1956 (1) TMI 40 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the appeal against the decree for cost.
2. Right of Mahinder Singh to continue the suit after the death of Mt. Nunawati.
3. Nature of the suit brought by Mt. Nunawati and whether it was a representative suit.

Issue-wise Detailed Analysis:

1. Maintainability of the Appeal Against the Decree for Cost:

The court examined whether the appeal by defendant 5 against the decree for cost was maintainable. The plaintiffs argued that an appeal raising only a question of costs, without involving any principle, is incompetent, citing Umesh Chandra Dutt v. Bibhuti Bhusan Pal. The court noted that awarding or disallowing costs is at the discretion of the judge, and such discretion should only be interfered with if exercised improperly. The Subordinate Judge found that the trial court was unjustified in awarding costs against defendant 5, who had successfully defended a major portion of the property claim. The appellate court's interference was deemed appropriate as it involved a matter of principle. The court upheld the Subordinate Judge's decision, finding it more sound than that of the trial court.

2. Right of Mahinder Singh to Continue the Suit After the Death of Mt. Nunawati:

The plaintiffs contended that Mahinder Singh, already a party as defendant 7, could be transposed as a co-plaintiff to continue the suit after Mt. Nunawati's death. The court examined the principles under Order 22 of the Code of Civil Procedure regarding the death of a party and the survival of the right to sue. It was found that Mt. Nunawati was not related to Awadh Behari and thus not his legal representative. The court held that the right to sue did not survive to Mahinder Singh, as he was not a legal representative of Mt. Nunawati. The substitution and amendment of the plaint to include Mahinder Singh were deemed improper, as it introduced a new cause of action conflicting with the original plaintiff's claim. Consequently, Mahinder Singh could not legally continue the suit, and the suit abated with Mt. Nunawati's death.

3. Nature of the Suit Brought by Mt. Nunawati and Whether It Was a Representative Suit:

The court analyzed whether the suit brought by Mt. Nunawati was a representative suit. It was established that Mt. Nunawati was a stranger to Awadh Behari's family and not a reversioner. Therefore, the suit could not be considered representative of the reversioners of Awadh Behari's estate. The court noted that a suit by a reversioner is brought in a representative capacity, but since Mt. Nunawati was not a reversioner, her suit did not qualify as such. The court concluded that the suit was of a personal character, intimately connected with Mt. Nunawati's individuality, and thus the right to sue did not survive her death. The suit abated, and Mahinder Singh could not be substituted to continue it.

Conclusion:

The court dismissed both appeals. The appeal against the decree for cost (S.A. 730 of 1950) was dismissed as the appellate court's discretion in setting aside the trial court's cost award was found to be sound. The appeal regarding the continuation of the suit by Mahinder Singh (S.A. 771 of 1950) was also dismissed, as the suit abated with Mt. Nunawati's death, and Mahinder Singh could not legally continue it. Both appeals were dismissed without costs.