TARAPADA GHOSE Vs. BAGALA SUNDARI BASU

JUDGEMENT

(1.) This rule has been obtained by the plaintiff against an order of the Subordinate Judge of 24-Parganas,. dated 12 April 1927, permitting the wife of the defendant to conduct the defence on his behalf under the following circumstances: The defendant Protap Chandra Basu was the cashier and collecting agent for a number of years working under the plaintiff. The plaintiff's case is that on one morning he found the defendant absconding with the key of the iron safe in his charge. A criminal case was brought against him, but he is still absconding. The present suit has been instituted for accounts against Protap Chandra Basu and the plaintiff also applied for attachment before judgment of certain sums of meney. Thereafter the opposite party No. 2, Bagala Sundari Dasi, applied for permission to conduct the case on behalf of her husband on the ground that her husband was either murdered by the plaintiff or was being kept in solitary confinement at the plaintiff's instance. The learned Subordinate Judge has been unable to find whether the version of the plaintiff was true or the defendant's wife's version relating to the disappearance of the defendant was true, and permitted the wife to conduct the case on behalf of her absent husband. The order passed by the Subordinate Judge is based on two grounds. His interpretation of Order 1, Rule 11 gave him enough jurisdiction to entrust the defence to the wife though she was not a party to the suit. The other ground is that if Order 1, Rule 11 does not apply the Civil Procedure Code is silenc and there is no express provision to meet the contingency that has arisen in the present case and, therefore, in the exercise of inherent jurisdiction vested in the Court he can give the conduct of the suit to the opposite party No. 2

(2.) It has been argued before us that Order 1, Rule 11 does not authorize the Court to give the permission, as above stated, and that, as there is no provision in the Code for allowing a third party to conduct a suit on behalf of an absent party without special authorization the Court has no power to give such permission. As regards the first ground: it is contended on behalf of the opposite party that the word "person" in Order 1, Rule 11 includes any person - be he a party to the suit or not - and the Court has jurisdiction to give such permission to the wife in the present case to conduct the defence on behalf of her husband. As this is a case of first impression and no authorities are available either for or against, I have given my very careful consideration to the contentions raised on both sides and I find myself unable to agree with the interpretation put upon the rule by the Court below and urgently pressed before us by the learned advocate appearing for the opposite party. The main argument upon which this view is supported is that Order 1, Rule 11 reproduces the provision of the last paragraph of Section 32 of the Code of 1882, which was as follows: The Court may give the conduct of the suit to such plaintiff as it deems proper." The present Code has in Order 1, Rule 11 reproduced all the words of the repealed section except that the word "plaintiff" has been changed into "person." It is accordingly argued that this change is instructive and gives an inkling into the mind of the legislature as to what was really meant by the change, and it is said that the legislature intended by the alteration of the words to invest the Court with power to give the conduct of the suit to any person whom it deems proper, be such person a party to the suit or a stranger to it. I do not think that the idea with which this alteration was made was as has been suggested by the opposite party. The alteration has been made in order to assimilate the wording of the rule of the Code to the corresponding rule of the Supreme Court in England. Order 16, Rule 39 of the rules of the Supreme Court is, so far as is relevant for our present purpose, in these words: The Court or a Judge may require any person to be made a party to any action or proceeding, and may give the conduct of the action or proceeding to such person as he may think fit.

(3.) Under the English law the few cases which have been decided under this rule show that the Court has as much power to give the conduct of the suit to one of the plaintiffs as the conduct of the defence to one of the defendants: see the case of. Peek v Bay (1894) 3 Ch. 282. The further reason for the alteration seems to be that under the law, as it stood under the repealed Civil Procedure Code, the Court had power to entrust one of the plaintiffs with the prosecution of the suit. As it was deemed to be desirable that the power of the Court to put one of the parties in charge of the suit should be extended to the conduct of the defence, a general word was used to include both the plaintiff and the defendant. As I have said, there is no case in support of the view pressed by the opposite party or that which I fee disposed to adopt; but the commentators of the Civil Procedure Code have put an interpretation on this rule which accords with my reading of the law. I only refer to their opinion in support of the view which take in this matter independently of what they have stated, Sjr John Woodroffe, in his well known edition of the Civil Procedure, Code observes, commenting on Order 1, Rule 11, as follows: The word "suit" does not ordinarily include defence, but, according to the English practice, the conduct of the defence also is often given to one of the defendants... Apparently with a view to adopt that practice, the "person" has been substituted for the "plaintiff."