IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 8-1-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALILNGAM AND THE HONOURABLE MR.JUSTICE T.RAJA OSA Nos.191 and 194 of 2007 and MP Nos.1 of 2007 and 1 of 2008 in OSA 191 of 2007 and MP Nos.1 of 2007 and 1 of 2008 in OSA 194 of 2007 1.B.S.Adityan 2.The Educational Trustee Co. (P) Ltd., rep. By its Managing Director B.S.Adityan 3.The Thanthi Trust rep. By its trustee B.S.Adityan all having their office at No.46, EVK Sampath Road Chennai 600 007. ..Appellants in OSA 191/2007 and Respondents 5 to 7 in OSA 194/2007 vs 1.B.Ramachandra Adityan @ B.R.Adityan 2.S.Dhanraj Nadar 3.P.Joe Prakash 4.D.Dharmaraj ..Respondents 1 to 4 in both appeals 5.Sarojini Varadappan 6.R.Somasundaram ..Respondents 5 & 6 in OSA 191/2007 & Appellants in OSA 194/2007 Original side appeals preferred under Clause 15 of the Letters Patent read with Order XXXVI Rule 9 of Original Side Rules against the order of this Court dated 27.06.2007 made in Application Nos.3640 of 2006 and 2065 of 2007 in C.S.No.498 of 2004. https://hcservices.ecourts.gov.in/hcservices/ For Appellants in OSA 191/2007 and Respondents 5 to 7 in OSA 194/2007 : Mr.Vinod Bobde Senior Counsel for Mr.V.Shanmugam For Appellants in OSA 194/2007 and Respondent No.5 in OSA 191/2007 : Mr.Murari For Respondents 1 to 4 in both appeals : Mr.C.Harikrishnan Senior Counsel for M/s.Iyer and Thomas COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALILNGAM, J.) These two intracourt appeals challenge a common order of dismissal made by the learned Single Judge of this Court in Application Nos.3640 of 2006 and 2065 of 2007 filed by the appellants and the respondents 5 and 6 in OSA 191/2007 respectively for rejecting the plaint in C.S.No.498 of 2004 under Order 7 Rule 11 of the Code of Civil Procedure. 2.The Court heard the learned Counsel on either side. 3.The facts leading to the filing of the above appeals are as follows: (a) C.S.No.498 of 2004 was instituted by the plaintiffs namely the respondents 1 to 4 in A.No.3640 of 2006, under Sec.92 of the CPC for framing a scheme for the administration of the third defendant trust. The plaintiffs filed an application in A.No.33 of 1994 under Sec.92(1) of the Code seeking leave of the Court to institute the suit. Pending the application, two advocates jointly filed an application in A.No.215 of 1994 seeking impleadment as parties to A.No.33 of 1994 and as plaintiffs in the suit. Another application was also filed by a third advocate in A.No.1901 of 1994 to implead him in A.No.33 of 1994 and as plaintiffs in the suit. A.Nos.215 and 1901 of 1994 were filed alleging that the applicants therein were interested in the affairs of the trust. After the applications were made, one of the advocates in A.No.215/1994 dropped out. Hence only one of the advocates in A.No.215/94 and the other applicant in A.No.1901/94 pursued their respective applications. An order dated 21.12.1995, came to be passed whereby all these applications were https://hcservices.ecourts.gov.in/hcservices/ dismissed by the learned Single Judge. Aggrieved over the same, the plaintiffs/ respondents 1 to 4 filed an appeal in OSA No.62 of 1996 as against the order of dismissal in A.No.33/94 refusing to grant leave. Equally aggrieved over the order in A.Nos.215 and 1901 of 1994, two appeals namely OSA Nos.128 and 129 of 1996 were made respectively. (b) All the above appeals along with several other appeals from the orders made in different applications were taken up jointly by the Division Bench. The appeals in OSA Nos.62, 128 and 129 of 1996 were allowed. The special leave petitions taken from the order of the Division Bench were also dismissed by the Apex Court in Civil Appeal Nos.12915 to 12920 of 1996 by a judgment dated 16.4.2004, and thus the order of the Division Bench in all the above appeals got confirmed. (c) Following the order of the Division Bench, the respondents 1 to 4 instituted the present suit by filing the plaint on 22.6.2004. While doing so, those two advocates whose appeals were allowed were not impleaded as parties at that stage. Under the stated circumstances, the instant applications were taken up questioning the maintainability of the suit and for rejection of the plaint. (d) The opposite party was given opportunity to file counter. (e) The learned Single Judge after hearing both sides dismissed both the applications. Hence these appeals. 