V S VENUGOPAL Vs. K V NATARAJA IYER

JUDGEMENT

(1.) THIS revision is directed against the order passed by the Court below in I.A. No. 50 of 1993 in O.S. No. 110 of 1988.

(2.) THE brief facts, which are necessary for disposal of this revision, can be stated as follows: THE respondents 1 to 3 herein/plaintiffs filed a suit for settling a scheme for the administration of Dwadasi Kattalai and water pandal charities with the endowment of the schedule mentioned properties consistent with the endowment deeds dated 2.3.1895 and 17.4.1900, to remove the first defendant from the trusteeship and appointing fresh trustees with due regard for hereditary rights as per the trust deeds, for directing the first defendant to render true and proper accounts for the period of their management and for costs. THE revision petitioner/second defendant filed an application under O.I, R. 10, C.P.C., to transpose him as the fourth plaintiff on the allegation that he is the brother of the first respondent/first plaintiff and he is also interested in the removal of the first defendant from trusteeship and for framing a scheme. In fact, on his application subsequent to the suit he was impleaded as the second defendant. Hence, since he is interested in the removal of the first defendant and in the interest of justice he should be transposed as the fourth plaintiff. Hence the application. THE said application was resisted and in the counter the fourth respondent/first defendant, while denying the allegations in the affidavit, inter alia contended that it is only the petitioner, who alone, to spite and harass him, has inspired the suit to be filed with false allegations. THE three plaintiffs in the suit are his stooges and he has set them up to file the suit. Subsequently, finding that they have been misled by the second defendant and that they are used only as parties by the second defendant to satisfy his own vendetta against him, the plaintiffs have issued notices to their counsel clearly stating that they were not interested in prosecuting the suit. THE petitioner/second defendant and his counsel have also been duly intimated that the plaintiffs resolved to withdraw from the suit. In such circumstences, the allegations in the affidavit that the first defendant is pressurising the plaintiffs not to proceed with the case is distorted. Having known that the plaintiffs are no longer willing to pursue the suit the petitioner does not mention the fact in his affidavit. In view of the communication by the plaintiffs, they cannot continue on record and they have to be struck off from the record. Only after they are struck off, the question of transposition of the petitioner can be canvassed. It is also submitted that notice of the application will have to be taken by the petitioner. At any rate, there is no ground made out to transpose the petitioner as a plaintiff. THE application is liable to be dismissed as it is devoid of merits.

(3.) LEARNED counsel for the petitioner submit that the only reason given by learned trial Judge for rejecting the application is that the plaintiffs 1 to 3 obtained a sanction under S. 92(1), C.P.C. for filing the suit, while the petitioner, who wants to transpose himself as the fourth plaintiff, has not obtained any sanction under S. 92(1) and as such the relief prayed for by him cannot be granted and subequently since the plaintiffs 1 to 3 do not wish to prosecute the suit, the suit was also dismissed. LEARNED counsel also submitted that since this is a suit instituted in a representative capacity, it cannot be dismissed for default and the suit has to be restored after the transposition of the petitioner as the fourth plaintiff. LEARNED counsel drew the attention of this Court to a decision of the Apex Court in Narain Lal v. Seth Sunderlal Tholia (AIR 1967 S.C. 1540) which reads as follows: ??An authority to sue is given by the Advocate-General under S. 92 to several persons is a joint authority and must be acted upon by all jointly. A suit by some of them only cannot be in conformity with the provisions of S. 92(1). Where, therefore, sanction is given to four persons and one of them dies before the instiution of the suit, the suit by the remaining three is incompetent. In such a case a fresh sanction must be obtained by the survivors for the institution of the suit?. It is clear from the ratio laid down in the above decision that sanction given under S. 92(1) is a joint one and in the circumstances a fresh sanction is not necessary even though he is impleaded as a defendant and this has not been properly appreciated by learned trial Judge. This decision has been considered by the Kerala High Court in the decision in Krishna Pillai v. Pazhuckamattom Devaswom (AIR 1983 Kerala 8) wherein is held as follows: