DAVE, J. - (1.) THIS is an application under sec. 115 of the Code of Civil Procedure and Art. 227 of the Constitution of India by one of the defendants, namely, Shri Kapoor Chand Sanghi, challenging the jurisdiction of the learned District Judge, Bharatpur, to entertain and try Civil Suit No. 2 of 1956 filed in his court and questioning the validity of his order passed therein on 6th July, 1960.
(2.) THE facts giving rise to this application and which are not in dispute between the parties are, that four persons, namely, Sarvshri Narainlal, Moolchand, Mangilal and Seth Kesrichand sought permission of the Advocate General, Rajasthan, under sec. 92 of the Code of Civil Procedure, for filing a suit against the President, the Secretary and 26 other members of the Executive Committee, Jain Atishaya Kshetra Shri Mahaveer Swami, Chandan Gaon Naurangabad (Rajasthan) for certain reliefs, which need not be mentioned here. On the 10th of September, 1955, the Advocate General granted the required permission to the said four applicants for filing the suit within 6 months from the date of his order. THEreafter, three out of four above-noted applicants, namely, Sarvshri Narainlal, Moolchand and Seth Kesrichand filed Civil Suit No. 2 of 1956 in the court of the District Judge, Bharatpur, on 6th March, 1956. One of the applicants, namely, Mangilal had died after the grant of the permission by the Advocate General and prior to the institution of the suit and, therefore, he could not be impleaded as a plaintiff. One of the objections, which was raised on behalf of the defendants in their written statement was, that the suit was not maintainable on the strength of the permission obtained by the plaintiffs from the Advocate General on account of the demise of Shri Mangilal. Issue No. 23, which was based on this objection, was, therefore, framed as follows: - "whether the suit is not maintainable on the strength of the permission obtained by the plaintiffs along with Mangilal, who died prior to the institution of the suit?" THE learned District Judge decided this issue on 6th July, 1960, against the defendants and the present application is directed against that order. It is urged by learned counsel for the petitioner that the Advocate General had given his consent for filing a suit to four persons and, therefore, only three persons had no right to file the suit. It is urged that the suit as instituted did not conform to the consent of the Advocate General and, therefore, it ought not to have been entertained by the trial court. According to the learned counsel, if these three persons wanted to file a suit, they should have obtained fresh permission of the Advocate General. It is contended that the learned District Judge had no jurisdiction to entertain and try the suit, as it was framed, and that since he had wrongly assumed his jurisdiction by deciding Issue No. 23 erroneously against the defendants, his order should be set aside and he should be directed not to proceed with the case. In support of his arguments, learned counsel has referred to Mst. Ali Begam Vs. Badr-ul-Islam Ali Khan (1 ). In reply, it is urged on behalf of the plaintiff-non-petitioners that Shri Mangilal having died prior to the institution of the suit, he could not possibly be impleaded as a plaintiff, that under these circumstances it could not be said that the suit as instituted did not conform to the consent of the Advocate General, that there was no provision in the Code of Civil Procedure for obtaining a fresh permission of the Advocate General in such cases, that the view taken by the learned District Judge was correct and the application should, therefore, be dismissed. He has placed his reliance on Sheo Ram Vs. Ram Chand (2 ). In that case (2) also, one of the twenty persons, to whom sanction had been given to file a suit under sec. 92 of the Code of Civil Procedure, had died prior to the institution of the suit and therefore it was contended on behalf of the defendants that the suit by the remaining persons was not brought regularly. This objection was dismissed by Skemp J. with the following observation: - "after reference to two Privy Council ruling 48 I. A. (Anand Rao Vs. Ram Das Dadu Ram) and I. L. R. (1938) Lah. 383 (Ali Begam Vs. Badrul Islam Ali Khan), I hold that the suit was regular. In 48 I. A. 12 their Lordships said-: "there was also a point that the persons who originally raised the suit and got the sanction having died the suit could not go on, but there does not seem any force in that point either, it being a suit which is not prosecuted by individuals for their own interests, but as representatives of the general public. " Learned counsel for the non-petitioners has not been able to lay his hands on any other authority in support of his argument. Regarding the view taken in Sheo Ram's case (2) by Skemp J. it is urged by learned counsel for the petitioner that the authorities on which the learned Judge had based his order did not support his view and the attention of the learned Judge was perhaps not drawn to the observations of their Lordships of the Privy Council to the contrary. We have carefully considered the view expressed by learned Skemp J. , but with great respect, we find it extremely difficult to find any support for that view in the observations of their Lordships of the Privy Council made in the two cases referred by him. In Raja Anand Rao Vs. Ramdas Daduram (3) the facts of the case do not appear in detail in the judgment of their Lordships but from the observations which have been reproduced above it cannot be said definitely if any of the persons, to whom sanction was given to file a suit under sec. 539 of the Code of Civil Procedure, as it stood at that time (now equivalent to sec. 92 of the Code), had died before the institution of the suit in the trial court. On the contrary, it appears from the use of the words "the persons who originally raised the suit" that the person to whom sanction was given were alive till the institution of the suit and they had actually instituted the suit, but some of them died thereafter, i. e. , during the pendency of the suit. It was in these circumstances that an objection was raised on behalf of the defendants that the persons who originally raised the suit having died, the suit could not be proceeded and this contention was repelled by their Lordships by observing that there was no force in the argument, since it was a suit which was not prosecuted by individuals having their own interests but as representatives of the general