4.Advancing arguments on behalf of the appellants, the learned Senior Counsel Mr.Vinod Bobde would submit that while considering an application under Order 7 Rule 11 CPC, the averments in the plaint are germane; that in the instant case, the impugned order is contrary to the well established principles; that the suit is also barred under Sec.92(2) of the CPC read with Order VII Rule 4 of CPC; that it is pertinent to note that the appellants were not responsible for the long pendency of the litigation; that under Order 7 Rule 11 CPC it is mandatory that the plaint shall be rejected if the allegations made in the plaint do not disclose a cause of action; that the Court is concerned only with the averments made in the plaint; that even without any application by the defendant, the Court can reject the plaint if the averments do not disclose a cause of action; that in all these 45 years after the appellants took up the administration of the Trust, it is only the first plaintiff and his sons who have been filing series of applications and suits against the trust, and no other persons interested in the trust have filed any suit or application; that the finding of the learned Single Judge that leave to sue was granted to six persons and not to four persons appears to be only a legal fantasy; that the appellants themselves have contended in the Civil Appeal that the order of the Division Bench directing the impleading of the parties is correct and it is well https://hcservices.ecourts.gov.in/hcservices/ settled that no party can be impleaded after leave is granted; that the application and appeals of the two advocates were only to implead them as applicants in A.No.33 of 1994 and as co-plaintiffs in the proposed suit to be filed by the plaintiffs 1 to 4; that impleading a third party as co-plaintiff in a suit is judicial act; that the Division Bench has held that the proceedings under Sec.92 CPC are administrative in nature and neither judicial nor quasi judicial; that it is pertinent to note that at that stage, the application for leave under Sec.92 CPC was only pending; that the learned Single Judge has not at all considered the legal objection, but has dismissed the application and under the circumstances, the order of the learned Single Judge has got to be set aside and rejection of plaint be ordered. In support of his contentions, the learned Senior Counsel relied on the following decisions: (i)AIR 1916 MADRAS 762 (1) (MADDALA BAGAVANNARAYANA AND ANOTHER V. VADAPALLI PERUMALLACHARYULU AND OTHERS); (ii)ILR 53 MADRAS 223 (PITCHAYYA AND ANOTHER V. VENKATAKRISHNAMACHARLU AND OTHERS); (iii)AIR 1938 PRIVY COUNCIL 184 (ALI BEGAM AND OTHERS V. BADR-UL-ISLAM ALI KHAN AND OTHERS) and (iv)AIR 1967 SUPREME COURT 1540 (NARAIN LAL AND ANOTHER V. SETH SUNDERLAL THOLIA JORHI AND OTHERS). 5.Advancing arguments on behalf of the appellants in OSA No.194 of 2007, the learned Counsel Mr.P.Murari while adopting the above arguments, would submit that the reasons assigned by the learned Single Judge for dismissing the application are unsustainable in law and on facts. 6.The learned Senior Counsel Mr.C.Harikrishnan appearing for the respondents 1 to 4 in both the appeals put forth the very same contentions which were raised before the learned Single Judge in order to sustain the order under challenge. 7.As could be seen above, four plaintiffs moved A.No.33 of 1994 seeking leave to file a suit under Sec.92 of the CPC. The Counsel for the trustees took notice and thereafter, they filed a counter opposing grant of leave. At that juncture, two advocates moved A.No.215/94 under Order 1 Rule 10 read with Sec.92 CPC seeking impleadment in A.No.33/94 and as plaintiffs to the suit. This application was opposed by filing a counter. Another advocate filed A.No.1901/94 to implead him as a party. Counter was also filed in that application. Apart from these applications, other applications were filed by the parties. All the applications made in A.Nos.215 and 1901/94 for impleadment and also the applications for leave to sue and for rejection of the plaint were totally dismissed by the learned https://hcservices.ecourts.gov.in/hcservices/ Single Judge by an order dated 21.12.1995 wherefrom appeals were preferred. A Division Bench of this Court by a common order dated 16.7.1996, allowed all the appeals. Thus the applications filed by the applicants in A.Nos.215 and 1901 of 1994 were ordered as prayed for. It could also be seen that A.No.33/94 seeking leave to file the suit was also allowed. 