VENKATAKRISHNA REDDI Vs. SRINIVASACHARIAR

JUDGEMENT

(1.) The suit out of which this appeal arises was filed by four plaintiffs in a representative capacity for a declaration that Survey No. 6516 in the village of Singanur of extent about 77 or 78 cents is kakmi poramboke and for an injunction restraining the defendants from having a Droupadi Amman temple in any portion of that land. The original extent of the land was about 83 cents, but in the north- east corner of it there is an old Perumal temple. Both the Courts below found that the suit land is halam poramboke. I will first deal with the preliminary objection that has been taken by the learned advocate for the respondents. He contends that the appeal cannot proceed because it was originally filed by defendants 1 to 5 who were permitted by the District Munsif to defend the suit on behalf of those villagers who were of the same opinion as themselves, but the second appellant died and his legal representatives were not brought on the record and the remaining four appellants are not persons who were authorised to carry on the appeal. The first case relied on for this contention is Wali Muhammad V/s. Mahlu (1924) 86 I.C. 592. In that ease certain persons filed a suit on behalf of themselves and several others under Order 1, Rule 8 of the Code of Civil Procedure. Some of the persons so represented were also plaintiffs. They obtained a decree. In second appeal one of the persons who obtained sanction to represent others died and an application to bring his legal representatives on record was made in time but some of the other plaintiffs also died but their legal representatives had not been brought on record. It was held that it was a joint decree obtained by all the plaintiffs and that, though, after sanction under Order 1, Rule 8 the second set of plaintiffs were not necessary plaintiffs, they having been parties to the suit and the appeal, their legal representatives ought to be brought on the record and the order under Order 1, Rule 8 would not relieve the appellants from the necessity of impleading all the decree-holders or their legal representatives and therefore the appeal would abate intoto. An earlier decision of the same Court, Ram Diyal V/s. Mohammad Raju Shah (1918) 51 I.C. 437 was distinguished on the ground that the persons who died never applied to be made parties to the suit and were not on the record. They were only represented by one person who obtained sanction under Order 1, Rule 8, of the Code of Civil Procedure. The decision in Wall Muhammad V/s. Mahlu (1924) 86 I.C. 592 relies on and follows another decision of the same Court in Appeal No. 3169 of 1918 decided in 1922 and the two cases were said to be on all fours. These decisions were followed in Samail, V/s. Heji (1924) 89 I.C. 378. In this case five of the respondents were permitted to defend the appeal on behalf of others by an order under Order 1, Rule 8 and there was no death among these respondents. But there were other respondents in the appeal as originally filed and some of these died. It was contended by the appellants advocate that the appeal did not abate but the Court held that, the other respondents having obtained a decree and having been made parties to the appeal, their representatives also ought to be made parties, and that, if they were not made parties, the appeal would abate. In my opinion, these two cases are distinguishable on the facts from the case before me. In the second appeal before me I have not got the complication of parties other than those who obtained sanction under Order 1, Rule 8 being "parties in appeal. In the first place those are cases where the deaths occurred among the respondents and because the original respondents obtained a joint decree it was held that the appeal could not proceed without the legal representatives of all the respondents. But in the present case the death of parties is among the appellants and all the appellants were only those who obtained sanction under Order 1, Rule 8. Another case mentioned is Srinivasulu Chelti V/s. Guraviah (1926) 52 M.L.J. 460. In that case several plaintiffs obtained a decree for joint possession. There was an appeal, one of the plaintiffs-respondents died and his legal representatives were not brought on record. This case cannot help the respondents in the present second appeal. It being a joint decree for possession in favour of several parties, all of them or their legal representatives ought to be respondents on the record. There was no order under Order 1, Rule 8 of the Civil P. C. in that case. Another case relied on before me is the decision of the Calcutta High Court in Naitnuddin Biswas V/s. Maniruddin Lashhw Here, there was a, decree against four landlords, They appealed, one of them died and his heirs were not brought on record. It was held that the whole appeal abated. There the rule was laid down that if the appeal can be heard in the absence of the deceased appellants the appeal can proceed, but whether the appeal can be so heard or not depends upon the nature of the suit. In this case also there was no order under Order 1, Rule 8. In my opinion none of the cases cited governs the present case. It seems to me that where sanction was originally given by the Court to a certain number of persons either to prosecute or defend a suit and one of them dies, his heirs are not competent to prosecute or defend the suit, because the sanction was accorded to certain individual persons co nomine and not to their heirs, and, unless the. order can be construed so as to confer the right on the legal representatives also, the right does not survive. In such a case, the proper procedure seems to me for the remaining persons to apply to the Court for directions. They should bring to the notice of the Court that one of the persons to whom the original sanction was given is dead and request the Court for directions whether the Court will be pleased to permit the remaining persons to continue to prosecute or defend the suit, or, if it thinks that the original number is necessary, directions should be given authorising an additional person, who need not necessarily be the legal representative of the deceased person, to join the survivors; and when the Court gives the necessary orders the suit will proceed. To say in all such cases, first, that the legal representatives should be brought on record and secondly, that if they are not brought on record the suit abates, seems to defeat the ends of justice. In the present case I give sanction to the remaining four appellants to proceed with the appeal on behalf of their party and disallow the preliminary objection.

(2.) [After stating the facts of the case and dealing with them His Lordship concluded :]

(3.) In these circumstances, I think the Subordinate Judge's decree is right and the second appeal is dismissed with costs of the plaintiffs-respondents.