MENAYATULLAH MEKHRI Vs. HAJI SALEH MOHAMMED AHMED SAIT

JUDGEMENT

(1.) This is an application under Order I, Rule 10, C. P. C., read with Rule 12 of Order XVI of the Supreme Court Rules and Rule 14 of Chapter XIX of the High Court of Mysore Rules 1959, for the addition of the applicants as plaintiffs in O. S. No. 2 of 1947 on the file of the District Court, Civil Station, Bangalore, and as Respondents in Special Leave Petition No. 692 of 1959 of the Supreme Court of India. It is also mentioned that the applicants are to be added in place of S. A. Kareem Khan, one of the plaintiffs in the suit and Respondent No. 2 in the Special Leave Petition. In the affidavit in support of the application it is stated that in the appeal filed to this Court against the decree of the District Court there were three appellants (Plaintiffs), that one of them died during the pendency of the appeal and that of tha remaining two persons S. A. Kariin Khan died on 19-2-1960 with the result that only one of the plaintiffs is on record, that the applicants are all Sunni Hanafi Muslims and permanent residents of the Civil Station, Bangalore, and therefore interested in the affairs of the mosque which has been the subject matter of the suit and the further proceedings. The sole plaintiff on record has also subsequently filed an affidavit stating that his health is failing, that he is unequal to the exertion necessary for the conduct of the case and that it is necessary to allow the applicants to be arrayed as Respondents in the Special Leave Petition.

(2.) The application is opposed by the Respondents, namely, the petitioners before the Supreme Court in the Special Leave Petition, on several grounds. It is urged that no question of abatement arises in a scheme suit under Section 92, C. P. C., that the provisions under which the application is filed do not apply and that the allegations in regard to the illness of the surviving plaintiff are not true. As regards the maintainability of the application it is urged by the Respondents that Order XVI Rule 12 of the Supreme Court Rules does not apply to Special Leave petitions. This contention is obviously untenable in the light of Rule 16 of Order XIII, which makes the provisions of Order XVI along with the other orders mentioned in it applicable mutatis mutandis to appeals by special leave.

(3.) As regards the applicability of Rule 12 of Order XVI of the Supreme Court Rules, it is contended that the rule contemplates only cases where the records become defective such defect being caused by the death or the change of status of a party to the appeal or for any other similar reason, that the death of one of the plaintiffs in a scheme suit does not cause any defect in the record since all the plaintiffs are on the record in a representative capacity and that, as long as there is at least one plaintiff, there can be no defect in the record. On the other hand it is urged for the Petitioners that the words 'for any other reason' occurring in Rule 12 empower this Court in general terms, irrespective of the record becoming defective, to grant a certificate showing who, in the opinion of this Court, are the proper persons to be added or substituted. It appears to us that the construction, suggested for the applicants cannot be accepted. Rule 12(a) reads as follows: