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Ch. Kidar Nath Datt And Others v. Kishan Dass Bairagi And Others
Structured Summary of the Opinion
Factual and Procedural Background
(All points below are taken verbatim or paraphrased from the provided opinion.)
The petition under Section 115 of the Code of Civil Procedure raises the question whether a new defendant can be added in a suit instituted under Section 92 of the Code of Civil Procedure without the previous sanction of the Advocate-General.
On 26th August 1955 Ch. Kidar Nath, Rai Bahadur Gopal Das & certain other persons instituted a suit under Section 92 of the Code of Civil Procedure against Ramsaran Das and Ram Prakash seeking the removal of Ramsaran Das from the office of Mahant of a Thakardwara.
On 21st November 1955 one Kishan Das presented an application under Order 1, Rule 10 of the Code of Civil Procedure asking to be impleaded as defendant, alleging that Ramsaran Das had been removed and that Kishan Das had been appointed a Mahant by the sewaks (the application stated the date of appointment as the 23rd June 1853 in one place in the opinion; in another place the opinion refers to 23rd June 1953).
The trial Court allowed the application and impleaded Kishan Das as defendant No. 3, despite protests by the plaintiffs. The plaintiffs, dissatisfied with that order, came to this Court in revision.
The opinion concludes by accepting the petition in revision, setting aside the trial Court's order, directing that the name of Kishan Das be removed from the list of defendants, awarding costs of this Court to the plaintiffs, and directing the parties to appear before the trial Court on 29th January, 1957.
Legal Issues Presented
- Whether a new defendant can be added in a suit instituted under Section 92 of the Code of Civil Procedure without the prior sanction of the Advocate‑General.
Arguments of the Parties
Plaintiffs' (represented by Mr. Sarin) Arguments
- A court lacks power to permit addition of a new party in a suit under Section 92 if the amendment enlarges the scope of the suit or alters its nature.
- Relied principally on Abdul Rehman v. Cassum Ebrahim (ILR 36 Bom 168) which was taken to hold that plaintiffs cannot maintain a suit against an added defendant unless the Advocate‑General's sanction is obtained before the defendant is made and before amendment of the plaint.
New Defendant's (represented by Mr. Pandit) Arguments
- Kishan Das claims to be a Mahant and is vitally interested in the subject‑matter; his presence is necessary for complete adjudication, so impleading him was justified.
- Relied on authorities (Golam Rabbani v. Abdul Khahir (ILR 62 Cal 1132) and an unreported decision Harnam Bingh v. Sarup Singh, S.A. No. 31 of 1954) to contend that in representative suits instituted with the consent of the Advocate‑General or Collector a fresh consent to every fresh addition of a party is not necessary.
- Relied also on Madras decisions (58 Ind Cas 124 / AIR 1920 Mad 238 and AIR 1926 Mad 970) which propound the test that a fresh sanction is necessary only if the addition substantially enlarges or alters the scope of the suit.
