The Management Committee of Wellington Gymkhana Club & Another v. Dr. George Jayaprakash & Others
2005-04-07
S.SARDAR ZACKRIA HUSSAIN
body2005
DigiLaw.ai
Judgment :- The respondents 1 and 12 in I.A.No.287 of 2003, who are defendants 1 and 12 in O.S.No.84 of 2003, on the file of the Court of District Munsif, Coonoor, are the revision petitioners in this Civil Revision Petition. 2. This revision is directed against the order dated 02.6.2004 and made in I.A.No.287 of 2003 in O.S.No.84 of 2003 on the file of the Court of District Munsif, Coonoor, wherein the trial Court allowed the petition filed by the plaintiffs under Order I Rule 8 read with Section 151 of the Code of Civil Procedure seeking permission to file the suit in representative capacity for the civilian members of Wellington Gymkhana Club, Wellington. 3. The plaintiffs filed the suit on 16.7.2003 for declaration that under Rule 7(a) of the Wellington Gymkhana Club Rules (hereinafter referred to as 'WGC Rules'), retired military officers and personnel are only military members and they cannot be classified as civilian members of the WGC and the right to option under Rule 15 of the WGC Rules is illegal and violative of the definition of military members and for permanent injunction restraining retired military personnel from serving the Management Committee of the WGC as civilian members, for a declaration that under Rule 102 of the WGC Rules, civilian members have an equal right to be President of the WGC, for declaration that only civilian members are entitled to vote for civilian members in the Management Committee of the WGC and that retired military members cannot serve as civilians in the Management Committee nor vote for civilian members to the Management Committee and for declaration as stated in sub-paragraphs 4 to 12 of paragraph 17 of the plaint. 4. The suit was resisted by the persons of the Management Committee of Wellington Gymkhana Club as first defendant and defendants 2 to 13 by filing written statement on 23.10.2003. It is stated in the written statement that the suit filed in representative capacity is not proper. 5. The plaintiffs, along with the suit, filed petition in I.A.No.287 of 2003 on the file of the Court of District Munsif, Coonoor, which is the subject matter of this revision petition, under Order I Rule 8 read with Section 151 of the Code of Civil Procedure, to permit them to file the suit in representative capacity for the civilian members of the Wellington Gymkhana Club, Wellington.
The petition was opposed by the defendants by filing counter reiterating the stand taken in the written statement. The trial Court, considering the documents marked on either side, allowed the petition, which is under challenge in this revision. 6.Heard the learned counsel for the revision petitioners and the learned counsel for the respondents. 7. The learned counsel for the revision petitioners mainly argued that as per Exs.R.1 to R.73, only some of the civilian members have filed affidavits and most of them have opposed the action initiated by the respondents 1 to 4 / plaintiffs to file a suit in the representative capacity on behalf of the civilian members of the WGC. 8. Learned counsel for the revision petitioners relied on the decision of the Full Bench of this Court in KODIA GOUNDAR AND ANOTHER vs. VELANDI GOUNDER AND OTHERS (A.I.R. 1955 MADRAS 281) wherein it was held thus: "In deciding whether leave under O.1, R.8 has to be granted or in considering whether a suit already instituted under O.1, R.8 is maintainable the principal consideration that should weigh with a Court is whether it is satisfied that there is sufficient community of interest as between the plaintiff or the defendants as the case may be to justify the adoption of the procedure provided under O.1, R.8." The Full Bench further held as follows: "The object for which this provision is enacted is really to facilitate the decision of questions in which a large body of persons are interested without recourse to the ordinary procedure. In cases where the common right or interest of a community or members of an Association or large sections is involved there will be insuperable practical difficulty in the institution of suits under the ordinary procedure, where each individual has to maintain an action by a separate suit." 9. Learned counsel for the revision petitioners also relied on the decision in JEETMAL AND OTHERS vs. GENDMAL, KESRIMAL AND OTHERS (A.I.R. 1952 MADHYA BHARAT 158) wherein it was held as under: "There must be at least the Majority of the community with the plaintiffs before they can be allowed to sue in a representative capacity under O.1, R.8.
