JAGDAM RAM Vs. ASARFI RAM

JUDGEMENT

(1.) In this appeal a preliminary objection has been taken by the respondent to the effect that the appeal has abated on account of the death of some of the respondents. The suit out of which the appeal has arisen was instituted by ten persons under Order 1, Rule 8, Civil P.C., for a declaration of the right of the public to use a piece of land and a well situated thereon and for ordering the defendant to pull down certain structures erected by him on that land. The trial Court dismissed the suit, but on appeal by the plaintiffs the suit has been decreed by the lower appellate Court. The defendant has preferred this second appeal.

(2.) During the pendency of the appeal in this Court two of the plaintiff- respondents, i.e. Nos. 2 and 8, died and no steps were taken to substitute their legal representatives on the record. On 2 August, 1934 the learned Registrar noted that the appeal against respondent 8 had abated. No note has been made about the death of respondent 2. I do not take the note of the learned Registrar as a decision that the appeal against respondent 8 has abated. Such a decision can only be given by the Court. The case was placed before Varma, J., who without expressly deciding the question of abatement, on the authority of the decision in Venkatakrishna Reddi V/s. Srinivasachariar, AIR 1931 Mad 452 allowed the appellant time to take steps for applying for permission to proceed against the remaining respondents as representing the public under Order 1, Rule 8, Civil P.C. Mr. G.P. Das, who appears on behalf of the respondents, however contends that the appeal has abated and no further steps can be taken. He has relied upon a decision of a learned Judge of this Court in Pati Mahto V/s. Mir Ali, AIR 1935 Pat 430 in which under similar circumstances he held that the entire appeal had abated. First of all the appeal in that case was dismissed on merits and therefore the observation about its abatement of the appeal was in the nature of obiter dicta. Then it appears that both the parties took it for granted that the appeal had abated against the deceased respondents and the only question raised was whether it had abated as a whole. In my opinion death of one or more of several plaintiffs or defendants suing or being sued in a representative character does not lead to abatement of the suit if his or their legal representatives are not brought on the record. The same principle mutatis mutandis applies to appeals. A case instituted or defended on behalf of the public in which only some out of numerous persons interested in the right are parties, stands on quite a different footing from a suit for individual rights in which all the interested persons are parties. If numerous persons have the same interest in a suit the Court may permit only some of them to sue or be sued and defend in such suit on behalf of or for the benefit of all persons so interested. When the Court permits this the remaining interested persons are not on the record at all.

(3.) The nominees of the Court are the only persons who can sue or be sued and if one of them dies, there is no question of substitution of his representatives as the right of the deceased to sue or be sued does not devolve upon his personal representatives and they as such representatives cannot be substituted as parties to the suit. But if all the persons interested are parties but only some of them under Order 1, Rule 8 have been permitted to defend the suit, death of some of the defendants will have a different effect, as all the defendants are on the record in their personal capacities. In the former case the position of those who figure as plaintiffs or defendants in the suit is that they claim or defend a right not only on behalf of themselves but on behalf of numerous interested persons. It is the permission of the Court which clothes them with authority to sue or be sued not only on their own behalf but on behalf of those also who are not parties to the suit. As has been pointed out in the Madras case above referred to, anomalies will arise if we hold that when a party suing or being sued in a representative capacity dies it is essential to bring his legal personal representatives on the record as party to the suit. The legal representatives of the deceased party for some reason or other become incapable of acting as representatives of the interested persons who are not on the record. If a Court gives permission to certain persons to prosecute or defend a suit on behalf of the public after notice to the public, they and they alone are authorized to act for the public. The authority is a personal authority eo nomine and cannot, in my opinion, be utilised by their personal legal representatives. In my opinion the provisions of Order 22, which relate to the death of plaintiff or defendant, cannot be applied to a case instituted or defended by a few persons on behalf of numerous persons not on record under Order 1, Rule 8. In ordinary cases the parties act independent of any permission of any authority; but in cases like the present one or in a case instituted under Section 92, Civil P.C., the authority of those who conduct or defend a suit is derived from the order of the Court or from the Advocate-General.