public. As we shall point out presently, there are numerous other authorities to support the view that if some one of the persons, who have obtained the sanction of the Advocate General for filing the suit under sec. 92, Civil Procedure Code and who have actually instituted the suit, dies after the institution of the suit, the suit does not become defective for that reason and the remaining plaintiffs can proceed with the case. Raja Anand Rao's case (3) therefore cannot be taken as an authority in support of the view expressed by learned Skemp J. in Sheo Ram's case (2 ). In Mst. Ali Begam's case (1), it was observed by their Lordships as follows: - "where the consent in writing of the Advocate General or Collector has been given to a suit by three persons as plaintiffs the suit can not validly be instituted by two only. The suit as instituted must conform to the consent. On the other hand, if the three persons join as plaintiffs and two of them die pending suit, the suit does not become defective or incompetent: 48 I. A. 12 (Anand Rao Vs. Ramdas Daduram ). There is no provision whatever in the Code for recourse being had to the Advocate General or Collector during the course of a suit or of any proceedings in appeal. As sub-sec. (2) of sec. 92 sufficiently shows, the consent in writing is a condition of the valid institution of a suit and has no reference to any other stage. When once validly instituted it is a representative suit subject to all the incidents affecting suits in general and representative suits in particular. " It is clear from the above observation that their Lordships again referred to Anand Rao's case (3) and from the detailed facts which must be before their Lordships at that time, it appeared that out of three persons, who had obtained the sanction and joined as plaintiffs at the time of the institution of the suit, two had died after the institute on of the suit and during its pendency. From the observation which their Lordships have made about Anand Rao's case (3) in the above extract it is clear that it was not a case in which certain persons, to whom sanction had been given, had died prior to the institution of the suit. It is further clear from the said observation that in the view of their Lordships all those persons to whom sanction is given by the Advocate General or Collector must join as plaintiffs at the time when the suit is filed. This position is crystal clear from the instance given by their Lordships to the effects that if the consent in writing of the Advocate General or Collector has been given to three persons, the suit cannot be validly instituted by two of them only. Their Lordships had further stressed that "the suit as instituted must conform to the consent". The further observation of their Lordships shows that the position changes after the suit is instituted. If after the institution of the suit one or more of the plaintiffs die, the suit does not become defective or incompetent and the surviving plaintiffs may proceed with the case. Similarly, the surviving plaintiffs may proceed with the appeal, because there is no provision in the Code for approaching the Advocate General for a fresh consent during the course of the suit or appeal. It may be pointed out here that sec. 92, sub-sec. (1) of the Code of Civil Procedure provides that "in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit" in the court mentioned therein and for the purposes detailed therein. Then, sub-sec. (2) clearly lays down that "save as provided by the Religious Endowments Act, 1863, or by any corresponding law in force in the territories which immediately before the 1st November, 1956, were comprised in Part B States no suit claiming any of the reliefs specified in sub-sec. (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section. " The language of sub-section (2) is peremptory and it lays down in unambiguous term that no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is referred therein except in conformity with the provisions of that sub-section (1 ). To this rule, there are certain exceptions which do not apply to the present case and need not be narrated here. It is, therefore, clear that the suit in the present case ought to have been instituted in conformity with the provisions of sub-section (1) and if it was not so instituted, the court entertaining it would have no jurisdiction to entertain it. Now, sub-section (1) allows two or more persons having an interest in the trust to institute a suit, but that can be done if they have obtained the consent in writing of the Advocate General. If the Advocate General has given his consent to four persons, they may institute the suit in conformity with that consent. It is not permissible for those four persons to drop out anyone of them, nor to add anyone in the array of plaintiffs. It was almost conceded by learned counsel for the non-petitioners himself that in view of the observations of their Lordships of the Privy Council in Mt. Ali Begam's case (1), the name of Mangilal could not be dropped out by the remaining plaintiffs if he were alive by the time the suit was instituted, but it is argued by him that Mangilal having died prior to the institution of the suit, it could not be said that the institution of the suit by the remaining three did not conform to the consent of the Advocate General. We have given our due consideration to this argument, but we find it difficult to accept it in view of the clear observation of their Lordships of the Privy Council in Mt. Ali Begam's case (1 ). In Maddala Bagavananarayana and another Vs. Vadapali Perumaliacharyualu and others (4) the question before their Lordships was whether in a case where more than two persons interested in the trust had obtained the necessary consent, any two of them could sue without others. It was observed by their Lordships as follows: - "we think the language used shows that the persons authorised to sue are all the persons to whom the consent has been given, and not any two of them. " In (Davurur) Pitchayya and another Vs. (Divi) Venkatakrishnamacharlu and others (5) a similar question arose before a larger bench of the same court. It was observed as follows: - "as regards the maintainability of the suit we think that the suit by some only of the persons to whom sanction was given under sec. 92 would not lie. The object of requiring sanction or permission before such suit are instituted under sec. 92 is to safeguard not only the right of the public but also the rights of the institution and the trustees. The