MUHAMMAD EKRAM KHAN Vs. MIRZA MUHAMMAD BAKAR

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit brought by four plaintiffs jointly for an injunction restraining defendant 1 from recording his vote at a Municipal election and for a declaration that defendants 2 and 4 be ordered to have the votes already recorded declared invalid. The claim was decreed in favour of all the plaintiffs and that decree was upheld on appeal by the District Judge. While a second appeal was pending in this Court at least one of the plaintiffs- respondents, if not two, died and no steps were taken to bring any legal representatives on the record. A preliminary objection is taken on behalf of the respondents that the appeal having abated against one or two of the plaintiff- respondents who had got a joint decree, it has become infructuous and must abate in toto or, at any rate, be dismissed. We are unable to accept this contention. Either the suit brought was one brought in a representative capacity or it was brought in the exercise of the rights of the individual plaintiffs. If it was a representative suit then the observations of their Lordships of the Privy Council in Raja Anand Rao V/s. Ram Das Daduram 1921 P.C. 123, would apply to this case, and the appeal cannot be said to have abated.

(2.) On the other hand, as appears to be the case here if the suit was brought on behalf of the plaintiffs in their individual capacities then it would have been the duty of the appellants to bring the heirs of the deceased respondents on the record only if : (1) the right to sue did not survive to the surviving plaintiffs, or (2) the sole plaintiff had died and the right to sue survived within the meaning of Order 22, Rule 3. If the suit were not of a representative character then the right of the deceased plaintiff could not survive to the surviving plaintiffs. Furthermore, the claim was based on the fact that the plaintiffs were members of the Board which was a personal matter and their right to sue could not survive to their legal heirs. It is thus clear that neither of the two necessary requisites laid down in Order 22, Rule 3, apply to this case and therefore the appellants could not possibly have applied under that rule for bringing on the record the legal representatives of the deceased inasmuch as no such representatives in the eye of the law existed. The omission to do what could not legally have been done cannot therefore be fatal to the appeal.

(3.) An illustration would make the point perfectly clear. Had one of these plaintiffs died soon after the decree was passed by the lower Court and before the appeal could be filed could it be said that the defendants had no right of appeal because of the death of a respondent? It is impossible to hold that where the right to sue does not survive, the death of one of the plaintiffs whose legal representatives cannot be brought on the record is fatal to the appeal. We accordingly overrule the preliminary objection. Coming to the facts of the case; it appears that 9th December, was fixed for a Municipal election. An electoral roll was prepared sometime before 1 September 1928, and was posted at the office of the Municipality at Benares. Later on, on a report made by the office the Returning Officer directed that Mr. Hadi Hasan, a Deputy Collector, should examine the list and on his recommendation that certain names should be included the Returning Officer ordered "now enter." Accordingly a supplementary electoral roll was prepared on 10 November 1928, under the order of the Revising Committee which confirmed the inclusion of Muhammad Ikram Khan's name previously ordered by the Returning Officer. Previous to this, objections had been filed against the inclusion of Muhammad Ikram Khan's name, but they were summarily rejected by the Revising Committee on the ground that they had not been shown in the original electoral roll. One Abdul Alim filed an application before the District Magistrate objecting to the inclusion of Muhammad Ikram Khan's name and on the same day, namely, 17 November 1928, the District Magistrate passed the following order: I am satisfied that Muhammad Ikram Khan possesses the necessary qualifications to be enrolled as an elector. His name rightly stands on the roll, and will stay there Rejected.