Sadasiva Aiyar, J.
1. These three appeals are by different sets of defendants against the judgment of a learned Judge of this Court, passed in Civil Revision Petition No. 717 of 1916, that petition having been filed under Section 115 and 151 of Act V of 1908 and Section 15 of the Charter Act. The suit itself out of which these proceedings have arisen was filed in May 1908 when the former Civil Procedure Code was in force. The learned Judge from whose decision these appeals have been filed interfered under Section 115 and set aside the order of the Subordinate Judge of Mayavaram. One of the contentions in these appeals is that the Subordinate Judge neither acted without jurisdiction nor acted illegally or with material irregularity in the exercise of jurisdiction and that, therefore, the learned Judge ought not to have interfered with his order. While I do not say that this might not be a sufficient ground for allowing these appeals, I think that, having regard to the fact that this suit is almost 111/2 years old, and that the whole question has been fully argued before us, it is desirable to set at rest, as much as possible, the questions which have already been matters of contest between the parties. I shall, therefore, decide these appeals on the merits as far as possible.
2. The suit was brought in respect of the land belonging to the dargas. One of the questions considered in the suit was, whether the dargas are public religious trusts or private religious trusts. The plaintiff contended that they were private religious trusts and that, therefore, Section 92 of the Civil Procedure Code did not govern his suit. That seems to be clear from ground No. 20 of the grounds of appeal in Appeal No. 163 of 1910 presented to this Court at one stage of this suit. The judgment in that appeal was pronounced by Sankaran Nair and Spencer, JJ, on the 7th October 1914. I am satisfied, on a careful perusal of that judgment, that they must have held that Section 92 of the Civil Procedure Code was not a bar to the granting of the relief for the appointment of a trustee for these dargas, for, if that section was such a bar, they would have dismissed that suit on that sole ground and not remanded the suit to the Subordinate Judge. So far as regards the parties to this suit (not only the parties who were before the Court on the date of the High Court judgment but also the parties added afterwards), I think we must take it that Section 92, Civil Procedure Code, is not a bar to the Court granting in this suit, the reliefs contemplated in the High Court judgment as awardable by the Court. Now, in the plaint, the plaintiff contended that he had been properly appointed sajjadanashin by the previous incumbent of the office and therefore, that he was, on the date of the suit, the holder of that office, but in the alternative (that is, if the Court should hold that he did not hold the office) on the date of the suit, he prayed that the Court might exercise its powers under the Muhammadan Law and appoint him (the plaintiff) as the best candidate among the descendants of the original Rahimtulla to hold that office. That was how the learned Judges evidently understood the plaint and I respectfully agree with them. I might at-once admit that in this suit, as in other suits of a like nature, the plaintiff or plaintiffs usually care more for their personal advantage or for the gratification of their personal spite against a defendant than for the advantage of the institution referred to in the plaint in the suit. And, in that view, the present plaint was mainly for establishing the plaintiff's personal claims. Even in cases of partition, dissolution or winding up of a partnership or of administration of an estate, the plaintiff who files the suit in most cases cares more for his personal interests than for the interests of the estate or business of the family (as the case may be) mentioned in the plaint. But the question is, whether the Court, having become seized of such a suit, has got the power to give reliefs to other persons who have been made parties in the suit or interested in the properties which are the subject-matters of the suit.
