Sailajananda Dutta Jha vs Umeshananda Dutta Jha, Plaintiff, and Bhabapritananda Jha, minor, By His Next Friend and Guardian Patrani Debi, Intervenor

This appeal is against an order of the District Judge of Burdwan, dated the 15th June 1898, by which he directed that the name of one Bhabapritananda Jha should be added as a party Defendant in the suit brought by Umeshananda Dutta Jha and others against Sailajananda Dutta Jha, the present Sardar Panda of the temple of Baidyanath, the object of the suit being to remove that individual from his office of Sardar Panda, and to appoint somebody else in his place. The Plaintiffs alleged that Sailajananda Dutta Jha had been guilty of various misconduct in the discharge of his duty as Sardar. Panda of the temple; that he was not a, fit person to continue in that office; and they asked that he should, therefore removed from it. In the third paragraph of the plaint they stated that there was a custom, in accordance with which the Pandas and the Maharajah of Gidhour for the time being, elect a person from the family of the Sardar Panda in consideration of his age and fitness; and in the twelfth paragraph they alleged that Plaintiff No. 1 is the only living son of the former Sardar Panda, Isswarinanda Dutta Jha, and is the only person in the family of Isswarinanda Dutta Jha fit to be appointed the Sardar Panda, and that the Maharajah of Gidhour, and the Pandas generally were ready to elect him (the Plaintiff No. 1) Sardar Panda. And the Plaintiffs asked that it be declared that the Defendant Sailajananda Dutta Jha was unfit and disqualified to discharge the duties of Sardar Panda, that he be removed from the office, and that a decree be made for the appointment of a competent person in his place according to the aforesaid custom, that is to say, that mentioned in paragraph 3, and for vesting the debutter property in the Sardar Panda so (sic) The (sic) raised, in his answer, (sic) to which it is not necessary to (sic) It is sufficient to state that he (sic) the right of the Plaintiffs to maintain the action, and he also denied that there was any right of election to the office of Sardar Panda, as alleged in the third paragraph of the plaint, and stated that according to the custom from time immemorial the office of Sardar Panda went by right of inheritance according to the rule of primogeniture.

On the 23rd May 1898, the District Judge laid down several issues which he thought arose in the case, they having reference to the right of the Plaintiffs to maintain the action, to the question whether the Defendant Sailajananda Dutta Jha was a fit person to continue in the office of Sardar Panda; and the 10th issue was as follows :--If the Defendant is removed from his position, who should be appointed in his place ? And should any scheme be framed for regulating the management of the debutter properties ? On the same day, that is to say, on the 23rd May 1898, a petition was presented on behalf of Bhabapritananda Jha, through his mother and guardian, he being a minor stating that he (the Petitioner) being the eldest son of the eldest son, now deceased, of the Defendant Sailajananda Dutta Jha, was entitled to succeed to the office of Sardar Panda after the said Sailajananda Dutta Jha; and prayed that the suit might be determined in his presence, and that he might be made a party to it.

As we understand this petition, it was practically to the effect that the elective system, as alleged in the plaint, did not really exist, but that the succession to the office of Sardar Panda was according to the rule of primogeniture. This petition was opposed by the Plaintiffs; but it does not appear that any opposition was made by the Defendant Sailajananda Dutta Jha. And the learned District Judge, on the 15th June 1898, held apparently proceeding upon sec. 32 of the Code, that the Petitioner was a party interested in the suit, and that his interest was allied to that of the Defendant, and that in order to be able to adjudicate upon all the issues between the parties effectually and completely the Petitioner should be added as a Defendant in the suit; and he accordingly made the order to which we have already referred.

The present appeal is not by the Plaintiff, but by the Defendant No. 1; and the learned counsel on his behalf has contended, having regard to the provisions of sec. 28 of the Code of Civil Procedure, that no right to any relief being alleged in the plaint to exist against the Petitioner, Bhabapritananda Jha, and there being no identity of interest in him either with the Plaintiff or with the Defendant Sailajananda Dutta Jha, and also because the Petitioner is not directly interested in the main issues raised between the parties, he should not have been made a party Defendant in this suit." No doubt, the Plaintiffs do not allege in their plaint any right to relief existing as against the Petitioner. Sec. 28 of the Code apparently refers to the action of a Plaintiff at the time of presentation of the plaint in joining in the same suit as Defendants parties against whom the right to any relief is alleged to exist; sec. 32 refers to the action of the Court at a stage subsequent to the presentation of the plaint in adding a party either as Plaintiff or Defendant, whose presence before the Court, in the opinion of the Court, may be necessary in order to effectually and completely adjudicate upon and settle all the questions involved in the suit. As we have already pointed out, the Petitioner alleged that the succession to the office of Sardar Panda was according to the rule of primogeniture, and asserted that he was entitled to come in as Sardar Panda in the event of the Defendant being removed. And it seems to us that he supports, though not directly, but indirectly, the Defendant Sailajananda Dutta Jha, and denies in effect the allegation of the Plaintiffs as to the custom of election to the office of Sardar Panda. That being so, the question is whether his presence before the Court is not necessary in order to enable the Court effectually and completely to adjudicate and settle all the questions raised in the case. We have already pointed out what the 10th issue in the case is; and before the Court could finally determine this case and make a decree in it, it would be necessary to decide whether the appointment to the office of Sardar Panda is by succession according to some rule or other as indicated in the Defendant''s written statement or as stated in the petition of the Petitioner, or is it by election as alleged in the third paragraph of the plaint. It would be necessary to decide this matter before a final decree is made; and the presence of the Petitioner is, we think, necessary in order to decide that matter effectually and completely between the parties. And, we may add that he is directly (sic) in the decision of the 10th (sic) in the case. Upon these grounds we (sic) the order of the Court below is right, (sic) we dismiss this appeal with separate costs to each of the two Respondents. We assess the hearing fee at one gold-mohur for the Plaintiff-Respondent, and at three gold-mohurs for the Intervenor, Defendant-Respondent.