GURUSHIDDAPPA GURUBASAPPA BHUSANUR Vs. GURUSHIDDAPPA CHENAVIRAPPA CHETNI

JUDGEMENT

(1.) This is an appeal from a judgment of the District Judge of Dharwar, affirming a decree made by the Second Class Subordinate Judge at Hubli in a suit for redemption of a mortgage of certain property mentioned in the plaint. The suit was filed under the provisions of Order I, Rule 8, Civil Procedure Code. The facts are not very clearly stated in the judgments, but it is sufficient to state that the plaintiffs are claiming through the owner of the property, and the principal contesting defendants, who are styled as the 'Hubli Pinjrapole Samstha,' are claiming as donees of the property from the representatives of the mortgagee of the property, who as a result of certain litigation had purchased the property at a Court-sale and claimed to have become owners of it. It was inter alia pleaded by these defendants that the suit wag barred by res judicata by reason of a decree made in an earlier suit brought by the same plaintiff against them for the same relief in 1926. That suit was dismissed and the decree was confirmed in appeal. There was a second appeal to this Court, but the appeal was held to have abated. They also pleaded that the plaintiffs were estopped by their conduct from maintaining the suit. These are the only questions which have to be determined in this appeal.

(2.) The plaintiffs contend that the bar of res judicata does not arise, as the parties in the suit were not the same in the earlier suit or claiming under any of the parties to the earlier suit, and that the identity of the parties being different, the earlier decision is not binding on them. They say that the Pinjrapole is an unregistered association and, therefore, as the earlier suit was not brought against the members of the Pinjrapole or under the provisions of Order I, Rule 8, Civil Procedure Code, and as the present suit is a representative suit there is no identity of parties. To this it is answered that the earlier suit also was a representative suit within the meaning of Expln. VI of Section 11 of the Civil Procedure Code, and that being the case, the bar of res judicata would apply. There is some dispute between the parties as to the exact description of the defendants in the title of the plaint in the earlier suit. Unfortunately neither side has produced the original plaint and it is not on record, but the decree in the original suit, which is available and which sets out the plaint, describes the defendants as 'The Hubli Pinjrapole Samstha by its President Mahadeva Niranjanappa Sindgi,' and that is also how the defendants are described in the title in the decree of the High Court in second appeal in the earlier suit. The appellants' counsel, therefore, says that the suit was brought against the Pinjrapole by its President, and as the Pinjrapole was an unregistered association, the suit was not properly constituted. On the other hand, the learned Counsel for the defendants says that in the earlier proceeding the President was sued as representing the Pinjrapole. The Court interpreter has translated the title of the previous suit which was in Kanarese as follows : 'The Hubli Pinjrapole Samstha of this the President Mahadeva Niranjanappa Sindgi.' This, in my opinion, means the defendant in the suit was the President and not the Institute, and the only question would be whether he was sued in a representative character and as representing the Pinjrapole and all its members.

(3.) The principle admitted in all Courts upon questions affecting the suitor's person and liberty and his property is that the rights of no man shall be decided in a Court of justice unless he himself is present. Therefore, all persons having an interest in the object of the suit ought to be made parties, and the test is the interest the person sued or suing has in the specific relief prayed. But this general rule has an exception. It is that the Courts to avoid inconvenience and to do justice once for all allow one or more persons to represent others though absent, and that is why the principle of representation is adopted. Persons may be joined in a suit either on account of something personal, as for instance having either sold or bought goods, or like officers of corporation as possessing certain knowledge, or because they are the owners or guardians of certain interests which the suit will affect. Upon the first ground they must be joined in their own person. Upon the other grounds the proceedings can go on with equal prospect of justice if the interests concerned are effectually and virtually protected. The absent parties in such cases appear by their representative or representatives; their interests are protected or claims enforced. A familiar instance is that of an executor or administrator. The rule, however, is, as observed by Sir John Leach in Lanchester v. Thompson,1820 5 Madd 41, 'Where it is attempted to proceed against two or three Individuals, as representing a numerous Class, it must be alleged that the Suit is brought against them in that character,...' Story on Equity Pleadings puts the case with regard to the latter class of cases in this way (pp. 118-9) :-