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Tarapada Ghose Vs. Bagala Sundari Basu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal143
AppellantTarapada Ghose
RespondentBagala Sundari Basu and anr.
Cases ReferredIn Saminatha Pittai v. Bajagopal Mudaliar A.I.R.
Excerpt:
- .....permission. as regards the first ground: it is contended on behalf of the opposite party that the word 'person' in order 1, rule 11 includes any person - be he a party to the suit or not - and the court has jurisdiction to give such permission to the wife in the present case to conduct the defence on behalf of her husband. as this is a case of first impression and no authorities are available either for or against, i have given my very careful consideration to the contentions raised on both sides and i find myself unable to agree with the interpretation put upon the rule by the court below and urgently pressed before us by the learned advocate appearing for the opposite party. the main argument upon which this view is supported is that order 1, rule 11 reproduces the provision of the.....
Judgment:

Suhrawardy, J.

1. This rule has been obtained by the plaintiff against an order of the Subordinate Judge of 24-Parganas,. dated 12th April 1927, permitting the wife of the defendant to conduct the defence on his behalf under the following circumstances: The defendant Protap Chandra Basu was the cashier and collecting agent for a number of years working under the plaintiff. The plaintiff's case is that on one morning he found the defendant absconding with the key of the iron safe in his charge. A criminal case was brought against him, but he is still absconding. The present suit has been instituted for accounts against Protap Chandra Basu and the plaintiff also applied for attachment before judgment of certain sums of meney. Thereafter the opposite party No. 2, Bagala Sundari Dasi, applied for permission to conduct the case on behalf of her husband on the ground that her husband was either murdered by the plaintiff or was being kept in solitary confinement at the plaintiff's instance. The learned Subordinate Judge has been unable to find whether the version of the plaintiff was true or the defendant's wife's version relating to the disappearance of the defendant was true, and permitted the wife to conduct the case on behalf of her absent husband. The order passed by the Subordinate Judge is based on two grounds. His interpretation of Order 1, Rule 11 gave him enough jurisdiction to entrust the defence to the wife though she was not a party to the suit. The other ground is that if Order 1, Rule 11 does not apply the Civil Procedure Code is silenc and there is no express provision to meet the contingency that has arisen in the present case and, therefore, in the exercise of inherent jurisdiction vested in the Court he can give the conduct of the suit to the opposite party No. 2

2. It has been argued before us that Order 1, Rule 11 does not authorize the Court to give the permission, as above stated, and that, as there is no provision in the Code for allowing a third party to conduct a suit on behalf of an absent party without special authorization the Court has no power to give such permission. As regards the first ground: it is contended on behalf of the opposite party that the word 'person' in Order 1, Rule 11 includes any person - be he a party to the suit or not - and the Court has jurisdiction to give such permission to the wife in the present case to conduct the defence on behalf of her husband. As this is a case of first impression and no authorities are available either for or against, I have given my very careful consideration to the contentions raised on both sides and I find myself unable to agree with the interpretation put upon the rule by the Court below and urgently pressed before us by the learned advocate appearing for the opposite party. The main argument upon which this view is supported is that Order 1, Rule 11 reproduces the provision of the last paragraph of Section 32 of the Code of 1882, which was as follows: The Court may give the conduct of the suit to such plaintiff as it deems proper.' The present Code has in Order 1, Rule 11 reproduced all the words of the repealed section except that the word 'plaintiff' has been changed into 'person.' It is accordingly argued that this change is instructive and gives an inkling into the mind of the legislature as to what was really meant by the change, and it is said that the legislature intended by the alteration of the words to invest the Court with power to give the conduct of the suit to any person whom it deems proper, be such person a party to the suit or a stranger to it. I do not think that the idea with which this alteration was made was as has been suggested by the opposite party. The alteration has been made in order to assimilate the wording of the rule of the Code to the corresponding rule of the Supreme Court in England. Order 16, Rule 39 of the rules of the Supreme Court is, so far as is relevant for our present purpose, in these words:

The Court or a Judge may require any person to be made a party to any action or proceeding, and may give the conduct of the action or proceeding to such person as he may think fit.

3. Under the English law the few cases which have been decided under this rule show that the Court has as much power to give the conduct of the suit to one of the plaintiffs as the conduct of the defence to one of the defendants: see the case of. Peek v Bay (1894) 3 Ch. 282. The further reason for the alteration seems to be that under the law, as it stood under the repealed Civil Procedure Code, the Court had power to entrust one of the plaintiffs with the prosecution of the suit. As it was deemed to be desirable that the power of the Court to put one of the parties in charge of the suit should be extended to the conduct of the defence, a general word was used to include both the plaintiff and the defendant. As I have said, there is no case in support of the view pressed by the opposite party or that which I fee disposed to adopt; but the commentators of the Civil Procedure Code have put an interpretation on this rule which accords with my reading of the law. I only refer to their opinion in support of the view which take in this matter independently of what they have stated, Sjr John Woodroffe, in his well known edition of the Civil Procedure, Code observes, commenting on Order 1, Rule 11, as follows:

The word 'suit' does not ordinarily include defence, but, according to the English practice, the conduct of the defence also is often given to one of the defendants... Apparently with a view to adopt that practice, the 'person' has been substituted for the 'plaintiff.'

