JESSINGBHAI JAGJIVANDAS Vs. JIVATLAL PRATAPSI

JUDGEMENT

(1.) THIS is a motion by the plaintiffs in a suit brought with the leave of the learned Advocate General under Section 92 of the Civil Procedure Code against four defendants. But for a mere accident there would have been five defendants. With regard to the 5th person who was omitted from the list of the defendants the plaintiffs' attorneys, I understand, received back the registered envelope in which they had placed their letter before action with the gloomy word "dead" written on it by some postal authority. After the sanction of the Advocate General was obtained and after the suit was commenced it transpired that this statement by the postman was "grossly exaggerated", and the man was in fact alive and well. In these circumstances the plaintiffs approached the Prothonotary yesterday and obtained from him leave to amend the plaint by adding the person who now appears as the 5th defendant. I am going to say as little as I can about the merits of the case, which have not been discussed at all before me, but the relief sought against all the defendants is their removal from office as trustees of a certain trust, the appointment of new trustees in their place, an order on the defendants to transfer the trust properties to the new trustees, the framing of a scheme, an interim receiver, an interim injunction and further or other relief. The motion for an interim injunction coming before me today and Mr. Purshottam appearing for defendants Nos. 1, 2 and 4, the latter took a preliminary objection, namely, that the suit as now framed has never been sanctioned by the Advocate General and therefore that what the plaintiffs had done yesterday had rendered the whole suit bad. In support of this contention, the principal ease on which he relied is a decision of Mr. Justice Davar in this Court in Abdul Rehman v. Cassum Ebrahim (1911) I. L. R. 36 Bom. 168, S. C. 13 Bom. L. R. 583, which is very nearly on all fours with the present case. The learned Judge actually decided only that the suit could not proceed against the defendant who was added by the unsanctioned amendment. But, in point of fact, that was all he had to decide, because the case as against the other two defendants had already been disposed of by the time he gave his reported judgment. It is, I think, clear that he thought that if the suit had not been already disposed of as against the other defendants, it would have been bad not only as against the new defendants but as against the old defendants also. He referred, in the course of his judgment, to one earlier Bombay decision and to a decision in Gopal Dei v. Kanno Dei (1840) 2 Beav. 313 to the effect that the sanction of the Advocate General is a condition precedent to the institution of a suit under Section 92-a fact which I should have thought was so obvious that even Allahabad could not decide to the contrary. He also referred to two out of, I believe, to be a number of English decisions to the effect that an amendment of proceedings in an English relators' action cannot be allowed without the sanction of the Attorney General. I know that in one of them, The Atorney-General v. The Ironmongers' Company, (1903) I. L. R. 26 All. 162 the Master of the Rolls remarked that he did not know anything more important than that the authority and discretion of the Attorney General in all these proceedings "should be maintained perfectly unbroken and unfettered and unbiassed. "

(2.) ON the face of it, it seems to me, if a suit is amended at any rate by the introduction of a new party or in some other quite substantial manner the suit is not identical with the suit which it was at its commencement. In this particular case the matter is entirely technical, but it might not be. The Advocate General might have sanctioned the suit against, say, the four defendants and have been perfectly unwilling to sanction the suit against the 5th person, and if the plaintiffs were at liberty, without his sanction, to bring new parties on the record as defendants, it might mean that the protection afforded by Section 92 to trustees of public charities would be rendered nugatory. Therefore, though technical, I think the point is of some substance and importance.

(3.) I, therefore, hold that the suit has since yesterday been bad and therefore I can make no order on the motion.