1. This suit was filed on April 3, 1940, by plaintiff No., 1 and the original plaintiff No. 2 against defendants Nos. 1, 2 and 3 as the executors of one Gordhandas Ranchhodas Bhagat. The suit is to enforce a public charitable trust and was filed with leave obtained from the Advocate General under Section 92 of the Civil Procedure Code, 1908. The1 defendants filed their written statement on July 1, 1940, and one of the points taken was that the suit was bad for non-joinder inasmuch as Shapurji Rustomji Bhownagri was a necessary party to the suit because he was appointed a trustee along with defendants Nos. 1, 2 and 3 to carry out the trusts created by the will of Gordhandas Ranchhoddas Bhagat. On November 14, 1940, a consent order was taken in chambers whereby Shapurji Rustomji Bhownagri was brought on re cord as defendant No. 4 to the suit. Before bringing him on record and amending the plaint and proceedings, pursuant to the chamber order I have just referred, no leave of the Advocate General was taken under Section 92 of the Civil Procedure Code Trie newly-added defendant filed his written statement on April 17, 1941, and he took the point, as he was obviously bound to do, that no leave of the Advocate General having been obtained under Section 92 of the Civil Procedure Code, the suit was not maintainable. The newly-added defendant having taken this defence in his written statement, a notice of motion was taken out on July 24, 1941, by the plaintiffs for leave to withdraw the suit against defendant No. 4with liberty to file a fresh suit against him, and on August 5, 1941, the Court granted leave to the plaintiffs to withdraw the suit, as against defendant No. 4 with liberty tq them to file a fresh suit against him on the same cause of action. By the same order the plaintiffs were also ordered to pay todefendant No. 4 the sum of Rs. 325 being his costs of the suit. Plaintiff No. 2 died on August 23, 1941, and pursuant to a chamber order obtained on October 24, 1941, the name of plaintiff No. 2 was struck off. The plaintiffs obtained leave of the Advocate General, and pursuant to an order dated November 28, 1941, the plaintiffs brought Shapurji Rustomji Bhownagri again on record as defendant No. 4. On January 16, 1942, a consent Judge's order was taken whereby the chamber order dated October 24,1941, by which plaintiff No. 2's name was struck off and the consent Judge's order dated November 28, 1941, by which defendant No. 4 was again brought on record were vacated, and it was ordered that after obtaining the previous consent of the Advocate General the name of the original plaintiff No. 2 should be struck off and the name of the present plaintiff No, 2 should be brought on record and also the name of Shapurji Rustomji Bhownagri be added as defendant No. 4 to the suit.
2. The newly-added defendant No. 4 has filed another written statement on June 19, 1942, by which he takes up the contention that his addition as a party defendant to this suit and the amendments! in the plaint made pursuant to the order of January 16, 1942, are not in terms of and/or are not warranted by the order dated August 5, 1941, and/or are not lawful. Defendant No. 4 further takes up the contention that as the original plaintiff No. 2 died after August 5, 1941, the leave given to file a fresh suit against-defendant No. 41 by the order of that date is not available to the present plaintiffs.
3. Now under Order XXIII, Rule 1, of the Civil Procedure Code, it is open to a plaintiff, after he has instituted his suit, to withdraw his suit against all or anyof the defendants or abandon part of his claim. If he does so without obtaining the leave required under Order XXIII, Sub-rule (2), then he is precluded from instituting any fresh suit in respect of the subject-matter of the first suit or any part of the claim in that suit. In this case there is no doubt that before the plaintiffswithdrew the suit against defendant No. 4, they obtained express leave from the Court to file a fresh suit against defendant No. 4 on the same subject-matter. But what Mr. Taraporewala.has contended is that by adding defendant No. 4 as a party defendant to this suit after he had been struck off no fresh suit has been filed against him and that Order XXIII, Rule 1, does not permit the same party against whom the suit has been once abandoned to be impleaded over again.
