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2005 DIGILAW 356 (MP)

Ashaka Suildean Ltd. v. Manaj Pawar

2005-03-07

S.K.GANGELE

body2005
JUDGMENT The petitioner has filed this revision against the order dated 14.7.2004 passed by the Civil, Judge Class-II, Dewas in Civil Case No. 48/04, allowing the application filed by the plaintiff respondents No. 1 and 2 under O.1 R. 8 read with S. 151 of the Code of Civil Procedure. This order shall also govern the disposal of Civil Revision No. 296/04 because the aforesaid revision has also been filed against the order dated 21.7.2004 passed in the same Civil Suit by the same Judge, dismissing the application filed by the petitioner under O. 7 R. 11 of the Code of Civil Procedure. The defendants No. 11 and 2, who are students filed a suit before the Civil Judge-II, Dewas, with regard to declaration of recovery of toll tax by the petitioner of Dewas bypass road from the persons, who had not been using the aforesaid bypass road. They pleaded that they had gone Dewas to Ujjain by their own vehicle and at the place of Nagukhedi, the petitioner put up a toll barrier and recovered toll tax from them although they did not use the bypass, which was constructed by the petitioner. Hence, the petitioner defendant No. 2 has been illegally recovering the toll tax from the persons, who were not using the aforesaid bypass. The plaintiff cannot recover the toll tax from the persons, who do not use the bypass. It is clear from the pleadings that the plaint was filed in a representative capacity. However, along with the plaint, no application under O. 1 R. 8 CPC has been filed, permission to file the suit in a representative capacity. The trial Judge issued notice on 2.6.2004 to the petitioner along with other contesting defendants. Thereafter, the petitioner defendants filed an application under O. 7 R. 11 CPC mentioning that the suit is not maintainable because no personal injury is caused to the plaintiff. It has further been submitted that the defendant petitioner collected .he toll tax as per the agreement dated 31.8.2001. It has also been submitted that the provisions of O. 1 R. 8 for filing the suit in the representative capacity has not been complied with. Hence, the suit filed by the plaintiff is liable to be rejected. On this application, the arguments were heard on 22.6.2004. It has also been submitted that the provisions of O. 1 R. 8 for filing the suit in the representative capacity has not been complied with. Hence, the suit filed by the plaintiff is liable to be rejected. On this application, the arguments were heard on 22.6.2004. Thereafter, on 28.6.2004, the plaintiff filed an application with regard to grant of permission to file the suit in a representative capacity under O. 1 R. 8 CPC. It is mentioned in the application that although the suit has been filed in the representative capacity, due to mistake the aforesaid application could not be filed at the time of filing of the suit. The petitioner resisted the application filed by the respondents on the ground that the application is not maintainable because it was not filed at the time of filing of the suit and it has subsequently been filed to cure the defects. By the impugned order, the trial Court allowed the application filed under O. 1 R. 8 CPC and subsequently vide another order dated 21.7.2004, which is the subject-matter in Civil Revision No. 296/04, the application filed by the petitioner under O. 7 R. 11 CPC has also been dismissed. The main contention of the learned counsel for the petitioner is that the permission granted by the trial Court is bad in law because at the time of filing of the suit, an application has to be filed and subsequently it cannot be entertained. For this purpose, he relied on a judgment of this Court reported in 1983 JLJ 150 = 1983 MPLJ 475 and AIR 1986 Orissa 100. Learned counsel for the respondents submitted that there is no illegality in the order. It has a procedural defect and the application with regard to filing the suit in a representative capacity, can be entertained by the Court at any time. He relied on a decision reported in AIR 1978 Himachal Pradesh 22. I am not in agreement with the arguments advanced by the learned counsel for the petitioner. The controversy involved in the present case has already been decided by the Courts. In AIR 1983 Bom. 334, a Division Bench of Bombay High Court has held as under: "Ordinarily leave has to be and should be obtained under O. 1 R. 8 at the time of the institution of the suit. The controversy involved in the present case has already been decided by the Courts. In AIR 1983 Bom. 334, a Division Bench of Bombay High Court has held as under: "Ordinarily leave has to be and should be obtained under O. 1 R. 8 at the time of the institution of the suit. But the suit would not be dismissed only on the ground that the requisite leave has not been obtained under O. I R. 8, at the commencement of the proceedings; it would be open to a party to apply for such leave and to take such further action as is required by O. 1 R. 8 even during the pendency of the suit." The Court has relied on two earlier decisions of Bombay and Allahabad High Courts reported in 1921 ILR 784, 1920 ILR Allahabad 497 and AIR 1916 P.C. 202. In AIR 1947 Madras 205 it has further been held that the aforesaid rules apply to appeal also and at an appellate stage permission under O. 1 R. 8 CPC can be granted by the Court and the same principle has been followed in AIR 1978 Himachal 20 and 1999 AIR Allahabad 148. Learned counsel for the petitioner cited the judgment reported in 1983 JLJ 150 = 1983 MPLJ 475 , which is not relevant in the present case because it has been held in the aforesaid cases that the objection with regard to non-permission under O. 1 R. 8 CPC can be taken at any stage of the proceedings and its is mandatory. It is not the point in the present case. In view of the above facts and circumstances of the case, I do not find any merit in Civil Revision No. 290/04. Similarly, the application filed by the petitioner under O. 7 R. 11 CPC has been dismissed by the Court on the ground that there is a cause of action in the present suit and the suit is maintainable. It has been valued properly. As per the plaint there is a cause of action to the plaintiffs and other persons because the complaint, which is made is the plaint by the plaintiff, is that the defendant petitioner is recovering the toll tax from the persons, who are not using the bypass. In the above facts and circumstances of the case, I do not find any substance is this petition also. In the above facts and circumstances of the case, I do not find any substance is this petition also. Consequently, both the Revisions are hereby dismissed with a cost of Rs. 500/- (five hundred).