Spencer, J.:— An objection has been taken that this second appeal will not lie, as the suit is of a Small Cause nature.
2. It is, however, clear from the plaint that the cause of action was not the value of the goods received by the temple, but the dues accruing to the plaintiff by reason of his hereditary office as purveyor of ghee for a fixed annual allowance (see Article 13 of the second Schedule, Provincial Small Cause Courts Act).
3. Mr. Menon has raised three points, viz., that the suit as framed will lie without permission being obtained under Section 86 of the CPC.
1. Because the suit is not to obtain any personal relief against the Raja of Cochin or against his State.
2. Because the first defendant is really the Dewan of the Cochin State and not the Raja
3. Because the suit is against the temple trust, which is an aggregate Corporation and because any one of the trustees has, he argues, no separate and independent existence.
4. The first point was considered and decided by Tyabji, J., in Kuthaldath Narayan Mootha v. Cochin Sircar(1), in which the defendant was described in a similar manner to the description in this suit viz., the Cochin Sircar represented by the Dewan of Cochin.
5. I agree with what the learned Judge observed on this point, and I would add that this section makes no distinction between cases in which personal relief is asked for and others. In every suit whether a particular defendant is a pro forma defendant or a principal party, the Court must be taken to have the power to order his appearance in person under O. 5, R. 3, or to direct him to pay costs and otherwise subject him to the jurisdiction of the Court by making him obey its directions.
6. The second point has not been raised either in the lower Appellate Court or in the second appeal memorandum and having regard to paragraph 2 of the plaint and to paragraph 1 of the District Munsif's judgment, it is clear that the plaintiff's case till now has been that the trusteeship was vested in the Raja rather than in his Dewan and that in mentioning the Dewan and describing him as representative of the Cochin Sircar, the plaintiff was merely complying with the provisions of Section 87 of the CPC.
7. The third point does not arise in this suit, which is ostensibly against the trustees for what they have done or rather left undone.
8. The second appeal fails and is dismissed with costs.
Coutts Trotter, J.:— I am of the same opinion. When the pleadings are properly translated, it is apparent that the Cochin Sircar is the first defendant, and a reference to Section 87 of the CPC shows that this is tantamount to suing the Raja which is forbidden by S. 86, see Gilmore v. State of Travancore(2).
9. The suggestion that S. 86 does not apply where the Prince or Ruler is sued only in a representative character as a trustee is to my mind unarguable.
10. I express no opinion as to whether the objection to the jurisdiction is or is not good, as, in my opinion, the appeal fails on the merits in any event.
S.N/R.K
11. Appeal dismissed.