ORDER
R.P. Sethi, J.
1. Petitioner Chajur Ram and Vijay Kumar have filed this CMP for being brought on record as legal representatives of Dina Nath defendant in COS No. 250/86 allegedly on the ground that the deceased had executed a deed of w ill in their favour on 27-11-1986. The prayer of the petitioners has been opposed by the plaintiffs on various grounds as detailed in the objections filed on their behalf.
2. The facts giving rise to the filing of the present petition are that the plaintiffs herein filed a civil suit No. 250/- 1986 under Section 92 of the C.P.C. praying that a decree removing
defendant 1 from the trusteeship of Shri Vinayak Mishar Dharamshala, Below Gumat, Jammu, a public charitable trust, directing him to render accounts of the entire period he acted as trustee and appointing new trustee in his place be passed in their favour and against the defendant 1. Mr. Sehjal the learned counsel appearing for the defendants informed the Court on 20-3-1987 that defendant 1 has died, and the case was directed to be listed again for further proceedings. Meanwhile C.M.P. No. 13 of 1987 was filed with the prayer for bringing on record the petitioners herein as the legal representative of the deceased respondent-defendant.
3. I have heard the learned counsel for the parties and have perused the record.
4. 0.22, C.P.C. deals with the consequence on account of the death, marriage and insolvency of the parties. Rule 4 of Order 22, C.P.C. provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendants, the Court on an application made in that behalf shall cause the legal representatives of the deceased-defendant to be made a party and shall proceed with the suit. Under Sub-rule (3) of Rule 4 of Order 22, C.P.C. if no application is made under Sub-rule (1) of Rule 4 within the time limited by law, the suit abatesagainst the deceased defendant. From the prayer made in the plaint it appears that the plaintiffs have prayed for reliefs and the passing of the decree only against defendant 1, who admittedly died on 4-1-1987 and no application was made by the plaintiffs for bringing on record his Legal Representatives. The application filed by S/Shri Chajju Ram and Vijay Kumar claiming to be legal representatives of the deceased defendant has been seriously contested and resisted by the plaintiffs. As no cause of action survives after the death of deceased defendant, this suit cannot proceed and is liable to he dismissed.
5. Mr. V.K. Gupta the learned counsel of the plaintiff has referred to AIR 1982 Delhi 453 to urge that the trust regarding which the disputes have arisen between the parties is a Public Charitable Trust and the Court can
appoint new trustees for the administration of the said Trust. Mr. Sehgal has not disputed that Shri Vinahak Mishar Dharamshala Trust is a Charitable Public Trust. Mr. Gupta has relied upon another judgment of this court reported in AIR 1983 J&K 88 wherein it was held that a suit under Section 92 of the C.P.C. cannot abate on the death of one of defendants or trustee-defendants because a suit under Section 92 was of a special nature, the purpose whereof was to protect the interest of a public trust of a religious or charitable character and no individual rights or interest were required to be adjudicated. The facts in that case were that one Angraz Singh along with four others filed a suit under Section 92 of the C.P.C. against the defendant of this case Shri Dina Nath and one Nishi Kanth for rendition of accounts with a further prayer for some other trustworthy person as trustee in place of the defendants to manage the properties of the said trust. During the pendency of the suit Angraz Singh plaintiff and Nishi Kanth died and there legal representatives were not brought on record by either of the parties. It was pleaded that as the cause of action was indivisible, the suit was liable to be dismissed. After discussing the facts of the case and various authorities Justice Dr. A.S. Anand (as his Lordship then was) held (at p. 90 of AIR):
“I hold that the death of Angraz Singh plaintiff 1 does not render the suit incompetent and that the suit does not abate on that account.”
His Lordship further held :
“In my opinion on the death of one of the trustee defendants the suit under Section 92, C.P.C. cannot abate……….”
In the case of Angraz Singh (supra) it is evident that the cause of action in that case survived despite the death of one of the plaintiffs and the trustee because there were other plaintiffs and other trustee to continue and resist the proceedings in the court. Even if I direct S/Shri Chajju Ram and Vijay Kumar to be impleaded as party in the suit, no relief can be granted to the plaintiffs without amendment of the plaint. This is settled
preposition of law that no person can be forced to litigate against any person not thought fit by him to be a proper party in the suit.
6. None of the parties has filed any application under Rule 4-A of Order 22 of the C.P.C. for the appointment of Administrator General, or an officer of the court or such other person, to represent the estate of the deceased person for the purposes of the present suit.
7. In view of what has been stated herein-above this suit has become infructuous after the death of defendant 1 Shri Dina Nath and cannot be continued by impleading S/Shri Chajju Ram and Vijay Kumar as parties in the instant case nor any other person can be appointed as an Administrator General or the officer of the court or any other person to represent the estate of the deceased-defendant for the purposes of this case.
8. Accordingly the Civil Original Suit No. 250/1986 is dismissed as having become infructuous along with this CMP.
9. Vide order passed in CMP No. 319/ 1986 Shri Dev Raj Sharma, Dy. Registrar of this Court was allowed to continue as receiver with direction to manage the property of the trust on terms and conditions already specified on 1-5-1986 in an earlier suit. He was directed to maintain proper accounts and submit the report from time to time. Shri Dev Raj Sharma continues to be the receiver of the property. With the dismissal of the suit the order of appointment of receiver is revoked. Keeping in view the peculiar circumstances of this case and the nature of the litigation pertaining to a Public Charitable Trust I direct that Shri Dev Raj Sharma, Dy. Registrar of this court whose appointment as receiver has been terminated by this order would continue to act as such receiver for a period of three months, on the same terms and conditions as earlier prescribed from today unless otherwise directed by any competent court of jurisdiction. I have allowed the receiver to continue despite the disposal of the suit on the basis of a judgment reported in AIR 1962 SC 21.
10. From the record it appears that the receiver has not submitted regular accounts for the inspection of the court. Full accounts along with his report shall be submitted for the inspection of the court within a period of two weeks and regular fortnightly accounts shall be furnished by the receiver in future for the period he has been directed to continue as such receiver.
11. The parties to this litigation shall bear
their own costs. CMP No. 526/1986 shall also
stand disposed of.