8.The main contention put forth by the appellants before the learned trial Judge and equally here also is that in view of the order made by the Division Bench allowing the applications in A.Nos.215 and 1901/94, those applicants became co-applicants in the application for leave in A.No.33/94; that under Sec.92(1) of the CPC by allowing A.No.33/94, leave was granted not only to the four applicants in A.No.33/94, but also to the applicants in A.Nos.215 and 1901/94; that in short, leave granted was for six persons and hence they should have been impleaded as applicants and the suit should have been instituted by all the six; that since it was not done so, the suit was defective, and hence it was not maintainable at all. On the contrary, it is urged by the respondents 1 to 4 that while the Division Bench has allowed A.No.33/94, it has granted leave under Sec.92(1) of CPC only to those four applicants; that it cannot be enlarged to increase anymore persons; that by allowing A.Nos.215 and 1901/94 the Division bench has permitted them to become co- plaintiffs; that there was no impediment for them to become co- plaintiffs after the institution of the suit, and hence the institution of the suit by four applicants in A.No.33/94 was in order. In support of their contentions, the learned Counsel for both sides were pointing to paragraphs 54, 55 and 56 of the order rendered by the Division Bench which read as follows: "54.O.S.A.No.128 of 1996 is against the order in Application No.215 of 1994 and O.S.A.No.129 of 1996 is against the order in Application No.1901 of 1994. The earlier application was filed by two persons by name P.Arivadai nambi and A.Fathimanathan, both being advocates practising at Madras. The appeal is filed only by P.Arivudai Nambi. The other applicant has not chosen to prefer an appeal against the order of the learned Judge. Hence, we are concerned only with A.Arivudai Nambi. The later application i.e., O.A.No.1901 of 1994 is filed by one S.N.Kirubandam, who is also an advocate practising in Madras. Both the applications have been filed for impleading the applicants as parties to the proceeding in Application No.33 of 1994. It is alleged in the affidavit that the applicants are regular readers of Daily Thanthi and have great concern for the welfare of the newspaper and interested in the development of education. We have already pointed out while discussing the position regarding plaintiff 2 to 4 in Application No.33 of 1994 that the Tamil reading public is the beneficiary of the Trust and as such the persons who are https://hcservices.ecourts.gov.in/hcservices/ regular readers of the newspaper are persons having an interest in the trust. The same reasoning will apply in so far as these two appellants are concerned. It is argued on behalf of the respondents that one of them alleged that he wants to come on record in view of the apprehension that the original plaintiffs may withdraw the proceedings without prosecuting the case. It is argued therefore, that the applicants have no bona fides and in any event, they cannot get impleaded themselves as parties to a proceeding which, according to the respondents, is not itself maintainable. It is the contention of the respondents that the only remedy of the appellants is to file a separate suit, if they are so interested, and establish their claims. 55.We are unable to accept any of the contentions of the respondents. The reasoning given by us regarding plaintiffs 2 to 4 in the proposed suit will hold good for these two appellants. We hold that they are persons having interest in the trust and just because an apprehension was expressed in the affidavit that the original plaintiffs may withdraw the proceedings, they do not cease to be persons having an interest in the trust. We must point out that the plaintiffs have no objection whatever to the appellants being impleaded as co-plaintiffs in the suit. 56.No doubt, in view of our finding that the proceeding under Section 92, Code of Civil Procedure is administrative in character, the provisions of Order I, Rule 10, Code of Civil Procedure may not be applicable as such. The appellants cannot as a matter of right insist upon maintaining an application under Order I, Rule 10, Code of Civil Procedure. But as already pointed out, the plaintiffs on record have no objection whatever to the appellants being impleaded as co-plaintiffs. In view of the said consent of the plaintiffs on record, we permit the appellants to get impleaded as co-plaintiffs in the proceedings. The appeals have, therefore, got to be allowed." 