HARGOVAN RAMJI Vs. MULJI HARJEVAN

JUDGEMENT

(1.) The question in this case is whether the plaintiff is entitled to maintain this suit, having regard to the proceedings in a previous suit instituted by him in the year 1902. In that year, he filed suit No. 254 against certain persons whom he alleged to be in possession of a room used as a temple in a house which was his property. In the plaint he did not set out his title to the property and as appeared in the course of the trial he had avoided stating circumstances which raised a question as to whether the whole property was not the subject of a religious trust. He succeeded in the first Court in getting a decree for ejectment against the defendants with respect to the room used as a temple. In the Court of Appeal it was held that the house was impressed with a religious trust and his only possible claim must be based upon his right as manager. He was then offered an opportunity of altering his case so as to base it upon his right as manager under the will of the person who established the trust. That offer was, however, refused and the suit of the plaintiff was dismissed. He has now filed this suit alleging, what he ought to have alleged in the first suit, the will of Champa who established the trust and relying upon a passage in that will to show that he is entitled as manager to eject the defendant as manager from the room used as a temple and to get an account from the defendant of the profits and emoluments which he has received as manager.

(2.) Now whether he can maintain this suit in the face of the provisions of Section 13 of the Civil Procedure Code of 1882 depends upon the question whether he is now suing in a capacity in which he is a stranger to the capacity in which he sued in the former suit. If he is not so suing, then the claim which he is now putting forward is a claim which might and ought to have been put forward in the previous suit. If he is so suing, then it is a claim which has no proper connection with the previous suit. That, I think, is the conclusion to be drawn from the two most recent Bombay cases which have been relied upon in argument, namely Guddappa V/s. Tirkavpa 25 B. 189; 2 Bom. L.R. 872 and Babajirao Gambir Singh V/s. Luxmandas Raghunathdas 5 Bom. L.R. 932. It has been argued by Mr. Chitre, in his excellent argument, that in this case the plaintiff really sues on behalf of the temple and, therefore, on the authority of the case which I last referred to, he must be taken suing as a stranger to the interest in which he sued in the first suit. It is, however, pointed out by Sir Lawrence Jenkins in that case that in connection with the property of a Math there are two distinct classes of suits those in which the manager seeks to enforce his private and personal rights, and those in which he seeks to vindicate the rights of the Math.

(3.) Now this case is, I think, clearly a case in which the manager seeks to assert his right to be a manager against another person who claims the right to manage. He is not seeking to vindicate the rights of the Math against a stranger to the temple who is improperly using the property of the endowment. He is, therefore, asserting a purely personal right in his own personal interest and it is a right which, in my opinion, might and ought to have been put forward in the previous suit. As remarked by Mr. Justice West in Girdhar Manordas V/s. Dayabhai Kalabhai 8 B. 174 at p. 180 the cases show that all the grounds relied on by the plaintiff and so connected together as to be properly the subject of a single investigation ought to be brought forward together. Both in this case and in the previous case, the investigation would be concerned with the terms of Champa's will and the inscription on the property which she dedicated to religious purposes. The whole matter might have been decided in one single investigation and, therefore, we are of opinion that Mr. Justice Russell was right in holding that this suit is not maintainable.