suit being a representative suit, it is necessary to see that the persons who come forward are persons who have an interest in the temple and persons who can be safely entrusted with the conduct of the suit. Even though the whole public are technically parties, still the plaintiffs who file the suit have the conduct of the suit and very large powers in the shaping and the conduct of the suit. . . . . . . . . . . It is also for the benefit of the institution and of the trustees because it affords a safeguard against impecunious improper persons coming as plaintiffs and involving the trust in litigation and expenses and it is also a safeguard that the persons are substantial persons from whom if the suit fails the costs can be recovered and not merely men of straw. If two out of three or more persons to whom sanction was given can file a suit, it may be that the substantial persons having got the order take no further part leaving the trustees and the institution remediless as regards the recovery of costs. The authority giving the sanction must consider the various aspects before giving the sanction and one important consideration should be as regards the status and position of those who come forward to represent the community. " Then, after referring to certain authorities, their Lordships came to the conclusion that "having regard to these considerations we think that where permission or sanction is given by name to more than two persons, that power should be exercised by them all". We respectfully agree with the view expressed above and it would appear that no distinction can be made between cases in which some person or persons out of those to whom consent has been given by the Advocate General die prior to the institution of the suit and those where someone or more of them drop out on account of some other reasons. At the time when consent is given say, to three or four persons, the authority giving the consent, keeps in its view the status, reliability and other factors with regard to all of them and it is not for the court to say whether that authority would or would not have given its consent if those persons, who drop out or those who die prior to the institution of the suit, were not there at the time when the consent was given. The suit cannot be taken to conform to the consent of the Advocate General unless it is instituted by all those to whom the consent is given under sec. 92 Code of Civil Procedure. The same view was taken in Mulchand Chandumal and another Vs. Harkishan Das Parmanand and others (6) and it was further observed that it was not open to the parties to contract themselves out of section 92 and to say that they would not mind if the law in this matter is or is not observed. Similar view was expressed in Syed Sibte Rasul Vs. M. Sibte Nabi and others (7 ). Learned counsel for the non-petitioners has referred to Parmeshri Das and others Vs. Girdhari Lal (8), but it is of no help to him in the present case. In that case, it was observed that "the necessity for the cooperation of two or more persons in a suit brought under sec. 92, Civil P. C. , respected only to the institution of the suit, so that a surviving plaintiff-appellant alone in such a case is competent to carry on the appeal. " The position, which thus emerges from a review of all the authorities cited above, is that where consent is given by the Advocate General to two or more persons having an interest in the trust to file a suit under sec. 92, Civil Procedure Code, all those persons to whom consent has been given must join as plaintiffs, because the suit as instituted must conform to the consent. It is not open to some of them only to file a suit either because others have dropped out having been won over by the defendants or for any other reason or because they have died; but once a suit is validly instituted, it does not become defective or incompetent simply because of the death of someone or more of the plaintiffs. The surviving plaintiffs can proceed with the suit or with the appeal, if it becomes necessary.
(3.) IT appears from the order of the learned District Judge that although he took great pains in writing out the impugned order, the import of the observation of their Lordships of the Privy Council in Mt. Ali Begam's case (1) was not properly appreciated by him. In our opinion, Mangilal having died before the institution of the suit, the suit as instituted did not conform to the consent of the Advocate General and since it was not validly instituted, the learned District Judge had no jurisdiction to entertain it. It was urged by learned counsel for the non-petitioners that even if this Court comes to the conclusion that the learned District Judge had no jurisdiction to entertain and try the case, it should not interfere in the matter at this stage, since it is open to the defendants to file an appeal when the entire case is decided. In support of his contention, learned counsel has referred to Purohit Swarupnarain Vs. Gopinath and another (9 ). In this connection it would suffice to say that the petitioner has not filed this application only under sec. 115, Civil Procedure Code, but also under Article 227 of the Constitution of India. We have already pointed out above that the provision of sec. 92, sub-sec. (2), Civil Procedure Code, is mandatory and it prohibits the institution of a suit except in conformity with the provision of sub-sec. (1 ). Having found that the suit was not instituted in conformity with sub-sec. (1) of sec. 92 and that the learned District Judge had no jurisdiction to entertain tin-suit as it was framed, we think that it becomes our solemn duty to restrain him from proceeding further in the case. In Chaube Jagdish Prasad and another Vs. Ganga Prasad Chaturvedi (10) it was observed by their Lordships of the Supreme Court even with regard to Sec. 115, Civil Procedure Code that if a subordinate court decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it, or deprives itself of jurisdiction so vested, then the power of interference under sec. 115, Civil P. C. becomes operative. In the present case, the petitioner has even invoked the powers of this Court under Article 227 of the Constitution of India and, under these circumstances, we see no force in the contention raised by learned counsel for the non-petitioners. The application is, therefore, allowed and the order of the learned District Judge, Bharatpur, dated 6th July, 1960, is set aside. In view of the technical nature of the objection the parties are left to bear their own costs. .;