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Bishambhar Nath and anr. Vs. Raghunath Prasad Sharma and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. No. 2300 of 1969 in First Appeal No. 422 of 1968
Judge
Reported inAIR1971All207
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(11) and 92 - Order 22, Rule 4
AppellantBishambhar Nath and anr.
RespondentRaghunath Prasad Sharma and anr.
Appellant AdvocateK.C. Saxena and ;Vinod Swarup, Advs.
Respondent AdvocateD. Sanyal, Adv.
DispositionApplication dismissed
Excerpt:
civil - legal representative - section 2 sub-section11 and section 92 of code of civil procedure, 1908 - death of plaintiff-respondent during the pendency of appeal - arising out of suit filed under section 92 - his personal heirs cannot be brought on record under section 92. - .....application for bringing on record sons and other heirs of raghunath prasad respondent as his legal representatives. the application is opposed on behalf of the respondents. according to the respondents, there is no need to bring on the record the heirs of raghurnath prasad deceased, because the matter has arisen out of a suit under section 92, civil p. c. 3. in anand rao v. ram das dadu ram, air 1921 pc 123 it was held by the judicial committee that where persons initially obtaining permission die during the pendency of the suit, other members of the public can continue the suit. their lordships observed at page 124:-- 'there was also a point that the persons who originally raised the suit and got sanction having died the suit could not go on, but there does not seem any force in.....
Judgment:

Oak, C.J.

1. This is an application for substitution under Order 22, Rule 4, Civil P. C. Bishambhar Nath and Mool Chand have filed a first appeal against Raghunath Prasad and others. The first appeal arises out of a suit under Section 92 of the Code of Civil Procedure. The suit had been decreed by the trial court. Bishambar Nath and Mool Chand defendants have therefore filed the first appeal.

2. Raghunath Prasad, respondent No. 1, died during the pendency of the appeal. The appellants have therefore filed the present application for bringing on record sons and other heirs of Raghunath Prasad respondent as his legal representatives. The application is opposed on behalf of the respondents. According to the respondents, there is no need to bring on the record the heirs of Raghurnath Prasad deceased, because the matter has arisen out of a suit under Section 92, Civil P. C.

3. In Anand Rao v. Ram Das Dadu Ram, AIR 1921 PC 123 it was held by the Judicial Committee that where persons initially obtaining permission die during the pendency of the suit, other members of the public can continue the suit. Their Lordships observed at page 124:--

'There was also a point that the persons who originally raised the suit and got sanction having died the suit could not go on, but there does not seem any force in that point either, it being a suit which is not prosecuted by individuals for their own interests, but as representatives of the general public.'

4. In Tula Ram v. Tikam Singh : AIR1934All315 it was held that where in a suit under Section 92 the question is whether the property is private or public and the defendant contends it to be a private one, the cause of action survives on his death against his sons and the suit does not abate. It will be noticed that in that case the defendant took up the stand that the property in dispute was defendant's private property. That was why it was held that the defendant's sons were the legal representatives of the deceased. In the present case Raghunath Prasad deceased is a plaintiff respondent. The plaintiffs did not claim any personal interest in the property. They appeared before the court on the footing that there was a public trust.

5. In Abdul Satar v. Kunhu Moidu, AIR 1953 Trav-Co 390 there was a suit filed by two plaintiffs under Section 92, Civil P. C. It was held that if all plaintiffs died, members of public interested in the Trust can get themselves impleaded. Death of one of the two plaintiffs does not put an end to the suit. Provisions of Order 22 of the Code of Civil Procedure cannot be availed by representatives of the deceased. It is only by virtue of Order 1, Rule 10 that the Court can implead other persons as parties.

6. None of these decisions cited by Mr. K. C. Saxena appearing for the appellants supports the contention that in a suit under Section 92. Civil P. C. the personal heirs of a plaintiff are his legal representatives. In a suit brought under Section 92, Civil P. C. with the Advocate-General's permission, a plaintiff does not claim any personal rights. He purports to safeguard public interest.

7. Order 22 of the Code of Civil Procedure makes provision for bringing on the record legal representatives of a deceased plaintiff or deceased defendant. The expression 'legal representative' has been defined in Clause (11) of Section 2, Civil P. C. 'Legal Representative' means a person who in law represents the estate of a deceased person ................' The question therefore arises whether the sons and other relations of Raghunath Prasad deceased represent the estate of Raghunath Prasad. It is to be noted that Raghunath Prasad did not claim any personal interest in the case. He appeared before the Court as a representative of the public. We are informed that Raghunath Prasad was not among the original plaintiffs, and he himself came on the record as a legal representative of a deceased plaintiff. Be that as it may, Raghunath Prasad did not claim any personal interest in the suit. It cannot, therefore, be said that the sons and other relations of Raghunath Prasad represent the estate of Raghunath Prasad. The personal heirs cannot be brought on the record as legal representatives of Raghunath Prasad deceased.

8. We therefore uphold the objection raised on behalf of the respondents and hold that Ambika Prasad and others are not legal representatives of Raghunath Prasad deceased.

9. The application for substitution is dismissed.


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