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Sriman Madabhushi Gopalacharyulu Vs. Emmani Subbanna and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in55Ind.Cas.984; (1920)43MLJ493
AppellantSriman Madabhushi Gopalacharyulu
RespondentEmmani Subbanna and ors.
Cases ReferredSomasundara Mudali v. Kulandaivelu Pillai I.L.R.
Excerpt:
.....is that rukminiamma, the 6th defendant and her heirs were not represented in the appeal when the district judge set aside the decree which the plaintiffs had obtained on her behalf as well as well as their own, or in the second appeal preferred by the plaintiffs in which that decision was affirmed. it may be that, if a suit to which section 30 is applicable were brought without the consent of the court the plaintiff could not be considered to be litigating bona fide on behalf of the other persons interested, that is, not only honestly but with due care and attention, or in other cases in which he failed to implgad parties who ought to have been joined, but it is in terms wide enough to include accidental slips where no real prejudice has been caused, and we should not in my opinion be..........gave the plaintiffs a decree in o.s. no. 56 of 1901 which was reversed on 1st december 1910 by the district judge of kistna in a.s. no. 451 of 1905. prativadi bhayamkaram rukminiamma, one of the agraharamdars through whom the present appellant (the 10 defendant.) claims, was impleaded as the sixth defendant in the former suit and as the fourth respondent in the appeal to the district court. she died in match 1908 nearly three years before the disposal of the appeal, and the appellant, who was the receiver of the nidadavole estate, failed to bring on her legal representatives, nor were they made parties in the second appeal to this court preferred by the plaintiffs in s.a. no. 838 of 1911. the district judge has found the amount of the kattubadi in the present case to be res judicata.....
Judgment:

Wallis, C.J.

1. The subject of this suit is the amount of the kattubadi payable to the plaintiff Zemindar by the defendants who are agraharamdars, and the question argued before us is whether this is res judicata against the 10th defendant by reason of the decree in second appeal No. 838 of 1911 confirming the decree in A.S. No. 451 of 1905 which decided the question against the agraharamdars reversing the decree of the Subordinate Judge in their favour.

2. In O.S. No. 56 of 1901 in the Court of the Additional Subordinate Judge's Court of Rajahmundry two of the agraharamdars sued the Receiver of the Nidadavole Estate and the Zemindar for a declaration that the kattubadi was only 580 joining the other agraharamdars as defendants.

3. The Additional Subordinate Judge of Godavari gave the plaintiffs a decree in O.S. No. 56 of 1901 which was reversed on 1st December 1910 by the District Judge of Kistna in A.S. No. 451 of 1905. Prativadi Bhayamkaram Rukminiamma, one of the agraharamdars through whom the present appellant (the 10 defendant.) claims, was impleaded as the sixth defendant in the former suit and as the fourth respondent in the appeal to the District Court. She died in Match 1908 nearly three years before the disposal of the appeal, and the appellant, who was the Receiver of the Nidadavole Estate, failed to bring on her legal representatives, nor were they made parties in the second appeal to this Court preferred by the plaintiffs in S.A. No. 838 of 1911. The District Judge has found the amount of the kattubadi in the present case to be res judicata against the 10th defendant Sriman Madhabhushi Gopalacharyulu, on the ground that he was impleaded in the second appeal as the representative of the deceased Rukminiamma, but this appears to be an error as Prativadi Bhayamkaram Gopalacharyulu who was impleaded as the fourth respondent in the second appeal was the 9th defendant in the Original Suit and a different person from the present 10th defendant.

