1. Masulipatam Municipality represented by the Commissioner is the appellant in Appeal No. 366 of 1956 and the petitioner in CRP Nos. 805 and 806 of 1956, The appeal as well as the revision petitions arise out of O.S. No. 41 of 1952 on the file of the Subordinate Judge's Court, Masulipatam instituted by Rallabandi Kama Chandrayya (since deceased) for appointment of an administrator to take possession of all moveable and immoveable properties of late J.V. Subba Rao and to pay off the legacies to the plaintiff and other legatees mentioned in plaint D schedule and for carrying out all the objects and directions set forth in the will of the testator D/- 20-6-1942 and marked as Ex. A-2. The suit was originally tiled against three defendants. The 1st and 2nd defendant were executors and trustees of the estate of late J.V. Subbarao. The 3rd defendant claimed that he was the adopted son of late J.V. Subbarao. The appellant was added as the 4th defendant by reason of the order passed on I.A. No. 1648 of 1952 dated 10-1-55.
The 1st plaintiff having died during the pendency of the suit, his son was added as the 2nd plaintiff. The administration suit was instituted on 12-4-1952. On the application of the appellant 4th defendant, the Municipality was added as a party, as already stated, on 10-1-55. The legacy amount due to the plaintiff was tendered on 29-2-1952 but still the suit was instituted for administering the estate of late J.V. Subbarao. Along with the written statement, the amount due to the plaintiff was deposited into court on 9-12-1952. On 24-2-1955, the 2nd plaintiff made an endorsement on the plaint in the following terms:
'Plaintiff No. 2, added as legal representative of plaintiff No. 1, admits that his claim is adjusted and that he does not press his suit so far as he is concerned.'
Soon after, the 4th defendant filed I.A. No. 314 of 1955 under Older 1, Rule 10 and Section 151 C.P.C. to transpose him as third plaintiff and permit him to prosecute the suit. I.A. No. 315/55 was filed by him under Order 1 Rule 10 C.P.C. to transpose him as petitioner in I.A. No. 476 of 1952 filed by the 1st plaintiff for permission to sue under Order 1 Rule 8 C.P.C. on behalf of the legatees under the will of late J.V. Subbarao. The learned Subordinate Judge dismissed the two applications and permitted the plaintiff to withdraw the suit as per the endorsement on the plaint. The 4th defendant, aggrieved by the order passed by the Subordinate Judge, Masulipatam, has preferred the appeal against the decree and the revision petitions as against the orders in his applications.
2. Sri A.S. Chowdary, the learned Addl. Government Pleader, contended that the court below erred in dismissing the two applications and not transposing the 4th defendant as the 3rd plaintiff in the suit. He also contended that the court below erred in permitting the 2nd plaintiff to withdraw the suit. So, the questions that arise for consideration in the appeal and the revision petitions are: (1) whether the suit comes to an end when the 2nd plaintiff expressed his unequivocal intention to withdraw the suit? (2) Whether, having regard to the fact that the suit is an administration suit, the 4th defendant is to be treated as being in the position of a plaintiff and transposed as the 3rd plaintiff? (3) Whether, in any event, under the provisions of Order 1, Rule 10 C.P.C. the 4th defendant is to be transposed and added as the 3rd plaintiff
3. It is clear from the allegations in the plaint that the suit was filed by one of the legatees for the administration of the estate of late J.V. Subbarao under his will dated 20-6-1942. In paragraph 6(e) the plaintiff alleged that the testator intended to construct four gates in the Robertsonpet, Masulipatam, to be named after his parents and himself and his wife and directed his executors and trustees to construct them from out of the estate funds. In paragraph 11, he stated that as a member of the public and as a rate-payer of Masulipatam Municipality, he is interested in working out the directions contained in the will in respect of the construction of the gates in Robertsonpet. He also filed an application under Order 1, Rule 8 C.P.C. to permit him to sue on behalf of all the legatees mentioned in Schedule D. The court ordered notices to the persons interested by advertisement in Krishna Patrika, but no final order under Order 1, Rule 8 C.P.C. was passed entitling the 1st plaintiff to sue on behalf of all the legatees.
As there was a settlement between the two executors impleaded as defendants 1 and 2 and the 3rd defendant, the estate was handed over to the 3rd defendant. As stated supra, the amount due to the plaintiff was deposited into court on 9-12-1952. The 4th defendant was added as a party only on 10-1-1955.