Table of Precedents Cited
| Precedent / Authority | Rule or Principle Cited For | Application by the Court (as stated in the opinion) |
|---|---|---|
| Shelfords, Law of Mortmain (p.400) | Illustration of the Attorney‑General's role as protector of charities and his control over such actions in England. | Used to show that in English law the Attorney‑General has entire control and that no amendment can be made without his consent. |
| Attorney‑General v. Fellows, (1820) 1 Jac & W 254 | Demonstrates the Attorney‑General's authority and control in charity proceedings. | Quoted to support the proposition that the Attorney‑General's authority must remain "perfectly unbroken, unfettered and unbiassed." |
| Attorney‑General v. Ironmongers' Co., (1840) 2 Beav 313 | Further illustration of the need for Attorney‑General's consent in charity matters. | Referenced together with other English authorities to show the Attorney‑General's exclusive control. |
| Abdul Rehman v. Cassum Ebrahim, ILR 36 Bom 168 | Held that plaintiffs are not entitled to maintain a suit against an added defendant if the Advocate‑General's sanction is not obtained before the defendant is added and before the plaint is amended. | The Court described this authority as taking the view that no party can be added without previous sanction if other reliefs are claimed against such added parties; it was relied upon by the plaintiffs. |
| Gopala Krishnier v. Ganapathy Aiyar, 58 Ind Cas 124 (Am 1920 Mad 238) | Held that addition of a new party does not necessarily invalidate prior sanction; fresh sanction is required only if scope is substantially altered or enlarged. | Cited by the opinion as one of the authorities supporting the "scope/enlargement" test which the Court found persuasive. |
| Varaprasada Rao v. Gopalacharlu, AIR 1926 Mad 970 | Similar principle: fresh sanction needed only if addition enlarges the scope or alters the nature of the suit. | Relied on as supporting the test that addition requires fresh sanction only where scope/nature is changed. |
| Bapu Gouda v. Vinayak Sadashiv, AIR 1941 Born 317 | Supports the view that additions do not automatically invalidate prior sanction; focus on whether scope is altered. | Listed among authorities that adopt the "scope/enlargement" test. |
| Keshavlal v. Commr. of Income Tax, AIR 1944 Bom 164 | Illustration that the scope is enlarged when there is a totally different cause of action against a new defendant. | Used as an example of when an addition will enlarge the suit and thus require fresh sanction. |
| Bagga Singh v. Tirath Ram, AIR 1928 Lah 717 | Example where addition enlarges scope: new defendant stated to be the real trustee. | Referenced to illustrate circumstances amounting to enlargement of scope. |
| Golam Rabbani v. Abdul Khahir, ILR 62 Cal 1132 | Holds that in representative suits instituted with consent of Advocate‑General or Collector, the consent to each fresh addition of a party is not necessary. | Relied upon by the new defendant; the Court held that such authorities cannot support the contention for adding a defendant in the present case. |
| Harnam Bingh v. Sarup Singh, S.A. No. 31 of 1954 (unreported) | Reinforces the view that addition of a new plaintiff in representative suits may not require fresh sanction, distinct from addition of defendants. | Noted by the Court as an authority of similar purport to Golam Rabbani but the Court found these authorities inapplicable to the new‑defendant situation here. |
| AIR Commentaries on the Code of Civil Procedure (p.921) | Summarises rule: where a suit is instituted with sanction, adding a new defendant under Order 1 Rule 10 does not require fresh sanction if the addition does not alter the nature of the suit; if it does, fresh sanction is necessary. | The Court adopted this summary as an accurate statement of the legal position and used it as the governing test. |
Court's Reasoning and Analysis
The Court's analysis proceeds in a stepwise fashion, closely following the statutory regime and relevant authorities cited in the opinion:
- The Court began with the general principle that with respect to public wrongs or charitable trusts a private member of the public cannot normally seek redress by a civil suit unless expressly authorized by statute, and where enforcement is entrusted to a particular executive officer the remedy ordinarily lies with that officer.
- The Court emphasised Section 92 of the Code of Civil Procedure which provides that no person shall bring an action for alleged breach or abuse of a charitable or religious trust without the sanction of the Advocate‑General. This statutory requirement mirrors the English practice where the Attorney‑General's sanction and control are important in proceedings affecting charities.
- The Court then examined Order 1 Rule 10 of the Code of Civil Procedure, which empowers the Court to add parties in its discretion so that complete justice may be done, but which cannot be used to introduce a new cause of action by way of amendment.
- Faced with conflicting authorities, the Court synthesised them and accepted the line of decisions (and the AIR commentary) that articulates the operative test: when a suit has been instituted with the required sanction, adding a new defendant does not require a fresh sanction of the Advocate‑General if the addition does not alter the nature of the suit or enlarge its scope; if the addition does alter the nature of the suit (for example by introducing a fresh cause of action or new reliefs against added parties), a fresh sanction is necessary.
