RAM GHULAM Vs. SHYAM SARUP

JUDGEMENT

(1.) This appeal arises out of a suit instituted under Section 92 of the Civil Procedure Code, by two individuals, one of whom has died since the institution of this appeal. A preliminary objection has been taken by the respondents that the appeal should fail because one of the two original appellants is dead, and Section 92 of the Civil Procedure Code lays down that at least two persons shall institute the suit under that section. We have heard the learned Counsel for the respondents at length on this point, but we are of opinion that on a simple reading of Section 92, Civil P.C., the hearing of this appeal cannot be barred. All that the section says is "two or more persons...may institute a suit". Where the suit has been properly instituted according to Section 92, Civil P.C., there is nothing in that section which says that the suit cannot be continued if one of the original plaintiffs who instituted the suit in the manner laid down by law happens to die. Although this is our plain reading of the section, it appears that there is a conflict of opinion on this point. It would serve no useful purpose to quote the different cases cited to us. In our High Court in Chhabile Ram V/s. Durga Prasad A.I.R. 1915 All. 59 two learned Judges held that if one of the plaintiffs in a suit instituted under Section 92, Civil P.C. dies; the suit would abate. It was, however, remarked that it would be open to any other member of the public interested in the subject matter to obtain the consent of the Advocate-General and to apply to be brought on the record as a co-plaintiff.

(2.) The conflict among the High Courts is however set at rest by a decision of their Lordship of the Privy Council in Anand Rao V/s. Ram Das Dadu Ram A.I.R. 1921 P.C. 123. It was argued before their Lordships that because one of the plaintiffs had died the suit was not maintainable. The argument, however, was not accepted. Their Lordships, at the bottom of page 497 (of 48 Cal.), are reported to have remarked as follows: There wag also a point that one of the persons who originally raised the suit and got the sanction having died, the suit could not go on; but there does not seem any force in that point either, it being a suit which is not prosecuted by individuals for their own interest but as representatives of the general public.

(3.) After this pronouncement on the part of their Lordships, we must hold and do hold that the law laid down in Chhabile Ram V/s. Durga Prasad A.I.R. 1915 All. 59 is, no longer good law. Now we come to the merits of the case. It appears that in Bareilly an orphanage was established many years ago by the Arya Samaj of the place. Gradually it became a large institution and the Government began to send for maintenance to the institution orphans picked up by the police, and the Government made a certain allowance for the purpose. The orphanage was maintained by an association called the Orphanage Committee, Arya Samaj, Bareilly, and the rules which governed it will be found printed at p. 101 of the paper-book. Later on several other institutions managed mostly by the Arya Samaj were amalgamated with this orphanage, and in 1922 a society was registered under the Registration of Societies Act, 1860. The Memorandum of Association framed for the purpose will be found printed at p. 95 and the rules framed will be found at p. 97. The plaintiffs alleged in the plaint that the orphanage was mismanaged and large sums of money belonging to the orphanage was misapplied to other institutions and that some of the money belonging to the orphanage was also converted into his personal use by the defendant 1, who has been described as Doctor Shyam Sarup, Rai Saheb. The reliefs claimed were that the defendant 1 and such of the defendants from 2 to 12, 14 and 16 as may be found liable, should be ordered to render accounts of the entire income and expenditure from 1st October 1918 to 30 September 1927 and they should be ordered to pay to the orphanage whatever money may be found due from them, and that the present trustees be removed and new trustees be appointed and such other relief as might be called for may be granted. The suit was opposed by several of the defendants and principally by the defendant 1. It appears that the defendant 1 took a great interest in the orphanage and the other institutions and he was elected the president of the "Trust" that was registered as a society in 1922.1 Before the suit was brought there had arisen a dispute as to the management of the orphanage between the members of the Arya Samaj and it was referred to the arbitration of two gentlemen, one Lala Roshan Lal, till) lately a Barristerat-law practising at Lahore, and one Swami Vichara Anand. They exonerated the defendant 1 frona any personal liability, but they suggested that the defendant 1 should resign from his position as the president of the "Trust." He accordingly resigned. He, however, was re-elected a member of the "Trust" in October 1927. The suit was-instituted in November 1928. It appears that the year reckoned by the association commences wi October, and ends with September. On the 27 of June 1929 the learned District Judge took down certain statements of the parties; and Mr. Kishan Lal, one of the counsel for the plaintiffs, stated as follows: The suit being under Section 92, Civil P.C., the present trustees only are liable and not the members of the managing committee referred to in issue 1 and that he does not wish them to be brought on the record.