CHAMPAKLAL PURSHOTTAMDAS Vs. BAI NARBADABAI

JUDGEMENT

(1.) This suit was filed on 3 April 1940, by plaintiff 1 and the original plaintiff 2 against defendants 1, 2 and 3 as the executors of one Gordhandas Ranchhoddas Bhagat. The suit is to enforce a public charitable trust and was filed with leave obtained from the Advocate-General under Section 92, Civil P.C., 1908. The defendants filed their written statement on 1 July 1940, and one of the points taken was that the suit was bad for non-joinder inasmuch as Shapurji Rustomji Bhownagri was a necessary party to the suit because he was appointed a trustee along with defendants 1, 2 and 3 to carry out the trusts created by the will of Gordhandas Ranchhoddas Bhagat. On 14 November 1940, a consent order was taken in chambers whereby Shapurji Rustomji Bhownagri was brought on record as defendant 4 to the suit. Before bringing him on record and amending the plaint and proceedings pursuant to the chamber order I have just referred, no leave of the Advocate-General was taken under Section 92, Civil P.C. The newly added defendant filed his written statement on 17 April 1941, and he took the point, as he was obviously bound to do, that no leave of the Advocate-General having been obtained under Section 92, Civil P.C., the suit was not maintainable. The newly added defendant having taken this defence in his written statement, a notice of motion was taken out on 24 July 1941, by the plaintiffs for leave to withdraw the suit against defendant, 4 with liberty to file a fresh suit against him and on 5 August 1941, the Court granted leave to the plaintiffs to withdraw the suit as against defendant 4 with liberty to them to file a fresh suit against him on the same cause of action. By the same order the plaintiffs were also ordered to pay to defendant 4 the sum of Rs. 325 being his costs of the suit.

(2.) Plaintiff 2 died on 23 August 1941, and pursuant to a chamber order obtained on 24th October 1941, the name of plaintiff 2 was struck off. The plaintiffs obtained leave of the Advocate-General, and pursuant to an order dated 28 November 1941, the plaintiffs brought Shapurji Rustomji Bhownagri again on record as defendant 4. On 16 January 1942, a con-, sent Judge's order was taken whereby the chamber order dated 24 October 1941, by which plaintiff 2's name was struck off and the consent Judge's order dated 28 November 1941, by which defendant 4 was again brought on record were vacated, and it was ordered that after obtaining the previous consent of the Advocate-General the name of the original plaintiff 2 should be struck off and the name of the present plaintiff 2 should be brought on record and also the name of Shapurji Rustomji Bhownagri be added as defendant 4 to the suit. The newly added defendant 4 has filed another written statement on 19 June 1942, by which he takes up the contention that his addition as a party defendant to this suit and the amendments in the plaint made pursuant to the order of 16 January 1942, are not in terms of and/or are not warranted by the order dated 5 August 1941, and/or are not lawful. Defendant 4 further takes up the contention that as the original plaintiff 2 died after 5 August 1941, the leave given to file a fresh suit against defendant 4 by the order of that date is not available to the present plaintiffs.

(3.) Now under Order 23, Rule 1, Civil P.C., it is open to a plaintiff, after he has instituted his suit, to withdraw his suit against all or any of the defendants or abandon part of his claim. If he does so without obtaining the leave required under Order 23, Rule 1, Sub-rule (2), then he is precluded from instituting any fresh suit in respect of the subject-matter of the first suit or any part of the claim in that suit. In this case there is no doubt that before the plaintiffs withdrew the suit against defendant 4, they obtained express leave from the Court to file a fresh suit against defendant 4 on the same subject-matter. But what Mr. Taraporewala has contended is that by adding defendant 4 as a party defendant to this suit after he had been struck off no fresh suit has been filed against him and that Order 23, Rule 1, does not permit the same party against whom the suit has been once abandoned to be impleaded over again.