AJAI PRAKASH SINGH Vs. ABHAI PRAKASH SINGH

JUDGEMENT

(1.) THIS civil revision under section 115 of the Code of Civil Procedure (hereinafter referred to as the Code) is directed against the order dated 8-12-1982 passed by Sri B. P. Gupta, 1st Additional District Judge/ Special Judge, Sitapur, in Regular Suit No. 1 of 1980, in re ; Suresh Prakash Singh and others v. Ajai Prakash Singh and others. By this order defendants 6 to 8 namely Ajai Prakash Singh, Udai Prakash Singh and Vinai Prakash Singh were ordered to be transposed as plaintiffs from the array of defendants. THIS suit was initially instituted on 2-2-1980 against defendants 1 to 8 with a prayer that plaintiff No. 1 Suresh Prakash Singh be appointed as Sarvarahkar of Ulra trust in village and Post Office Ultra, Pargana and Tahsil, Biswan, District Sitapur and that such further directions be given for the management of the affairs of trust as the court may deem just and proper for its proper functioning regarding possession of trust property and financial matters etc. Along with this plaint an application under section 92 of the Code was filed seeking permission to file the suit. District Judge, Sitapur granted this application to file the suit in exercise of powers under section 92 of the Code. The suit was mainly contested by defendant Ajai Prakash Singh against whom in para 11 of the plaint it was mentioned that he had recently moved an application in the court for appointment of trustee but later on did not press the said application. It was further averred in the plaint that due to death of Sri Vijai Prakash Singh who was earlier appointed as Sarvarahkar of the trust by the District Judge a vacancy had occurred and a new appointment of trustee was necessary for the management of the affairs of the trust. It was further averred that applicant No. 1 namely, Suresh Prakash Singh was entitled to be appointed as Sarvarahkar by virtue of deed of trust and that he was the proper person to manage the trust. During pendency of the said suit Suresh Prakash Singh, plaintiff No. 1, died on 5-5-1982. An application was thereupon moved by defendants 6 to 8 on 2-12-1980 under Order 1 Rule 10 of the Code for their transposition as plaintiffs, from the array of defendant, asserting that they were the persons capable of being appointed as trustees according to the trust deed and that they are interested in continuing the suit for appointment of trustee to manage the affairs of the trust. THIS application was opposed by defendant No. 1 Ajai Prakash Singh asserting that defendants 6 to 8 could not be transposed as plaintiffs because they had not obtained any permission to sue as is required by Section 92 of the Cdoe. It was further contended that since plaintiff No. 1 had only personal right to sue, and, as such, defendants 6 to 8 could not be transposed as plaintiffs in his place and that the consent of plaintiffs 2 and 3 for allowing the transposition of defendants 6 to 8 was illegal and unauthorised. It was further asserted that the suit being void be dismissed. The aforesaid application for transposition was allowed by learned Additional District Judge by the impugned order dated 8-12-1982 as he found that it would be just and proper to transpose the defendants 6 to 8 as plaintiffs so that they may continue the suit. The argument of defendant-revisionist regarding the suit having abated on account of the death of plaintiff No. 1 did not find favour with the learned court below. Learned court below observed that this suit which was filed after obtaining requisite permission under section 92 of the Code, deserves to be continued and decided on merits as it relates to management of trust property of which defendant No. 1 Ajai Prakash Singh claims to be defacto Sarvarahkar. Since the suit relates to public trust, and the applicants, have already been arrayed as defendants in the suits, and, as such, it was found to be just and proper that the defendant-applicants be transposed as plaintiffs. The application was allowed on payment of Rs. 50/- as costs. Aggrieved by this order, defendant No. 1 Ajai Prakash Singh has preferred this revision.

(2.) LEARNED counsel for the opposite parties 5 and 6 Sri R. K. Sharma raised a preliminary objection urging that the revision against the impugned order is not maintainable under section 115 of the Code as the impugned order does not amount a case 'decided'. I am unable to agree with his contention. Similar question cropped up for consideration in Bhagwat Prasad v. Mata Prasad, 1977 ALJ 894, wherein Hon'ble T. S. Misra, J. (as he then was) observed in para 8 of the report that a case may be said to be decided if the court adjudicates for the purpose of suit some right or claim of the parties in controversy. After considering several decisions of the Supreme Court and of the Privy Council, it was observed ;-

(3.) IN reply, learned counsel for the opposite parties has urged that the application for transposition moved by defendants 6 to 8 was maintainable under Order 1, Rule 10 CPC and no further permission was required to be obtained under Section 92 of the Code as the present suit was filed after obtaining permission of the District Judge under the aforesaid provision for the management of affairs of public trust. He urged that once the permission to file the suit was granted under Section 92 of the Code, the bar stood removed and the suit which was competent could be continued by the defendants 6 to 8 who were interested in the management of the affairs of the public trust and were also competent to be appointed as trustees, and so they were rightly transposed. His further contention was that the suit could not abate on account of the death of plaintiff No. 1 because the provisions of Order 22 of the Code did not apply and it could be continued by the remaining plaintiffs and as also by defendants 6 to 8, who could be validly transposed as plaintiffs from array of defendants and continue the suit.