra, J. (as he then was) observed in para 8 of the report that a case may be said to be decided if the court adjudicates for the purpose of suit some right or claim of the parties in controversy. After considering several decisions of the Supreme Court and of the Privy Council, it was observed:- "In the instant case the impugned order was passed on an application moved under Order 1, Rule 10 of the Code of Civil Procedure. The plaintiffs urged that Husaini Prasad should no more join with them as plaintiffs and that he should now be transposed to the array of defendants." "The trial court declined to grant. This order is not of such nature by which the controversy in question had not been adjudicated upon. Whether person should remain joint as plaintiff with other persons is a matter which affects the right of the parties and maintainability of the suit, and order disposing of such application would, therefore, amount to the case 'decided' and a revision from that order would, therefore, be maintainable." In this view of the matter I do not find any substance in the arguments of the learned counsel for the opposite party and I find that the revision against the impugned order is maintainable. Learned counsel for the applicant attacking the impugned order urged that the application for transposition moved by defendants Nos. Learned counsel for the applicant attacking the impugned order urged that the application for transposition moved by defendants Nos. 6 to 8 was not maintainable as they could not be transposed and cannot be permitted to continue the suit as plaintiffs in the absence of requisite permission being granted to them as required under Section 92 of the Code. His contention was that plaintiff No. 1 had filed the suit after obtaining the permission under section 92 of the Code, for his appointment as trustee of the trust. Since he had sued for his personal right, and, as such, the suit, on his death would become infructuous and ought to have been dismissed as having been abated. He further contended that although Sri Shyamlal and Krishna Dutt (opposite parties 4 and 5), had also joined as plaintiffs in the suit but since they had not claimed any relief in the plaint, and as such, the suit cannot be continued by them and it thus automatically abated upon the death of plaintiff No. 1 Sri Suresh Prakash Singh. Learned counsel urged that in the present case provisions of Order 22, Rule 3 are not attracted because the suit was filed for the management of the trust and plaintiff No. 1 had sought a personal relief for his appointment as a trustee. He further urged that defendants 6 to 8 could not claim their substitution in place of plaintiff No. 1 Suresh Prakash Singh because the provision of Order 22, Rule 3 of the Code does not apply to the present suit, which was filed with permission under Section 92 of the Code for management of the affairs of public trust. 3. Learned counsel contended that when substitution cannot be made for reasons aforesaid and also when transposition cannot be made as defendants 6 to 8 had not obtained requisite permission to file suit under Section 92 of the Code, and, as such, the present suit deserves to be dismissed as incompetent and having abated. The impugned order directing the transposition of defendants 6 to 8 as plaintiffs in the present suit being illegal and without jurisdiction, deserves to be set aside. 4. The impugned order directing the transposition of defendants 6 to 8 as plaintiffs in the present suit being illegal and without jurisdiction, deserves to be set aside. 4. In reply, learned counsel for the opposite parties has urged that the application for transposition moved by defendants 6 to 8 was maintainable under Order 1, Rule 10 CPC and no further permission was required to be obtained under Section 92 of the Code as the present suit was filed after obtaining permission of the District Judge under the aforesaid provision for the management of affairs of public trust. He urged that once the permission to file the suit was granted under Section 92 of the Code, the bar stood removed and the suit which was competent could be continued by the defendants 6 to 8 who were interested in the management of the affairs of the public trust and were also competent to be appointed as trustees, and so they were rightly transposed. His further contention was that the suit could not abate on account of the death of plaintiff No. 1 because the provisions of Order 22 of the Code did not apply and it could be continued by the remaining plaintiffs and as also by defendants 6 to 8, who could be validly transposed as plaintiffs from array of defendants and continue the suit. I have very carefully considered the aforesaid arguments of the parties and have gone through the order passed by the court below. I have also gone through the various decisions cited by the learned counsel, which will be referred to hereunder, and, I find that there is no substance in the arguments raised by the learned counsel for the applicant and that the impugned order calls for no interference by this court in the instant revision. 5. I have also gone through the various decisions cited by the learned counsel, which will be referred to hereunder, and, I find that there is no substance in the arguments raised by the learned counsel for the applicant and that the impugned order calls for no interference by this court in the instant revision. 5. So far as the question of abatement of suit, which was filed after obtaining requisite permission is concerned, it was observed by their Lordships of Privy Council in Raja Anand Rao v. Ramdas Daduram, 1921 Privy Council 123:- "Where persons initially obtaining permission die during the pendency of the suit, other members of the public can continue the suit." It was further observed that "there was also a point that the persons 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." 