Research › Search › Judgment

Delhi High Court · body

2004 DIGILAW 560 (DEL)

SUDHIR JOSHI v. SHANTA JOSHI

2004-08-03

VIKRAMAJIT SEN

body2004
VIKRAMAJIT SEN, J. ( 1 ) THIS application has been filed by Plaintiff No. 8 in the Plaint for himself and on behalf of Plaintiff No. 1 who has allegedly executed a Power of Attorney in favour of Plaintiff No. 8. The application states that plaintiffs No. 2 to 17 have decided that the plaintiff No. 1 will represent them for their benefit in instituting the present suit for partition against defendants, on their behalf. However, this is only a self serving ipse dixit. There is no evidence on record to substantiate it. Learned counsel for the Plaintiff relies on Kapoor Group and another vs. Supreme Court of India Bar Association, 2002 III AD (Delhi) 490 and, in particular, to the following paragraph: " 13. Order 1 Rule 8 applies only to representative suits when there are large number of persons having common interest in a suit. One or more of those persons with the permission of the court can sue or be sued or defend the suit on behalf of others also. On such permission, if given, it becomes the imperative duty of the court to direct notice to be given to the absent parties in the manner as the court in each case required. Under this rule the suit cannot be filed on behalf of innumerable, countless persons but it may be filed on behalf of limited and clearly defined class of people who had common interest and common right. Indeed the proper course is to obtain the permission for suing in representative capacity before the suit is actually instituted. But Order 1 Rule 8 CPC does not forbid leave being granted afterwards at any stage of the proceeding. No notice of the application is contemplated to be served on the opposite party for granting the permission. In the instant case the permission has been applied for and granted by the court though notice has not been issued to all those persons on whose behalf and in whose interest the suit was filed because of a subsequent event". ( 2 ) THESE observations, in fact, militate against the arguments put forward by learned counsel for the Plaintiff. No doubt, an application has been filed under Order I Rule 8 but no circumstances, whatsoever, have been disclosed in favour of this Court exercising its powers under the said provision. ( 2 ) THESE observations, in fact, militate against the arguments put forward by learned counsel for the Plaintiff. No doubt, an application has been filed under Order I Rule 8 but no circumstances, whatsoever, have been disclosed in favour of this Court exercising its powers under the said provision. In the present case, Plaintiff No. 1 without impleading any other persons, states that he has authority to represent all other persons who have an identical interest with him. Keeping in perspective the Plaint as it is presently drafted, the several other Plaintiffs (who are fifteen in number out of a total of seventeen) should have either executed a Power of Attorney in favour of Plaintiff No. 8 or ought to have subscribed their signatures to the Plaint as the case may be. This is in fact what has happened in the case of Plaintiff No. 1 in that he has executed a Power of Attorney in favour of Plaintiff No. 8. ( 3 ) MY attention has been drawn to The Chairman, Tamil Nadu Housing Board, Madras v. T. N. Ganapathy, AIR 1990 SC 642 in which it has been observed that provision of Order I Rule 8 have been included in the Code in the public interest so as to avoid multiplicity of litigation. In the present situation, since partition of property is in question, fifteen Plaintiffs who have not either subscribed their signatures to the Plaint or have executed Power of Attorneys in favour of any of the other Plaintiffs, could have been arrayed as Defendants. There would have been no question of multiplicity of proceedings. What I see, therefore, is a possible mischief in that the Court will not be in a position to know the views and stance of these un-represented Plaintiffs unless they are personally summoned to the Court. Neither of these decisions, therefore, advance the case of the Plaintiffs. ( 4 ) THE Plaintiffs, other than Plaintiffs No. 1 and 8, are struck of from the array of parties. I had also put it to learned counsel for the Plaintiff whether he had any submissions to make on transposition but none was proffered. This query was made since the Plaintiff is dominus litus and can elect who he wishes to array as parties/adversaries. I had also put it to learned counsel for the Plaintiff whether he had any submissions to make on transposition but none was proffered. This query was made since the Plaintiff is dominus litus and can elect who he wishes to array as parties/adversaries. This query was also in the face of weighty submissions made by learned counsel for the Defendant that a transposition can be only to a party to the Suit and persons who have not subscribed to the Plaint cannot be seen as a party. ( 5 ) THE application is accordingly disposed of in the above terms. Amended Memorandum of Parties sans Plaintiff No. 2 to 7 and 9 to 17 be filed within two weeks by the Plaintiffs. IA No. 3104/03 in CS (OS) No. 1990/2002 ( 6 ) THIS application has been filed by Defendants No. 1 and 3 praying that the Suit be rejected on the grounds that all the persons/plaintiffs are not before the Court; that the proper Court Fees have not been affixed; that the Plaint has been filed beyond the period prescribed under the Limitation Act; and that the Plaint does not disclose a cause of action. ( 7 ) SO far as the arraying of parties is concerned I have already