9.Pointing to the above order of the Division Bench, the learned Counsel for the appellants would urge that the applicants in A.Nos.215 and 1901/94 were permitted to implead themselves as co- plaintiffs in the proceedings; and that since their applications to implead themselves as parties to A.No.33/94 seeking leave were allowed, the permission given to them to implead as co-plaintiffs in the proceedings would clearly indicate that those two applicants must be joined along with the four others in the institution of the suit. Contrarily it is contended by the learned Counsel for the respondents 1 to 4 that once the leave has been granted by allowing A.No.33/94, the grant of leave became complete, and hence the permission granted to the applicants to implead themselves as co-plaintiffs to the https://hcservices.ecourts.gov.in/hcservices/ proceedings would clearly mean that they could join as plaintiffs after the institution of the suit and after it was taken on file. After considering the submissions made and looking into the materials available and also the legal position, this Court has to necessarily agree with the contentions put forth by the appellants for the following reasons. 10.In both the applications in A.Nos.215 and 1901 of 1994, filed by the Advocates to add them as parties, the reliefs sought for were to pass an order impleading the applicants as parties in A.No.33 of 1994 and as plaintiffs in the suit. Thus it would be quite clear that the applicants in A.Nos.215 and 1901 of 1994 have sought for impleadment in A.No.33/94 itself whereby the plaintiffs sought the leave of the Court to file the scheme suit. Pending the application in A.No.33/94, three advocates filed two applications in A.Nos.215 and 1901/94 respectively to implead themselves as parties in A.No.33/94 and as co-plaintiffs in the suit. When this relief was denied by the learned Single Judge, they preferred the appeals which were allowed by the Division Bench. While doing so, the Division Bench has granted permission to implead them as plaintiffs to the proceedings. Nowhere the Division Bench has stated that they were to be impleaded in the suit, but it has clearly stated that they were to be impleaded as co-plaintiffs in the proceedings. It is pertinent to point out that their applications before the trail Court were at the stage when the application for leave under Sec.92(1) of CPC was pending. They sought themselves to be impleaded in that proceedings, and the same was though denied by the learned trial Judge, it was granted by the appellate forum, and hence, the permission granted for impleading those applicants should be done only at the stage of leave proceedings and not after the institution of the suit. The contention put forth by the plaintiffs' side that those applicants could be added as plaintiffs after the institution of the suit since the leave was granted only to four and not to the other two applicants cannot be countenanced. It is true that the Division Bench has not specifically stated that leave was granted to the applicants in A.Nos.215 and 1901 of 1994. But in the considered opinion of the Court, once the applications filed by the applicants seeking to implead themselves as parties in A.No.33/94 seeking leave were allowed, there could not be any impediment for making them as parties at the stage of that proceedings in which leave was sought for. Hence the contention put forth by the learned Senior Counsel for the respondents 1 to 4 that once A.No.33/94 was allowed, the leave granted became complete, and no one could be added to that proceedings cannot be countenanced. This Court cannot subscribe to the view taken by the learned Single Judge that the applicants were given permission to join as co-plaintiffs in the suit. 11.The following decisions are applicable to the present facts of the case. https://hcservices.ecourts.gov.in/hcservices/ (i)It has been held in a decision reported in AIR 1916 MADRAS 762 (1) (MADDALA BAGAVANNARAYANA AND ANOTHER V. VADAPALLI PERUMALLACHARYULU AND OTHERS) as follows: "S.92 of the Code of Civil Procedure provides that "two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General" may institute a suit under that section. The question is whether when more than two persons interested in the trust have obtained the necessary consent, any two of them may sue without the others. We think the language used shows that the persons authorised to sue are all the persons to whom the consent has been given, and not any two of them. On the opposite contention, there might be competition between the various persons authorised as to who should sue. Besides, the provision for giving consent to two or more persons shows that the Legislature considered that in some cases it might not be desirable for only two to sue. In this connection it is worth mentioning that Romilly's Act, upon which this section was founded, enabled any two persons interested to apply, and that here the Legislature has empowered any two or more persons with the consent of the Advocate-General." (ii)It has been held in ILR 53 MADRAS 223 (PITCHAYYA AND ANOTHER V. VENKATAKRISHNAMACHARLU AND OTHERS) thus: "As regards the maintainability of the suit, we think that the suit by some only of the persons to whom sanction was given under section 92 would not lie." (iii)In AIR 1938 PRIVY COUNCIL 184 (ALI BEGAM AND OTHERS V. BADR-UL-ISLAM ALI KHAN AND OTHERS), it has been held as follows: "Where the consent in writing of the Advocate-General or Collector has been given to a suit by three persons as plaintiffs the suit cannot validly be instituted by two only. The suit as instituted must conform to the consent. On the other hand if the three persons join as plaintiffs and two of them die pending suit, the suit does not become defective or incompetent. There is no provision whatever in the Code for recourse being had to the Advocate-General or Collector during the course of a suit or of any proceedings in appeal" (iv)It has been held by the Apex Court in a decision reported in AIR 1967 SUPREME COURT 1540 (NARAIN LAL AND ANOTHER V. SETH SUNDERLAL THOLIA JORHI AND OTHERS) as follows: https://hcservices.ecourts.gov.in/hcservices/ "(4) We hold that an authority to sue given to several persons without more is a joint authority and must be acted upon by all jointly, and a suit by some of them only is not competent. As Sir George Rankin said in Mt. Ali Begam v. Badru-ul-Islam Ali Khan, 65 Ind App 198: (AIR 1938 PC 184), "where the consent in writing of the Advocate-General or Collector is given to a suit by three persons as plaintiffs, the suit cannot be validly instituted by two only. The suit as instituted must conform to the consent." Once the representative suit is validly instituted, it is subject to all the incidents of such a suit; the subsequent death of a plaintiff will not render the suit incompetent. See Raja Anand Rao v. Ramdas Daduram, 48 Ind App 12: (AIR 1921 PC 123), and an appeal by some of the plaintiffs impleading the remaining plaintiff as a respondent is not incompetent because all did not join as appellants. See 65 Ind App 198: (AIR 1938 PC 184) (Supra). (5) In Sheo Ram v. Ram Chand, AIR 1940 Lab 356, the sanction of the Collector to bring a suit under S. 92 was given to twenty persons. One of them died before the suit was brought and the remaining nineteen instituted the suit. Skemp, J, held that in view of the two Privy Council rulings the suit was validly instituted. But he erroneously assumed that in 65 Ind App 198: (AIR 1938 PC 184) (Supra) it was held that where the sanction had been given to three persons, a suit by two of them only was validly instituted. From the report of 48 Ind App 12: (AIR 1921 PC 123) (Supra), it is not clear whether all the persons to whom the sanction was given brought the suit, and the point raised and decided was that the death of one of the plaintiffs after the institution of the suit did not render the suit incompetent. We are unable to agree with the Lahore ruling. Where sanction is given to four persons and one of them dies before the institution of the suit, a suit by the remaining three is incompetent." 12.From the above decisions, it would be quite clear that when the sanction is given to number of persons, the suit must be filed by all since it was a joint authority. In the case on hand, since the applications filed by the applicants in A.Nos.215 and 1901/94 seeking impleadment in A.No.33/94 were allowed whereby permission was granted to them to implead themselves in the said proceedings, it would be quite clear that they were all joined in the proceedings seeking for leave. Once the leave was granted in their favour also without adding them as parties or co-plaintiffs, the suit filed by the other four plaintiffs was only incompetent, and thus the institution of the suit by the plaintiffs 1 to 4 was not in conformity with the order of the Division Bench to implead the applicants in A.Nos.215 and 1901/94 as parties to the proceedings in A.No.33/94. Hence the institution https://hcservices.ecourts.gov.in/hcservices/ of the suit without adding them as parties at that stage itself was defective, incompetent and could not be maintained. 13.For the foregoing reasons, these original side appeals are allowed setting aside the order of the learned Single Judge and A.Nos.3640 of 2006 and 2065 of 2007 are allowed. The parties shall bear their own costs. Consequently, connected MPs are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To The Sub. Assistant Registrar, Original Side, High Court, Madras. + 3 c.cs. to M/s. V. Shanmugam, Advocate. S.R.No.1877. + 2 c.cs. to M/s. Karthik Seshadri, Advocate. S.R.No.1844. + 1 c.c. to Mr. R. Murari, Advocate. S.R.No.1848. OSA Nos.191 and 194/2007 SSK (CO) GSK 21.01.2010. https://hcservices.ecourts.gov.in/hcservices/