1. After the elaborate arguments which have been addressed to me, I should have preferred stating the conclusion to which I have come and my reasons in a considered judgment, but the circumstances of the case show that it is important that delay should, if possible, be avoided.
2. The applicant is one Keshub Chunder Giri, who asks that his name may be entered in the record of this suit in the place of the deceased plaintiff, and that he may be allowed to amend the plaint as may be required by reason of the substitution of his name as plaintiff in place of the original plaintiff.
3. It is clear from the facts as stated by the applicant that, if the substitution be allowed, it would be necessary to alter very materially the case made in the plaint to enable the applicant, as the substituted plaintiff, to proceed with the suit.
4. The argument in support of the application is, first, that the right to sue has not abated by reason of the death of the plaintiff, and, next, that there has boon a devolution of interest in favour of the applicant, which gives him the right to be made a plaintiff in place of the original plaintiff.
5. The first contention depends upon the meaning of the words 'right to sue' in Section 361 of the Code of Civil Procedure. That section provides that 'the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.' It does not predicate conversely that the death of a party shall cause the suit to abate, if the right to sue does not survive, but that is clearly the practical effect of that section and of the subsequent sections relating to abatement.
6. The law of abatement, as stated in the Procedure Code and elucidated in the illustrations to Section 361, is the same as it is in England. Indeed, the case given in illustration (c) is founded on the maxim 'action personalise moritur cum persona.' The illustrations to Section 361, as also the provisions of the next following sections, show what the right to sue is, and in whom it vests.
7. Sections 362 and 3631 relate to the case of the death of one of several plaintiffs. Section 3652 applies to the case of the death of a sole plaintiff, and has therefore a direct bearing on the present application. Section 372 relates to cases of transfer or devolution of interest not otherwise provided for. These sections prescribe the procedure to be followed by persons claiming to have the right to prosecute the suit under any of the circumstances therein mentioned. It is to be observed that under Section 365, on the death of a sole plaintiff, the right to sue vests in his legal representative.
8. The 'right to sue' is based upon facts which go to make up what is called the 'cause of action,' and Section 371 provides that, 'when a suit abates or is dismissed under this chapter, no fresh suit shall be brought on the same cause of action.' The language of the latter section seems clearly to indicate that the cause of action of the original and revived suit must be the same, and that no fresh cause of action can be imported into a revived suit.
9. If I have correctly interpreted the meaning of Section 361, it becomes essential to examine the plaint in this suit and to compare some of its principal allegations with the facts as alleged by the applicant. For the present purpose it will be sufficient to refer to the following allegations upon which the original plaintiff relies as the basis of his claim : (1) that he was selected as the chela or disciple of Madhub Chunder Giri the deceased mohant; (2) that the ceremony of initiation had been duly performed by which he was brought into the brotherhood of his guru; and (3) that the installation ceremony had been performed with the approval and consent of the dasnami, and that by virtue thereof he became the mohant and exercised the functions of that office.
10. This suit was brought by the original plaintiff to have it declared that he was in fact the mohant of Tarkessur as the successor of Madhub Chunder Giri, and for consequential relief.
11. It would not serve the purpose of the present applicant to prove the allegations in the plaint showing that the original plaintiff succeeded Madhub Chunder Giri as mohant. The presents applicant claims as a chela, not of the original plaintiff, but of his predecessor, and this claim in reality puts him in opposition to the original plaintiff', whose case, as stated in the 15th paragraph of the plaint, is to the effect that there was no chela besides himself as regards whom the ceremonies of initiation and installation were performed, or for whom the sanad of the Maharajah of Burdwan was obtained. The applicant therefore is in the position of a rival claimant who is desirous of setting up a claim of his own, which is not only not dependent upon the claim of the original plaintiff, but is in conflict therewith.
12. No doubt if this had been a suit to protect the property of the idol as against a trespasser, then it would be difficult to meet the arguments addressed to me on the part of the present applicant; but that is not the character of the suit, and the real object of the applicant is to establish a rival claim to the office of mohant, which can only be done by a separate suit. I take it that whoever is declared to be the mohant, the property which appertains to the shrine would follow that declaration. The suit is of a personal character inasmuch as its object is to establish a right to a personal office, and for that reason it appears to me that the right to sue does not survive. The result is that this suit abates. On the view I take of the first point it is not necessary that I should express any opinion on the second point, but it must be understood that in deciding, as I have done, I say nothing to prejudice the claim of the present applicant. All I say is that the claim cannot be set up in this suit.
13. The application is refused.
14. Mr. Mitter applies for costs as of a hearing.
15. Sir Griffith Evans objects. This is a Chamber application. All that the Court can do is to certify for Counsel.
16. Mr. Mitter.-The application has been adjourned into Court and it must be taken as a Court application. Even that will cover only a portion of our costs.
17. There is no precedent for dealing with the costs of an application of this nature as costs of a hearing. The costs will be dealt with as the costs of an ordinary Court application.
1 Procedure in case of death of one of several plaintiffs where right to sue survives to survivors and representative of deceased.
[Section 363: If there be more plaintiffs than one, and any of them dies, and if the right to sue does not survive to the surviving plaintiff or plaintiffs alone, but survives to him or them and the legal representative of the deceased plaintiff jointly, the Court may, on the application of such legal representative, enter his name on the record in the place of such deceased plaintiff, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs and such legal representative.]
2 Procedure in case of death of sole, or solo surviving, plaintiff.
[Section 365: -In case of the death of a sole plaintiff or sole surviving plaintiff, the Court may, where the right to sue survives, on the application of the legal representative of the deceased, enter his name in the place of such plaintiff on the record, and the suit shall thereupon proceed.]