- Applying that test to the present facts, the Court analysed Kishan Das's application: Kishan alleged that Ramsaran Das had been removed and that Kishan had been appointed a Mahant (dates are given in the opinion variously as 23rd June 1853 and 23rd June 1953). The plaintiffs denied these allegations.
- The Court identified the specific issues that would necessarily arise if Kishan were added as a defendant: (1) whether Ramsaran Das was in fact removed by the worshippers; (2) whether Kishan was appointed a Mahant on or about the stated date; (3) whether Kishan could be elected a Mahant in accordance with the relevant rules or custom; and (4) whether a declaration of status could be sought in a Section 92 suit without payment of appropriate fees.
- Concluding from the matters which would need adjudication that the addition of Kishan Das was "almost certain" to alter the cause of action, change the nature of the suit and enlarge the scope of the litigation, the Court held that adding him as a defendant would require the prior sanction of the Advocate‑General, which had not been obtained.
- On that basis the Court accepted the plaintiffs' revision petition, set aside the trial Court's order impleading Kishan Das, and ordered his name removed from the list of defendants.
Holding and Implications
Holding:
The Court accepted the petition in revision, set aside the trial Court's order that had impleaded Kishan Das as defendant No. 3, and directed that Kishan Das's name be removed from the list of defendants.
The Court also ordered that the plaintiffs are entitled to the costs of this Court and directed the parties to appear before the trial Court on 29th January, 1957.
Implications:
- Direct effect on the parties: Kishan Das was removed as a defendant; the plaintiffs succeeded in the revision and were awarded costs in this Court.
- Scope: The opinion applies and endorses the legal test (as summarised in the AIR commentary and several decisions) that a fresh sanction of the Advocate‑General is required before adding a defendant in a Section 92 suit only when the addition would alter the nature of the suit or enlarge its scope (for example, by introducing fresh causes of action or new reliefs against the added parties).
- Broader implications: The opinion itself does not elaborate broader legal consequences beyond applying the accepted test to the facts; it does not purport to lay down a novel precedent beyond affirming and applying the existing test described above.
End of summary. This document strictly reflects only the material contained in the provided opinion and does not add, infer, or invent information beyond that text.
1. This petition trader Section 115 of the Code of Civil Procedure raises the question whether a new defendant can be added in a suit under Section 92 of the Code of Civil Procedure without the previous sanction of the Advocate-General.
2. On the 26th August 1955 Ch. Kidar Nath. Rai Bahadur Gopal Das & certain other persons brought a suit under Section 92 of the Code of Civil Procedure against Ramsaran Das & Ram Pra-kash in which they asked for the removal of Ramsaran Das from the office of Mahant of a Thakardwara. On the 21st November 1955 one Kishan Das presented an application under Rule 10 of Order 1 of the Code of Civil Procedure in which he prayed that he be impleaded as a defendant to the suit as Ramsaran Das had been removed and Kishan Das had been appointed a Mahant by the sewaks on the 23rd June 1853. The trial Court acceded to this request despite the protests of the plaintiffs and impleaded Kishan Das as defendant No. 3. The plaintiffs are dissatisfied with the order and have come to this Court in revision.
3. It is a recognised principle of law that a person is not at liberty to secure the redress of a public wrong by means of a civil suit when he suffers injury in common with the public generally, even though his loss is greater than others, unless a statute expressly empowers him to do so. It is equally, clear that when the duty of enforcing the provisions of a particular statute is entrusted to a particular executive officer, the help of the Court can be invoked only by such executive officer and no other person and that (sic) is not open to a member of the public to intrude upon his functions.
In England the Attorney-General who is the protector of charities is normally a necessary party to actions relating to public charities. He may either act alone as the officer of the Crown who is by law entrusted with such duties or he may act on the request of a private individual who thinks the charity is being or has been abused. He has entire control of the action and no amendment can be made without his consent (Shelfords Law of Mortmain 400; Attorney-General v. Fellows, (1820) 1 Jac & W 254 (A), for it is essential that the authority and discretion of the Attorney-General in all these proceedings should be maintained perfectly unbroken, unfettered and unbiassed Attorney-General v. Ironmongers' Co., (1840) 2 Beav 313 (B).
