N. Sreenivasa Rau, J.
1. This is an application under Order I, Rule 10, C. P. C., read with Rule 12 of Order XVI of the Supreme Court Rules and Rule 14 of Chapter XIX of the High Court of Mysore Rules 1959, for the addition of the applicants as plaintiffs in O. S. No. 2 of 1947 on the file of the District Court, Civil Station, Bangalore, and as Respondents in Special Leave Petition No. 692 of 1959 of the Supreme Court of India. It is also mentioned that the applicants are to be added in place of S. A. Kareem Khan, one of the plaintiffs in the suit and Respondent No. 2 in the Special Leave Petition.
In the affidavit in support of the application it is stated that in the appeal filed to this Court against the decree of the District Court there were three appellants (Plaintiffs), that one of them died during the pendency of the appeal and that of tha remaining two persons S. A. Kariin Khan died on 19-2-1960 with the result that only one of the plaintiffs is on record, that the applicants are all Sunni Hanafi Muslims and permanent residents of the Civil Station, Bangalore, and therefore interested in the affairs of the mosque which has been the subject matter of the suit and the further proceedings.
The sole plaintiff on record has also subsequently filed an affidavit stating that his health is failing, that he is unequal to the exertion necessary for the conduct of the case and that it is necessary to allow the applicants to be arrayed as Respondents in the Special Leave Petition.
2. The application is opposed by the Respondents, namely, the petitioners before the Supreme Court in the Special Leave Petition, on several grounds. It is urged that no question of abatement arises in a scheme suit under Section 92, C. P. C., that the provisions under which the application is filed do not apply and that the allegations in regard to the illness of the surviving plaintiff are not true.
As regards the maintainability of the application it is urged by the Respondents that Order XVI Rule 12 of the Supreme Court Rules does not apply to Special Leave petitions. This contention is obviously untenable in the light of Rule 16 of Order XIII, which makes the provisions of Order XVI along with the other orders mentioned in it applicable mutatis mutandis to appeals by special leave.
3. As regards the applicability of Rule 12 of Order XVI of the Supreme Court Rules, it is contended that the rule contemplates only cases where the records become defective such defect being caused by the death or the change of status of a party to the appeal or for any other similar reason, that the death of one of the plaintiffs in a scheme suit does not cause any defect in the record since all the plaintiffs are on the record in a representative capacity and that, as long as there is at least one plaintiff, there can be no defect in the record.
On the other hand it is urged for the Petitioners that the words 'for any other reason' occurring in Rule 12 empower this Court in general terms, irrespective of the record becoming defective, to grant a certificate showing who, in the opinion of this Court, are the proper persons to be added or substituted. It appears to us that the construction, suggested for the applicants cannot be accepted. Rule 12(a) reads as follows:-
'Where at any time between the admission of an appeal and the despatch of the record to this Court, the record becomes defective by reason of the death or change of status, of a party to the appeal or for any other reason, the Court appealed from may, notwithstanding the admission of the appeal, on an application in that behalf made by any person interested, grant a certificate showing who in the opinion of the said court, is the proper person to be substituted or entered on the record in place of, or in addition to the party on record, and the name of such person shall thereupon be deemed to be so substituted or entered on the record as aforesaid without express order of this Court.'
It contemplates the record becoming defective (1) by reason of the death of a party to the appeal; (2) by change of status of a party to the appeal; or (3) for any other reason, the third contingency being the record becoming defective for any other reason. The words 'for any other reason' cannot be read disjunctively, i.e., without relation to the words 'the record becomes defective'. This is also consistent with what appears to be the scheme of the provisions relating to non-prosecution of appeals and the change of parties covered by Rules 8 to 15 of Order XVI. It has to be remembered that the provision relates to matters pending in the Supreme Court and normally it would be for that Court to deal with such matters. But for purposes of convenience there are provisions both under Order XLV, C. P. C., and under the Rules of the Supreme Court to obtain assistance from the High Courts in regard to what may be termed ancillary matters not touching the merits of the proceedings before the Supreme Court.
Rules 8 to 11 of Order XVI relate to default on the part of the appellant in taking the requisite steps in an appeal and it is the Supreme Court that deals with the situation arising from such default. Rules 12 and 13 relate to cases where death or change in the status of a party occurs necessitating the bringing of the legal or other representative on record.
That is necessary for the completion of the record and it is presumably because it would be more convenient for the High Court to inquire into the question as to who are the proper legal or other representatives that these rules provide for the High Court dealing with the matter. Rule 12 deals with a case where the death, or change of status occurs after the admission of an appeal and before the despatch of the record to the Supreme Court. Rule 13 relates to cases where the death or change, of status occurs after despatch of the records.
In the former case a certificate granted by the High Court automatically operates as addition or substitution of parties. In the latter case an application has to be filed to the Supreme Court accompanied by the certificate of the High Court This Is provided for in Rule 14. Rule 14-A makes applicable the provisions of Order XXII, C. P. C., and Article 171 in the First Schedule of the Limitation Act to matters arising under Rules 12 and 14.
This circumstance itself indicates that the above rules pertain to matters which would fall within the purview of Order XXII, C. P. C., if they arose in the High Court or the subordinate Courts, i. e., in the context of death or devolution of interest. It would therefore appear that the words 'for any other reason' occurring in Rules 12 and 13 have to be read as pertaining to reasons causing a detect in the record analogous to the defect caused by the death of a party or change of status of a party, as, for example, when there is a devolution of interest by argument or operation of law. In this Connection we may notice Rule 15 which relates to an order or revival or substituion.
The language of that rule appears to make it clear that it relates to substitution or addition of parties in general terms and therefore not necessarily arising from a defect in the record consequent upon the death or change of status of a pany or for a reason of the same character. Such an application has to be made to the Supreme Court. It has, no doubt, to be accompanied by a certificate from the Court appealed from showing who, in the opinion of that Court, is the proper person to be substituted or added, though the Supreme Court may dispense with the production of such a Certificate.
4. The present petition being one under Rule 12 of Order XVI, the next question for consideration is whether the death of one of the plaintiffs in a scheme suit brings about a defect in the record. In such a suit all the plaintiffs have a representative character and no question of their personal legal representatives succeeding to their rights or interest can arise. Hence no question of abatement also can arise. It is true that such a suit has to be filed by at least two plaintiffs, with the consent of the Advocate-General.
But it is well settled that once such a suit is filed and when one of two plaintiffs dies, the suit does not abate. Hence the death of one of the Respondents in the special leave petition leaving only one plaintiff as a Respondent does not cause any defect such as to cause an impediment in the prosecution of the proceedings. Hence the application is one for addition of parties and has to be decided on the merits of the question whether they have made out a case for being brought on record and does not come within the purview of Order XVI rule 12.
5. The other provisions mentioned in the application are Order I Rule 10 of the Code of Civil Procedure and Rule 14 of Chapter XIX of the High Court of Mysore Rules, 1959. The latter is only ancillary to the Supreme Court Rules. So far as Order I Rule 10 of the Code of Civil Procedure is concerned, there is no matter pending before this Court and the question of adding the applicants as plaintiffs is a matter for the trial Court.
6. The application is, therefore, dismissed. In the circumstances of the Case, we make no order as to the costs of this application.
7. Application dismissed.