3. The Subordinate Judge who first dealt with the suit dismissed it on the ground that the plaintiff had not been appointed sajjadnnashin by the predecessor who held the office (one Syed Shah Mohideen Sahib) and he refused to appoint a new trustee or manager or remove the first defendant from the management of the properties, though he observed that the properties or endowments mentioned in the first issue, (which properties alone are now in dispute) are endowments in respect of the dargas and that the Court was not prepared to say that the 'first defendant alone was entitled to administer the properties' or that the other members have no sight to the same.' When the case came up on appeal for decision, Sankaran Nair and Spencer, J.J., made the following observations in their judgment: 'We are of opinion that the Subordinate Judge was right in holding that the plaintiff has failed to prove his appointment by Syed Shah Mohideen.... The succession to the Killai Darga trusteeship may be consistent with the law of primogeniture. But it is quite clear in the case of Nawabpettai, the trusteeship did not devolve according to that law. The succession is only consistent with nomination by the last incumbent and this is in accordance with Muhammadan Law. We are, therefore of opinion that the case is one in which a trustee should be appointed by the Court as the last incumbent has failed to nominate his successor. It is obvious that neither the plaintiff nor the first defendant if she is eligible can be appointed without Ghulam Kadir (one of the descendants of Rahimtulla, the original founder) 'being a party to the suit. Moreover, any finding that may be arrived at in this suit as to the right of a female to be the trustee will not he binding on the descendants of Rahimatulla who are not parties to the suit. We think, therefore, in the interests of the institution, it is desirable to make all the descendants of Eahimatulla who may lay claim to appointment, parties to the suit. We, therefore, set aside the decree of the lower Court and direct the Subordinate Judge to restore the suit to his file, make those descendants whom the parties might apply to be made parties to the suit and dispose of the case according to law after settling fresh issues'. Having considered these observations to the best of my ability, with the help of the elaborate arguments presented before us on both sides, I think that whatever main motive or intention the plaintiff might have had in bringing this suit, the learned Judges held that the Court should and could mainly look to the interests of the institution and as, in the interests of the institution the appointment of a proper trustee should be made in the suit. The question whether that trustee should be the plaintiff or the first defendant or any other member of the family of Rahimtulla (who might be among those who are already parties to the suit or might be made additional parties to this suit) should be carefully considered by the Court which should appoint the man best fitted as the trustee and to give the appropriate relief in favour of that man as trustee of the institution so as to decide once for all the questions arising out of the pleadings of all the parties. When the suit was so remanded the plaintiff and the first defendant resorted, according to the Subordinate Judge, to certain devises intended to prevent the Court from doing any acts and coming to any decision in the interests of the institution and in the interests of the finality of a long standing litigation. And the Subordinate Judge, while recognising the right of the plaintiff to withdraw from the prosecution of the suit, refused to consider the litigation as put an end to thereby, and directed some of the defendants (who were willing) to be made plaintiffs and the plaintiffs to be made defendants. It is against that order of his that the civil revision petition was filed which was allowed by the learned Judge of this Court. The learned Judge held that Sankaran Nair and Spencer, J.J., when they ordered the other members of the Rabimtulla family to be made parties, did not intend that the lower Court should exercise its jurisdiction under Muhammadan Law (in the interests of the dargas and religious trusts) in this suit itself, to appoint a trustee for the trusts, other than the plaintiff, if the Court held that the plaintiff was not entitled to be a trustee. If it was held that they so intended to give such power to the Court in this suit itself, it would be (according to the learned Judge) crediting the Division Bench Judges with the intention to change the character of the suit as brought, and such a conclusion ought to be avoided, if possible. I am inclined, however, to hold that the two learned Judges who decided the appeal did not think that the character of the suit (one of the reliefs prayed for in which was the appointment of the plaintiff as trustee if there is no lawful trustee in existence) would be changed, merely by the Court taking on itself the duty which it had under the Muhammadan Law, to appoint a proper person other than the plaintiff as trusted in that same suit. Even if the learned Judges were wrong in their opinion that the Court had the power in the plaintiff's suit as brought to appoint another trustee, I am satisfied that they did intend to decide that the Court had such power in this suit and it is not competent in the subsequent stages of the suit for the plaintiff to attack that decision. If, then, this suit is not purely a personal suit in which only private rights and private persons are concerned, and if it is a suit in which religious or charitable trusts (over which the Courts are expected to throw their mantle of protection almost as readily as in the case of minors) the power surely exists in the Court to see that the plaintiff on the record does not, by technicalities and devices of procedure, prevent it from deciding the suit as if the trustees were the principal parties thereto and allowing others to conduct the suit in the interests of the trusts and in the interests of justice.