4. The law in this country is not widely dif ferent. A member of the public in India has no power in his capacity as such to maintain a suit to enforce or administer a charitable trust, for Section 92 of the Code of Civil Procedure provides that no person shall be at liberty to bring an action for the alleged breach of a charitable or religious trust or for remedying abuse or misapplication of charitable funds without the sanction of the Advo cate-General.
5. The law in regard to the addition of parties is embodied in Order 1. Rule 10 of the Code of Civil Procedure. It empowers the Court in its sound discretion either upon proper motion of a party to the action or upon its own motion to direct that other persons be made parties so that complete Justice may be done and the rights of all finally determined. An amendment cannot however, be allowed if the effect of adding a hew party would be to introduce a new cause of action.
This is particularly so in cases under Section 62 of the Code of Civil Procedure. When the Legislature declared that no suit under this section should be brought without the sanction, of the Advocate-General, the intention obviously was that honest trustees should not be put to the trouble and expense of defending themselves in vexatious suite brought against them by irresponsible officers.
6. Mr. Sarin, who appears for the plaintiffs, has invited my attention to a number of authorities which appear to lay down the proposition that a Court has no power to permit a new party to be added in a suit under Section 92 of the Code of Civil Procedure if the effect of the amendment is to enlarge the scope of the suit or to alter the nature of the suit. One of the principal authorities cited by him is Abdul Rehman v. Cassum Ebrahim, ILR 36 Bom 168 (C).
In this case a learned Single Judge of the Bombay High Court reviewed all the English and Indian authorities bearing upon the point and came to the conclusion- that plaintiffs are not entitled to maintain a suit against an added defendant if no sanction of the Advocate-General is obtained previous to his being made the defendant and previous to the amendment of the plaint. This authority appears to hold that no party or parties can in any circumstances be added without the previous sanction of the Advocate-General if other reliefs are claimed against such added parties.
Other Courts have taken a slightly different view, for they have held that every addition of a pew party does not necessarily invalidate the sanction already given. They have accordingly propounded the test that if the scope of the suit is substantially altered or enlarged by the addition of a new defendant previous sanction of the Advocate-General is necessary, but that if the scope remains unaltered and unchanged no such sanction need be taken, Gopala Krishnier v. Gana-pathy Aiyar, 58 Ind Cas 124: (Am 1920 Mad 238) (D), Varaprasada Rao v. Gopalacharlu, AIR 1926 Mad 970 (E) and Bapu Gouda v. Vinayak Sada-shiv, AIR 1941 Born 317 (F). The scope of the suit is enlarged when there is a totally diferent cause of action against the new defendant, Keshav-lal v. Commr. of Income Tax, AIR 1944 Bom 164 (G) or when he is stated to be the real trustee, Bagga Singh v. Tirath Ram, AIR 1928 Lah 717 (2) (H). I find myself in respectful agreement with the test which has been evolved in these authorities.
7. Mr. Pandit, who appears for the new defendant, contends that his client claims to be a Mahant of this institution, that he is vitally interested in the subject-matter of the litigation, that it is impossible to have a complete determination of the controversy without his presence and consequently that the trial Court was justified in impleading him as a defendant. He has relied upon two sets of authorities in support of his contention. The first set of authorities consists of Golam Rabbani v. Abdul Khahir, ILR 62 Cal 1132 (I) and an unreported decision of this Court in Harnam Bingh v. Sarup Singh, S. A. No. 31 of 1954 (J).
