C RAMASAMY Vs. DISTRICT COLLECTOR ANNA DISTRICT DINDIGUL

JUDGEMENT

(1.) THIS Civil Revision Petition is directed against the order of the learned sub-ordinate judge, Dindigul, in I.A. No. 294 of 1989 in O.S. No. 12 of 1986, dismissing the application filed by the petitioner under O. 1, R. 8(5) and S. 151, C.P.C. praying that the petitioner may be substituted in the place of the deceased plaintiff in the suit and to permit the petitioner to proceed with the suit. The father of the petitioner, one Chelliah Naidu, instituted O.S. No 12 of 1986, sub-court, Dindigul, for himself and on behalf of the successors to the interest of the original assignees of a part of T.S. No. 239 Dindigul against the respondents herein praying for the relief of permanent injunction restraining the respondents from demolishing the structures in the suit property or otherwise interfering with the peaceful possession and enjoyment of the property by the plaintiff in the suit and other successors-in-interest of the property in question. There is no dispute that Chelliah Naidu instituted that suit in a representative capacity under O. 1, R. 8, C.P.C. after obtaining permission from the court to sue as such by an order dated 17-12-1988 in I.A. No. 40 of 1986. During the pendency of the suit, Chelliah Naidu, who had instituted the suit in a representative capacity, died on 29 10-1988 leaving the petitioner as his heir. In I.A. No. 294 of 1989, the petitioner prayed that he should be substituted in the place of his deceased father and he should be permitted to further proceed with the suit on the ground that he succeeded to the property of his father and was in enjoyment of the land along with the other successors in interest of the other assignees and that his interest in the suit property is similar and identical with that of others. Though the respondents did not even file any counter setting out their objections to the application filed by the petitioner, the learned subordinate judge, Dindigul, held that the petitioner cannot pray for any of the reliefs under O. 1, R. 8(5), CPC. and that the application by the petitioner had also been filed beyond the prescribed period of limitation. In that view, the application was dismissed, the correctness of which is questioned in this Civil Revision Petition.

