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Alagairisami Naik and ors. Vs. Sikandar Rowthar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in166Ind.Cas.730
AppellantAlagairisami Naik and ors.
RespondentSikandar Rowthar and ors.
Cases ReferredIn Deby Dayal Sahoo v. Ram Pertap Singh
Excerpt:
parties - suit by a against b, c and others--b and c remaining ex parte--decree in favour of a, b and c--suit remitted to lower court for fresh trial--power of court to dismiss entire suit--party claiming no relief and not praying to be made plaintiff, whether entitled to claim relief after remand. - .....mortgage and that the only persons who had any right to redeem were defendants nos. 8 and 9. that suit was dismissed. in appeal a part of the plaintiff's claim was allowed and a decree was given for some property in favour of defendants nos. 8 and 9 in second appeal it was ordered that the appeal should be re-heard. the subordinate judge who heard the appeal a second time, dismissed the suit on the ground that the plaintiff had failed to show any cause of action. in second appeal it is now urged that the subordinate judge acted wrongly in not passing a decree in favour of defendants nos. 8 and 9, because they were parties to the suit and could have been transformed as plaintiffs under order i, rule 10 and because even without that a decree could have been passed in their favour.2. if.....
Judgment:

Horwell, J.

1. This is a suit for redemption filed by the grandson of the mortgagor. He stated in his plaint that defendants Nos. 8 and 9, the sons of the mortgagor, were also entitled to redeem but that they had refused to join the plaintiff in filing the suit because they themselves claimed no interest in the property. The trial Court found that the plaintiff's father had divided from the mortgagor even before the mortgage and that the only persons who had any right to redeem were defendants Nos. 8 and 9. That suit was dismissed. In appeal a part of the plaintiff's claim was allowed and a decree was given for some property in favour of defendants Nos. 8 and 9 In second appeal it was ordered that the appeal should be re-heard. The Subordinate Judge who heard the appeal a second time, dismissed the suit on the ground that the plaintiff had failed to show any cause of action. In second appeal it is now urged that the Subordinate Judge acted wrongly in not passing a decree in favour of defendants Nos. 8 and 9, because they were parties to the suit and could have been transformed as plaintiffs under Order I, Rule 10 and because even without that a decree could have been passed in their favour.

2. If there had been some doubt as to who should file a suit, then upon a proper application the Court could have added some other persons, say defendants Nos. 8 and 9, as plaintiffs; but no such request was made by defendants Nos. 8 and 9. The plaintiffs in their plaint put forward a case which was adverse to defendants Nos. 8 and 9, claiming the sole right to redeem in themselves, while the defendants Nos. 8 and 9 remained ex parte. By remaining ex parte, they acquiesced in the plaintiff's allegations and I do not, therefore, see how it was possible for the trial Court to have passed a decree in their favour. As the plaintiff had failed slow a cause of action and defendants Nos. 8 and 9 had not asked for any relief, the only course that was left open to the Court was to dismiss the suit. Order I, Rule 10, refers to bona fide mistakes in the name of the plaintiff; but one cannot say here that there was any bona fide mistake. Hughes v. Pump House Hotel Co. (1902) 2 K.B. 485 : 71 L.J.K.B. 803 : 87 L.T. 395 : 50 W.R. 677 was quoted by the learned Counsel on behalf of the appellant. The Court agreed in that case that it was very doubtful, from an interpretation of the leading case on the subject, which of the two persons was entitled to sue. Unfortunately the wrong person figured as the plaintiff; but when the mistake was pointed out the other person was allowed to be substituted for the plaintiff. A. similar case in India is Krishna Bai v. The Collector and Government Agent of Tanjore 30 M. 419 where a Collector was managing an estate in Tanjore, and as such, he field a suits for trespass. It was found that not with standing the fact that he was the manager, the proper plaintiffs were the concubines of the late Raja of Tanjore. Upon an application substitution was allowed. In the Privy Council case Bhupendra Narayan Sinha v. Rajes war Prasad Buckett the plaintiff, claiming to be the owner of an impartibly estate, sued for compensation. His three brothers were arrayed as defendants and supported their brother's claim. Their Lordships held that it was unnecessary to go into the question of the impartiality of the estate as the three defendants supported the plaintiff in his claim and that the suit should, therefore, be decreed for the whole amount claimed. It is clear that these cases have no resemblance at all to the case under-consideration, where the defendants have themselves asked for no relief, nor has there been any application by defendants Nos. 8 and 9 to be substituted for the plaintiff. In Deby Dayal Sahoo v. Ram Pertap Singh 31 C. 433 three widows claimed certain property, the first plaintiff being the principal claimant and the second and third plaintiffs reversioners who stated that they had transferred their rights to the first plaintiff. It was found on the facts that the first plaintiff had no right to sue but that the second and third plaintiffs were entitled to the properly. Nevertheless, no decree was passed in favour of the second and third plaintiffs because on the pleadings they had not put forward any claim which was found in (heir favour. I, therefore, find that the suit was rightly dismissed and that a decree was rightly-refused to defendants Nos. 8 and 9.

3. Even if the law had been otherwise, I would not have passed a decree in favour of defendants Nos. 8 and 9 without being properly satisfied that they were really parties to some of the proceedings that bear their name. They were ex parte in the trial Court, they were ex parte in this Court in second appeal and in the appeal from an order arising out of the suit they were also ex parte. From the vakalat filed on their behalf in this Court find that their names appear but no other indication that they have joined the plaintiff. I, therefore, feel very doubtful whether at any time defendants Nos. 8 and 9 have taken any part in the proceedings in connection with this dispute. However, this is a point that does not now arise in view of my finding on the main point discussed. The second appeal is dismissed with costs. (No leave).


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