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1985 DIGILAW 157 (ALL)

Shitla alias Shitla Prasad Shukla v. Ram Shabda Misra

1985-02-06

V.P.MATHUR

body1985
JUDGMENT : V.P. Mathur, J. This revision is directed against an order dated 29-10 1983 passed by Shri R.P. Misra, 1st Additional District Judge, Basti in original suit No. 2 of 1971. 2. The brief facts of the matter are that two persons Narbadeshwar Prasad Misra and Behari Singh moved an application u/s 18 of the Religious Endowments Act of 1963 before the District Judge, Basti for leave to institute a suit u/s 14 of the Act. This permission was accorded on 21-2-70. Then these two persons joined in filing a suit u/s 14 of the Act on 10-10-1971. Simultaneously they also moved an application purporting to be under Order 1 Rule 8 CPC for permission to prosecute the suit in a representative capacity. This application was also allowed on 13-5-1972. The suit that they had filed, was registered as suit No. 2 of 1971. While the suit was pending Narbadeshwar Prasad Misra died on 19-10-1974. Behari Singh the other Plaintiff put in an application in Court on 24-12-1974 saying that since the suit had been filed u/s 14 of the Religious Endowments Act, there was no need of substitution of any legal representative of the deceased Plaintiff and he only wanted consequential amendment in the plaint to be carried out. At that time a stay order granted by this Court was in operation, and therefore this application of Behari Singh could not be disposed of. As chance will have it, Behari Singh also died on 10-9-1979. On 16-12-1981 the Defendants of this suit namely Sliitla Prasad and others put forth before the Court an application No. 71-C with affidavit 72-C alleging that since no application for substitution of legal representatives of Behari Singh has been moved within time, therefore the suit stands abated. On 19-12-1981 Ram Sabad Misra, Ram Shankar, Vishwanath, Krishna Murari Dube and Chandrika Prasad who are the present Respondents moved an application 56-A alleging that the original Plaintiffs Narbedshwar Prasad Misra and Behari Singh have died but since the suit had been filed in representative capacity and since they (applicants) were members of the Hindu Community interested in the temple, they should be brought on the record and allowed to continue the suit. They also moved an application purporting to be u/s 5 of the Limitation Act for the condonation of the delay. They also moved an application purporting to be u/s 5 of the Limitation Act for the condonation of the delay. Against these petitions, objections were filed by the Defendants Shitla Prasad and others alleging that the applications were not maintainable. 3. The learned 1st Additional District Judge, Basti by his impugned order dated 29-10-1983 held that the suit had not abated and that the applicants were not required to seek any fresh leave of the Court for continuing and maintaining the suit. He dismissed the objections filed by the present revisionists and directed a consequential amendment in the plaint to be incorporated. 4. The argument advanced before me is that since permission was obtained by two persons and both of them have died, therefore, the suit can not be continued and if some other persons come alleging that they are interested in the Religious Endowment in question, they should seek fresh permission of the Court under the provisions of Section 18 of the Religious Endowments Act and then file a suit u/s 14. It is contended that the present suit can not be continued by rank out-siders. 5. A perusal of Sections 14 and 18 of the Religious Endowments Act and Section 92 of the CPC will make it evident that the two provisions are akin though not similar. Section 14 of the Religious Endowments Act refers to suit against trustee, manager or member of the committee and the relief that can be asked for is performance of duty or removal or award of damages and costs. The relief to be sought in a suit u/s 92 of the CPC is entirely different. But the only point of similarity is that both the suits are representative suits of different nature and in both, all such persons who are interested, become in the eye of law parties to the suit. The consistent law has bean that both in suit u/s 92 CPC and Section 14 read with Section 18 of the Religious Endowments Act, if leave is granted to several persons, all of them should join in the institution of the suit and if they all do not join, the suit would not be maintainable. This has been so held in the case of AIR 1938 184 (Privy Council). This has been so held in the case of AIR 1938 184 (Privy Council). The Privy Council was considering a case in which consent in writing of the Advocate General had been given to a suit by three persons but only two had instituted it. It was held that the suit will be incompetent but if the suit had been filed by all of them and two of them died during the pendency of the suit, the suit does not become defective or incompetent. The very material words used are: "The consent in writing is a condition of the valid institution of a suit and has no reference to any other stage." 