4. We must take it then that no legal representative of Rukminiamma, through whom the 10th defendant claims, was brought on after her death either by the contesting defendant in his appeal to the District Court, or by the plaintiffs in their Second Appeal to this Court. It has none the less been argued before us that the suit is res judicata as against the 10(h defendant by virtue of Explanation VI of Section 11 of the Code of Civil Procedure, Act V of 1908 which says that 'where persons litigate bona fide in respect of a private right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.' It is clear from the judgment of the District Judge in the previous suit, which was confirmed in Second Appeal, that the plaintiffs in the previous suit were litigating on behalf of themselves and the other agraharamdars whom they joined as defendants because they were unwilling to sue as plaintiffs, as regards the amount of kattubadi, and that they obtained a decree in the Munsif's Court which was reversed by the District Judge on the ground that the full amount of kattubadi claimed by the. contesting defendant, the Receiver of the Estate, was payable; and the position therefore is that Rukminiamma, the 6th defendant and her heirs were not represented in the appeal when the District Judge set aside the decree which the plaintiffs had obtained on her behalf as well as well as their own, or in the second appeal preferred by the plaintiffs in which that decision was affirmed. If there had been no appeal to the District Court from the decree of the Subordinate Judge the issue as to the kattubadi would apparently have been res judicata in her favour by virtue of the explanation although she had been impleaded only as defendant and she remained ex parte because the relief had been claimed on her behalf, Somasundara Mudali v. Kulandavelu Pillai I.L.R. (1905) Mad. 457 and equally of course it would have been res judicata against her if her representative had been properly impleaded in the appeals. The question whether the explanation is applicable although Rukminiamma was not represented either in the appeal or in the second appeal is of considerable difficulty. The explanation was first enacted as Explanation V of Section 13 of the Code of 1877 in which Section 30(now Order 1 Rule 8) was first enacted. Section 30 was again taken with an important modification from Order XVI. Rule 9 of the new Rules of the Supreme Court which embodied the practice of the Court of Chancery in representative suits as explained by Lord Eldon in Cockburn v. Thomson (1809) 16. Ves. 321 : 94 E.R. 1171 Order 16 Rule 9 of the Rules of the Supreme Court under the Judicature Act provides that 'where there are numerous persons having the same interest in one cause or matter, one or more or such persons may sue or be sued, or may be authorised by the Court or a Judge to defend in such cause or matter, on behalf or for the benefit, of all persons so interested' and, where a plaintiff properly so sues, the persons whom he represents are bound Markt Co., Ltd. v. Knight Steamship Co. Ltd. (1910) 2 K.B. 1021. The rule was reproduced in Section 30 of the Code of 1877 with this important modification that the permission of the Court is required to enable the plaintiff to sue in such a case, where as under Order 16 Rule 9 no such permission is required in the case of plaintiffs. It therefore follows that in India the legislature considered that a plaintiff ought not to be allowed to represent the other parties interested in the case mentioned in the section without the leave of the Court. Section 11 and the explanation were enacted at the same time and must be read together and it has sometimes been stated that the explanation is applicable only to cases where the consent of the Court to the institution of the suit had been given under Section 30. Thanakoti v. Muniappa I.L.R. (1885) Mad. 496 Baiju Lal Parbatia v. Bulak Lal Puthak I.L.R. (1897) Cal. 385 Srinivasachariar v. Raghavachariar I.L.R. (1897) Mad. 28. The explanation no doubt applies to such cases, but it is not in terms confined to them. It may be that, if a suit to which Section 30 is applicable were brought without the consent of the Court the plaintiff could not be considered to be litigating bona fide on behalf of the other persons interested, that is, not only honestly but with due care and attention, or in other cases in which he failed to implgad parties who ought to have been joined, but it is in terms wide enough to include accidental slips where no real prejudice has been caused, and we should not in my opinion be justified in refusing to apply it to such cases. This is the view taken in Rangamma v. Narasimha Charyula 31. M.L.J. 26 but before coming to that decision it is desirable to refer to the other decisions of this Court which have been cited. In Varanakot Narayanan Nambudri v. Varanakot Narayanan Nambudri I.L.R. (1880) Mad. 328 it was merely held that a decree against the karnavan of a Malabar tarwad, was binding on the other members of the tarwad, even though no order under Section 30 had been obtained. This proceeded on the ground that the karnavan sufficiently represented the other members of the tarwad without any order under Section 30, and even where the section was in terms inapplicable as where the members of the tarwad are not numerous. Similarly a widow sufficiently represents her husband's estate, and the nearest reveVsioner, it is now settled, sufficiently represents other reversioners in contesting an adoption which would exclude them all. This case does not seem to me to help us as the other matters of the tarwad were properly represented throughout the litigation by the karnavan. In Thanakoti v. Muniappa I.L.R. (1885) Mad. 496 a ryot had sued for damages to his crops caused by the defendants' diversion of certain water which the plaintiff claimed to be entitled to along with the other ryots of the village. The suit was dismissed on the ground that they had not the right claimed, but the explanation was held not to debar other ryots not parties to the former suit. from bringing similar suits. This decision proceeded on the ground that the explanation was inapplicable as the plaintiff in the first suit had not sought any relief for the other ryots which is in accordance with the subsequent ruling of the Full Bench in Somasundara Mudali v. Kulandavelu Pillai I.L.R. (1905) Mad. 457 but the judgment also contains the following observations as to the effect of the explanation, ' Now, unless the other plaintiffs were aware of the suit of plaintiff No. 3 and authorised him to make the claim for them (of which there is neither allegation nor evidence) Plaintiff No. 3 would have had no authority to claim on their behalf so as to bind them from afterwards bringing their own suit. One party having a right in common with others is not at liberty or authorized to sue in his own name to establish the right of others except by their authority. Explanation 5 must be read with the provisions of Section 30 and the principles to be found in that section. If that section had been followed which it was not, then the other plaintiffs would be bound.' These observations may be read as meaning that in such a case the other ryots could not have been bound unless they were impleaded in the former suit on an order obtained under Section 30. That in my opinion might properly be so, because a plaintiff who sued on their behalf without impleading them could not be considered to be litigating on their behalf bona fide i.e., with due care and attention and the explanation should not be read as setting at naught the ordinary rules as to the joinder of parties. Be that as it may, it is a very different case from the present one. In Mahadevan v. Keshavan I.L.R. (1887) Mad. 191 it was held that where four out of the five trustees sued to recover trust property the trust which was the real plaintiff was sufficiently represented and bound by the decision, and that the fifth trustee was not entitled to sue again on its behalf. The decision was so understood by the Full Bench in Somasundara Mudali v. Kulandaivelu Pillai I.L.R. (1905) Mad. 457 and does not I think really help either side. In Chandu v. Kunhamad I.L.R. (1891) Mad. 324 certain members of a Mahomedan family sued to recover their share in certain land joining the other members of the family as defendants and it was held that a subsequent suit by a plaintiff claiming under one of these defendants for the recovery of that defendant's share was barred under the explanation, but this decision was afterwards overruled by the Full Bench in Somasundara Mudali v. Kulandavelu Pillai I.L.R. (1905) Mad. 457 following the Full Bench in Surendra Nath Pal Chowdhury v. Brojo Nath Pal Chowdhury I.L.R. (1886) Cal. 352 on the ground that the plaintiff had not been suing in the first suit on behalf of the other members of the family impleaded as defendants but merely claiming his own share. Latchanna v. Saravayya I.L.R. (1894) Mad. 164 was to the same effect and was also overruled by the Full Bench in Somasundra Mudali v. Kulandaivelu Pillai I.L.R. (1905) Mad. 457. It was held by the Full Bench in that case, overruling the decisions just cited that, where a co-sharer sues for his own share impleading the othar co-sharers as supplemental defendants but not claiming any relief for them the decision is not res judicata against them although they were parties to the suit.