4. This view has been accepted and adopted by another commentator, Mr. Nandlal in his useful edition of the Civil Procedure Code. There is a decision in the Madras Court which shows how this rule has been understood. In Saminatha Pittai v. Bajagopal Mudaliar A.I.R. 1921 Mad. 124 the learned Judges held that it was permissible under Order 1, Rule 11 to transpose a defendant as a plaintiff and give him the conduct of the suit. The order within which Rule 11 appears is described in the beading as relating to parties to suit, which lends strength to the view I have adopted. The word 'person' has been used in several rules under that order. Though I do not think that the meaning which may be given to that word in any rule will necessarily govern the meaning of the word used in Rule 11, a reference to the various rules in Order 1 may be made to show that the word 'person' as not used in any particular sense by the legislature and that it should be interpreted according to context. Rule 1 says that all persons may be joined in one suit if such persons brought separate suits, any common question of law or fact would arise. Rule 3 says that all persons may be joined as defendants... where, if Separate suits were brought against such persons, any common question of law or fact would arise. There can be no doubt that the word 'person' used in these rules means persons who are parties to the suits. Rule 6 empowers the plaintiff to join as parties to the same suit all or any of the persons severally or jointly and severally liable. Rule 7 says:

Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress he may join two or more defendants...

5. In these two rules the word 'person' has been used to indicate a person who is or may be. a party to the suit. Some stress has been laid upon the use of the, Word in Rule 8. It says:,

Where there are numerous persons having the same interest in one suit, one or more of such persons may... sue or be sued.

6. Clause 2 of the rule says:

Any person on whose behalf or for whose benefit a suit is instituted... may apply to the Court to be made a party to such suit

7. It is argued that the word 'person' in this rule means a person who is not a party to the suit and the use of the two Words 'person' and 'party' in Clause 2 indicates that the legislature intended to mark some distinction between the two classes of persons described as 'person' and 'party.' I do not think that there is much substance in this contention. The word 'person' has been used in the rule in the ordinary sense and it cannot be suggested that any other word could have been used. The rule deals with cases in which various persons are interested and it authorizes one of such persons to sue or defend on behalf of the others. As I have said the rule opens with the words 'one or more of such persons may sue or be sued'; the word 'persons' there must mean those who are virtually parties to the suit. Clause 2 makes no distinction between 'person' and 'party,' but only says that any person may apply to be made a party. In Rule 10 the word 'person' has been similarly used without bearing any special significance. The rule says:

Where a suit has been instituted in the name of the wrong person as plaintiff the Court may order any other person to be substituted or added as plaintiff upon such terms as the Court thinks fit.

8. Here the word 'person' has been used for the plaintiff on the record, as also for a person who may be substituted or added as plaintiff. In Clause (2) it is laid down that if a party is improperly joined or the name of any other person ought to have been joined, whether as plaintiff or defendant, the Court may pass order as authorized by the rule. Here the person who has been improperly joined has been described as a 'party' because he is a party to the suit, and anyone whom the Court thinks should be added as a party to the suit has been described as a 'person' because he was not a party at the stage. Clause 3 of the rule says that no person shall be added as a plaintiff or as the next friend without his consent. The use of the word 'person' does not give us much help in interpreting the word in Rule 12. It is contended on behalf of the opposite party that the word 'person' in Rule 11 must be taken in its ordinary sense meaning anyone including a. person who is not a party to the suit. But one of the canons of construction of a statue is that reasonable interpretation should be given to each word. It seems unreasonable to hold that the legislature, by the use of the word in Rule 11, has intended that the Court may authorize anyone to appear on behalf of a party to the suit and. have the conduct of the suit except under special provisions contained in the Code itself. The result of adopting the view which has been pressed uipon us will be that no party to a suit may appear and the Court may give power to any one to conduct the suit or defend it on behalf of a party. Of course, there is the safeguard that the Court will exercise judicial discretion, but the investing of the Court with such general authority seems to be unreasonable. A reference to Rule 12 may be made. There it is laid down that, where there are more plaintiffs or defendants than one, they may authorize one of them to conduct or defend the suit. If it was intended that anyone who is not a party to the suit may be entrusted with the conduct of the suit it was not necessary, under Rule 12 that one of the parties should be empowered for the purpose. On all these considerations I am of opinion that the word 'person' in Order 1, Rule 11 means a party to the suit, and that a person who is a stranger to the suit cannot be given the conduct of the suit within the meaning of that rule. In this view this rule is made absolute with costs, and the order of the lower Court, empowering the opposite party No. 2, Bagala Sundari Dasi to conduct the defence on behalf of the defendant Pratap Chandra Basu, is set aside. We assess the hearing fee at four gold mohurs.

Mallik, J.

9. I agree.


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