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Secy. of State and anr. Vs. M. Murugesa Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1929Mad443; 118Ind.Cas.780
AppellantSecy. of State and anr.
RespondentM. Murugesa Mudaliar and ors.
Cases ReferredEsquimalt and Nanaimo Ry. Co. v. Wilson
Excerpt:
.....the suit. no better instance of wisdom of such a rule could be afforded than is presented by the suit before the court. with regard to the first of these contentions their lordships are clearly of opinion that the attorney general ought to be before the court. it is quite true that the title of the crown to the land in question is not in controversy, nor is the crown asked to do any act or grant any estate or privilege, but in the event of the plaintiff's success, the right existing in the crown and consequent upon the grant to the respondents will cease. if these interests lay in a third party, he ought certainly to be added as defendant, and that is the best means of tasting the necessity of the attendance of the crown. 22. i am, therefore, satisfied both on principle and authority..........this disposes of c.r.p. 1215 of 1928.23. i shall now deal with the second c.r.p. 1259 of 1928. ten members elected by the taluk board were serving on the district board. one of the ten seats became vacant and it was to fill up that seat, that the election which i have described was held. subsequently by efflux of time, the remaining nine members also vacated their seats. this led to a fresh election by the taluk board who elected ten 'members, treating the election of the plaintiff as void. one of these ten also applied to the lower court to be made a party and the lower court refused his application. what the applicant says is; that he effectually represents all the ten members. it is said that they are the persons whom the result of the suit affects, for their election will be invalid,.....
Judgment:

Venkatasubba Rao, J.

1. The first civil revision petition raises a question in regard to the scope and effect of Order 1, Rule 10, Civil P.C. The suit was filed by the plaintiff in the Munsif's Court for a declaration that he was a duly elected member of the Chingleput District Board. He impleaded as defendants: (1) the District Board of Chingleput and (2) the President of that Board. He prayed not only for a declaration as stated above but also for the issue of a mandatory injunction directing the defendants to recognize him as a duly elected member of the District Board. The Government applied to the lower Court for being added as a party. That application was refused by the District Munsif and in this civil revision petition, his order is attacked by the Government.

2. The allegations in the plaint are shortly summarised thus by the learned District Munsif:

On 30th March 1928 the President, Taluk Board, Chingleput, convened a special meeting of the Taluk Board for the election of a member to the District Board. When the meeting commenced, there were 24 members present besides the president. A motion for adjournment was supported and opposed equally and on the casting vote of the president, the motion for adjournment was carried. The president and the 12 members who voted for the adjournment went away. The 12 members who opposed the motion thought that the adjournment was illegal and invalid and convened a meeting and elected one of their own number as chairman and in such meeting, the plaintiff was declared elected as a member of the District Board. It is alleged that the adjournment was illegal because out of the 12 members who voted for the adjournment two members had ceased to be so, long before the date and they had no right to take part in the meeting at all and as such their votes were improperly received. The plaintiff learns that the notification of the election in the Gazette has been withheld and a fresh meeting would be convened for the purpose. Ha asserts that he had been elected, wants a declaration accordingly and an injunction directing the defendants, the District Board, Chingleput and its President to recognize him as such and to transact all business of the District Board in co-operation with and after due notice to him.

3. In the plaint there are allegations impeaching the conduct of the President of the Taluk Board and questioning the legality of the notification in the Gazette published by the Government. But there is not a single allegation made either against defendant 1 or 2. Why did the plaintiff then implead as defendants, those against whom he had no grievance and omit to join the parties, whose action, he alleges, prejudiced his right? This may, at first sight appear surprising; but the truth seems to be, that the President of the District Board informed the Government that in his view the plaintiff's election was valid. This apparently led the plaintiff to believe that if he adopted this method he would easily succeed in the suit. The application of the Government was opposed both by the plaintiff and the defendants. The question is, is it proper, in the circumstances, to make the Government party?

4. Section 47 (1), Madras Local Boards Act (1920) enacts that the members of a District Board other than certain members, shall be elected by the Taluk Board 'in the prescribed manner.' It is under this section that the plaintiff claims to have been elected. The local Government has power under Section 199 (b) to make rules with reference to all matters relating to elections of members of Local Boards. Rules have been accordingly made for the election of members to the District Board by Taluk Boards. The following are the relevant rules:

Rule 2. 'The President of the Taluk Board shall thereupon summon a meeting of the Taluk Board for the purposes of proceeding with the election.'

Rale 6. 'If there are more candidates than there are vacancies, the votes of the members present at the meeting shall be taken.'

Rule 8. 'The candidate who obtains the largest number of votes... shall be declared to have been duly elected.... The election shall be notified in the Port Saint George Gazette.

Rule 11. Immediately after the meeting, the president or the presiding member shall forward the names of the elected candidates to the Government for publication in the Port Saint George Gazette.

5. Now, turning to the Act, Section 19 enacts that

the election of a member of a Local Board shall be notified in the prescribed manner.