4. The position seems to me to be this. On August 5, 1941, when the suit against defendant No. 4 was withdrawn, the suit against him came to an end; and between August 5, 1941, and January 16, 1942, there was no suit against defendant No. 4 and the suit continued on the file of this Court as against defendants Nos. 1, 2 and 3. There is no doubt that the suit was instituted against defendant No. 4 only when he was made a party defendant pursuant to the order of January 16, 1942. Therefore on that date, as far as defendant No. 4 is concerned, a fresh or a new suit was instituted against him. It is quite true that, as far as the numbering of the suit is concerned, it is the same suit from which defendant No. 4 was struck off on August 5, 1941. But I do not think what Order XXIII, Rule 1, contemplates is a fresh suit in the sense of a freshly filed suit against all the parties to the suit. It is quite sufficient if the suit is instituted as against a particular party after leave has been obtained under Order XXIII, Rule 1. This construction of Order XXIII, Rule 1, receives considerable support from two decisions to which Mr. Daphtary has referred. The first is reported in Balmakund v.Paratap Narain . In that case the suit was filed by a Zamindar against a number of defendants for demolition of a structure and the name of one of them was struck off by the plaintiff during arbitration proceedings as he did not sign the agreement to refer to arbitration. The award which was made was set aside by the Court and the plaintiff applied tore-implead the defendant whose name had been struck off. The Oudh Court held that the re-impleading of the defendant meant a new suit against him. His name had been struck off with the result that the suit was brought to an end against him, and as at the time no leave was taken underO. XXIII, Rule 1(2), to bring a fresh suit against him, the suit was barred. Presumably if leave had been obtained under Order XXIII, Rule 1(2), before the name of that particular defendant had been struck off, there would have been no objection to his being impleaded again after the arbitration proceedings had proved abortive. The second decision is Haveli Shah v. Shaikh Painda A.I.R. (1926) P.C. 88. Here we have a case where a suit was filed originally against the defendants as sons and legal representatives of the deceased tort feasor. The Judicial Commissioner struck out the names of the sons and substituted as the only defendants the names of the administrators of the estate of the deceased. The learned Judicial Commissioner again changed his view and struck out the names of the administrators of the estate of the deceased and resubstituted the names of the sons as party defendants. When these defendants were brought on record, they pleaded that the plaintiff's suit was barred by the law of limitation ; and the Privy Council held that the suit must be deemed to have been instituted against the defendants when they were brought on record in substitution of the administrators of the estate of the deceased. In that judgment their Lordships of the Privy Council considered that when the sons were brought on record again, the suit as against them was a new suit and that the previous plaint in which only the administrator were parties was superseded by the new plaint in which the sons were made party defendants. Applying that language of their Lordships of the Privy Council to the facts of this case, there is no doubt that the plaint as it stood on August 5, 1941, after defendant No. 4 was struck off, was superseded by a new plaint which came into existence when defendant No. 4 was( again made a party defendant to the suit. We had one suit as existing between August 5, 1941, and January 16, 1942, to which defendant No. 4 was not a party at all, and a new suit was instituted as against defendant No, 4 on January 16, 1942, when he was made a party to this suit.
5. I, therefore, hold that in bringing defendant No. 4 on record pursuant to the order of January 16, 1942, the plaintiffs had instituted a fresh suit as against him ; and they having obtained leave to file, this fresh suit in respect of the same subject-matter by the order of August 5, 1941, they are entitled to maintain the suit as against defendant No. 4.
6. A further point has been taken that as leave was granted to the original plaintiffs by the order of August 5, 1941, that leave does not inure for the benefit of the flew plaintiff No. 2 who was brought on record, as I have already stated, on the death of the original plaintiff No, 2. This contention has not been seriously pressed by Mr. Taraporewala because it is obvious that the original plaintiff No. 1 and the newly added plaintiff No. 2 are suing in respect of the same cause of action and leave was given to plaintiff No. 1 and the original plaintiff No. 2 to file a suit against defendant No. 4 in respect of the same cause of action, and that cause of action having inured for the benefit of plaintiff No. 1 and the newly added plaintiff No. 2, both the plaintiffs are entitled to avail themselves of the liberty reserved to them under the order of August 5, 1941.