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1935 Supreme(SC) 42
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MACMILLAN, SIR JOHN WALLIS, AND SIR SHADI LAL.
LALA ATMA RAM - Appellant
Versus
LALA BENI PRASAD - Respondents
On Appeal from the High Court at Allahabad.
Decided On : July 23. 1935.
Solicitors for appellant: Hy. S. L. Polak & Co.
Solicitors for respondents 1, 4 and 5: T. L. Wilson & Co.
In a representative suit for estate recovery, a next reversioner has a right ex debito justitiae to be added as a plaintiff if the original plaintiff withdraws. Summary rejection of such an application by a lower court constitutes a material irregularity revisable under Section 115 of the CPC.
Headnote:(A) Code of Civil Procedure, 1908 - Section 115 - Order 1, Rules 8 and 10 - Order 22, Rule 10 - Order 23, Rule 1 - United Provinces Court of Wards Act, 1912 - Section 55 - Revision of order - Addition of next reversioner as plaintiff - Representative suit - Material irregularity - A court may exercise revisional jurisdiction under Section 115 if the lower court acted with material irregularity; dealing with an application summarily without proper consideration or misapprehending the nature of the application constitutes such irregularity.
(B) Representative suits and rights of reversioners - Where a suit is filed on behalf of widows for recovery of estate, it is representative in nature as a decree would bind the next reversioner - The next reversioner has a right ex debito justitiae to be added as a plaintiff to continue the suit if the original plaintiff withdraws and the beneficiaries are incapacitated.
Facts of the case:
A guardian instituted a suit for recovery of immovable properties on behalf of two widows. The guardian subsequently applied to withdraw the suit. The widows and the next reversioner applied to continue the action. The trial court rejected both applications and dismissed the suit, holding that the widows were debarred from suing by local law and the reversioner was not a necessary party. The High Court, in revision, upheld the rejection of the widows' application but allowed the reversioner to be added as a plaintiff.
Findings of Court:
The trial court acted with material irregularity by summarily rejecting the reversioner's application. The suit was representative in nature, and the next reversioner, whose interests would be affected by the outcome, had a right to be added as a plaintiff to ensure justice.
Issues: Whether the trial court's summary rejection of the reversioner's application constituted a material irregularity justifying revision under Section 115 of the Code of Civil Procedure, and whether a next reversioner could be added as a plaintiff in a suit filed by a guardian on behalf of widows.
Ratio Decidendi: A suit filed on behalf of widows for estate recovery is representative because its outcome binds the next reversioner. Consequently, the next reversioner is entitled ex debito justitiae to be added as a plaintiff to continue the suit if the original plaintiff withdraws. Furthermore, a failure by a lower court to properly consider an application or a misapprehension of its nature constitutes a material irregularity under Section 115 of the Code of Civil Procedure.
Result: Decree of the High Court varied; decree of the trial court dismissing the suit recalled; next reversioner added as plaintiff; guardian dismissed from the suit; widows' application dismissed without prejudice to applying anew.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- joinder of parties
- withdrawal of suit
- revision
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civil procedure
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property law
- reversionary interests
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administrative law
- court of wards act
Judgement
Appeal (No. 64 of 1934) from an order of the High Court (May 2, 1933) which varied an order of the First Subordinate Judge of Saharanpur (May 11, 1932).
The Collector of Saharanpur, as guardian of two widows under the U. P. Court of Wards Act, 1912, instituted a suit in the Court of the Subordinate Judge of Saharanpur for the recovery of immovable properties inherited by their deceased husband. Before any written statements were filed by the defendants, he applied for leave to withdraw the suit. The widows thereupon applied to be allowed to continue the suit in their own names, and the next reversioner applied to be added as plaintiff to continue the action.
The Subordinate Judge rejected the application of the widows on the ground that they were debarred from suing by s. 55 of the Court of Wards Act, and the application of the reversioner on the ground that he was neither a party to the suit nor came within Order xxii., r. 10, of the Code of Civil Procedure, and dismissed the suit.
The High Court, in the exercise of its powers under s. 115 of the Code of Civil Procedure, held that the application of the widows was rightly rejected, but that the suit was a repre sentative suit and that the reversioner was entitled to be added, and made an order in the following terms " We accordingly modify the order of the Court below and direct that Beni Prasad (the reversioner) be made a plaintiff in the suit and that the suit be tried as between Beni Prasad on the one hand, and the original defendants on the other.”
1935. May 27, 28, 30, 31. Dunne K.C., Parikh and Sir Tej Bahadur Sapru for the appellant. Under Order xxiii., r. 1, of the Code of Civil Procedure the Collector was entitled to withdraw the suit. He was the only person entitled to sue. The widows are debarred from suing by the U. P. Court of Wards Act, 1912, s. 55. In a representative suit a person may apply to be added as a party under Order 1., r.
8. This suit was not brought as a representative suit. Beni Prasad can, as a reversioner, file a suit for a declaration. He is not a necessary party in this suit and cannot be added under Order 1, r. 10. The decisions in Venkatanarayana Pillai v. Subbammal ( 1915) L. R. 42 I. A. 125.) and Raja Rathnam Ayyar v. Halayasundram Ayyar (( 1923) 44 Mad. L. J. 322.) do not touch this case. The suit was not for property inherited by the widows from their husband but for property to which he had an actionable claim. The Subordinate Judge acted neither illegally nor with material irregularity and the High Court had no jurisdiction under s. 115 to revise the order Rajah Amir Hassan Khan v. Sheo Baksh Singh .
(( 1884) L. R. 11 I. A. 237.)
[LORD MACMILLAN. The High Court found the Subordinate Judge was in error in three ways
(i.) He dealt with the matter summarily, i.e. he did not give it proper consideration.
(2.) He misapprehended the position of Beni Prasad.
(3.) He failed to do justice between the parties.]
The Subordinate Judge decided the matter after hearing arguments. An erroneous view of the law would not be a material irregularity. Beni Prasad wished to come in because of an arrangement with the Collector. It was argued in the High Court for the first time that he had a right as a contingent reversioner. There is no decision of the Privy Council as to meaning of material irregularity. [Reference was made to Balakrishna Udayar v. Vasudeva Aiyar (( 1917 L. R. 44 I. A. 261, 267, 269.); Buddhu Lal v. Mewa Ram ( 1921) I. L. R. 43 A. (F. B.) 564.); and Sundaram v. Mausa Mavuthar . (( 1921) I. L. R. 44 M. 554.)] The suit was dead when the High Court refused the application of the widows and it could not go on to pass an order in favour of Beni Prasad.
De Gruyther K.C. and Wallach for respondents Nos. 1, 4 and 5. The High Court had jurisdiction under
s. 115 Umed Mal v. Chand Mal . (( 1926) L. R. 53 I. A. 271.) The Subordinate Judge dismissed the application of the widows summarily on the ground that they had no standing under s. 55