6. The manner has been prescribed by Section 8 to which I have already referred. Section 11 says that every member of a Local Board shall hold office for a term of three years from the date of publication of the notification under Section 19. There are several sections in the Act vesting in the Government power of control over the Local Boards. Section 45 shows that the power extends even to dissolving the Board for incompetence, for continued default or misconduct. But the section with which we are most directly concerned is Section 38. It empowers the Local Government inter alia, to suspend by order in writing, the execution of any resolution of any Local Board.

7. Presumably it was under this section that the Government acted, when it issued the notification to which the plaintiff takes exception in his plaint. In that notification, the Government declare that the motion for the adjournment of the Taluk Board was legally carried, that the continuation of the meeting by a section of the members and the election of the plaintiff as a member of the District Board cannot be recognized and notified in the Fort Saint George Gazette. The notification adds : ' a fresh meeting of the Taluk Board should be convened for the election...of a member to the District Board.'

8. Under Section 38, I have pointed out, that the Local Government may suspend the execution of any resolution of a Local Board, can it or can it not veto, the election of a member under this section? It is at a meeting that the candidate is to be elected. The name has to be proposed and seconded, the votes of the members are to be taken and the candidate who obtains the largest number of votes is to be deemed to have been elected. The procedure indicated shows that a member is elected by a resolution of the Local Board. The word 'resolution' is defined in the Oxford Dictionary as a

formal decision, determination or expression of opinion on the part of a deliberative assembly or other meeting.

9. Now then, if the decision of the meeting, that the plaintiff has been duly elected, amounts to a resolution, the right to suspend it undoubtedly vests in the Government. In this case, it has exercised that right and suspended the execution of the resolution. The plaintiff has thus a grievance against the Government. It was their act that has interfered with his alleged right. Is the Government then not a proper party to the suit:

10. The material portion of O.1, Rule 10, runs thus:

The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order..., that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added.

11. As I observed in the course of the argument, If this application had been made to me as a trial Judge, I should, without a moment's hesitation, have allowed it. A long argument became necessary on account of certain observations of Srinivasa Aiyangar, J.. in Prayag Dossji Varu v. Board of Commissioners for Hindu Religious Endowments, Madras A.I.R. 1926 Mad. 886, which case, the lower Court has purported to follow. In an elaborate judgment, that learned Judge has formulated certain principles in regard to the addition of parties under Order 1, Rule 10. He thinks that the effectual and complete adjudication mentioned in the section, refers to a decision, only as between the parties to a suit,. The learned Judge, on that basis, argues,, the judgment in a suit being only interpartes, a plaintiff cannot be compelled; to implead as a defendant a person against whom he seeks no relief. I may quote his very words from the judgment:

The very basic principle of judgment interpartes is that the judgments are not judgements in rem, but declaratory and operative-only as between them. The plaintiff being generally dominus litus, I fail to see on what principle of justice he can be compelled to fight against some other litigant not of his own choice unless such a process is required by a positive rule of law.

12. This view seems to ignore the distinction which the section makes between two classes of persons:

(1) 'Persons who ought to have been joined;

(2) persons whose presence is necessary to enable the Court to completely and effectively adjudicate upon and settle all the questions involved in the suit.

13. The first part deals with necessary parties, and the second, with proper parties. True, a decision is binding only on the parties to the suit; but does it follow that a Court is bound to decide a dispute in the absence of those persons whom it most vitally concerns? With greater respect, I find myself unable to follow the case relied upon by the lower Court. The view taken in that case is opposed not only to the plain wording of the section but also to a large body of authority. Vydianada v. Sitarama [1882] 5 Mad. 52 is a direct ruling on the point. That was a decision on the Code of 1877, but in this respect, there is no difference between that and the present code. The plaintiff in that case sued defendant 1, on a bond executed in his favour. Defendant 1 pleaded that the plaintiff and his uncle formed a joint Hindu family, that the bond was taken on behalf of that family and that he had made a part payment to the plaintiff's uncle. The latter, supporting the statement made by defendant 1, sought to intervene; and the plaintiff resisted his application. The learned Judges (Sir Charles Turner, C.J., and Muthuswami Ayyar, J.,) thus deal with the question : Is the effectual adjudication mentioned in the section only as between the parties to the suit? Or does the section contemplate a final decision as between not only them, but also third parties interested in the dispute? They state their answer in terms which leave no doubt on the paint.

To accept the more restricted interpretation involves the addition of words' which we do not find in the section, namely, ' between the parties to the suit,' and there can be few, if any, questions which cannot be determined between the parties to the suit one way or other, and of which the determination, if they be material, will, as between the parties to the suit not be final. On the other hand, the interpretation warranted by the terms would enable the Court to avoid conflicting decisions on the same question which would work injustice to a party to the suit, and finally and effectually to put an end to the litigation respecting them. No better instance of wisdom of such a rule could be afforded than is presented by the suit before the Court.

