KHATIJA BI Vs. BABU SAHIB

JUDGEMENT

(1.) This is an appeal against the judgment of Abdur Rahim, J. Reported in 8 Ind. Cas. 859 in a petition to this Court for revising the order of the District Judge of North Arcot. A suit was instituted in the District Munsif s Court of Ami by a Muhammadan female, the daughter of one Amir Sahib, for the recovery of her share of the property of Amir Sahib. Defendants Nos. 1 to 15 were Amir Sahib s other heirs. The 7th defendant was his second wife and the plaintiff and defendants Nos. 4 to 6 her children. Defendants Nos. 1 to 3 are Amir Sahib s children by his first wife, deceased. It is unnecessary to set out the exact relationship of the other heirs to Amir Sahib. Defendants Nos. 4 to 7 applied to the Munsif to be brought on the record as the representatives of the plaintiff, her share in the estate of Amir Sahib having vested in them as heirs under the Muhammadan Law. The District Munsif dismissed the application on the ground that the result of granting it would be that the defendants Nos. 4 to 7 would lose their position as defendants and the suit would became defective in form. He added-"If their position as defendants is changed into that of plaintiffs they must sue for a greater share than was claimed by the late plaintiff to avoid the aforesaid defect." The District Judge confirmed the Munsif s order on appeal. He was of opinion that Chapter XXXI of the old Procedure-Code and the corresponding provisions of the present Code were "limited to cases in which the party applying to be brought on the record is either not on record at all, or if he or she is already on record, he or she appears on record on the side of the party who has died and as whose legal representative he or she claims to be made a party." Our learned brother, Abdur Rahim, J., took the same view. He observed: "If the prayer of the petitioners were acceded to, the result would be either that the shares which they claim in their own right as heirs of Amir Sahib would remain unrepresented or they must figure both as plaintiffs and defendants in the same suit, which is clearly opposed to well established principles of procedure." In answer to the petitioner s contention that Section 371 of the old Code would be a bar to defendants Nos. 4 to 7 instituting a fresh suit for recovery of the plaintiff s share of Amir Sahib s estate, the learned Judge observed that a suit brought by the defendants, Nos. 4 to 7 for the recovery both of the shares to which they were originally entitled as Amir Sahib s heirs and the share to which they subsequently became entitled as the plaintiff s heirs would not be based on the same cause of action as the present suit. He was also of opinion that the decisions in Rustomji v. Seth Purshotamdas 25 B. 606 and Umrao Begum v. Irshad Husain 21 C. 997 : 21 I.A. 163 were opposed to the petitioner s contention, and he consequently dismissed the revision- petition. The learned Judge based his order of dismissal also on another ground, namely, that, assuming the District Judge s order was wrong, there was no question for the consideration of this Court in revision under Section 115 of the Code as the objection to the judgment of the lower Court could only be regarded as an erroneous decision on a question of law. In this appeal, the respondent repeated his contention that this Court could not interfere in revision with the District Judge s order. It is desirable to dispose of this contention first inasmuch as, in case we uphold it, it would be unnecessary to consider the appeal on the merits.

(2.) The case was decided by the lower Courts according to the provisions of the repealed Code of Civil Procedure. Under that Code, if the cause of action survived to the heirs of a deceased plaintiff, his legal representatives were entitled to be brought on the record to prosecute the suit. The District Judge held that, on the death of Pattuma Bi, the original plaintiff, the cause of action survived to her heirs, defendants Nos. 4 to 7, and yet he refused to allow them to be substituted in the place of the deceased Pattuma Bi. There is no provision in the Code permitting this to be done, and the petitioners are entitled to argue that in dismissing the petition on. the ground that under the Code he had no power to allow them to come on the record as plaintiffs representatives, the Munsif Jailed to exercise the jurisdiction vested in from of bringing on record the heirs of the deceased plaintiff. In. this view the District Judge s order should be held to be open to the same objection. We must hold that, if the Munsif was bound to allow the defendants Nos. 4 to 7 to prosecute the suit in the place of the deceased plaintiff, the matter is one which this Court is competent to take notice of in revision. We have, therefore, to consider the main question raised in the case whether the defendants Nos. 4 to 7 were, in consequence of their being originally ranged as defendants in the suit which was instituted by the deceased Pattuma Bi, as plaintiff, disentitled to apply to be made plaintiffs in the suit in the place of Pattuma Bi.

(3.) It may be observed that the petitioners did not contest the original plaintiff s right to recover her share of Amir Sahib s property and Pattuma Bi claimed no relief against them hostilely, but they were necessary parties to the suit as co-sharers with Pattuma Bi and the other defendants. It is strongly urged that the law does not allow the defendant in a suit to be made a plaintiff as the representative of the original plaintiff, as the result would be to make the same party both plaintiff and defendant. Now, there is no section in the Procedure Code expressly providing for such a case. We have, therefore, to decide the question on general principles. At common law, the general rule was stated to be that the same person cannot be both plaintiff and defendant. See Dicey on Parties to an Action, page 65. The principle of the rule, no doubt, was, as stated by the learned author, that it was impossible for a man to infringe on his own rights or do himself an injury in the legal sense of the term. The author says: "But as a rule of law, it has the further application that where two or more persons must join as plaintiffs in an action, they cannot bring any action in which it would be necessary to make one of them defendants." This application of the rule must have as its basis the principle that a relief cannot be granted to a person against himself. The rule was applied to cases of action by one partner against other partners and to cases of suits by a partnership against another partnernship in which the same person was a member of both partnerships. It was not applicable to incorporated compaines for the company, in the eye of the law, is a legal person apart from its share-holders, even taking them all together. A shareholder could, therefore, sue the company which could sue him. Now, there can be no doubt that we must accept the principle that no Court can grant a relief to a person against himself. The point that we have to decide is the scope and operation of the Rule in cases where the rights of a deceased plaintiff or defendant devolve by succession on a person originally ranged against him in the suit. It is important to bear in mind Section 371, corresponding to Order XXII, Rule 9 of the present Code, according to which, when a suit is dismissed on the ground that the cause dogs not survive, a fresh suit cannot be instituted on the same cause of action. What would be the result of holding that, although the cause of action survives, the-suit abates and must be dismissed? In our opinion, the result would be that the representatives to whom it survives could not sue again on that cause of action. In this case, supposing the defendants Nos. 4 to 7 instituted a fresh suit for the aggregate share claimed by them as the heirs of Amir Sahib and of Pattuma Bi, would not the other defendants be entitled to Say that the cause of action in the suit, in so far as the suit relating to the share inherited by the petitioners as Pattuma Bi s heirs is concerned, is identical with that in the present suit. Abdur Rahim, J., is of opinion that such a plea would not be successful, for, he says, the new suit would not be based on the same cause of action as the present one. With all deference, we are unable to concur in his opinion. We fail to see how, by adding the present cause of action to the cause of action for their own shares, the petitioners could be permitted to say that the present cause of action becomes transmuted into a fresh one. In our opinion, the petitioners would find it impossible to institute another suit for Pattuma Bi s share for which Pattuma Bi herself had commenced an action. It being clear, then, that the cause of action survived on Pattuma Bi s death to her heirs and that the petitioners could not institute another suit for her share of the property, is there any principle of law which would drive us to hold that it is impossible to substitute the petitioners for Pattuma Bi as plaintiffs?