In the earlier case a Division Bench of the Calcutta High Court expressed the view that in a suit or appeal instituted by a certain set of plaintiffs or appellants with the consent of the Advocate-General or the Collector under Sections 62 and 93 of the Code of Civil Procedure the consent of the Advocate-General or the Collector to each fresh addition of a party Is not necessary as a suit under these sections is not prosecuted by individuals for their own interests but as the representatives of the general public interested in the endowment.
A similar view was taken in the unreported case referred to above. The addition of a new plaintiff in a suit under Section 92 or 93 of the Code of Civil Procedure stands on a completely different footing from the addition of a defendant to the said suit. Actions under Section 92 are brought in a representative capacity, for when there is such a large number of persons as to make it impossible, or at least extremely impracticable, to bring them all before the Court as parties, it is only reasonable that a part of tho'se interested should be allowed to sue for the benefit of many. If one or two plaintiffs who are acting in a represent tative capacity drop out; it is obviously open to certain other persons to step into their shoes and to figure as plaintiffs.
By doing so they do not alter the cause or action, for their claim against the defendants proceeds on the same basis as the claim of the persons whom they have replaced. These two authorities cannot, in my opinion, support the contention put forward on behalf of the new defendant.
8. The second set of authorities on which Mr. Pandit places his reliance are two decisions of the Madras High Court reported as 58 Ind Cas 124: (AIR 1920 Mad 238) CD) and AIR 1926 Mad 970 (E). In these cases the Madras High Court held that where in a suit instituted with the sanction of the Advocate-General under Section 92 of the Code of Civil Procedure it is necessary to add a defendant the test for determining whether such addition requires a fresh sanction from the Advocate-General before the suit can be proceeded with against him is whether the scope of the suit has been really enlarged by the addition of the new party.
9. The strictly legal consequences which flow from a consideration of the several authorities which have been cited by the parties have been admirably summarised in AIR Commentaries on the Code of Civil Procedure. The learned author observes at page 921 that where in a suit instituted with the required sanction the Court adds a new defendant under Order 1, Rule 10, in order to effectually and completely adjudicate upon all the questions involved in the suit, but such addition does not alter the nature of the suit, no new sanction need be obtained nor need it be obtained for transposing a defendant to the array of plaintiffs.
Where such addition or other amendment does alter the nature of the suit, a fresh sanction is necessary. Thus, an amendment relating to a fresh cause of action involving a fresh addition of parties and fresh reliefs against them requires the sanction of the Advocate-General.
10. The question how arises whether the addition of Kishan.Das as a defendant has or has not the effect of enlarging the scope of the suit or of altering the nature of the suit. Mr. Sarin contends, and in my opinion with a considerable amount of Justification, that the addition of this new defendant is likely to alter not only the cause of action but also to enlarge the scope of the suit. In his application under Order 1, Rule 10 of the Code of Civil Procedure Kishan Das stated that Ramsaran Das had been removed from the Ma-hantship of the Thakardwara and that he. namely Kishan Das applicant, had on the 23rd June 1953 been appointed a Mahant by the worshippers of the Thakardwara.
The plaintiffs do not admit the correctness of these allegations. In order to decide the matters in controversy between the parties it would be necessary to frame a number of issues with the object of determining (1) whether Ramsaran Das was in fact removed from the Mahantship by the worshippers of the Thakardwara; (2) whether Kishan Das was appointed a Mahant by the sewate on or about the 23rd June 1953; (3) whether Kishan pas could be elected a Mahant in accordance with the rules of custom by which the parties are regulated; and (4) whether he is entitled to a declaration of status in a suit under Section 92 without paying the appropriate fees in respect of such relief.
I am clearly of the opinion that the addition of Kishan Das is almost certain to alter the cause of action, to alter the nature of the suit and to enlarge the scope of the litigation.
11. For these reasons I would accept the petition, set aside the order of the trial Court and direct that the name of Kishan Das be removed from the list of defendants. The plaintiffs will be entitled to the costs of this Court.
12. The parties Have been directed to ap pear before the trial Court on the 29th January, 1957.
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