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 of th