Vaithilingam, Minor ... v. S.M.R.M Ramalingam P...

JUDGMENT

The suit was brought by two worshippers under Sec. 92 of the Civil Procedure Code to remove a trustee. The son of the trustee applied to be added as a defendant. The Subordinate Judge rejected the application. Mr. Justice Coutts Trotter, while holding that the son was a proper and necessary party, dismissed the Civil Revision Petition on the ground that no question of want of jurisdiction arose which necessitated the interference of the High Court.

It is clear that, if the son is not added as a defendant, he would be precluded from putting forward his claim to hereditary trusteeship subsequently. See Ramdos v. Hanumantha Rao. The suggestion that the Collector may be induced to sanction the institution of another suit to vary the scheme is so unlikely that we are right in holding that the petitioner will be practically denied his rights, if he is not allowed to come in. In our opinion, any order which has the effect of depriving a party of all rights of redress either in the suit or in subsequent proceedings must be deemed to have been made illegally in the exercise of a Court's jurisdiction. We agree with the learned Judge that the petitioner should have been allowed to be added a party, and we think this is a proper case for interference under Sec. 115 of the Civil Procedure Code and Sec. 107 of the Government of India Act of 1915.

Mr. G. S. Ramachandra Aiyar argued in support of the order of the Court below that it is not open to a Court to add a party defendant under Sec. 92 of the Civil Procedure Code. He relied on Abdul Rehman v. Cassum Ebrahim. Mr. Justice Davar seems to have thought that the addition of a defendant would change the nature of the suit. We are unable to agree with him. The sanction is given by the Collector or the Advocate-General to remove the misbehaving trustee. That is the essence of the suit. What has to be done after removal is entirely in the hands of the Court. The Advocate-General may be consulted as regards the scheme, but it is not his proposal that would bind the Court. The Court has to consider the conflicting interests and frame a scheme. In doing so, it may have to bring on record, persons or communities who should be heard before final orders are passed. Consequently, in regard to what a Court does after the institution of the suit, it exercises its discretion without regard to what influenced the Advocate-General or the Collector in sanctioning the institution of the suit. Its right to add parties is regulated by the Code of Civil Procedure Just as in any other suit. See Raghavalu Chetty v. Pellati Sitamma and Parameswarem Munpu v. Narayanam Namboodri. We are therefore not prepared to agree with the contention of the learned Vakil for the Respondent.

Another objection was that a defendant should not be added against the wishes of the plaintiffs. It is true that a plaintiff should not be compelled to fight a case which he did not bring before the Court. That is the reason of the rule in McCheane v. Gyles. Such a consideration does not apply to the present case. The plaintiffs are legally known as relators. Their duty is to bring to the notice of the Court which is charged with the protection of trusts cases of mismanagement, etc. They have no personal interests to secure in a suit under Sec. 92 of the Code of Civil Procedure. When the case is before the Court, the Court acts on the information furnished, to safeguard not only the trust, but also the interests of persons having special or individual rights. The last sentence of O. 1, R. 10, cl. 2 of the Code of Civil Procedure, covers this case.

We must reverse the order of the learned Judge and that of the Subordinate Judge and direct that the appellant be added as a party-defendant. He should not be allowed to reopen any questions on which evidence has already been let in. He must be given an opportunity only to adduce evidence to establish his personal right in any scheme that may be framed.

We make no order as to costs in this Court. Costs in the Lower Court will abide the result.

M. R.Appeals allowed.