(2.) FROM the facts set out earlier, it is clearly established that the deceased father of the petitioner instituted the suit in a representative capacity after obtaining permission from the court in that regard. The right of the deceased father of the petitioner to represent a class of persons, having an identical interest, is a referable to the order of the Court in I.A. No. 40 of 1986 permitting the deceased father of the petitioner to represent the interests of others as well. When such permission or sanction is accorded to an individual eo nomine, it cannot be construed as one conferring any right on his heirs or legal representatives, unless the order granting permission can be interpreted as conferring rights on them also. In this case, nothing has been bronght to the notice of the court to construe the sanction accorded to the deceased father of the petitioner in I.A. No. 40 of 1988, as conferring a right to represent others, on his legal representatives also. Therefore, the petitioner cannot claim to be brought on record for the purpose of further continuing the suit in his capacity as the legal representative of his deceased father Even so, the question is, whether the petitioner is precluded from approaching the court seeking directions for the continuation of the suit by substituting him in the place of his deceased father. The court below was of the view that the provision of law quoted, viz., O. 1, R. 8(5), C.P.C. would be inappropriate and, therefore, the petitioner is not entitled to any relief. The view so taken by the court below does not commend itself to me, for, though there was no lack of diligence in the conduct of the suit or defence as contemplated under O. 1, R. 8(5), C.P.C, the relief prayed for in effect was one for substitution of the petitioner in the place of his deceased father. In effect, the application filed by the petitioner has to be treated as one praying for substitution of the petitioner in the place of his deceased father, though not on tbt grounds set out in the first part of O. 1, R. 8(5), C.P.C. Even on the assumption that O. 1, R. 8(5), C.P.C. cannot be invoked by the petitioner, it is seen that the powers of the court under S. 151, C.P.C. had also been invoked. Therefore, the refusal of the relief prayed for by the petitioner on the ground that the petitioner had invoked O. 1, R. 8(5), C.P.C. and that would not be applicable, is incorrect. The other grouud for refusing the relief to the petitioner is also erroneous, for, that proceeds upon a total misconception of the nature and scope of a representatire suit. Such a suit is in the nature of an exception to the general rule that all persons interested in a suit should be parties thereto. The representative character of the person representing the interests of many and the very nature of the suit as a representative suit are referable to an order of court permitting such representation as well as institution of proceedings. In that sense, there is no question of the prosecution of the proceedings by an individual for his own interest, but the prosecution is as a representative of several persons with a common or idential interest in the subject-matter of the suit. Moreover, when the suit was instituted by the deceased father of the petitioner, he could not have represented the interest of the petitioner, for if at all, the petitioner could have succeeded to the interest of his father in the property only on his death and not before. Therefore, on the death of the person, who had been permitted to institute or defend a suit in a representative capacity, there is no question of his legal representative succeeding to the interest represented by the deceased and there is no need to bring on record the legal representative in such a situation within time and it would suffice to make an application to the court bringing to the notice of the court that the person who was originally permitted to institute the suit in a representative capacity is no more and seeking directions regarding the further conduct of the suit. The application filed by the petitioner has to be construed as one praying for such directions for the substitution of the petitioner in the place of his deceased father and permit him to proceed with the suit. On such an application being presented, the court is bound to consider the same and give appropriate directions regarding the continuation of the suit at the instance of the person or persons making the application or otherwise. Without doing so, such an application cannot be dismissed. That this is the well established position in law is also clearly laid down in several decisions. In Raja Anand Rao v. Ramdas Daduram 1 , the Privy Council had occasion to consider the effect of the death of a defendant, whose legal representatives were later brought on record, pending a suit instituted after obtaining permission under S 539 of the Code of Civil Procedure, 1882. The Privy Council pointed out that there is no force in the point that the person who originally instituted the suit and got the sanction having died, the suit could not go on, as the suit was one which was not prosecuted by individuals for their own interests, but as representatives of the general public. In Mahomed Kannt v. Naina Mahomed 2 , one Musafar Rowther instituted a representative suit after obtaining permission of court under O. 1, R. 8 C.P.C. and subsequently died and his son intervened with two applications to be added as a plaintiff, but both the applications were dismissed on the ground that in a representive suit, the son could not claim that the right to sue survived to him and on the ground that he was also not a member of the community on whose behalf the suit was filed. Not only the applications were dismissed, but the Court proceeded to dismiss the suit itself. Subsequently, the respondents filed applications under O. 1, Rr. 8 and 10 and S. 151, C.P.C, which were granted by the court below and those orders were challenged before this court. Sundaram Chetty, J. held that on the death of Musafar Rowther, who filed the suit on behalf of himself and others having the same interest as members of the community, any person on whose behalf also that suit was filed, can apply to the court to be added as a plaintiff for continuing the suit and in the absence of specific article in the Limitation Act providing for the period of time within which such an application shall be made, the residuary Art. 181 of the Limitation Act (Art. 137 now) would apply to such an application. It was also further clearly laid down that any person seeking to be added as a party on the ground that the person who filed the suit is dead, must make an application to the court for that purpose and he must be brought on record eo-nominee a party, who can continne and conduct the suit. The principle of this decision would squarely apply to this case also. Again, in Venkatakrishna Reddi v. Srinivasachariar 1 , it was pointed out that where sanction was originally given by the court to a certain number of persons either to prosecute or defend a suit and one of them dies, his heirs are not competent to prosecute or defend a suit because the sanction was accorded to certain individual persons eo-nominee and not to their heirs, and unless the order can be construed so as to confer the right on the legal representatives also, the right does not survive and in such a case, the proper procedure will be for the remaining persons to apply to the court for directions, bringing to the notice of the court that one of the persons to whom the origin el sanction was given is dead and praying for directions whether the court will be pleased to permit the remaining persons to continue to prosecute or defend the suit or if it thinks fit, directions should be given authorising other persons, who need not be the legal representatives of the deceased person, to prosecute or conduct the suit. It was also further pointed out that to say that in all such cases, first the legal representatives should be brought on record and secondly, if they are not brought on record, the suit abates, seems to defeat the ends of justice. In Subbaya Naicker v. Sankarappa Naicker 2 , after referring to Venkatakrishna Reddi v. Srinivasachariar 1 , Ramesam, J. laid down that strictly it is not a matter of bringing legal representatives on record because the case is not prosecuted in respect of any personal rights of the deceased person, but it is a matter for the court to consider whether the parties on record, if any, are competent to represent the interests of others and that if it is found that the presence of other persons would also be necessary to represent the interest, an opportunity should be given to supplement the existing number by the addition of other persons, according to directions of court. This decision also shows that if there are other persons on record already in a representative suit, the court may consider whether their presence would be sufficient or not and if necessary, other persons can also be added, but in a case like this where there was only one person on record and he also died, it is entirely for the court to consider whether the person who had come forward with an application alone should be permitted to continue the suit in a representative capacity or some others also should be joined along with him. In Jagdam Ram v. Asarfi Ram 3 , the difference between a suit instituted by a person, relating to individual rights and one relating to rights asserted or defended on behalf of the public has been emphasised and it has also been pointed out that the authority granted by the court to a person to bring a representative suit is a personal authority eo nominee and cannot be utilised by their personal legal representatives and the provisions of O. 22, C.P.C. relating to the death of a plaintiff or a defendant cannot be applied to a case instituted or defended by a few persons on behalf of numerous persons not on record under O. 1, R. 8, C.P.C. as, in ordinary cases, the parties act independent of any premission of any authority, while in suits under O. 1, R. 8, C.P.C, the authority either to cooduct or defend is derived from the order of the court. This decision also would clearly establish that the petitioner cannot succeed in bringing himself on record as a legal representative within time, even if he had wanted, but that directions will have to be obtained from court for the further conduct of the suit either by himself alone or with others, as the court may consider fit. In G.F.F. Foulkes v. Support Chettiar 4 , Rajamannar, C.J., observed at page 300 as follows :