4. As regards the nature of an administration suit, there is an elaborate discussion by Mookerjee J. in Sasi Bhushan Bose v. Manidra Chandra Nandy, ILR 44 Cal. 890; (AIR 1918 Cal 883 (2)) in dealing with the question as to what court-fees should he paid in an administration suit by a creditor. The learned Judge referred to the decisions of the English courts in which one of the creditors was permitted to sue not only on behalf of himself but on behalf of others for administration.
At p. 896 (of ILR Cal.): (at p. 885 of AIR), he pointed out that it is well settled that where one creditor sues on behalf of himself and the others for administration of the estate the debtor, the defendant may, at any time before judgment, have the action dismissed on payment of the plaintiffs debt and all the costs of the action. Reference was made to Pemberton v. Topham, (1838) 1 Beav 316, Holden v. Kynaston, (1840) 2 Beav. 204 and Manton v. Roe, [1844) 14 Sim 353. The decision of the Madras High Court which applied this principle in Athalur Malakondiah v. Lakshminarasimhulu Chetty, 26 Mad. LJ 312: (AIR 1914 Mad 646) was also relied on. The same view was taken by a later Bench of the Madras High Court in Raroaswami Ayyar v. Rangaswami Ayyar, ILR 55 Mad. 26: (AIR 1931 Mad 683). The reference (as to the dismissal of the administration suit on payment of the plaintiffs debt) made in all the decisions referred to supra is to the passage in Daniell's Chancery Practice, Seventh Edn. Vol. I, at page 195.
5. Sri P. Suryanarayana, the learned advocate for the 4th respondent, invited our attention to a passage from Halsbury's Laws of England (Simmonds Edn.) Third Edn. Vol. 16 at page 437, which is as follows :
'Until judgment the creditor, though suing on behalf of himself and all other creditors, is dominus litis, and may deal with the action as he pleases: but the judgment enures for the benefit of all creditors, and the plaintiff creditor cannot subsequently thereto accept payment of his debt and allow the action to be dismissed.'
To the same effect is the passage in Williams on Executors and Administrators, Thirteenth Edn. Vol. 2, at p. 1142. The position is stated in the following terms :
'Until an order for administration has been made the plaintiff is dominus litis, so that he may deal with the action as he pleases. He may settle the matter with the personal representative by the latter paying the debt and costs of the action, and compromise the action and relinquish proceedings. Indeed, the court will compel the creditors to accept payment of his debt if the personal representative offers to pay it with the costs of the action.'
That there is no distinction between an administration suit instituted by a creditor and an administration suit instituted by a legatee is pointed out in 26 Mad. LJ 312: (AIR 1914 Mad 646). It is therefore clear from the authorities and the text books referred to supra that the 2nd plaintiff, who is the dominus litis, is entitled to withdraw his suit on the payment of his legacy amount. It is only after a preliminary decree is passed under the provisions of Order XX, Rule 13 C.P.C. that the plaintiff would not be entitled to withdraw the administration suit filed by him.
6. The next question that arises is whether the suit is terminated as soon as the 2nd plaintiff had endorsed his intention to withdraw the suit by making an endorsement on the plaint. This depends upon the true construction of Order 23, Rule 1(1) read with Sub-rule (3) of Order 23, Rule 1 C.P.C. Order 23, Rule 1(1) and (3) are in the following terms : 'Sub-rule (1) :
At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. Sub-rule (3):
Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-rule (2), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.' As regards the interpretation of Order 23 Rule 1(1) read with Sub-rule (3), there is a conflict of Opinion in the decisions of the Madras High Court as also other High Courts. So far as the provisions of Order 23, Rule 1(2) and Order 23, Rule 1(3) are concerned, there is no difficulty whatsoever. Under Order 23, Rule 1(2) an order by the Court has to be passed granting the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim, when it is satisfied (1) that a suit must fail by reason of some formal defect or (2) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. Similarly, when the parties enter into a compromise, it has to be proved to the satisfaction of the court that the suit has been adjusted wholly or in part by any lawful agreement or compromise and a decree will be passed only after the court is satisfied about the truth and validity of the compromise.