disposed of the application under Order I Rule 8 filed along with the Plaint. Nothing further calls to be stated. ( 8 ) ON the question of Court Fee learned counsel for the remaining Plaintiffs relies on the decision in Master Kunal vs. Harsh Dev Shinghari and Ors. , 101 (2002) DLT 299 in which the learned Single Judge of this Court had, after observing that the minor plaintiff had been in the custody of his divorced mother, nevertheless held him to be in constructive possession. In that case, however, the father of the minor child was in possession of the property. This factual matrix cannot be stretched to an extremity as to put forward the proposition that a joint owner of the property would always be in constructive possession. Learned counsel for the Plaintiff has also drawn my attention to Chanderlekha Tuli and Ors. vs. Shiv Saran Das Tuli and Ors. , 1999 (48) DRJ 303 where similar views have been expressed and reliance had also been placed on Neelavathi and others v. N. Natarajan and others, AIR 1980 SC 691 . Learned counsel for the Plaintiff has also drawn my attention to Chanderlekha Tuli and Ors. vs. Shiv Saran Das Tuli and Ors. , 1999 (48) DRJ 303 where similar views have been expressed and reliance had also been placed on Neelavathi and others v. N. Natarajan and others, AIR 1980 SC 691 . Since both my learned Brothers had relied on the same passage of the Judgment, it will be of advantage to re-produce it:- "the general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income. . . . . . . " ( 9 ) A holistic reading of the pleadings is essential. It is trite to state that the averments made in the pleadings should ordinarily be taken on their face value. This, however, does not completely block out all investigation by the Court pertaining to the possible veracity of statements made in the pleadings. It does not mean that even absurd or contradictory or incredible asseverations/averments must blindly be implemented and given effect to. In the present case the property in question belonged to the patriarch of the family, namely, Late Mr. Munna Lal Joshi. He had four sons, viz. , S/shri Ram Swaroop Joshi, Jagdish Raj Joshi, Madan Mohan Joshi and Sudhir Kumar Joshi, all of whom were alive when Late Shri Munnal Lal Joshi died. On the demise of Shri Munna Lal Joshi his Estate devolved on his sons and not on the heirs of his sons. This is, as I see it, the fallacy in the arguments put forward on behalf of the Plaintiffs. It is also an admitted case that during their lifetimes none of the three brothers, apart from Shri Madan Mohan Joshi, challenged the latter s possession of the property in Suit or his conduct of the business carried on by him. Therefore, it is not possible at this stage to accept the version of the Plaintiff that they are in constructive possession even after the passage of three decades of non-occupation. Therefore, it is not possible at this stage to accept the version of the Plaintiff that they are in constructive possession even after the passage of three decades of non-occupation. This being the position, I am of the considered opinion that although action has been stated as one of partition, possession would be a natural consequence of the partition. The Plaintiffs, therefore, must file ad valorem Court Fee as per the provisions of law. The Plaintiffs are granted four weeks time for this purpose. So far as the question of Limitation and the existence of a cause of action is concerned, these are matters of trial and cannot and ought not to be addressed at this stage. ( 10 ) APPLICATION stands disposed of in the above terms. ( 11 ) I have already observed that the parties have not been properly arrayed in the Plaint, while disposing of IA No. 11361/2002. At the present moment the correct Court Fee has also not been paid on the Plaint. Even assuming that necessary steps shall be taken in this regard within four weeks, as permitted by me, the question of the Suit being barred by limitation is at large is certainly relevant for the decision on an application under Order XXXIX Rules 1 and 2. ( 12 ) PRIMA facie, I am of the view that the Class-I heirs of Late Shri Munna Lal Joshi ought to have initiated some steps for seeking a partition of the property or business in their respective lifetimes. Sons of Late Shri Munna Lal Joshi, namely, Shri Ram Swaroop Joshi died in December, 1975 and Shri Jagdish Raj Joshi in November, 1993 but they have not taken any steps in the direction of the present Plaint. No vestige of constructive possession of any of the Plaintiffs is evident. Although no prima facie case has been disclosed, learned counsel for the Defendant states that as they are in possession of the property to the exclusion of all others but that they have no intention of selling it. However, since the prayers in the application relate to the family business in which the Plaintiffs not even averred to have partaken, the conduct of the Plaintiffs is such as compels me not to record or accept the statement made on behalf of the Defendants. However, since the prayers in the application relate to the family business in which the Plaintiffs not even averred to have partaken, the conduct of the Plaintiffs is such as compels me not to record or accept the statement made on behalf of the Defendants. ( 13 ) A prima facie case does not exist in favour of the Plaintiffs. The Defendants are in possession of the properties and are conducting the business for several decades and the balance of convenience is in their favour. I find no merit in the application and the same is dismissed. CS (OS) No. 1990/2002 ( 14 ) RENOTIFY on 10. 1. 2005.