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Prag NaraIn Vs. Brahmadatt and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 145 of 1971
Judge
Reported inAIR1976All25
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92
AppellantPrag Narain
RespondentBrahmadatt and anr.
Appellant AdvocateG.K. Sahai, Adv.
Respondent AdvocateS.S. Chandauria, Adv.
DispositionAppeal dismissed
Excerpt:
.....board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised..........time being. the appeal was accordingly listed for the consideration of the question whether the suit as filed was maintainable. i have heard learned counsel for the parties.4. the permission granted to file the instant suit is ext. 2. it has been granted in favour of five persons, namely, sri prag narain, sri ram das, sri mithhu lal. sri jhau lal and sri girdhari lal. it appears that mithhu lal died after the grant of permission and before the institution of the suit which accordingly was filed only by four persons, namely. prag narain. ram das, jhau lal and girdhari. the respondents' contention is that the suit was not maintainable. learned counsel for the appellant, has urged that the suit could be filed only by the surviving four permission holders.5. the controversy is settled by.....
Judgment:

Gopi Nath, J.

1. This is an appeal against the judgment and decree of the learned District Judge, Etah, dated 27th April. 1971. The suit giving rise to this appeal was filed under Section 92 of the Code of Civil Procedure. It related to the trust created by one Smt. Gomti widow of Hardeo Prasad in 1909. The relief claimed was for the removal of Sri Brahmadatt, defendant-respondent, who was thr Sarbarakar of the trust on the ground that he had mismanaged the temple of Sri Radha Kishan, the subject-matter of the trust. Accounts were also claimed for from him.

2. One of the defences raised by the defendant-respondent was that the suit was not properly instituted as the sanction granted by the Advocate-General under Section 92 was to five persons while the suit was filed by only four. The learned judge negatived this contention and held that the suit was validly filed. On merits it was held that no act of mismanagement was committed by the defendant and the suit was liable to be dismissed on merits.

3. Aggrieved plaintiff filed the present appeal. The defendant-respondent filed an application before the Hon'ble the Chief Justice for the hearing of the appeal on the preliminary question as to whether the suit was maintainable, having been filed only by four out of the five persons, to whom sanction was granted by the Advocate-General. The preparation of the paper book was dispensed with for the time being. The appeal was accordingly listed for the consideration of the question whether the suit as filed was maintainable. I have heard learned counsel for the parties.

4. The permission granted to file the instant suit is Ext. 2. It has been granted in favour of five persons, namely, Sri Prag Narain, Sri Ram Das, Sri Mithhu Lal. Sri Jhau Lal and Sri Girdhari Lal. It appears that Mithhu Lal died after the grant of permission and before the institution of the suit which accordingly was filed only by four persons, namely. Prag Narain. Ram Das, Jhau Lal and Girdhari. The respondents' contention is that the suit was not maintainable. Learned counsel for the appellant, has urged that the suit could be filed only by the surviving four permission holders.

5. The controversy is settled by the decision of the Supreme Court in Narain Lal v. Seth Sunder Lal Tholia Jorhi : [1967]3SCR916 . It was held in that case that an authority to sue given by the Advocate-General under Section 92 to several persons is a joint authority and must be acted upon by all jointly.

'Where therefore sanction is given to four persons and one of them died before the institution of the suit, the suit by the remaining three is incompetent. In such a case a fresh sanction must be obtained by the survivors for the institution of the suit'.

See also Mt. Ali Begam v. Badr-ul-Islam Ali Khan . See also Uma Shanker v. Salig Ram : AIR1975All36 . It is, therefore, clear that a suit under Section 92 cannot be filed by only some out of several persons to whom permission was granted under that section. In the instant case permission was granted to five persons while the suit was filed by only four. The suit, therefore, was not maintainable.

6. The appeal fails and is accordingly dismissed. In the circumstances of the case I make no order as to costs.


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