Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Revision No. 854 of 1976

Attorney(S)

V.P Sarda, Advocate,
Ram Lal Aggarwal, Advocate with Amar Dutt, Advocate,

Judges

Prem Chand Jain
Gurnam Singh, JJ.

See more information ...

Smart Summary

Summary of Opinion: Bara Hanuman Temple Durgian — Civil Revision No. 854 of 1976

Factual and Procedural Background

The Temple (Bara Hanuman Temple Durgian) through Durga Dass and Tilak Raj (sons of L. Paras Ram, the founder of the trust) obtained the Advocate-General Punjab's sanction under Section 92, Civil Procedure Code (C.P.C.) to file a suit for appointment of three trustees (Gurbux Lal Malhotra, Gauri Shankar Sharma and Madan Lal Khanna), because the three trustees appointed by L. Paras Ram had died.

In that suit, one Gur Parshad applied under Order 1, Rule 10, C.P.C. to be impleaded as a defendant, alleging that he (together with others earlier) had been managing the Temple for several years and, after deaths of co-managers, had been in sole possession of its properties and that the suit was collusive and could not be effectively decided in his absence. The trial Senior Sub Judge allowed Gur Parshad's application and ordered his impleader as a defendant.

The plaintiff (Durga Dass and Tilak Raj) challenged that order by filing this revision petition to the High Court. The Chief Justice referred the matter to a larger Bench, resulting in Civil Revision No. 854 of 1976 before the present Bench.

Legal Issues Presented

Whether the court could permit impleading of Gur Parshad as a defendant despite the Advocate-General's observation, recorded when granting sanction under S. 92 C.P.C., that "Rattan Chand had no authority under the law to join Shri Gur Parshad and Shri Shori Lal as co-trustees".
Whether allowing impleading of Gur Parshad as a defendant would amount to going behind the Advocate-General's sanction such that a suit under S. 92 cannot be maintained against any person for whom permission to sue has not been granted by the Advocate-General.
Whether Gur Parshad had locus standi and was a necessary party (i.e., whether the court could add him as defendant against the wishes of the plaintiff, who is dominus litis).

Arguments of the Parties

Plaintiff / Petitioner's Arguments

The Advocate-General, when granting permission under S. 92, had recorded a finding that "Rattan Chand had no authority under the law to join Shri Gur Parshad and Shri Shori Lal as co-trustees", and that finding prevents the Court from permitting Gur Parshad to be joined as a defendant.
Permitting impleading of Gur Parshad as defendant would go behind the Advocate-General's sanction; a suit under S. 92 cannot be allowed to be maintained against any person unless the Advocate-General has previously granted permission to sue against that person.
Gur Parshad lacked locus standi and was not a necessary party; accordingly he could not be added as a defendant against the wishes of the plaintiff (the dominus litis). Counsel relied on precedents (including Johnson D Po Min v. U Ogh and Abdur Rahim v. Abu Mohomed Barkat Ali Shah) to contend that wrongful joinder or adding strangers can change the nature of a representative S.92 suit and thus is impermissible without fresh sanction.

Gur Parshad / Respondent's Arguments

Gur Parshad asserted he had been managing the Temple's properties along with L. Rattan Chand, continued to manage after Rattan Chand's death (since Feb. 1974 he alleged sole management and possession), and had defended prior legal proceedings involving the Temple; therefore he was concerned and interested in the present suit.
He maintained that the suit could not be effectively and completely decided in his absence and that his presence as a defendant was necessary for complete adjudication of the matters in controversy.
He alleged the plaintiffs had filed a collusive suit to grab administration and exclude him from management; since the suit is for appointment of trustees and he has been looking after Temple affairs, he would be best placed to explain whether appointment of the proposed defendants would serve the Temple's interests.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kidar Nath Datt v. Kishan Das Bairagi, AIR 1957 Punj 106	Where addition of a party alters the nature of the suit, a fresh sanction of the Advocate-General is necessary.	Cited to show that fresh sanction is required only if the addition changes the nature of the S.92 suit; used as part of the test whether Gur Parshad's addition required fresh sanction.
Ghanshyamlalji v. Collector, Udaipur, AIR 1958 Raj 161	Order 1, R.10 enables the court to join third parties to try and determine material questions once for all; an applicant seeking to be joined under O.1 R.10 should be allowed where necessary for complete adjudication.	Relied upon to support the proposition that a person should be joined as a party under O.1 R.10 when necessary for complete and final determination; the Division Bench allowed joinder in a S.92 suit.
Suresh Singh v. Legal Remembrancer, U.P. Government, AIR 1937 Oudh 229	A person should be added as defendant in order to enable the Court to properly and completely adjudicate questions involved in the suit.	Quoted as authority for the proposition that necessary persons should be joined so the Court can fully adjudicate; supports joinder of Gur Parshad.
Vikrama Das Mahant v. Daulat Ram Asthana, AIR 1956 SC 382	A person in de facto possession and management of religious endowment/property for a long time has sufficient interest to maintain proceedings to remove a cloud cast by defendant's action.	Applied to recognize that Gur Parshad's asserted de facto possession and management furnished sufficient interest (locus) to be joined and to defend the Temple's interests.
Gobinda Chandra Ghosh v. Abdul Majid Ostagar, AIR 1944 Cal 163	Once a suit is validly commenced with sanction under S.92 no fresh sanction is necessary at a later stage if amendment or addition does not alter the nature of the claim; but fresh sanction is required if amendment or addition changes the nature or scope of the suit.	Invoked to state the rule that fresh sanction is only required where the nature/scope of the S.92 suit is changed; used to conclude no fresh sanction was needed here because nature would not be altered.
Vaithilingam v. S. M. R. M. Ramalingam Pillai, AIR 1918 Mad 1071	It is open to a Court to add a party as defendant in a suit under S.92 C.P.C., and that right is regulated by O.1 R.10.	Relied upon to affirm the Court's power under O.1 R.10 to add parties in S.92 suits subject to the rules governing joinder.
Johnson D Po Min v. U Ogh, AIR 1932 Rang 132	Plaintiffs are not entitled to claim against strangers to a trust; strangers are not necessary parties to such suit and, if wrongly joined, plaintiffs cannot pray in aid O.1 R.3 or R.10.	Arrested by the petitioner as supporting the argument that strangers should not be joined and that plaintiffs cannot wrongfully lead strangers into a suit; the Court considered this but did not accept it as bars in the present facts.
Abdur Rahim v. Abu Mohomed Barkat Ali Shah, AIR 1928 PC 16	Adding strangers and prayers beyond S.92 can change the nature of the suit, causing it to cease being representative; a decree based on a compromise in such altered suit cannot bind the public.	Relied on by petitioner to argue that unwarranted additions can alter the suit's representative character; the Court acknowledged the principle but held the present addition did not have that effect.

Court's Reasoning and Analysis

The Court proceeded in a stepwise legal analysis using the following reasoning, stated in the opinion:

Nature of Advocate-General's observation: The Court first examined the Advocate-General's recorded observation that "Rattan Chand had no authority under the law to join Shri Gur Parshad and Shri Shori Lal as co-trustees". The Court held that this observation was not a finding that Gur Parshad was not a necessary party; it was an observation about Rattan Chand's authority to effect such a joinder without court direction.
Scope of Order 1, Rule 10: The Court emphasized that O.1 R.10 C.P.C. empowers the Court to direct that other persons be made parties so that complete justice may be done and rights of all finally determined. The word "may" in sub-rule (2) gives the Court discretionary power to add parties even over the plaintiff's wishes where necessary for effective and complete adjudication.
Precedent-based test for fresh sanction: The Court surveyed precedent and distilled the following controlling principle — a fresh sanction of the Advocate-General is required only when the addition of a party would alter the nature or scope of a suit filed under S.92. The Court relied on multiple authorities (Kidar Nath Datt, Gobinda Chandra Ghosh, Abdur Rahim) to articulate this rule.
Application to facts: The Court examined Gur Parshad's factual position: his admitted role in managing Temple property along with Rattan Chand, his continued management after Rattan Chand's death, his possession and defense of Temple-related legal matters, and his allegation that the suit was collusive and intended to exclude him. Given these facts, the Court concluded Gur Parshad had a sufficient interest and that his addition as defendant would not alter the cause of action or widen the scope of litigation.
Balancing plaintiff's dominus litis and Court's discretion: While acknowledging the general rule that a court should not ordinarily add a person as defendant against the plaintiff's wishes, the Court held that discretion under O.1 R.10 permits addition where necessary for complete adjudication; thus the petitioner’s contention that Gur Parshad could not be joined was rejected.
Conclusion on sanction point: Applying the precedent-based test, the Court concluded that the Advocate-General's observation did not amount to a prohibition on joinder, and adding Gur Parshad would not amount to going behind the Advocate-General's sanction because the nature of the suit would not be altered.

Holding and Implications

Holding: The Court upheld the order of the Senior Sub Judge impleading Gur Parshad as a defendant and dismissed the revision petition.

Implications:

Direct effect: Gur Parshad remains impleaded as a defendant in the suit for appointment of trustees of the Bara Hanuman Temple Durgian; the trial court's order adding him is sustained.
Scope of precedent and broader implications: The Court applied established law about O.1 R.10 and the requirement of fresh Advocate-General sanction only when the addition would alter the nature or scope of a S.92 suit. The opinion does not announce any novel legal principle beyond applying those established tests to the facts at hand; the decision's direct consequence is confined to upholding the joinder in this case.

Judgment rendered by Prem Chand Jain, J.; another judge recorded concurrence ("I agree").

Show full summary ...

Bara Hanuman Temple Durgain, v. Gurbux Lal Malhotra And Others,

1. After obtaining sanction of the Advocate--General Punjab, under S. 92, C. P. C. (hereinafter referred to as the Code), Bara Hanuman Temple Durgian (hereinafter referred to as the Temple) through Durga Dass and Tilak Raj sons of L. Paras Ram who was the founder of the trust, filed the suit for the appointment of Gurbux Lal Malhotra, Gauri Shankar Sharma and Madan Lal Khanna as trustees of the Temple, which is a religious and charitable trust, as all the three trustees appointed by Sh. Paras Ram had died. In that suit, one, Gur Parshad filed an application under O. 1, R. 10 of the Code, for being impleaded as a defendant, alleging that he along with Rattan Chand and Shori Lal had been managing the Temple for the last four years and nine months, that after the death of Rattan Chand, he and Shori Lal had been continuing to manage the Temple as trustee managers and that after the death of Shori Lal, which took place in Feb., 1974, he alone managed the Temple and was in possession of its properties. He further alleged that the suit filed is a collusive one and has been filed with a view to grab the administration of the temple and that in his absence the suit could not be decided effectively and completely. The trial Sub Judge accepted the application of Gur Parshad and ordered the plaintiff to implead him as one of the defendants in the plaint. Being aggrieved with the order of the learned Senior Sub Judge for impleading Gur Parshad, as one of the defendants, the plaintiff came up in revision to this Court which was heard by Hon'ble the Chief Justice. After hearing the parties, the Hon'ble the Chief Justice, feeling that important legal issues are involved in the case, referred the matter to a larger Bench and that is how this Civil Revision No. 854 of 1976 has come up before us.

2. The order of the learned Senior Sub Judge impleading Gur Parshad as a defendant in the case has been challenged by the plaintiff on the following three main grounds :

(i) the Advocate--general having recorded a finding at the time of granting permission to sue under S. 92 of the Code to the effect that

"Rattan Chand had no authority under the law to join Shri Gur Parshad and Shri Shori Lal as co--trustees"

, the Court has no jurisdiction to permit Gur Parshad being joined as a defendant to the suit;

(ii) Permitting the impleading of Gur Parshad as defendant in the suit amounts to going behind the sanction of the Advocate--General and so suit under S. 92 can be allowed to be maintained against any person against whom permission to sue has not been granted by the Advocate--General; and

(iii) Gur Parshad respondent has to locus standi to claim to be added as a defendant. He is not a necessary party to the suit, and, therefore, he cannot be permitted to be added as a defendant against the wishes of the plaintiff--petitioner who is dominus litus and has control of the suit.

3. Admittedly Gur parshad was not a trustee appointed by L. Paras Ram, the founder of the trust. The contention of Gur Parshad, is that he had been managing the properties of the Temple along with L. Rattan Chand, that even after the death of L. Rattan Chand, he continued to do so since Feb., 1974 and is in possession of the properties of the Temple, that he had been defending some legal proceedings in which the plaintiff was a party and, therefore, he is very much concerned and interested in the present suit and that the suit cannot be effectively and completely decided without his presence.