7. Construing the provisions of Order 23 Rule 3, C. P.C. it was held by one of us (Umamaheswaram J.) in Venkata Narasimha Raju v. Yellamanda, : AIR1960AP32 that till a compromise decree is passed under Order 23, Rule 3 C.P.C. the litigation cannot be regarded to have terminated. The decision in Nanjammal v. Eawaramurthi, AIR 1954 Mad. 592 also related to the interpretation of the terms of Order 23 Rule 3 C.P.C. the learned Judges rightly held that the mere existence of the compromise in the hands of the party would not be sufficient to terminate the suit so as to preclude the Court from exercising its jurisdiction under Order 22 Rule 10 C.P.C. The same consideration would also apply to an application for withdrawal under Order 23 Rule 1(2) C.P.C. inasmuch as the court has to apply its mind before passing an order under that sub-section.
8. Dealing with the scope of Order 23 Rule 1, C.P.C. Sadasiva Aiyar J. delivering the judgment of the Bench in Lakshmanan Chetty v. Muthaya Chetty, 40 Mad. LJ 126 at p. 137 held as follows:
'Order 23, R. 1 of the Civil Procedure Code related to withdrawal of suits. So far as an unconditional withdrawal is concerned, it is of course wholly at the option of the plaintiff and the court has nothing to do with it except as regards providing for costs already incurred (See Order 23 Rule 1 Clause I). It is only where he wants some permission that he has to make an application under Clause 2.'
A similar view was taken by the Bombay High. Court in Mahant Biharidasji v. Parshotamdas Ramdas, ILR 32 Bom 345. Sir Lawrence Jenkis, C.J., dealing with the corresponding Section 373 under the Old Code stated as follows :
'It contemplates a withdrawal not of a suit, but from the suit, and such a withdrawal may be either with or without liberty to bring a fresh suit. If a party desires to withdraw from the suit with such liberty, then he must apply to the court to permit him so to withdraw. If he does not desire to have that liberty, then he can withdraw of his own and no order of the court is necessary.'
A similar view was expressed by a single judge of the Madras High Court in Veeraswami v. Lakshmudu, : AIR1951Mad715 . According to the learned Judge, Order 23 Rule 1(1) gives the plaintiff the liberty to withdraw from a suit unconditionally and that no leave or order is necessary for this. Reference was made to the decisions referred to supra. No reference was made to the decision of the Madras High Court in Seethai Achi v. Mayappa Chettiar, ILR 57 Mad. 892: (AIR 1934 Mad 337), which has taken a more liberal view of the provisions of Order 23 Rules 1 and 3. The learned Judges held in ILR 57 Mad 892: (AIR 1934 Mad 337), that the court does not become functus officio the moment the plaintiff announces the fact of withdrawal. Referring to the decision of the Calcutta High Court in Rant Churn Bysack v. Mrs. Ripsimah Harmi, 10 Suth W. R. 373 the learned Judges observed that the decision should not be carried too far to lead to the position that the court is deprived of all jurisdiction over the case, so that it would not even pass an appropriate order indicating the disposal of the suit.
The decision of the Bombay High Court in ILR 32 Bom. 345 was distinguished and the decision of Curgenven J. in Kunju Kombi Achan v. Ammu, 34 Mad LW 548: (AIR 1932 Mad 31) was followed. The learned Judges expressed the opinion that as the court had still to pass an order regarding costs under Order 23 Rule 3 C.P.C. it ought not to be held that the suit is terminated as soon as the plaintiff announces his intention to withdraw it. They also referred by way of analogy to a suit for partition. It is clear law that if a preliminary decree is passed declaring and denning the shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by the piaintiff for the obvious reason that the rights conferred in favour of the defendants in the preliminary decree would be rendered nugatory if the suit should simply be dismissed. Partnership suits and suits for accounts in which preliminary decrees are passed also stand on the same footing. We are inclined to share the liberal view expressed in ILR 57 Mad 892: (AIR 1934 Mad 337) that without the stroke of the judicial pen under Order 23 Rule 1 Sub-rule (3) C.P.C., this suit is not terminated and that in appropriate cases the provisions of Order 1, Rule 10 or Order 22 Rule 10 C.P.C. may be applied.
9. If the narrower or technical view propounded by Sadasiva Aiyar J. in 40 Mad. LJ 126 and by Sir Lawrence Jenkins C.J., in ILR 32 Bom. 345 is the correct view, there is no jurisdiction for the court to entertain an application under Order 1 Rule 10 C.P.C. and transpose the 4th defendant as the 3rd plaintiff.