5. In these cases the Court had not to consider a case where the plaintiff in the second suit had not been impleaded in the first suit or properly represented in it by virtue of an order under Order 1. Rule 8 or otherwise.

6. The only decision of this Court governing the present question appears to be Rangamma v. Narasimha Gharyulu : (1916)31MLJ26 where it was held upon the language of the explanation that the decision in a suit, brought by one agraharamdar to recover the suit property for himself and the other agraharamdars, fourteen of whom were impleaded as defendants 3 to 16 and remained ex parte, was res judicata in a subsequent suit for the same reliefs brought by the fourth defendant so impleaded and another agraharamdar who for some reason had not been made a defendant in the previous suit. The learned Judges held that the plaintiff in the former suit had been litigating bona fide in respect of a private right claimed in common for himself and others, and that the second plaintiff, though not a party to the suit was bound by virtue of the explanation.

7. The language of the explanation may seem dangerously general, and Edge C.J., has observed in Ram Narain v. Bisheshar Prasad I.L.R. (l888) A11. 411 that we should be careful in applying it, and that it should not be applied to any case which does not come within its very wording. I entirely agree, and should certainly hesitate to hold that any litigation had been bona fide within the meaning of he Explanation in which there had been a substantial departure from the accepted rules as to the joinder of parties as for instance by suing without the leave of the Court in a case properly falling under Order 1. Rule 8 or in suits as regards public rights without the authority prescribed in Sections 91 and 92. At the same time, 1 cannot say on the strictest construction that the plaintiff's litigation in the earlier suit in this case was otherwise than bona fide within the meaning of the section. He impleaded all the other agraharamdars as defendants including Rukminiamma through whom the present 10th defendant claims, and they remained ex parte. When she died after being impleaded as a respondent in the first defendant's appeal to the District Court and before the hearing of the appeal, the failure to bring on her legal representatives was due to the default of the other side. When the plaintiff appealed to this Court from the decree of the District Court the fact that he did not implead the representative of the deceased 6th defendant who had been ex parte in the first Court and whose legal representatives had not been brought on by the other side in the District Court cannot in my opinion be said to constitute such a want of bona fides as to render the explanation inapplicable. Onthis ground therefore I would support the Subordinate Judge's finding that the 10th defendant in this suit who claims through the 6th defendant in the previous suit is bound by res judicata and would dismiss the second appeal with costs.

Spencer, J.

