SIVAGURUNATHA CHETTIAR Vs. RAMASAMI AIYANGAR

JUDGEMENT

(1.) This petition raised the question whether, when the sole plaintiff in a representative suit instituted with permission obtained under Rule 8, Order I, dies before there has been any adjudication, the suit can be revived or continued by one of the persons having the same interest in the suit. The question is not directly covered by any precedent and is one, by no means, easy to decide.

(2.) The suit in which the order impugned by this petition has been made was instituted with sanction obtained under Rule 8 Order 1 by one Sreenivasa Chariar, a voter in the Kumbakonam Devasthanam circle, seeking a declaration that the election of the 7th defendant as a member of the Devasthanam committee is void and for an injunction to restrain him from exercising the office of such member. Sreenivasa Chariar died before the date on which the case was posted for examination of witnesses and, on the application of the Respondent, and the voter in the Devasthanam, who wanted to proceed with the suit, it has been revived, and the Respondent s name has been ordered to be entered in the cause title as the legal representative of the deceased Sreenivasa Chariar. The Respondent claimed that in law he was the representative of Sreenivasa Chariar in as much as he was one of the voters on whose behalf Sreenivasa Chariar instituted the suit. It seems to me clear beyond dispute that the respondent doss not come within the definition of legal representative as given in Clause (11) of Section 2, and it has not been contended before me that he does. He cannot in any way be said to represent the estate of the deceased; in fact he has no concern with such estate. But if he is entitled to continue the suit, mere misdescription of the respondent in the order of the Subordinate Judge as legal representative of the deceased plaintiff would not in itself justify me in setting aside the order. The misdescription may be rectified if necessary.

(3.) The substantial question therefore is, whether the suit can be continued by the respondent. There can be no doubt that the right of the deceased plaintiff to sue in this case was personal to himself and so far as that right is concerned, it must be held to have come to an end on his death. Mr. S. Sreenivasa Aiyangar contends that with the cessation of the deceased plaintiff s right to sue the suit itself ceased to exist or became dead, while the learned pleader for the respondent contends that the action being a representative one, the other persons having the same interest, whom the deceased was allowed to represent, must be held for the purposes of continuing the action to be his co-plaintiffs. Before proceeding further I may mention that Mr. Sreenivasa Aiyangar also contended that the sanction granted to the deceased plaintiff under Order I Rule 8 is itself bad in as much as the right of each voter is personal to himself. But as pointed oat by Shephard J. in Sreenivasa Chariar v. Rughavachariar (1897) I. L K. 23 M. 28 at p. 31in reference to the corresponding provisions of the Code of Civil Procedure of 1882 and the language of Rule 8 Order I is identical in this repeat with the language of Section 30 of the code of 1882, this rule of procedure, which is founded on a rule of the English Court of Chancery, applies not only to cases where the interests are concurrent but also where they are similar though distinct. Be-sides, the defendants never objected to the order granting sanction under Rule 8. I will therefore deal with the present question on the basis of the sanction having been validly granted. I shall first examine the provisions of the code. It cannot to said that either Rule 2 or Rule 3, Order XXII, in terns applies to this case; not Rule 2 for the simple reason that it contemplates cases where there are actually more than one plaintiff or defendant on the record, and not Rule 3 for the same reason as far as the first part of Sub-rule 1 is concerned, and so far as its second part is concerned, it could not apply as it deals with cases in which a sole plaintiff s right to sue survives to his legal representative and here the right of the deceased to sue, in so far as it was for his own benefit would not survive at all. Sub-rule (2) apparently deals with cases where an application could be made under Sub Rule (1) and has not been made, though that is not expressed but if the direction that the suit shall abate was to be taken to apply to cases other than those contemplated by Sub-rule (1) the result would be that the suit would abate so far as the deceased plain tiff is concerned. But as I have said the legislature does not purport by these sections to deal with the revivor, or more strictly speaking the continuance of a representative suit instituted by a sole plaintiff.