Mohammed v. Avarankutty Haji — 1996 DIGILAW 102 (KER)

Judgment :- The additional 4th defendant in O. S. No. 46 of 1995, on the file of the Munsiff's Court, Parappanangadi, has preferred this revision petition against the judgment dated 13.9.1995 in C. M. A. No. 22 of 1995 on the file of the Sub Court, Tirur. By the impugned order, the learned Sub Judge while dismissing the appeal against the order in I. A. No. 660 of 1995 allowed the petition of the appellants/ defendants therein for appointment of a Receiver to conduct the election of the office bearers of the managing committee of the mosque (3rd respondent herein) in the presence of the representative of the Wake Board. The respondents/ plaintiffs agreed to the suggestion of the appellants/ defendants therein and their counsel submitted that he has no objection in disposing of the appeal in terms of the affidavit filed by the 2nd appellant. 2. Respondents 4 & 5 herein instituted O. S. No. 46 of 1995 in the Munsiff s Court, Parappanangadi for issue of a mandatory injunction directing respondents 1 & 2 herein (who were defendants 1 and 2 in the suit) to prepare a list of members of the General Body of the Society, which is respondent No. 3 herein (defendant No. 3 in the suit) and to hold the election to the managing committee as provided in the bye-laws of the Society. They were permitted to file it as a representative suit under Order I R.8 of the Code of Civil Procedure, 1908 (for short, the C. P. C.). The plaintiffs/respondents are the members of the Mahal covered by the Society. Defendants 1 & 2, who are respondents 1 and 2 herein, are managing the affairs of the Society claiming themselves as the President and Secretary of the Committee. The Mosque, which was registered under the Societies Registration Act, gets considerable income from the offerings of its devotees. It is alleged by the plaintiffs that respondents Nos.1 and 2 have mismanaged the society and misappropriated its income. Hence the plaintiffs/respondents 4 and 5 filed the suit. They also filed an application, I. A. No. 660 of 1995 in the Munsiff 's Court for appointment of a Receiver to supervise the affairs of the mosque and to maintain proper accounts of the income and expenditure of the fund of the committee during the pendency of the suit. Hence the plaintiffs/respondents 4 and 5 filed the suit. They also filed an application, I. A. No. 660 of 1995 in the Munsiff 's Court for appointment of a Receiver to supervise the affairs of the mosque and to maintain proper accounts of the income and expenditure of the fund of the committee during the pendency of the suit. Respondents 1 and 2 herein opposed the petition on various grounds. 3. The learned Munsiff, by his order dated 29.5.1995, allowed the petition and appointed a receiver to have proper account of income and expenditure of the fund of the Society. Being aggrieved by this order, respondents-defendants in the I. A. preferred an appeal as C. M. A. No. 22 of 1995 in the Sub Court, Tirur. 4. When the appeal came up for hearing, the 2nd appellant (who is the 2nd defendant in the suit) filed an affidavit stating that the appeal may be disposed of by directing the receiver to conduct the election of the office bearers in the presence of a representative of the Wakf Board within two months from that date. The respondents/ plaintiffs submitted that they have no objection in disposing of the appeal in terms of the affidavit. Accordingly, on the basis of the agreement between the parties, namely, respondents 1 and 2 on the one side and respondents 4 and 5 on the other, the learned Sub Judge passed the impugned order by which the receiver was empowered to conduct the election of the office bearers of the managing committee. He was also directed to intimate the results of the election to the trial court. After this order was passed, the present petitioner by the leave of the Court got himself impleaded as the additional 4th defendant in the suit. He did not have an opportunity of being heard in I. A. No. 660 of 1995 in the Munsiff s Court and also in C. M. A. No. 22 of 1995. He filed a petition to grant permission to file the Civil Revision Petition on 3.1.1996. He filed the revision petition on that date. 5. He did not have an opportunity of being heard in I. A. No. 660 of 1995 in the Munsiff s Court and also in C. M. A. No. 22 of 1995. He filed a petition to grant permission to file the Civil Revision Petition on 3.1.1996. He filed the revision petition on that date. 5. It is contended by the petitioner herein that this being a suit filed under O.I Rule S C.P.C. the impugned order is void in as much as the requirements of the provisions of sub-rule (4) of R.8 of O. I and R.3-B of O. XXIII of the C. P. C. have not been complied with. Besides the question of conducting the election by preparing a valid voters list, some other vital issues are also to be decided in the suit. The learned Munsiff and the learned Sub judge without making any reference to those issues virtually allowed the Plaintiffs prayer and disposed of the case finally in contravention of the aforesaid provisions of the C. P. C. 6. Respondents herein have contended that the Receiver submitted the final voters list before the Munsiff s Court as RR. 1/96, after considering the various objections, on By order dated 18.1.1 y%, the final list was accepted by (he learned Munsiff", after hearing the objections of al l the parties. The Receiver was directed to conduct the election as per the order of the Sub Judge. The petitioner has participated in the hearing of the report of the Receiver. He has accepted the order passed by the Sub Judge in CM. A. No. 22 of 1995. He is not deemed to be aggrieved by it. Since the petitioner has waived his claim by participating in the election process and he along with -some others having agreed that they have-no objection to the list of voters prepared by the receiver, the present petition' is nothing but an after thought frustrate me election. i( is further contended by learned counsel for the respondents that the impugned order was passed as an interim measure for the smooth functioning of the Sixteen, and its committee. No prejudice is going to be caused to any of the members of the Society, if the receiver conducts the election in accordance with the bye-laws of the society. 