8. The question to be decided is whether the decision of the District Judge of Kistna in A.S. No. 451 of 1905 dated 1-12-1910 (Exhibit A in these proceedings) confirmed in Second Appeal by the High Court in Second Appeal No. 838 of 1911 on 7-8-1913 (Exhibit XVII) is res judicata against the 10th defendant, who is the appellant before us, on the point of Rs. 714-14 being the correct amount of kattubadi payable by the agraharamdars on the Gopavaram Agraharam. It appears that the 6th defendant in that suit, whose name was Prativadi Bhayamkaram Rukminiamma, was dead at the time when the High Court passed its remand order on 17-9-1909 and when the District Judge delivered his judgment on 1-12-1910, although her name was still kept on the record. The Subordinate Judge is of opinion that this defect is cured by the fact that the 10th defendant was one the record as Rukminiamma's legal representative when the High Court judgment finally disposing of the Second Appeal was passed on 7-8-1913.

9. The District Judge's judgment in A.S. No. 451 of 1905 shows the name of Prativadi Bhayamkaram Gopalacharyulu as the 6th respondent and the same individual's name appears as 4th respondent in the High Court's judgment.

10. The 10th defendant's name is Sriman Madhabhushi Gopalacharyulu, The Subordinate Judge therefore appears to be in error in his statement that this 10th defendant was added as the legal representative of Rukminiamma in the second appeal to the High Court.

11. A suit instituted for settling the amount of kattubadi due to the Receiver of the estate upon this agraharam was one in which all the agraharamdars were necessarily interested. In Second Appeal No. 359 and 1789 of 1918 it was recently held by Krishnan J. and myself that agraharamdars are jointly and severally liable for all the jodi payable on their agraharam. We followed prior decisions of this High Court in Ellaiya v. Collector of Salem (1866) 3 M.S.C.R. 59 Ramayya v. Subbarayudu I.L.R. (1889) Mad. 25 and Sobhanadri Apparao v. Gopalakrishnamma I.L.R. (1892) Mad 84

12. Under Explanation VI to Section 11 of the C.P. Code when there is a final decision by a competent Court in respect of a private right claimed in common by parties to the suit and others and the litigation is conducted bona fide, all persons interested in that right are bound by the result of the litigation.

13. In Ran gamma v. Narasimha Charyulu : (1916)31MLJ26 it has been held by Sadasiva Aiyar and Moore JJ., that this explanation is not confined to suits brought under O.I.R. 8 by a few persons representing a numerous class after obtaining the Court's permission and after giving notice to others who may be interested. This decision followed the dictum in Varanakot Narayanan Nambudri v. Varanakot Naraynan Nambudri I.L.R. (1880) Mad. 328 under the Code of 1859. That was a case where a declaratory decree had been obtained against the karnavan of a tarwad. A decree to which a karnavan is a party binds the other members of the tarwad because he is their recognised representative in suits, as was well settled by a Bench of Four Judges in Vasudevan v. Sankaran I.L.R. (1897) Mad. 129. But Rangamma v. Narasimhacharyulu : (1916)31MLJ26 and the case before us are instances of private rights claimed by some individuals in common with others rather than as representatives of a body of persons. Somasundara Mudali v. Kulandaivelu Pillai I.L.R. (1905) Mad. 457 was a Full Bench case under the Code of 1882. The words 'claimed in common' occurring in explanation V to Section 13 of that Code and repeated in explanation VI of the present Code are explained therein as referring to rights to relief which would benefit such parties by being granted and give them such an interest as would enable them to join as co-plaintiffs under Section 26. (Now Order 1 Rule 1.)

14. There can be no doubt that agraharamdars have such a common interest, for as each agraharamdar can be made to pay the whole of the Jodi if others do not pay, all are equally interested in the demand being decreased to the lowest possible figure, or at least not being increased.

15. Judged by this standard, I feel clear that the decision in A.S. No. 451 of 1905 is binding on the parties to this suit including the 10th defendant, as that litigation was, so far as it appears conducted bona fide.

16. But Mr. T.R. Ramachandra Aiyar has sought to draw a distinction in a case where a party is represented at one stage of the suit and afterwards ceases to be represented owing to a failure to bring his legal representatives on record. If such cases are to be made exceptions to the general rule it would be necessary to import words in Explanation VI to Section 11 which are not there. 'All persons interested in such right' must then be understood as meaning 'all persons who are not already parties to the suit and are interested in such right.'

17. I see no reason to put such a limited construction on the plain words of the explanation.

18. I agree with my Lord the Chief Justice that the lower Court's decision is right and that this appeal should be dismissed with costs.


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