Skip to content


Krishna Pillai Vs. Pazhuckamattom Devaswom and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 432 of 1982-F
Judge
Reported inAIR1983Ker8
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92 - Order 23, Rule 1
AppellantKrishna Pillai
RespondentPazhuckamattom Devaswom and ors.
Appellant Advocate C.P. Damodaran Nair and; D. Krishna Prasad, Advs.
Respondent Advocate M.R. Parameshwaran, Adv.
DispositionRevision dismissed
Cases ReferredAchuthan Pillai v. Mohanan Unnithan.
Excerpt:
- - whatever that be the fact remains thatthe earlier challenge to this courtagainst the order granting leave hadbeen unsuccessful or not pursued. seth sunderlal tholia jorhi (dead), air 1967 sc 1540. 6. counsel for the revision petitioner reiterated the contention urged unsuccessfully by the 1st defendant in the court below. no 429 of 1981 and the finding that the suit can proceed with are perfectly correct and legal......array at the time of the institution of the plaint, the absence would be fatal. once, however, the suit is instituted, the vicissitudes undergone by that litigation would not affect the institution which has already taken effect and the continuation of the suit. this is more or less clear from the later observation of the supreme court in the same judgment which may for convenience be extracted below ; '....... the suit as instituted mustconform to the consent. once the re-presentative suit is validly instituted, it is subject to all the incidents of such a suit, the subsequent death of a plaintiff will not render the suit incompetent, see raja anand bao v ramdas daduram, (1921) 48 ind. app. 12: (air 1921 pc 123), and an appeal by some of the plaintiffs impleading the remaining plaintiff.....
Judgment:
ORDER

Sukumaran, J.

1. This unfortunate litigationcentres round a temple and a trust.The suit itself was filed forsettling a scheme for the managementand administration of PazhukkamattonDevaswom near Chelamattomkara inPerumbavoor which is claimed to be apublic trust. The prayers include removal of the 1st defendant from themanagement of the properties, appointment of new trustees and other incidental reliefs. It was instituted initiallyin the District Court of Erna-kulam where it was numbered as O. S.No. 4 of 1979. Leave to sue underSection 92 of the Civil P. C. was obtainedfrom that court by the order passed inI. A. No. 443 of 1979, Later the suitwas transferred to the Sub Court, Parur,the court which has now passed theorder sought to be revised. The suitwas renumbered in the Parur Sub Courtas O. S. No. 187 of 1980. Against theorder granting leave to sue, a revisionpetition was taken to this court -- C. R.P No. 1500 of 1979. It is admitted byboth parties that the revision petitionwas dismissed on 20-6-1979 as it was notpressed. The respondents in the revision -- plaintiffs would contend that thiscourt was not inclined to admit thecivil revision petition and it was inthose circumstances that the civil revision petition happened to be not pressed.Whatever that be the fact remains thatthe earlier challenge to this courtagainst the order granting leave hadbeen unsuccessful or not pursued. Theacrimony between the parties appearsto have manifested in divers forms. Itis unfortunate that even counsel had notbeen spared. However, having regardto the limited question raised in thiscivil revision petition and argued beforeme it is unnecessary to refer to thosematters.

2. The 13th plaintiff filed I. A. No. 189 of 1981 before the court below ' on 12-2-1981, alleging that he did not sign the vakalath, the plaint of the application for leave to sue. This petition was linked with another interlocutory application, I. A. No. 193 (a) of 1981 at the instance of the defendant - for a declaration that the suit was not main-tainable in view of the fact that the suit, as instituted did not have the junc-tion of the 13th plaintiff. During the pendency of this petition yet another change in the attitude of the 13th plaintiff was disclosed by the petition. I. A. No. 273 of 1981 by the plantiffs praying that the 13th plaintiff may be allowed to withdraw from the suit. It was stated therein that the 13th plaintiff had not signed I. A. No. 181 of 1981. The withdrawal from the suit by the 13th plaintiff was sought on reasons of old age and ill-health. The court below -refers to that petition in the following terms :

'After the institution of the suit and pending suit, the 13th plaintiff on reasons of old age and ill-health sought to withdraw from the suit and that was allowed and he was removed from the party array.'

