1. This is a motion by the plaintiffs in a suit brought with the leave of the learned Advocate General under Section 92 of the Civil Procedure Code against four defendants. But for a mere accident there would have been five defendants. With regard to the 5th person who was omitted from the list of the defendants the plaintiffs' attorneys, I understand, received back the registered envelope in which they had placed their letter before action with the gloomy word 'dead' written on it by some postal authority. After the sanction of the Advocate General was obtained and after the suit was commenced it transpired that this statement by the postman was 'grossly exaggerated', and the man was in fact alive and well. In these circumstances the plaintiffs approached the Prothonotary yesterday and obtained from him leave to amend the plaint by adding the person who now appears as the 5th defendant. I am going to say as little as I can about the merits of the case, which have not been discussed at all before me, but the relief sought against all the defendants is their removal from office as trustees of a certain trust, the appointment of new trustees in their place, an order on the defendants to transfer the trust properties to the new trustees, the framing of a scheme, an interim receiver, an interim injunction and further or other relief. The motion for an interim injunction coming before me today and Mr. Purshottam appearing for defendants Nos. 1, 2 and 4, the latter took a preliminary objection, namely, that the suit as now framed has never been sanctioned by the Advocate General and therefore that what the plaintiffs had done yesterday had rendered the whole suit bad. In support of this contention, the principal ease on which he relied is a decision of Mr. Justice Davar in this Court in Abdul Rehman v. Cassum Ebrahim 13 Bom. L.R. 583 which is very nearly on all fours with the present case. The learned Judge actually decided only that the suit could not proceed against the defendant who was added by the unsanctioned amendment. But, in point of fact, that was all he had to decide, because the case as against the other two defendants had already been disposed of by the time he gave his reported judgment. It is, I think, clear that he thought that if the suit had not been already disposed of as against the other defendants, it would have been bad not only as against the new defendants but as against the old defendants also. He referred, in the course of his judgment, to one earlier Bombay decision and to a decision in Gopal Dei v. Kanno Dei (1840) 2 Beav. 313 to the effect that the sanction of the Advocate General is a condition precedent to the institution of a suit under Section 92-a fact which I should have thought was so obvious that even Allahabad could not decide to the contrary. He also referred to two out of, I believe, to be a number of English decisions to the effect that an amendment of proceedings in an English relators' action cannot be allowed without the sanction of the Attorney General. I know that in one of them, The Atorney-General v. The Ironmongers' Company, I.L.R.(1903) All. 162 the Master of the Rolls remarked that he did not know anything more important than that the authority and discretion of the Attorney General in all these proceedings 'should be maintained perfectly unbroken and unfettered and unbiassed.'
2. On the face of it, it seems to me, if a suit is amended at any rate by the introduction of a new party or in some other quite substantial manner the suit is not identical with the suit which it was at its commencement. In this particular case the matter is entirely technical, but it might not be. The Advocate General might have sanctioned the suit against, say, the four defendants and have been perfectly unwilling to sanction the suit against the 5th person, and if the plaintiffs were at liberty, without his sanction, to bring new parties on the record as defendants, it might mean that the protection afforded by Section 92 to trustees of public charities would be rendered nugatory. Therefore, though technical, I think the point is of some substance and importance.
3. Against Mr. Purshottam's contention that the present suit in effect committed suicide yesterday at the hands of the plaintiffs when the amendment in question was allowed, Mr. Banaji has drawn my attention to a decision of a bench of this Court in Bapugouda Yadgouda v. Vinayak Sadashiv (1940) 43 Bom. L.R. 706 . In point of fact, in that case the amendment under consideration had been sanctioned by the Collector of the district concerned, discharging the functions of the Advocate General by virtue of a Government resolution. It was contended, as it happened, by Mr. Purshottam, that the Government resolution did not empower him to sanction an amendment of the proceedings but only to sanction their commencement. This point the learned Judges seem to have decided against him, which means that, in any case, the amendment there in question was sanctioned by a person empowered to sanction it and, therefore, the suggestion made by the Court that an amendment of proceedings in a suit tinder Section 92 can be made without sanction was not necessary for their Lordships' decision. However, in what I think must have been a considered judgment-though it does not so appear from the report-Mr. Justice Broomfield, in giving the judgment of the Court, is reported as having said this (p. 715) :
We think, the true position is that it is for the Court to decide in suits under Section 92 as in any other suit whether an amendment is permissible, and the consent of the Advocate General or the Collector as the case may be is really evidence which has to be taken into consideration before deciding whether the amendment should be allowed. We can see no reason why amendments which do not substantially change the character of the suit or enlarge the scope of it should not be made by the Court itself without sanction. Amendments which enlarge the scope of the suit, for instance by allowing further reliefs, without substantially changing its character, may be made with the sanction of the Advocate General or the Collector, that sanction, as I say, being evidence that the suit after amendment is to all intents and purposes the same suit and not a different one. Amendments substantially changing the character of the suit would we think not be permissible even with sanction.
4. I do not myself understand why the learned Judges referred to 'evidence' that the character of the suit remained the same, for, surely, whether a suit is the same suit or not is a question of law which any competent Court can determine merely by reading the amended pleadings and comparing them with the unamended pleadings; and I cannot help feeling that perhaps some mistake has been made in reporting what was said on the point. But apart from that, in my opinion, when the Court referred to an amendment which 'did not substantially change the character' of the suit and which Mr. Justice Broomfield and Mr. Justice Macklin thought could be made without sanction, I do not think they intended for one moment to refer to anything more substantial than, say, an amendment correcting some obvious slip, as for example, if the word 'plaintiff' had been used for 'defendant' by mistake, or correcting an error in punctuation or something of that kind; I certainly do not think they intended to suggest that a party could be added as a defendant without the sanction previously obtained of the Advocate General. An amendment of that kind, it seems to me, necessarily enlarges the scope of the suit. Be that as it may, in my opinion, if this expression of opinion is at variance with the decision of Mr. Justice Davar, which I do not think it really is, I have little doubt that the proper course for me to do would be to follow the decision of Mr. Justice Davar, supported as it is by English authorities.
5. I, therefore, hold that the suit has since yesterday been bad and therefore I can make no order on the motion.
6. Now, the next question is, how the technical difficulty can best be cured. The plaintiffs apply, and I give them leave, to withdraw their suit, which will, of course, involve paying the costs of the suit and the motion to the defendants who appear. These costs I quantify at Us. 450. With the consent of the appearing defendants I order that the affidavits filed on this motion may be returned to the parties and used without re-swearing in support of and opposition to any motion which the plaintiffs may make in the suit which they intend to bring after getting the Advocate General's sanction, and I give them leave to bring a fresh suit against the five defendants who at present appear on. the record, with, of course, the sanction of the Advocate General, in respect of the same subject-matter, under O. XXIII, Rule 1, of the Civil Procedure Code.