4. Mr. T. Rungachariar argued that, under Order XXIII, Rule 1, Civil Procedure Code, there being only one plaintiff in the suit, he can unconditionally withdraw the suit under Clause (1) of Rule 1 and as soon as he put in his petition for withdrawal his suit ceased to exist on the file of the Court. He also argued that, under Order I, Rule 10, persons who are already on record as defendants cannot be transposed as plaintiffs. He based his arguments as regards this second point (which I shall take up first) on the change in the language from that in the old Section 3 of the Civil Procedure Code to that in Order I, Rule 10, Clause 49 Ind. Cas. 189 : 9 L.W. 79 : (1918) M.W.N. 929 : 25 M.L.T. 140 It is well known, (especially having regard to Section 151 of the new Civil Procedure Code) that the new Civil Procedure Code was intended to give greater elasticity of procedure and to give further powers to Courts than were given in the old Civil Procedure Code. Therefore, it is prima facie unlikely that any change made in the language in the new Code could have been intended to give lesser powers to the Courts under Order I, Rule 10, than were given under Section 32 of the old Code. I need, however, only state on this point that I agree entirely with the decisions in Brojendra Kumar Das v. Gobinda Mohan Das 84 Ind. Cas. 186 : 20 C W.N. 752 and Bhimanagowd v. Eswaragowd 49 Ind. Cas. 189 : 9 L.W. 79 : (1918) M.W.N. 929 : 25 M.L.T. 140, and that the language of Order I, Rule 10, Clause (2) is wide enough to give the Courts powers to add either as plaintiff or defendant any person (that is, whether already a party as defendant or plaintiff) so as to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit--of course, a man cannot be both plaintiff and defendant in the same capacity, but he has only to be removed as plaintiff before being added as defendant or removed as defendant before being made the plaintiff (with his consent, of course, in the latter case).
5. As regards the first point, I think the decision in the Kumadi case : Rajah Bhaskara Sethupathi and Irulappa Nadan v. Narayanasamy Gurukkal 12 M.L.J. 360 confirmed in the Privy Council, and the analogy of the cases relating to partition, taking of accounts, administration and so on, give sufficient power to the Court to allow such a suit as the present to proceed with some of the defendants as plaintiffs notwithstanding the withdrawal by the plaintiff from the suit.
6. As regards the argument based upon the fact that in Order XXIII, Rule 2 Clause (1) the words 'withdraw his suit' are mentioned whereas in Clause 2(6) 'withdraw from such suit' are the words used, I do not think that the Legislature intended a different meaning to be attached to the two sets of words, for if they did intend such a difference in meaning, it would follow that, whereas under Clause (3) of Rule 1 if a plaintiff withdraws from a suit 'he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit', but if he withdraws his suit Clause (3) (which speaks only of withdrawing 'from' suit) would not apply and the Court cannot make orders as to costs and the plaintiff will not be precluded from the institution of a fresh suit. I think it is unarguable that such could have been the intention of the Legislature.
7. In the result, I would allow the appeals with costs.
8. In this case I agree with the judgment which has been delivered by my learned brother, but as we are differing from the judgment of the learned Judge of this Court, I venture to express my own opinion on some of the points raised in my own words.