3. The withdrawal of the 13th plaintiff from the suit led to the filing of another petition I. A- No. 429 of 1981 invoking Section 151. C. P C. and praying for dismissal of the suit on the ground of its not being maintainable in the light of the withdrawal of the 13th plaintiff from the suit, I. A. no. 451 of 1981 was filed by the 2nd defendant, the wife of the 1st defendant for a similar declaration.

4. The three petitions -- I, A. Nos. 193 (a), 429 and 451 of 1981 -- were disposed of by the court below by a common order on 7-1-1982. This revision petition relates to and challenges only the order in I. A. No. 429 of 1981.

5. The court below while dismissing I. A. No. 429 of 1981 observed that the suit had been instituted properly as all the three plaintiffs were parties to the suit, that subsequent developments in the suit after its institution did not affect the maintainability of the suit and consequently there was no substance in the defence contention that the suit was not maintainable. In so holding it referred to and relied on the observation Of the Supreme Court in Narain Lal v. Seth Sunderlal Tholia Jorhi (dead), AIR 1967 SC 1540.

6. Counsel for the revision petitioner reiterated the contention urged unsuccessfully by the 1st defendant in the court below. He placed reliance on the aforesaid decision of the Supreme Court to contend that the fading away of the, 13th plaintiff from the party array was fatal to the continuation ; of the suit,Particular emphasis was placed by him on the following observations of the Supreme Court:

'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. A suit by some of them only cannot be in conformity with the provisions of Section 92(1) Where, therefore, sanction is given to four persons and one of them dies 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.'

7. According to counsel, the same reason should follow when in the course of the trial, one of the plaintiffs withdraws from the suit. Counsel for the revision petitioner also relied on the observations of this court in Achuthan Pillai v. Mohanan Unnithan. 1979 Ker LT (SN) p. 53, Case No. 116 relating to the interpretation of Section 92. C.P.C. That decision is, however, not of much relevance in the present case. It only stated that an interlocutory petition in a suit coming under that section can be considered and orders obtained thereon only after leave is granted under Section 92. In the present case the grant of leave had been given as early as on 6-4-1979 and the revision challenged against that order was dismissed on 20-6-1979. There is much difference between the institution of a suit and continuation thereof, as regards the consequences resulting from the withdrawal of a party in the institution and conduct of the suit covered by Section 92 of the Civil p. C. Sanction of leave granted under Section 92, C.P.C. to two or more persons for the institution of the suit is a joint and integral one. If, therefore, any one of the parties in whose favour the leave is so granted is absent on the party array at the time of the institution of the plaint, the absence would be fatal. Once, however, the suit is instituted, the vicissitudes undergone by that litigation would not affect the institution which has already taken effect and the continuation of the suit. This is more or less clear from the later observation of the Supreme Court in the same judgment which may for convenience be extracted below ;

'....... The suit as instituted mustconform to the consent. Once the re-presentative suit is validly instituted, it is subject to all the incidents of such a suit, the subsequent death of a plaintiff will not render the suit incompetent, see Raja Anand Bao v Ramdas Daduram, (1921) 48 Ind. App. 12: (AIR 1921 PC 123), and an appeal by some of the plaintiffs impleading the remaining plaintiff as a respondent is not incompetent because all did not join as appellants, see (1938) 65 Ind. App. 198; (AIR 1938 PC 184).'

It is clear from the above passage that events subsequent to the suit, such as death of one of the plaintiffs will not in any manner render the suit incompetent. The same principles must apply to a withdrawal of one of the plaintiffs or a removal ordered by the court in respect of one of the plaintiffs. The observations contained at page 124 in the decision of the Privy Council in Raja Anand Rao's case, must on principle, be applicable to the case of the removal of one of the plaintiffs after the institution of the suit, in that view of the matter, the removal of the' 13th plaintiff from the party array, in the circumstances mentioned above, will not in' any manner affect the continuity of the suit. The contention to the contrary raised in the revision petition is unsustainable The dismissal of I. A. No 429 of 1981 and the finding that the suit can proceed with are perfectly correct and legal. There is no scope for interference with that order in the exercise of the revisional jurisdiction of this court. The revision petition is accordingly dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //