Jessingbhai Jagjivandas v. Jivatlal Pratapsi

Blagden, J.:— This is a motion by the plaintiffs ??? a suit brought with the leave of the learned Advocate. General under section 92 of the cpc, against four defendants. But for a mere accident there would have been five defendants. With regard to the fifth person who was omitted from the list of the defendants, the plaintiff's attorneys, I understand, ??? back the registered ??? in which they had placed their letter ??? action with the gloomy word “dead” written on it by some postal authority. After the ??? of the Advocate-General was obtained and after the suit was commenced it transpired that this statement by the postman was “grossly exaggerated”, and the man was in fact alive and well. In these circumstances the plaintiffs approached the Prothonotary yesterday and obtained from him leave to amend the plaint by adding the person who now appears as the fifth defendant. I am going to say as little as I can about the merits of the case, which have not been discussed at all before me, but the relief sought against all the defendants is their removal from office as trustees of a certain trust, the appointment of new trustees, in their place, an order on the defendants to transfer the trust properties to the new trustees, the framing of a scheme, an interim receiver, an interim injunction and further or other relief. The, motion for an interim injunction coming before me today and, Mr. Purshottam appearing for defendants Nos. 1, 2 and 4, the latter took a preliminary objection, namely, that the suit as now framed has never been sanctioned by the Advocate-General and therefore that what the plaintiffs had done yesterday had rendered the whole suit bad. In support of this contention, the principal case on which he relied is a decision of Davar, J. in this Court in 36 Bom. 1681 which is very nearly on all fours with the present case. The learned Judge actually decided only that the suit could not proceed against the defendant who was added by the unsanctioned amendment. But, in point of fact, that was all he had to decide, because the case as against the other two defendants had already been disposed of by the time he gave his reported judgment. It is, I think, clear that he thought that if the suit had not been already disposed of as against the other defendants, it would have been had not only as against the new defendants but as against the old defendants also. He referred, in the course of his judgment, to one earlier Bombay decision and to a decision in 26 ALL. 1622 to the effect that the sanction of the Advocate-General is a condition precedent to the institution of a suit under S. 92—a fact which I should have thought was so obvious that even Allahabad could not decide to the contrary. He also referred to two out of, I believe to be, a number of English decisions to the effect that an amendment of proceedings in an English relators' action cannot be allowed without the sanction of the Attorney General. I know that in one of them, (1840) 2 Beave 3133, the Master of the Rolls remarked that he did not know anything more important than that the authority and discretion of the Attorney General in all these proceedings “should be maintained perfectly unbroken and unfettered and unbiassed.”

2. On the face of it, it seems to me, if a suit is amended at any rate by the introduction of a new party or in some other quite substantial manner the suit is not identical with the suit which it was at its commencement. In this particular case the matter is entirely technical, but it might not be. The Advocate-General, might have sanctioned the suit against, say, the four defendants and have been perfectly unwilling to sanction the suit against the fifths person, and if the plaintiffs were at liberty without his sanction, to bring new parties on the record as defendants, it might mean that, the protection afforded by S. 92 to trustees of public charities would be rendered nugatory. Therefore, though technical I think the point is of some substance and importance.

3. Against Mr. Purshottam's contention that the present suit in effect committed suicide yesterday at the hands of the plaintiffs' when the amendment in question was allowed, Mr. Banaji has drawn my attention to a decision of a bench of this Court in 43 Bom. L.R 7064. In point of fact, in that case the amendment under consideration had been sanctioned by the Collector of the district concerned, discharging the functions of the Advocate-General by virtue of a Government resolution. It was contended, as it happened, by Mr. Purshottam, that the Government resolution did not empower him to sanction an amendment of the proceedings but only to sanction their commencement. This point the learned Judges seem to have decided against him, which means that, in any case, the amendment there in question was sanctioned by a person empowered to sanction it and, therefore, the suggestion made the Court that an amendment of proceedings in a suit under S. 92 can be made without sanction was not necessary for their Lordships' decision. However, in what I think must have been a considered judgment—though it does not so appear from the report—Broomfield, J. in giving the judgment of the Court is reported as having said this (p. 715);

“We think, the true position is that it is for the Court to decide in suits under S. 92 as in any other suit whether an amendment is permissible, and the consent of the Advocate-General or the Collector as the case may be is really evidence which has to be taken into consideration before deciding whether the amendment should be allowed. We can see no reason why amendments which do not substantially change the character of the suit or enlarge the scope of it should not be made by the Court itself without sanction. Amendments which enlarge the scope of the suit, for instance by allowing further reliefs, without substantially changing its character, may be made with the sanction of the Advocate-General or the Collector, that sanction, as I say, being evidence that the suit after amendment is to all intents and purposes the same suit and not a different one. Amendment substantially changing the character of the suit would, we think, not be permissible even with sanction.”

4. I do not myself understand why the learned Judges referred to “evidence” that the character of the suit remained the same, for, surely whether a suit is the same suit or not is a question of law which any competent Court can determine merely by reading the amended pleadings and comparing them with the unamended pleadings; and I cannot help feeling that ??? some mistake has been made in reporting ??? was said on the point. But a part from that in opinion, when the Court referred to amendment which “did not substantially change character” of the suit and which Broomfield Macklin, JJ. thought could be made without ??? I do not think they intended for moment to refer to anything more ??? than, say, an amendment correcting some ??? slip, as for example, if the word “plain had been used for “defendant” by mistake, or reacting an error in punctuation or something that kind; I certainly do not think they in ??? to suggest that a party could be ??? a defendant without the sanction ??? obtained of the Advocate General. An ??? of that kind, it seems tome, necessary enlarges the scope of the suit. Be that as it ??? in my opinion if this expression of opinion ??? variance with the decision of Davar, J., ??? do not think it really is, I have little doubt the proper course for me to do would ??? follow the decision of Davar, J. supported is by English authorities. I therefore, hold the suit has since yesterday ??? had and therefore I can make no order on the motion.

5. Now, the next question is, how the technical difficulty can best be cured. The plain apply and I give them leave, to withdraw ??? suit, which will, of course, involve ??? costs of the suit and the motion to the defendant who appear.

6. These costs I quantify at Rs. ??? With the consent of the appearing defendant order that the affidavits filed on this ??? may be returned to the parties and used ??? re-swearing in support of and opposition to motion which the plaintiffs may make ??? suit which they intend to bring after getting Advocate-General's sanction, and I give ??? leave to bring a fresh suit against the five ??? who at present appear on the record, of course, the sanction of the Advocate-General in respect of the same subject-matter, ??? O. 23, R. 1 of the CPC.

7. Order according.