10. But, even if the broader view is taken under Order 23 Rule 1(1) read with Sub-rule (3) as interpreted in ILR 57 Mad. 892: (AIR 1934 Mad 337) we are not inclined, on the facts of this case, to transpose the 4th defendant as the 3rd plaintiff in the suit. The 4th defendant cannot be transposed as the 3rd plaintiff under the provisions of Order 1 Rule 10 (1) C.P.C. inasmuch as the suit has not been instituted in the name of a wrong person as the plaintiff and it is also not doubtful whether it has been instituted in the name of the right plaintiff.
The 1st plaintiff sued as a legatee and as a result of the adjustment the 2nd plaintiff had applied for the withdrawal of the suit. Sri Chowdary, the learned Advocate for the appellant, contended that under the provisions of Order 1 Rule 10(2), the court might transpose one of the defendants as a party-plaintiff. In support of this proposition he relied upon the decision of the Calcutta High Court in Brojendra Kumar Das v. Gobinda Mohan Das, 34 Ind Cas 186 (2): (AIR 1916 Cal 80(2)) and also the decision of the Madras High Court in Md. Sirajuddin v. Gulam, Jailani, AIR 1920 Mad 732. Construing the terms of Order 1 Rule 10(2) C. P.C. Sadasiva Aiyer, J. held at page 735 in AIR 1920 Mad. 732 :
'That the language of Order 1 Rule 10, Clause (2) is wide enough to give the courts powers to add either as plaintiff or defendant any person (that is, whether already a party as defendant or plaintiff) so as to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit; of course, a man cannot be both plaintiff and defendant in the same capacity, but he has only to be removed as plaintiff before being added as defendant or removed as defendant before being made the plaintiff (with his consent, of course, in the latter case).'
Though no specific reference was made to the provisions of Sub-rule (2) of Order 1 Rule 10 C.P.C., Sir George Lowndes expressed the same view in Bhupendra Narayan v. Rajeswar Prosad, AIR 1931 P.C 162. The relevant passage is as follows:
'The pro forma defendants asked that a decree should be passed in favour of the appellant. It there was a technical objection to this, the court clearly had power at any stage of the proceedings to remedy the defect under Order 1, Rule. 10 C.P.C., by adding the pro-forma defendants as co-plaintiffs, with the appellant. Such a course should, in their Lordships' opinion always be adopted where it is necessary for complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings.'
It is clear on the facts of this case that several of the legatees had instituted suits to recover the amounts duo to them. The learned Subordinate Judge referred to this fact in paragraph 12 of the judgment, and gave reference to the various suits that were instituted by the legatees. It is also contended on behalf of the 3rd defendant that there is no specific or valid legacy in favour of the 4th defendant Clause 15 of the will provides only as follows:
'I promised to get constructed, the gates in the street of Robertsonpet, Bandar, and deposited Rs. 4000/- in the Municipality. Some work has been carried out. The remaining work shall be got completed by the executors.'
While the plaintiff stated in schedule D that according to this clause, a sum of Rs. 70,000/- is payable to the Municipality, the 4th defendant claimed in the written statement a sum of Rs. 1,35,000/-. It is also represented that the claim of the 5th defendant has been settled and that the 8th defendant, had instituted a suit. The Subordinate Judge exercised his discretion under Order 1, Rule 10 C.P.C. and held that the proper course was to direct the 4th defendant to institute a separate suit for the vindication of his rights, if any. It also appears that one of the executors appointed under the will Nagapotharao is dead and that no executor in his place has been appointed in accordance with the provisions of the will. The 4th defendant might consequently in our opinion institute a properly framed suit for vindicating his rights.
11. Though we are inclined to follow the decision of the Madras High Court in ILR 57 Mad 892: (AIR 1934 Mad 337), that the court has jurisdiction to exercise the power under Order 1 Rule 10 C.P.C. in appropriate cases we are loath on the particular facts of this case to interfere with the discretion exercised by the Subordinate Judge in relegating the 4th defendant to his remedy by way of a separate suit. We are also definitely of the view that on payment of the legacy amount due to the plaintiff, he was entitled to withdraw tile suit.
12. In the result, the appeal fails and is dismissed with costs of the 4th respondent. The Advocate's fee is fixed at Rs. 500/-. There will be no order as to costs in respect of the other respondents.
13. The civil revision petitions are also dismissed with costs of the 4th respondent. There will be no order as to costs in respect of the other respondents.