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1987 DIGILAW 162 (ALL)

ANAND PRAKASH v. SUSHIL KUMAR

1987-02-13

V.KUMAR

body1987
V. KUMAR, J. ( 1 ) THIS is a revision against the order of Ist Additional District Judge, Muzaffar Nagar, allowing the application of the plaintiff No. 3 (who is opposite party 3 in these proceedings) to this effect that he did not want to prosecute the suit any further and the suit be dismissed. The suit was filed under S. 92, C. P. C. by all the three plaintiffs, who are opposite parties 1 to 3, in representative capacity. ( 2 ) THE plaintiffs opposite parties 1 to 3 after taking the permission to institute the suit under S. 92, C. P. C. filed the suit, which was proceeding in the Court of First Additional District Judge, Muzaffar Nagar. Subsequently, the plaintiff opposite party 3 moved an application to this effect that he did not want to prosecute the suit any further against the defendants revisionists and, therefore, the suit should be dismissed on his behalf. The defendant revisionist No. 1 Anand Prakash moved an application to this effect that in view of the fact that the plaintiff opposite party 3 did not wish to proceed with the case, the suit should be dismissed. The trial Court allowed the application of the plaintiff opposite party 3 to withdraw from the suit and further ordered to transpose him as a defendant in the suit. Instead of dismissing the suit the Court ordered that the plaint be amended accordingly and the suit was to proceed on. ( 3 ) THE contention raised by the revisionists is that the requisite permission to sue under S. 92, C. P. C. having been obtained jointly by all the three plaintiffs opposite parties, continuance of the suit after withdrawal of one of them from the array of plaintiffs in the suit, was not warranted, and so the entire suit deserves dismissal. Further, it is contended that the trial Court was not competent to order to transpose the plaintiff opposite party 3 as a defendant to the suit. Contentions of the revisionists have been challenged by the contesting opposite parties. ( 4 ) SECTION 92 of the C. P. C. provides that "two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not in the principal Civil Court of original jurisdiction. . . . . . . . . ( 4 ) SECTION 92 of the C. P. C. provides that "two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not in the principal Civil Court of original jurisdiction. . . . . . . . . " Thus the leave required to be obtained is for instituting a suit. Where the suit had been properly instituted according to S. 92, C. P. C. , 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 plaintiffs 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 any fresh permission is required under S. 92, C. P. C. 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 plaintiffs can very well prosecute the suit. ( 5 ) THE Privy Council observed in Raja Anand Rao v. Ramdas Daduram, AIR 1921 PC 123, ". . . . . . . . . . There was also a point that the persons, who originally raised the suit and got the sanction having died the suit cannot 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 interest, but as representatives of the general public. . . . . There was also a point that the persons, who originally raised the suit and got the sanction having died the suit cannot 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 interest, but as representatives of the general public. " ( 6 ) THE contrary view taken by the High Court earlier in the case chhabila Ram v. Durga Prasad, AIR 1915 All 59, was held to be no more the correct law on the point after the decision of the Privy Council" A Division Bench of this Court in the case of Ram Ghulam v. Shyam Swarup, AIR 1934 All 1, following the law laid down by the Privy Council in the case of Raja Ananda Rao (supra) held "where the suit has been properly instituted according to S. 92, C. 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 same view was taken up in the case of Ajai Prakash Singh v. Abhai Prakash Singh, 1984 All WC 289, by this Court. In the, case of Ajai Prakash Singh (supra) transposition of one of the defendants as plaintiff. Under U. I. R. 10, C. P. C. in the suit relating to the public trust after the death of one of the original plaintiffs, who had obtained requisite permission to file the suit and had accordingly instituted the suit, was found to be in order and proper. The suit on account of death of one of the plaintiffs was held to have neither abated nor fresh sanction under S. 92, C. P. C. was found necessary. ( 7 ) LEARNED Counsel for the revisionist has relied on the case of Uma Shankar v. Salig Ram, AIR 1975 All 36 (FB) to support his contentions that on account of withdrawal of one of the original plaintiffs from the suit filed under S. 92, C. P. C. the suit abated or was to be dismissed, unless a fresh permission could be obtained by the remaining plaintiffs. This Full Bench case is quite distinguishable. This Full Bench case is quite distinguishable. The Full Bench was constituted to give its answer to the following three questions only which were referred to it :-1. Whether a relief for declaration that a property is endowed property so as to bind strangers to the trust can be granted in a suit under S. 92 of the C. P. C. ? 2. Whether the plaintiffs in a suit under S. 92 of the C. P. C. can claim reliefs, which do not find a mention in the permission or sanction granted by the Advocate General under S. 92 of the C. P. C. and 3. Whether Cl. (c) of Sub-S. (1) of S. 92 of the C. P. C. contemplates only vesting a title in the property in a trustee ?the Full Bench answered the first two questions in the negative and third question in the affirmative. In that case it was found that after obtaining requisite permission under S. 92, C. P. C. new reliefs were being sought. The reliefs claimed did not find mention in the sanction obtained and those fresh reliefs were changing the character of the suit. The Full Bench held that the suit in such changed nature could not be said to be a validly instituted suit on the basis of original permission obtained but on the other hand fresh sanction was required. Circumstances of the instant case are quite different. Hence the case of Uma Shankar (supra) is of little avail to the revisionists. ( 8 ) BESIDES allowing the withdrawal of the plaintiff (opposite party 3) from the array of plaintiffs at his instance, the trial Court allowed the remaining two plaintiffs to transpose the plaintiff 3 as a defendant to the suit. It was done under O. 1, R. 10, C. P. C. The lower Court had jurisdiction and authority for it. In exercise of this jurisdiction the trial Court has not acted illegally or with material irregularity. Interference with this order is not warranted in this revision. ( 9 ) IN the result, the revision petition having no merits, is dismissed with costs. Petition dismissed. .