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Chhabile Ram and anr. Vs. Durga Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1915)ILR37All296
AppellantChhabile Ram and anr.
RespondentDurga Prasad and ors.
Excerpt:
civil procedure code (1908), section 92 - public trust--suit instituted by two plaintiffs--death of one plaintiff pending suit--abatement of suit. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in..........brought by two persons is brought by them in their representative capacity as members of the public interested in the trust. it has been held that section 92 is not mandatory but is permissive and directory. it seems to us also to be clear that, when a suit is brought by two or more persons under the conditions mentioned in section 92, for the continuance of the suit it is necessary that there should be at least two plaintiffs, i.e., two persons interested in the trust and holding the sanction of the advocate-general or, in these provinces, of the legal remembrancer, in order to enable them to carry on the litigation. it is clear that if one representative dies it is open to another member of the public interested in the trust to come forward to take his place and thus to prevent.....
Judgment:

Tudball and Rafiq, JJ.

This appeal arises out of a suit brought by two persons under the conditions mentioned in Section 92 of the Code of Civil Procedure. These two persons were Chhabile Ram and Bhagwan Das. They obtained the sanction of the Legal Remembrancer and instituted the suit. The trustee against whom they sued was Babu Durga Prasad, the present respondent in this appeal. While the suit was pending Bhagwan Das died. One Mahant Kanhaiya Lal applied to the Court to have his name brought on the record as co-plaintiff in place of that of Bhagwan Das claiming to be the heir and legal representative of the deceased. Apparently Kanhaiya Lal was not related in any way and could not have been deemed to be the heir and legal representative of Bhagwan Das in his personal capacity. The Court refused the application and dismissed the suit as it was no longer maintainable by one plaintiff. The judge-menu shows clearly that the question of Kanhaiya Lal's obtaining sanction from the Legal Remembrancer was before the court. That court was of opinion that the defect in the suit could not be cured, by allowing Kanhaiya Lal time to apply for sanction. It therefore dismissed the suit. It is quite clear that a suit of this nature brought by two persons is brought by them in their representative capacity as members of the public interested in the trust. It has been held that Section 92 is not mandatory but is permissive and directory. It seems to us also to be clear that, when a suit is brought by two or more persons under the conditions mentioned in Section 92, for the continuance of the suit it is necessary that there should be at least two plaintiffs, i.e., two persons interested in the trust and holding the sanction of the Advocate-General or, in these provinces, of the Legal Remembrancer, in order to enable them to carry on the litigation. It is clear that if one representative dies it is open to another member of the public interested in the trust to come forward to take his place and thus to prevent the suit abating. It is also necessary that this other member of the public thus interested should obtain the sanction of the Advocate-General or the Legal Remembrancer. The suit being one which had been brought with sanction and it being a matter of a public trust, the lower court ought, in our opinion, to have given Kanhaiya Lal an opportunity, first, of obtaining sanction from the Legal Remembrancer and, secondly, of showing that he was a person interested in the trust, and on proof of these two qualifications the court ought in the interest of the public to have made Kanhaiya Lal a co-plaintiff in order to enable the suit to be carried on provided no good cause was shown by the other side against his being allowed to represent the public interest in the trust. The rulings quoted by the court below, viz. I.L.R. 26 All. page 162, and I.L.R. 36 Bom. page 168, are totally beyond the question and have no weight in the decision of the matter. We accordingly allow the appeal. We set aside the decree of the court below and we remand the case to the court below with direction to re-admit it on its original number and to proceed to hear and determine the same in view of the directions given above. The costs of this appeal will be costs in the cause and will abide the result.


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