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C. Narayanaswami Naidu Vs. N. Subbaramulu Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad394; (1935)68MLJ236
AppellantC. Narayanaswami Naidu
RespondentN. Subbaramulu Naidu and anr.
Cases ReferredMoser v. Marsden
Excerpt:
.....contract to finance the plaintiffs with which the defendant has nothing whatever to do, and it appears to me that it would be just as reasonable to allow the plaintiffs if the champertous maintainer of the suit fails and provide them with funds to carry on the suit, to ask to have him made a defendant in this suit so that they can get relief against him for his failure to do so, as to allow the champertous maintainer to be added as a party so that he may protect his interests as against plaintiffs, which is what he has been allowed to do by this order. no decision has been quoted in which a person has been allowed to be added as a plaintiff merely because he is financially interested in the suit or will be affected in some way by its success or failure. m, the maker and patentee of the..........lordships' words:certain persons who might have been respondents hacked up the plaintiff and were added as plaintiffs, a very unnecessary proceeding, as no decree could pass in their favour.2. an appeal had been preferred in that case to the privy council by one musammat lajwanti and others and in the judgment their lordships said they would humbly advise his majesty to allow the appeal and pronounce judgment in favour of the plaintiff. on the judgment being presented to his majesty in council for embodiment in the formal order, the word 'appellants' in the plural was used. so, the plaintiff and appellant, musammat lajwanti presented a petition to have the order made rescinded and an order pronounced in favour of herself alone. their lordships said that the petition must be granted in.....
Judgment:

Pakenham Walsh, J.

1. This is a Revision Petition by the first defendant against the order of the District Munsif of Poonamallee in O.S. No. 247 of 1932 adding the present first respondent as third plaintiff. The ground on which the first respondent asked to be added was that his maternal uncle had undertaken to finance the plaintiffs' suit, that there was an agreement that in the event of their winning the plaintiffs should convey to the maternal uncle a half share in the immoveable suit properties and pay half the moneys that they might recover from the defendant for costs and mesne profits. On the death of his maternal uncle while the litigation was proceeding he (respondent) took his uncle's place and the plaintiffs confirmed the agreement. He said he apprehended that the first plaintiff was about to withdraw from the suit without his intervention. The learned District Munsif allowed the request. 'Petitioner claims derivative interest in the suit properties and opposes the withdrawal of first plaintiff from the suit. Second plaintiff supports this petitioner and I think that the petitioner must be added as a party especially in view of the conduct of the first plaintiff in the suit. It is likely that this petitioner will conduct the suit through if added and the real state of affairs can be ascertained so as to completely adjudicate upon the matters in dispute. Musammat Lajwanti v. Safa Chand , supports petitioner '. This order was passed after opposition by the present petitioner. The case quoted by the learned District Munsif is said to be Musammat Lajwanti v. Safa Chand . It s a decision of the Privy Council and is in fact completely against the view which he takes. In that case to use their Lordships' words:

Certain persons who might have been respondents hacked up the plaintiff and were added as plaintiffs, a very unnecessary proceeding, as no decree could pass in their favour.

2. An appeal had been preferred in that case to the Privy Council by one Musammat Lajwanti and others and in the judgment their Lordships said they would humbly advise His Majesty to allow the appeal and pronounce judgment in favour of the plaintiff. On the judgment being presented to His Majesty in Council for embodiment in the formal order, the word 'appellants' in the plural was used. So, the plaintiff and appellant, Musammat Lajwanti presented a petition to have the order made rescinded and an order pronounced in favour of herself alone. Their Lordships said that the petition must be granted in so far as it prays to have the order in Council made to conform to the judgment pronounced. They also said that by the expression 'plaintiff' they meant to denote Musammat Lajwanti alone without the addition of the other appellants. Their Lordships say:

It is out of the question that persons who assert that they have a derivative interest in the state of a suit can, by getting added as plaintiffs, be associated in a decree in favour of the person who has the only real title. Here although the persons possessing a derivative interest had got themselves added as plaintiffs their Lordships refused to allow them to figure in the decree.

