CHINOY Vs. JAMSHEDJI RATANJI

JUDGEMENT

(1.) Tn this case, Sri Jamshedji Ratanji Chinoy and Mrs. Roshan Dishaw Chlnoy obtained consent In writing of the Advocate General on 2-2-1977 and leave of the Court, as enjoined under Section 92 of the Code of Civil Procedure and filed a representative suit, O.S.No. 205 of 1977 against the defendants (a) to direct accounts against the first defendant from a particular period, both as a defecto trustee and sole trustee and to recover certain sum from him personally; (b) to direct defendants 2, 4 and 6 to refund the money with interest accrued on the deposits to be made in a nationalised bank or in any other Government Security as the Court may find fit, and other reliefs. While the suit it pending, on December 18, 1979, the first defendant died. The first plaintiif also died on January 4, 1980. As a sequal to that, the petitioners in this revision petition who are defendants 2 to 5 in the suit, filed I.A.No.29 of 1980 in the lower Court with a prayer to dismiss the suit on the grounds : Firstly, that Section 92 of the Code of Civil Procedure enjoins that there should be two or more plaintiffs for a valid prosecution of the suit and since one of the plaintiffs died pending the suit, the proceedings cannot be validly pursued ; secondly, that the relief which they sought for namely, to obtain accounting against the first defendant is no longer available because the first defendant also died pending the suit; and thirdly, the relief of deposit of the amounts in a nationalised bank is redundant as it was already made even before the suit was filed and that therefore the main relief is also no longer available.

(2.) The lower Court did not consider the latter two points, in my view, quite correctly, but it considered only the first question-whether the suit can validly be prosecuted by the sole surviving plaintiff. The lower Court dismissed the application on the finding that the surviving plaintiff can validly pursue the proceedings. As against the said order, the above revision petition has been filed

(3.) Sri Naga Seshaiah, to learned counsel for the petitioners has reiterated all the three contentions before me. It is not necessary in this petition, to decide whether on the -ath of the first defendant the relief of obtaining accounting from him is our viving or not and whether the deposit made by the defendants in the link of Baroda before the institution of the suit would disable the plaintil to obtain any further reliefs available. The only question that arises for decision it whether the suit can be validly pursued by the sole surviving plaintiff.