14. Another important ruling on the point is Dwaraka Nath v. Kishori Lal [1910] Cri.L.J. 426. which directly answers one of the questions raised by Srinivasa Aiyangar, J. Kisori was the plaintiff and Nripendra. was the defendant. The suit was to eject the defendant on the ground that the holding was non-transferable. Dwarakanath a third party, applied to be made a party to the suit, alleging that although he conveyed the holding in favour of the defendant, the conveyance was in reality a mortgage by conditional sale and that he himself was still in possession. The learned Judges, reversing the order of the lower Court, held that Dwarakanath should have been made a party. Mookerjee, J., after stating that the whole matter in controversy ought to be determined in one suit thus observes:

We must hold, therefore, that the petitioner is a proper party. The question remains, whether he can be joined as a defendant although the plaintiff objects to or does not desire the joinder. Now, as explained in the case of Montgomery v. Foy [1895] 2 Q.B. 321 the Court has the power to add a person as defendant even though the plaintiff objects to such joinder.

15. I may quote another paragraph from the judgment:

The object of the legislature is to avoid multiplicity of suits, and to ensure that the dispute may be finally determined at the same time in the presence of all the parties interested without the delay and expense of several actions and trials.

16. It is rightly pointed out in the judgment, if serious embarrassment or inconvenience would be caused to the plaintiff by the addition of a new party, the Court would be very reluctant to force an additional defendant into the action.

17. The Indian authorities are thus decidedly opposed to the view expressed in Prayag Dossji Varu v. Board of Commissioners for Hindu Religious Endowments, Madras. Do the English cases give countenance to a different rule? Montgomery v. Foy [1895] 2 Q.B. 321 deals fully with the question. The action was by a shipowner for a declaration that he is entitled to freight against the consignee of the goods who had no property in the cargo. It was held that the shippers of the cargo who applied to be added as defendants are proper parties and that they should be added in order that they might counter claim against the plaintiffs, damages for short delivery and injury to cargo. Lord Esher, M.E. says:

Then comes the question whether, for the purpose of preventing the useless and expensive formality of having two separate actions, the Court may not add the owners of the cargo as defendants in the original action and so settle the whole matter in one action and by one trial.

18. The learned Master of the Bolls explains that it was one of the great objects of the Judicature Acts, that where there is one subject-matter out of which several disputes arise all parties should be brought before the Court and all disputes should be determined in one and the same action. A. L. Smith, L. J., says that to refuse the application would amount to a frittering away the effect of the rule.

19. In Prayag Dossji v. Board of Commissioner for Hindu Religious Endowments Madras, the learned Judge relies upon two cases : Norris v. Beasley and Moser v. Marsden [1892] 1 Ch. 487. I may point out that both these cases were, in the arguments, brought to the notice of the Court of appeal which decided Montgomery v. Foy. Referring to the first of them, Lord Esher, M.R. says:

With regard to the case of Norris v. Beasley [1877] 2. C.P.D. 80 it is to be observed that it was decided at an early stage of the decisions with regard to the meaning of the Judicature Acts, and, though I do not say that the actual decision was wrong, I do not think that all the statements made in the judgments could now be supported.

20. Esquimalt and Nanaimo Ry. Co. v. Wilson [1920] A.C. 358, decided by the Judicial Committee is another case which supports the view, I am taking. The question there was, is the Attorney General a proper party? Lord Buckmaster in his judgment observes as follows:

With regard to the first of these contentions their Lordships are clearly of opinion that the Attorney General ought to be before the Court. It is quite true that the title of the Crown to the land in question is not in controversy, nor is the Crown asked to do any act or grant any estate or privilege, but in the event of the plaintiff's success, the right existing in the Crown and consequent upon the grant to the respondents will cease. If these interests lay in a third party, he ought certainly to be added as defendant, and that is the best means of tasting the necessity of the attendance of the Crown.

21. These cases establish that even against the plaintiff's consent a new party may be impleaded as a defendant and that he may be so added though he may thereby be in a position to counter claim against the plaintiff.

22. I am, therefore, satisfied both on principle and authority that the contention of the learned Government Pleader is correct. I reverse the order of the lower Court and direct that the Government be added as defendant to the suit. The plaintiff shall pay the costs of the petitioner in the lower Court and in this Court. I fix the fee of the Government Pleader at Rs. 100. This disposes of C.R.P. 1215 of 1928.

23. I shall now deal with the second C.R.P. 1259 of 1928. Ten members elected by the Taluk Board were serving on the District Board. One of the ten seats became vacant and it was to fill up that seat, that the election which I have described was held. Subsequently by efflux of time, the remaining nine members also vacated their seats. This led to a fresh election by the Taluk Board who elected ten 'members, treating the election of the plaintiff as void. One of these ten also applied to the lower Court to be made a party and the lower Court refused his application. What the applicant says is; that he effectually represents all the ten members. It is said that they are the persons whom the result of the suit affects, for their election will be invalid, if the plaintiff is held to have been validly elected. In my opinion, the proper course is to direct that all of them should be brought on the record as defendants and that is the order I make on this petition. I make no order as to costs.


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