3. As to the meaning of the expression 'all the questions involved in the suit' in Order 1, Rule 10(2), Civil Procedure Code, which the learned District Munsif presumably had in mind in passing the order, the elaborate judgment of Srinivasa Aiyangar, J., in Sri Mahant Prayaga Doss Jee Varu v. The Board of Commissioners for Hindu Religious Endowments, Madras I.L.R.(1926)Mad. 34 : 51 M.L.J. 148 may be consulted. That was a case where the head of a mutt sued the Commissioners appointed under the Madras Hindu Religious Endowments Act for a declaration that the said Act was invalid and ultra vires, and an application was made to add the Secretary of State for India a party. The learned Judge says at page 40,

If the expression in this clause had not been the word 'necessary', but merely 'desirable' a great deal might have been said for the argument adduced in support of the application. But at no stage of the discussion was I able to understand and the learned gentlemen that argued in support of the application to make out that the presence before the Court of the Secretary of State was necessary * * *. The expression therefore 'all the questions involved in the suit' can only be questions as between the parties to the litigation. The phrase 'to enable the Court effectually and completely to adjudicate upon and settle' would seem really to indicate that the addition of the party should be ordered only if in the opinion of the Court, in the absence of the party, it cannot effectually and completely adjudicate and settle all the questions.

4. In the present case the addition of the first respondent as third plaintiff means the investigation of the whole question of his contract to finance the plaintiffs with which the defendant has nothing whatever to do, and it appears to me that it would be just as reasonable to allow the plaintiffs if the champertous maintainer of the suit fails and provide them with funds to carry on the suit, to ask to have him made a defendant in this suit so that they can get relief against him for his failure to do so, as to allow the champertous maintainer to be added as a party so that he may protect his interests as against plaintiffs, which is what he has been allowed to do by this order. In Krisoto Sunkur Dutt Roy v. Koylashnath Dutt Roy (1871) 15 Suth. W.R. 6, it was laid down that a person to be added as a party to a suit must have a present interest in such litigation. That was held to exclude even a reversioner who had been made a co-defendant. Rajah Saheb Perhlad Sein v. Baboo Budhoo Singh (1869) 12 M.I.A. 275 was quoted with approval in Ranee Bhobosoondaree Dosee v. Issur Chander Dutt (1872) 18 W.R. 140, where A who was entitled to certain property, but had not the means to institute the suit for the recovery of the same, agreed by deed to sell B a moiety thereof in consideration of a sum of money which B was to pay for the purpose of carrying on the suit in the names of A and B as plaintiffs. Shortly afterwards A entered into a deed of compromise with C, who was the claimant and in actual possession of the geater part of the property in question, by which a portion of the property was divided between them. Held, in a suit brought by B against A and C, that the first deed did not operate as a present transfer of the property, but only as an agreement to transfer it upon certain contingencies which had not happened. In the present case there is not even a registered document produced to evidence the agreement though the immoveable properties are described as worth Rs. 2,500 in the suit sale-deed.

5. It has been argued for the first respondent that he has an interest in the suit and that he would be prejudiced if the first plaintiff was allowed to withdraw from the suit. No decision has been quoted in which a person has been allowed to be added as a plaintiff merely because he is financially interested in the suit or will be affected in some way by its success or failure. See Raja Rajeswara Muthuramalinga Sethupathi v. Secretary of State for India (1925) 50 M.L.J. 59 and Moser v. Marsden (1892) 1 Ch. 487. In the latter case the plaintiff, the patentee of a machine, brought an action against the defendant for using a machine which he alleged was an infringement of his patent. M, the maker and patentee of the defendants' machine, applied to be added as a defendant, alleging that a judgment in the action would injure him, and that the present defendant would not efficiently defend the action. Held that M, not being directly interested in the issues between the plaintiff and defendant, but only indirectly and commercially affected, the Court had no jurisdiction to add him as a defendant. At page 490, speaking of the English rule corresponding to Order 1, Rule 10, Lindley, L.J. says:

Can it be said that the rule prevents the plaintiff from proceeding against a defendant without having lo litigate with everybody who may be in any way affected, however indirectly, by the action?

6. It appears to me that it does not. At page 491, Kay, L.J. says:

The result on the construction contended for, would be that not only persons directly affected, ahd who would be bound by the judgment in the action, would be within the rule, but any person who might think he would be affected indirectly might insist on being made a party.

7. The mere fact that the first respondent may be affected by the result of this suit whether it is dismissed after real contest or by a collusive withdrawal is no reason for allowing him to be added as a plaintiff and involving the defendant in all sorts of questions between the first respondent and the plaintiffs with which the defendant has nothing whatever to do. I am clear that the order in this case is, not only wrong but was without jurisdiction as held in Moser v. Marsden (1892) 1 Ch. D. 487.

8. The Civil Revision Petition is therefore allowed with costs.


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