Learned counsel for the revision petitioners also relied on the decision in JEETMAL AND OTHERS vs. GENDMAL, KESRIMAL AND OTHERS (A.I.R. 1952 MADHYA BHARAT 158) wherein it was held as under: "There must be at least the Majority of the community with the plaintiffs before they can be allowed to sue in a representative capacity under O.1, R.8. Where it is alleged that the right of pre-emption accrues to the whole Porwal community, and there are about 30 members of the community and 20 of them objected to the permission being given to the plaintiffs, they cannot be allowed to sue in a representative capacity as the majority of the community is against such a course of action." 10. Learned counsel appearing for the respondents 1 to 4 / plaintiffs submitted that inasmuch as the suit has been filed by the respondents 1 to 4/plaintiffs representing the civilian members of Wellington Gymkhana Club, Wellington, seeking for the above stated reliefs stating that there have been discrimination in treating the members, viz., civilian members and the military members consisting of retired military officers and persons and since it is not stated in Rule 102 of the WGC Rules that it is the DSSC Commandant's privilege to be the President of the Club, the suit is maintainable. It is submitted that there are certain proposed amendments to Rule 10(A) for tenure membership and Rule 12(b) for ballot, especially stating that candidates for military membership will not be put through ballot. Learned counsel further submitted that inasmuch as the defendants 14 to 64 are also civilian members of the WGC, who have been impleaded as per the orders of this Court on their filing applications under the provisions of Order I Rule 8 of the Code of Civil Procedure, the trial Court is right in allowing the petition filed by the respondents 1 to 4/plaintiffs to file the suit in representative capacity for the civilian members of WGC, Wellington. 11. Learned counsel for the respondents 1 to 4 / plaintiffs relied on the following decisions: (i) In THE STATE OF ANDHRA PRADESH vs. GUNDUGOLA VENKATA SURYANARAYANA GARU (A.I.R. 1965 SC 11), the Supreme Court has held thus: "The right to institute a representative action may be exercised by one or more persons having an interest which is common with the others but it can only be exercised with the permission of the Court.
......... ............. .......... ..... There is nothing in S.80 or O.I, R.8 which requires that a person who seeks to institute a suit in a representative capacity must establish that he had obtained sanction of the persons interested on whose behalf the suit is proposed to be instituted." (ii)In SHRI THYAGABRAHMA MAHOTSAVA SABHA, GOVERNING BODY, THIRUVAIYARU, REPRESENTED BY ITS SECRETARIES EMBAR VIJAYARAGHAVACHARIAR AND ANOTHER vs. V.VENKATESAN (A.I.R. 1971 MADRAS 274), this Court held that for applicability of Order I, Rule 8 of the Code of Civil Procedure, person sued in representative capacity need not have prior requisite authority if numerous persons have same interest in that suit. (iii)In SUBBIAN vs. SIVAKUMAR ( 2000 (IV) C.T.C. 205 ), this Court has held thus: "Any and every order passed in course of Suit does not amount to case decided unless such order relates to adjudication of some right or obligation of the parties. Even if order amounts to "case decided" it must still satisfy various clauses enumerated in Section 115(1) in order to satisfy the maintainability of revision petition." 12.Learned counsel for the respondents 1 to 4 / plaintiffs relying on the above said decisions submitted that the revision petition as filed by the defendants 1 and 12 is not maintainable. Further, this Court by order dated 27.8.2003 in C.R.P. (P.D.) No.1506 of 2003 between the same parties directed the Court below to dispose of the suit, viz., O.S.No.84 of 2003 on the file of the Court of District Munsif, Coonoor, Nilgiris, within a period of five months from the date of receipt of a copy of that order and despite the said direction, the suit is pending in view of the dilatory tactics adopted by the revision petitioners/ defendants 1 and 12. 13. In paragraph 9 of the written statement, it is stated that there were 200 resident civilian members. It is stated by the learned counsel for the revision petitioners that out of such 200 civilian members, 52 members have filed affidavits under Exs.R.1 to R.52 and as per Exs.R.53 to R.73, 20 civilian members have written letters opposing the suit filed by the plaintiffs in representative capacity of the WGC. Even assuming that, as rightly stated by the trial Court, there are about 130 members, who have not objected to the action initiated by the plaintiffs in filing suit representing the entire civilian members of the WGC.
Even assuming that, as rightly stated by the trial Court, there are about 130 members, who have not objected to the action initiated by the plaintiffs in filing suit representing the entire civilian members of the WGC. The suit itself is filed by four members of the Club representing the WGC. 14. As per Order I Rule 8 of the Code of Civil Procedure, where there are numerous persons having the same interest in one suit, -- one or more of such persons may, with the permission of the Court sue, or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. As per Order I Rule 8(2) notice as ordered by the trial Court has also been taken to the defendants. The persons, who have now filed the suit representing the civilian members of the WGC, have stated that they have common interest in seeking declarations as sought for in the plaint and as stated above, viz., retired military officers and personnel are only military members and they cannot be classified as civilian members of the WGC, that civilian members of the Club have an equal right to be President of the WGC and also for declarations as set out in sub-paragraphs 4 to 12 of paragraph 17 of the plaint. As such, it is clear that such interest is common to civilian members of the WGC. The trial Court, considering all these aspects, rightly granted permission to the respondents 1 to 4 / plaintiffs to file the suit in representative capacity and as such, there is no reason to interfere with the order passed by the trial Court. 15. In the result, Civil Revision Petition fails and the same is dismissed. No costs. The order dated 02.6.2004 and made in I.A.No.287 of 2003 in O.S.No.84 of 2003 on the file of the Court of District Munsif, Coonoor, is confirmed.