6. This court in Ram Ghulam v. Shyam Sarup, AIR 1934 Allahabad 1 following the aforesaid decision of the Privy Council, observed :- "Where the suit has been properly instituted according to Section 92, Civil P.C. 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 earlier decision of the Division Bench of this court in Chhabile Ram v. Durga Prasad, AIR 1915 Alld. 59 was held to be no longer good law in view of the decision of the Privy Council in Raja Anand Rao's case (supra). The Division Bench of this court in Chhabiley Ram's case (supra) had observed that if one of the plaintiffs in a suit instituted under Section 92, dies the suit would abate. It was, however, remarked that it would be open to any other member of the public to be interested in the subject matter to obtain the consent of the Advocate General and may apply to be brought on record as co-plaintiff. It was, however, remarked that it would be open to any other member of the public to be interested in the subject matter to obtain the consent of the Advocate General and may apply to be brought on record as co-plaintiff. This decision, no doubt, supports the contention of the learned counsel for the revisionist but in subsequent aforesaid Division Bench decision of Ram Ghulam's case (supra), it was observed that in view of the pronouncement on the part of their Lordships of the Privy Council in Anand Rao's case (supra) we must hold and do hold that the law laid down in Chhabile Ram's case (supra) is no longer good law. In view of the aforesaid decisions it is thus clear that suit which was instituted under Section 92 of the Code, would not abate on the death of the plaintiff, who had instituted the suit after obtaining the permission and that any member of the public interested in the subject matter can continue without obtaining fresh sanction of the District Judge under Section 92 of the Code. Once permission is granted to file suit under Section 92 of the Code, the bar of filing suit for the management of the affairs of the trust stands removed and the suit can be continued by the remaining plaintiffs or by any one of them, who is interested in the subject matter or by one who is ordered to be transposed as plaintiff in the suit from the array of defendants because no fresh permission to file suit under Section 92 would be needed. In my opinion, it is not at all necessary for the defendants who seek their transposition as plaintiffs in the suit to seek permission for filing suit under Section 92 of the Code. The suit was competent as it was filed after seeking requisite permission and it would not abate on account of the death of plaintiff No. 1; nor it would be taken to have become infructuous because it related to the management affairs of a public trust. 7. The suit was competent as it was filed after seeking requisite permission and it would not abate on account of the death of plaintiff No. 1; nor it would be taken to have become infructuous because it related to the management affairs of a public trust. 7. Learned counsel for the applicant urged that the impugned order of transposition could not be passed under Order 1, Rule 10 (2) of the Code because the transposition of the defendants 6 to 8 would be to the great prejudice to the defendant-revisionist who would be unduly harassed by the continuance of the suit by defendants 6 to 8 who are not entitled to be appointed as trustees. Learned counsel further urged that the defendant-applicant is in fact managing the affairs of the trust and he is in possession over the trust property, and, as such, continuance of the suit by the transposed plaintiffs would cause unnecessary litigation and hindrance in the management of the trust property. I am unable to agree with this contention. 8. Learned counsel for the applicant accepted that defendants 6 to 8 can, no doubt, file a separate suit after obtaining permission of the District Judge u/Sec. 92 of the Code for their appointment as trustees, but he urged that so long as that permission is not obtained by them they cannot be transposed as plaintiffs in the persent suit and cannot continue it. I am unable j to agree with this contention as well. The power to add or strike out parties in my opinion, includes the power to transpose them as well and to order necessary amendment to be made in the plaint upon such transposition. The power of transposition should be exercised wherever ends of substantial justice require it and transposition of parties would be granted where the refusal to do so would prejudicingly affect the applicants by driving them to another suit. It is evident from Annexure I, which is copy of the plaint that Abhai Prakash, Udai Prakash and Vinai Prakash were impleaded as proforma defendants in the suit filed by Suresh Prakash Singh after obtaining leave to sue u/Sec. 92 of the Code. It is evident from Annexure I, which is copy of the plaint that Abhai Prakash, Udai Prakash and Vinai Prakash were impleaded as proforma defendants in the suit filed by Suresh Prakash Singh after obtaining leave to sue u/Sec. 92 of the Code. After the death of plaintiff No. 1 Suresh Prakash Singh an application was moved by defendants 6 to 8 for the transposition as plaintiffs from the arry of defendants and in the application it was mentioned that according to the deed of endowment they are entitled to act as Sarvarahkar of the Ulra trust and they to be appointed as such. The bar in filing the suit for appointment of trustee for managing the affairs of the said public trust, stood removed because permission of the District Judge was granted under Section 92 of the Code by order dated 4-2-1980. Upon the death of plaintiff No. 1, defendants 6 to 8 applied for their transposition as plaintiffs in suit from the array of defendants under Order 1, Rule 10 of the Code, it cannot be denied that they could file the suit after seeking leave under Section 92 of the Code, from the District Judge. The present suit was filed after leave was granted under Section 92 of the Code, for the appointment of trustees for managing the affairs of the public trust, in