6. In the case of Narain Lal and Others Vs. Sunder Lal (Dead) and Others, AIR 1967 SC 1540 , also, while considering the provisions of Section 92 of the Code of Civil Procedure, it was held that an authority to sue given by the Advocate General to several persons is a joint authority and must be acted upon by all jointly, and a suit by some of them only will not be in conformity with the provisions of the law. Therefore, in the case in which the sanction is given to four persons and one of them die before the institution of the suit, if the suit is filed by the remaining three, it will be incompetent. In such a case fresh sanction must be obtained. The similar view of the Madras High Court in the matter of Venkatesha Malia v. Ramma Pallia Rammy AIR 1915 Mad 127 was approved, wherein it was held that the sanction to sue u/s 18 of the Religious Endowments Act if it is given to two persons, could not entitle one of them to institute a suit. 7. This is however one aspect of the matter. In the present case the sanction was granted to two persons, and both joined in filing the suit u/s 14 of Religious Endowments Act and there is no dispute as regards the fact; that as initially filed the suit was competent and did not suffer from any defect The matter for consideration that remains is as to what will be the effect of the demise of both the Plaintiffs. In the case of Alagappa Chettiar v. Muthiah Chettiar AIR 1918 Mad 560 it has been held that a suit once instituted u/s 14 of the Religious Endowments Act by the persons to whom leave is granted u/s 18 of the Act does not abate on account of the subsequent death of one of the persons to whom leave was originally granted. The Madras High Court has gone to the length of holding that if leave u/s 18 has been granted, a person to whom the leave has been granted need not necessarily be the Plaintiff, and the suit may be filed by others also. We need not go to that extent. In the present matter, the only point which remains without doubt is that the subsequent demise of one of the two persons who had filed the suit in pursuance of the leave granted will not result in the abatement of the suit. The other Plaintiff can proceed with it. The difficulty arises only when even the other Plaintiff dies. The question arises whether in such a circumstance the suit would abate. Here we have to be very clear in holding that a suit u/s 14 of the Religious Endowments Act is a representative suit and since cause of action continues, the right to continue the suit also remains there and obviously the demise of the original Plaintiffs will not result in the abatement of the suit. A case u/s 92 of the CPC came up before this Court in the matter of Ajai Prakash Singh v. Abhai Prakash Singh 1984 AWC 289 . It was a case in which three persons obtained permission u/s 92 and filed a suit. One of them died. The remaining two persons namely Shyam Lal and Krishna Dutt continued to be the Plaintiffs but some of the Defendants of the suit against whom no relief had been claimed and who showed that they were interested in the Trust property, put in an application under Order 1 Rule 10 CPC for transposition. It was argued that these persons were not those to whom the permission had been granted and therefore they could not be transposed. It was argued that these persons were not those to whom the permission had been granted and therefore they could not be transposed. It was decided that in view of the law laid down in the case of Raja Anand Rao v. Ramdas Daduram AIR 1921 PC 123 : Where persons initially obtaining permission die during the pendency of the suit, other persons of the public can continue the suit. "It was also held that there is no force in the point that when the persons who originally obtained the permission die, the permission also exhausts itself because a suit of this nature is not prosecuted by them for their own interests but as representatives of the general public. There was earlier some difference of opinion in this respect and it found mentioned in the Division Bench case of this Court in Chhabiley Ram v. Dugra Prasad AIR 1915 Allahabad 59 where it was held that if one of the Plaintiffs in a suit u/s 92, dies, the suit would abate. This view was not in consonance with the Privy Council's case of Raja Anand Rao (Supra) and therefore, this Court in Ram Ghulam and Another Vs. Shyam Sarup and Others held that where a suit has been properly instituted there is nothing to show that it can not be continued if one of the original Plaintiffs happens to die at a further stage of the suit or appeal. Chhabile Ram's case was held to be no longer good law. 8. In Ajai Prakash Singh's case (Supra) it was held that once a suit is instituted properly after obtaining permission it can be continued by any member of the public interested in the subject matter without obtaining fresh sanction. Once permission is granted, the bar against the filing of the suit stands removed and it can be continued either by the remaining Plaintiffs or by any one of them or by even a member of the public and even Defendants can be transposed as Plaintiffs to continue the suit. 9. This being the legal position I am of the view that the suit even on the demise of both the original Plaintiffs could not abate. No fresh sanction or permission was needed. Persons from the public who have interest in the property could continue the suit. 9. This being the legal position I am of the view that the suit even on the demise of both the original Plaintiffs could not abate. No fresh sanction or permission was needed. Persons from the public who have interest in the property could continue the suit. As such the impugned order is perfectly correct, legally and does not call for any interference. The revision is dismissed with costs. Revision dismissed.