4. At the time when the learned Advocate--General, Punjab, decided the application of Sarvashri Durga Dass and Tilak Raj sons of L. Paras Ram, under S. 92, C. P. C., L. Rattan Chand, one of the trustees appointed by Lala Paras Ram was alive. Lala Ratan Chand had put in an application in reply, in which he had stated that Shri Gur Parshad was taken as a co--manager in place of Shri Bansi Dhar and Sh. Shori Lal and Sh. Gur Parshad were managing the affairs of the Temple. It was in this background, that the learned Advocate--General, while granting permission, to sarvshri Durga Dass and Tilak Raj, for filing the suit under S. 92 of the Code observed that

"Shri "Rattan Chand had no authority under the law to join Shri Gur Parshad and Shri Shori Lal as co--trustees" without a direction from a competent Court to that effect"

. This observation of the learned Advocate--General does not amount to a finding that Gur Parshad was not a necessary party in this case. Order 1, R. 10 of the Code empowers the Court to direct that other persons be made parties so that complete justice may be done and the rights of all are finally determined.

5. Now it is to be seen as to whether in a suit field under S. 92 of the Code, any other person can be added as a defendant without the previous sanction of the Advocate--General. This point was considered by Bhandari, C.J., in Kidar Nath Datt v. Kishan Das Bairagi, AIR 1957 Punj 106, and it was observed that where such addition alters the nature of the suit, a fresh sanction of the Advocate--General is necessary. This matter also came up for consideration before a Division Bench of Rajasthan High Court in Ghanshyamlalji v. Collector, Udaipur, AIR 1958 Raj 161, wherein it was observed that:

"One of the objects of R.10 of O. 1 is to enable the court to try and determine once for all material questions, common to the parties and to third parties and not merely questions between the parties to the suit

6. In the case of Ghanshyamlalji (AIR 1958 Raj 1'61)(supra), the suit was field under S. 92 of the Code and in that suit Goswami Ghanshyamlalji field an application before the District Judge, in whose Court the suit was pending, under O. R. 10 of the Code, praying that he may be impleaded as a party. His location was rejected by the District Judge on the ground that it was open to him to bring a seperate suit to vindicate his private rights. The Division Bench of the Rajasthan High Court, after discussing the law on the point, came to the conclusion that the learned District Judge should have allowed the application of the applicant for being joined as a party under O. 1, R. 10 of the code and accordingly the revision field by Ghanshyamlalji was allowed.

7. The case of Suresh Singh v. Legal Remembrancer, U. P. Government, AIR 1937 Oudh 229, was also referred to in the case of Ghanshyamlalji (AIR 1958 Raj 161)(supra). In the case of Suresh Singh (supra), it was held that:-

* * * * Such person should be added as defendant in suit in order to enable Court to properly and completely adjudicate upon questions involved in suit.

8. In Vikrama Das Mahant v. Daulat Ram Asthana, AIR 1956 SC 382, the Hon'ble Judges observed that (at p. 390 of AIR):

"Therefore, a person who has been in de facto possession and management of the Asthan and its properties for a long time claiming to be its trustee under the decree of a Court, valid or invalid, has sufficient interest to maintain proceedings for the warding 'off of a cloud cast by the defendant's action against the interests of the Asthan."

9. In Gobinda Chandra Ghosh alias G. Ghosh v. Abdul Majid Ostagar, AIR 1944 Cal 163, it has been observed that:

"Once a suit is validly commenced after obtaining sanction as is necessary under S. 92 no fresh sanction is necessary at a further stage of the suit if the amendment of the plaint or the addition of the party does not alter the nature of the claim in the suit, but when such amendment or addition of party does change the nature or scope of the suit, a fresh sanction is required."

10. In Vaithilingam v. S. M. R. M. Ramalingam Pillai, AIR 1918 Mad 1071, it has been observed that:

"It is open to a Court to add a party was defendant in a suit under S. 92, Civil P. C., just as in any other suit. Its right to do so is regulated by O. 1, R. 10."

11. The learned counsel for the petitioner contended that no party can be added in a suit against the wishes of the plaintiff. He further pointed out that no person can join as defendant without the previous permission of the Advocate--General. He relied upon Johnson D Po Min v. U Ogh, AIR 1932 Rang 132, wherein it has been held that:

"Plaintiffs are not entitled to claim against strangers to trust either declaration of title or possession or any other relief--Strangers are not necessary parties to such suit and if plaintiffs have wrongly leaded them they cannot pray in aid provisions of civil P. C. (1908), O. 1, R. 3 or R.10."

12. He also relied upon Abdur Rahim v. Abu Mohomed Barkat Ali Shah, AIR 1928 PC 16, wherein it was observed that:

" A suit in respect of trust property was instituted by seven persons with the sanction of Advocate General. It was subsequently emended without his sanction by adding strangers to the trust as defendants and by adding prayers for relief not covered by S. 92. The suit was later on compromised by six out of the seven plaintiffs.

Held, that the nature of the suit was changed, that it ceased to be one of representative character and the decree based on the compromise, however blinding as against the consenting parties, cannot bind the rest of the public. Section 11', Expl. 6, haws no application to such a case."

13. As a rule, the Court should not add any person as a defendant in a suit against the wishes of the plaintiff but the word "may" in sub--r. (2) of R. 10 of O. 1 of the Code, gives a discretion to the Court and where it finds that the addition of a new defendant is absolutely necessary to adjudicate effectively and completely the matter in controversy between the parties, it will add a person as defendant even without the consent of the plaintiff. The contention of the learned counsel for the plaintiff, therefore, that Gur Parshad could not be joined as defendant is not acceptable.

14. The power given to the Court under O. 1, R. 10 of the Code is complete in all respects and it can join any person as plaintiff or defendant, who ought to have been joined or whose presence before the Court is necessary in order to enable it effectively and completely to adjudicate upon and settle all questions involved in the suit.

15. After considering the authorised on the point, we have reached the conclusion that where an addition of a party does alter the nature of the suit under S. 92 of the Code, a fresh sanction of the Advocate--General is necessary. In the instant case the observation of the learned Advocate--General, while granting the sanction, that L. Rattan Chand had no authority under the law to join Gur Prashad as a co--trustee will not amount to a finding that Gur Parshad was not a necessary party to the suit and if Gur Parshad is added as a defendant in the suit that will not amount to going behind the sanction of the Advocate--general.

16. Now it is to be seen as to whether Gur Parshad has any locus standi to claim to be added as a defendant and as such is a necessary party. It is not disputed that Gur Parshad has been looking after the property of the Temple even along with L. Rattan Chand, who was one of the trustees. The contention of Gur parshad is that he has been managing the Temple as a trustee--cum--manager and that in the legal proceedings in the past he has been representing and looking after the interests of the Temple. Further according to him, he is a person very much concerned and interested in the suit and without his presence as a party, the suit cannot be effectively and completely decided. The suit filed by the plaintiff is for the appointment of new trustees as all the three trustees appointed by L. Paras Ram, the founder of the Trust, have died. In the plaint, in para No. 13, it has been mentioned that Sh. Rattan Chand, one of the trustees, in his reply to the application under S. 92 of the Code before the Advocate--general had stated that he had joined with him Sarvashri Gur Parshad and Shori Lal as co--trustees. Thus it is evident that Gur Parshad has been looking after the property of the plaintiff Temple. His allegation is that the suit has been field by the plaintiff, in collusion with the impleaded defendants, to secure orders of the Court regarding its (Temple's) administration at his back in order to exclude him (Gur Parshand) from its management. Since the suit is for the appointment of trustees and Gur parshad, who has been looking after the affairs of the Temple, wants to defend the claim of the plaintiff, he (Gur Parshad) would be in a better position to explain to the Court as to whether the appointment of the defendants already impleaded, would be in the interest of the plaintiff or not. Moreover, if he is added as a defendant, the cause of action and the nature of the suit will not be altered so as to enlarge the scope of litigation. The order of the learned Senior Sub--Judge impleading Gur Parshad as defendant is, therefore, upheld and this revision petition is dismissed.

Prem Chand Jain, J.

17. I agree.

18. Revision petition dismissed.

Bara Hanuman Temple Durgain, v. Gurbux Lal Malhotra And Others,

Summary of Opinion: Bara Hanuman Temple Durgian — Civil Revision No. 854 of 1976

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff / Petitioner's Arguments

Gur Parshad / Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bara Hanuman Temple Durgain, v. Gurbux Lal Malhotra And Others,

Comments