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

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1915All59; 28Ind.Cas.681
AppellantChhabila Ram and anr.
RespondentDurga Prasad and ors.
Cases ReferredAbdul Rahman v. Kassum Ebrahim
Excerpt:
.....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..........procedure. these two persons were, chhabila ram and bhagwan das. they obtained the sanction of the legal remembrancer and instituted the suit. the trustee against whom they sued was baboo durga prasad, the present respondent in this appeal. while the suit was pending bhagwan das died. one mohunt kanhaya lal applied to the court to have his name rup chand ghose v. narendra. krishna 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 kanhaya 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.....
Judgment:

1. 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, Chhabila Ram and Bhagwan Das. They obtained the sanction of the Legal Remembrancer and instituted the suit. The trustee against whom they sued was Baboo Durga Prasad, the present respondent in this appeal. While the suit was pending Bhagwan Das died. One Mohunt Kanhaya Lal applied to the Court to have his name Rup Chand Ghose V. Narendra. KRISHNA 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 Kanhaya 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 judgment shows clearly that the question of Kanhaya 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 Kanhaya 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 Kanhaya 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 Kanhaya 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., Gopal Dei v. Kanno Dei 26 A. 162 : A.W.N. (1903) 227; Abdul Rahman v. Kassum Ebrahim 11 Ind. Cas. 726 : 36 B. 168 : 13 Bom. L.R. 583 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 directions 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 including fees on the higher scale will be costs in the cause and will abide the result.


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