Mandavalli Kamaraja being minor by mother and guardian Mahalakshmamma vs Kasina Mallayya and Others

Kuppuswami Ayyar, J.—The second defendant is the appellant and the appeal arises out of a suit to set aside a summary order and the

question involved was whether a particular alienation was valid or not on the ground that it was in fraud of creditors. One of the objections raised

was that the suit was not filed in the proper form as it should have been filed as a representative suit on behalf of all creditors. The first Court found

that the plaintiff was the only creditor and that it was necessary that the suit should be filed in a representative capacity, and dismissed the suit. On

appeal the plaintiff wanted the leave of the Court to file it, as a representative suit which was granted and the suit was decreed. In the second

appeal it is contended that the lower appellate Court ought not to have granted permission to sue in the representative capacity as objection had

been taken even in the first Court and an issue was framed and it was very late after the suit was dismissed by reason of the failure to sue in

representative capacity that he thought it necessary to file this application for permission in the appellate Court. Reliance is placed on the decision in

Madina Bibi Sahiba Vs. The Ismail Durga Association and Another, .. In that case observations concede that the appellate Court could grant such

a permission. At page 814 His Lordship the Chief Justice observes:

If the failure to sue in a representative capacity was the result of oversight, the Court might have been disposed in those circumstances to allow the

amendment, but that is not the case.

In this case it is not said to be oversight, but it is said to be bona fide mistaken impression which led the plaintiff to file the suit without getting

permission to sue on behalf of the creditors. As a matter of fact the plaintiff''s case was that he was the only creditor and it was not stated for the

defendant that there was any other creditor ""nor is the name of any other creditor mentioned now. If a party knew that he was the only creditor of

the alienor be could represent in his own capacity the creditor. So it must have been a bona fide mistake. Because the Court found against him, he

thought it necessary and safer to apply for permission. In these circumstances I do not think the case in Madina Bibi Sahiba Vs. The Ismail Durga

Association and Another, . has any application to the facts of this case. In the circumstances of that case it was considered that leave should not be

given in the appellate Court. In this case the circumstances are different and it cannot be said that he was not under a bona fide mistake.

It is also urged that the lower appellate Court ought to have given an opportunity to the appellant here to raise a plea that the suit was not

maintainable and that the matter was governed by Section 47 of the Civil Procedure Code. The learned Judge refused to allow this plea to be

raised five years after the suit was filed. It is urged, however, before me that when he gave the permission to sue in a representative capacity after 5

years he should also have allowed this plea to be raised. But then there was no necessity for any further evidence for the granting of the permission

to the plaintiff to sue in representative capacity. But the other plea now sought to be raised would involve the necessity for letting in further

evidence and an investigation into the various alienations.

In these circumstances I do not think it can be said that the learned Judge was wrong in refusing to allow a plea which involved the necessity of

going into the facts about which evidence will have to be let in.

The second appeal fails and is accordingly dismissed with costs. No leave.