which defendants 6 to 8 were arrayed as parties to the case, as such, their application for transposition cannot be thrown out being not maintainable. In Bhupendra Narain Sinha Bahadur v. Rajeshwar Prasad Bhakat, 1931 PC 162, their lordships of the Privy Council while considering the scope of the provisions under Order 1, Rule 10 CPC observed:- "The course of adding proforma defenants as co-plaintiffs should always be adopted where it is necessary for a complete adjudication upon the questions involved in suit and to avoid multiplicity of proceedings," (Emphasis Supplied) The Hon'ble Supreme Court in Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dussi, AIR 1958 SC 394 , observed :- "As Sudhir Kumar Mitter, the appellant now on record, has dropped the fight with the first respondent, we conceive that no embarrassment will result in there being on record too appellants with conflicting interest. But, in any event, the court can, if necessary take action suo motu, either under Order 1 Rule 10 or in its inherent judisdiction and transpose Sudhir Kumar Mitter as second respondent in the appeal, as was done in In re Mathews Dates v. Mooney, 1905-2 Ch. 460 (C) and Vajjlappa Goundan v. Annamalai Chettiar, 1939-2 Mad. LJ 551; AIR 1940 Mad. 69 (H). The Hon'ble Supreme Court has thus laid down that even where the appellants and the respondents in a case have got conflicting interest and one of the appellants ceases to take interest in the litigation, the contesting respondents can be transposed as the appellants and disinterested appellants can be transposed as the respondents. 9. In the present case we find that Suresh Prakash Singh plaintiff No. 1 had prayed for his appointment as a trustee of the said public trust. He had impleaded defendants 6 to 8 who are members of the same family and claim that they are also competent to be appointed as trustees. Suresh Prakash Singh has, died and, as such, the defendants 6 to 8 who have put forth their claim for being appointed as trustees can be transposed as plaintiffs to continue the litigation. The conflicting claim between the plaintiff No. 1 and defendants 6 to 8 no more exists in the suit because of the death of the plaintiff himself. 10. The question of addition of parties under Order 1 Rule 10 of the Code is not one of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of the facts and circumstances of a particular case. In the present case I find that the impugned order does not suffer from any error of jurisdiction. The court below after taking into consideration the legal position has passed the order of transposition of defendants 6 to 8 as plaintiffs for deciding the claims effectively between the parties who were already on record. The matter relates to management of the affairs of a public trust, and of appointment of trustees on the vacancy having been occurred, upon the death of Sri Vijai Prakash Singh who was appointed by District Judge to be Sarvarahkar of the aforesaid trust. The matter relates to management of the affairs of a public trust, and of appointment of trustees on the vacancy having been occurred, upon the death of Sri Vijai Prakash Singh who was appointed by District Judge to be Sarvarahkar of the aforesaid trust. Sri Vijai Prakash Singh died on 1-9-1979 and thereupon the present suit was filed after obtaining leave to sue under Section 92 of the Code for appointment of trustees by Suresh Prakash Singh and others. Thus, in my opinion, the learned court below has committed no error of fact, law or jurisdiction in passing the impugned order to transpose defendants 6 to 8 as plaintiffs from the array of defendants, so that the question of appointment of Sarvarahkar of the trust be considered and decided on merits. Learned counsel for the appellant has contended that such an order of transposition of defendants as plaintiffs could not be passed by the court below in exercise of powers under Order 1, Rule 10 of the Code. Here by the impugned order the learned court below has given charge of the suit to defendants 6 to 8 and they are thus permitted to continue the litigation. Such an order, according to the learned counsel, could not be passed under Order 1, Rule 10 of the Code. I am unable to agree with the contention as well. In my opinion, the court can, in appropriate cases, take action either suo-motu or on application under Order 1, Rule 10 or under the inherent jurisdiction to transpose persons as plaintiffs from the array of defendants in the suit. Such an order of transposition, in view of a Division Bench decision of Madras High Court reported in AIR 1921 Madras 124 (DB) can also be justified even under Order 1, Rule 11, of the Code which gives general power to the court to deal with the conduct of suit and to give it to such persons as it deems proper, and the present case is certainly a fit case for exercise of that power. In the present case I find that the defendants 6 to 8 have been appropriately transposed as plaintiff and have been rightly given a right to conduct the suit as such. In the present case I find that the defendants 6 to 8 have been appropriately transposed as plaintiff and have been rightly given a right to conduct the suit as such. The impugned order, in my opinion cannot be said to suffer from any error of law, fact or jurisdiction so as to call for interference by this court in exercise of revisional powers. 11. As Rule 3 of Order 22 does not apply to the present suit, it cannot be said to have abated within the meaning of that Rule. The contingency such as happened in the suit is not expressly and specifically dealt with by the Code of Civil Procedure. 12. In view of what has been said above, I have no dobut that the court had power to transpose the defendants as plaintiffs in the circumstances of this case. In the result the revision being devoid of merits is accordingly dismissed, I, however, direct the parties to bear their own costs. The ad-interim order of stay dated 6-1-1983 is hereby vacated. Revision dismissed.