7. i( is further contended by learned counsel for the respondents that the impugned order was passed as an interim measure for the smooth functioning of the Sixteen, and its committee. No prejudice is going to be caused to any of the members of the Society, if the receiver conducts the election in accordance with the bye-laws of the society. 7. The only question that arises for consideration is whether the impugned order has been passed in accordance with law. 8. There is no dispute that the plaintiffs have filed the suit in their representative capacity by obtaining the leave of the court under O. I. R. SC. P. C. U is also not disputed that the impugned order was passed on the basis of an agreement between the plaintiffs and defendants 1 & 2. Sub-r.(4) of R.8 of O. I C. P. C. lays down as follows: "(4) No part of the claim in any such suit shall be abandoned under Sub-r.(1), and no such suit shall be withdrawn under sub-rule (3), of R. I of O. XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under R.3 of that Order, unless the Court has given, at the plaint ill"; expense, notice to all persons so interested in the manner specified in sub-rule (2)11 R.3-B of O. XXIII reads as follows: "'No agreement or compromise to be entered in a representative suit without leave of Court - (1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; any such agreement or compromise entered into without the leave of the Court so recorded shall be void. (2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit. Explanation : - In this rule "representative suit" means, - (a) a suit under S.91 or S.92, (b) a suit under R.8 of O. I, (c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family. Explanation : - In this rule "representative suit" means, - (a) a suit under S.91 or S.92, (b) a suit under R.8 of O. I, (c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family. (d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit". 9. Admittedly, no notice was issued to all persons interested in the suit before the agreement was recorded and the impugned order was passed. In Charan Lai Sabhu v. Union of India (AIR 1990 SC 1480) it is made clear that R.3-B of O. XXIII provides that no agreement or compromise in a representative suit shall be entered into without the leave of the court expressly recorded in the proceedings; and sub-rule (2) of R.3-B enjoins that before granting such leave the Court shall give notice in such manner as it may think fit in a representative action. Representative suit has been defined under Explanation to the said Rule as any other suit in which the decree passed may, by virtue of the provisions of this code or any other law for the time being in force, bind any person who is not named as party to the suit. The principles of this rule are the principles of natural justice. If any agreement or compromise entered into is recorded without compliance of the provisions therein, the same shall be void. 10. In Union Carbide Corporation v. Union of India (AIR 1992 SC 248), it is observed that by consent or agreement, parties cannot achieve what is contrary to law and a decree merely passed on such agreement cannot furnish a judicial amulet against the statutory violation. Similar such question came up before the Calcutta High Court in G. Sarkar v. A. H. Ansari (85 C. W.N. 403). The case before the Calcutta High Court was also one of a representative suit. Although orders were passed for publication of a notice under O. I. R.8 C. P. C. in a newspaper regarding the proposed compromise, yet the same was not published. The court passed an order on the basis of a compromise entered into by some of the parties. Although orders were passed for publication of a notice under O. I. R.8 C. P. C. in a newspaper regarding the proposed compromise, yet the same was not published. The court passed an order on the basis of a compromise entered into by some of the parties. It was held that the provisions as to notice contained in O.I R.8 C.P.C. are mandatory and must be substantially fulfilled before a decree can be allowed to stand or passed under it. Notice as directed not having been published and subsequent orders having been passed upon agreement and compromise between some of the parties only, the order is liable to be set aside on that ground alone. Similar observations have been made while discussing the provisions of O. I R.8 and Rules 1 and 3 of O. XXIII C. P. C. by the Punjab and Haryana High Court in Ram Menar v. Surat Singh (AIR 1985 P & H. 307). 11. Learned counsel for the respondents relied on the decision of the Allahabad High court in Iqbal Hassan Khan v. lllyd Addl. District Judge, Aligarh (AIR 1984 Allahabad 259). It is laid down in that decision inter alia that sub-rule 4 of O. I Rule 8 C. P. C. applies only to a case where either the suit is finally withdrawn or there is an agreement, compromise or satisfaction in the suit itself on the basis of which the decree has to be passed by a court. It does not apply to a case where an application for ad interim prayer is being considered by the Court. 12. There is nothing in the said provisions to show that they are not applicable to ad interim orders in a suit. The facts of lqbal Hasan Khan's case (AIR 1984 Allahabad 259) are clearly distinguishable from the present case. The observation that the provisions of sub-rule 4 of O. I. R.8 C. P. C. are not applicable to any interim order passed in the suit does not appear to be sound in as much as the 'said provisions do not lay down any limitation in its application only to the final orders. 13. In this view of the matter, I hold that the impugned order was passed in contravention of sub-rule 4 of R.8 of O. I and R.3-B of 0.23 C. P. C. It is therefore a void order. 14. 13. In this view of the matter, I hold that the impugned order was passed in contravention of sub-rule 4 of R.8 of O. I and R.3-B of 0.23 C. P. C. It is therefore a void order. 14. For the reasons stated above, the revision is allowed and the impugned order is set aside. The matter is however, remanded to the Court Below to proceed with the hearing of the appeal according to law after effecting proper service of notice as required in the aforesaid provisions.