9. With regard to the judgment of this Court delivered on the 7th October 1914 by Sankran Nair and Spencer, JJ., it is perfectly clear that the Court was of opinion that the trustee should be appointed by the Court as the last incumbent of the office had failed to nominate his successor. It is also clear from that judgment, in my opinion, that the appointment was to be made from among the descendants of the founder, Rahimtulla Therefore the Court was careful to state as follows: We think, therefore, in the interests of the institution, it is desirable to make all the descendants of Rahimtulla who may lay claim to appointment, parties to the suit' and directed the learned Subordinate Judge to dispose of the case according to law after settling fresh issues. To my mind this clearly shows that the learned Judges were of opinion that, whether the plaintiff's claim to be appointed, succeeded or not, it was desirable that the Court should appoint somebody from the limited number of possible appointees to be trustee of the institution. It may here be remarked that the plaintiff mainly relied in his suit on his claim to succeed as heir to the trusteeship. The possibility that he might not succeed as heir but might have to be appointed on independent basis by the Court, seems only to come in as a side wind, as for instance in the latter part of his prayer in paragraph 5(2), In this connection I may observe that the written statement of the 6th defendant, paragraphs 2 and 4, claims the same right to management as the plaintiff. The written statements of the defendant Nos. 3, 4 and 5, at paragraph 15, deny that the plaintiff is the heir of the last male holder and that he is fit and competent to look after the trust property. The same may be said of paragraph 9 of the first defendant's written statement, namely, that the plaintiff is not competent to be appointed cajjada under any circumstances. My learned brother has set out at length the various stages in this prolonged litigation and it is not necessary for me to refer to them. With regard, however, to the judgment of the learned Subordinate Judge, dated 12th April 1916, on the plaintiff's petition to withdraw, I may remark that the learned Judge was clearly of opinion that the High Court by its judgment intended that, in the interests of the charitable institution, the appointment should be made from the descendants of the founder. I ought to have previously said with regard to this charitable institution that I agree with the remarks of my learned brother that the judgment of the learned Judges of this Court may be taken to imply that they were of opinion that this was not such a charitable institution as now falls within the purview of Section 92, Civil Procedure Code. It is not referred to in either the judgment of the High Court or of the Subordinate Judge on the petition and this is accounted for by the fast that the suit was filed before the new Code name into force.
10. It was contended by Mr. T. Rangachariar, for the first respondent, that the plaintiff, having withdrawn his suit under Order XXIII, Rule 1, there was nothing left of which the Court was seized and that, therefore, the learned Subordinate Judge had no jurisdiction to proceed to transpose the parties to the suit in order to carry out what he conceived to be the directions of the learned Judges of this Court. It seems clear that, although the plaintiff may be entitled to withdraw his suit when he likes, he can only do so by petition on which the Court must pass orders with notice to the other parties on the question of costs. Mr. T. Rangachariar further insisted that there was a distinction between the powers given under Order I, Rule 10 of the new Code and Section 32 of the old. He contended that, whenever the word 'person' is used in the section, it must, as distinguished from the word 'party' mean some individual who is a stranger to the suit. It seems to me, however, that that contention is met by saying that a party' who is struck out as plaintiff or defendant becomes a 'person' and can then as such be added as either defendant or plaintiff, as the case may be. It is true that the words in Section 32, Civil Procedure Code and the Court may at any time either upon or without such application and on such terms as the Court thinks just, order that any plaintiff be made a defendant or that any defendant be made a plaintiff' are omitted in the new Code, but, as pointed cut by the Lordships of the Calcutta High Court in Brojendra Kumar Das v. Gobinda Mohan Das (i), the words are omitted as redundant and their omission does not make any difference to the powers of the Court under the new Code. I agree with my learned brother that we cannot say that this decision is in any way incorrect. With regard to the case also relied on by Mr. T. Rangachariar, reported as Ashiabai v. Abdulla 31 B.P 271 : 8 Bom. L.R. 758, it was a partition suit in which the plaintiff was held to have no right to the property whatever. It was decided that that being so, if the plaintiff is found to have no share at all, there is no suit for partition and, consequently, no necessity for determining the defendant's share (at page 292). But here the plaintiff has been added as defendant for the purpose of determining (in spite of his withdrawal from the suit which is alleged to have been collusive) his rights as a member of the family of the founder of the charitable institution. His rights are, therefore, still to be adjudicated upon, not as nominee of the last holder but as one of the class of persons among whom the appointment has to be made. This fact seems to me to differentiate the case in toto from the case before us. I, therefore, agree that the judgment of the learned Judge which is under reference is wrong.