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2011 DIGILAW 1170 (CAL)

Birupakkha Nayek v. Uttar Mamudpur Maitri Sangha

2011-08-25

PRASENJIT MANDAL

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Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiffs and is directed against the Order Nos.30, 31 and 32 dated May 23, 2011, May 25, 2011 and June 15, 2011 respectively passed by the learned Civil Judge (Junior Division), 2nd Court, Basirhat in Title Suit No.75 of 2007 thereby dismissing an application under Order 1 Rule 8 of the C.P.C. and awarding costs. The plaintiffs / petitioners herein instituted a suit being Title Suit No.75 of 2007 against the opposite party praying for declaration of title, permanent injunction and other reliefs. The defendant / opposite party herein is contesting the said suit by filing a written statement contending, inter alia, that the suit is not maintainable, it suffers from defect of parties and is barred under the provisions of Order 1 Rule 8 of the C.P.C. The defendant has also denied the material allegations contained in the plaint. Both the parties have adduced evidence in support of their contentions and the suit was at the stage of hearing argument over the suit. At that stage, only the plaintiffs filed an application under Order 1 Rule 8 which was rejected by the impugned order with costs. Being aggrieved, this application has been preferred. Now, the short question involved in the matter is whether the learned Trial Judge is justified in rejecting the application under Order 1 Rule 8 an awarding costs. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiffs have filed the suit praying for the following reliefs:- i) The plaintiffs pray for a decree of declaration of title over the undivided share in the suit property as described in the schedule ‘A’ to the plaint, ii) A decree for permanent injunction restraining the defendant from interfering with the plaintiffs’ possession in respect of the suit property, iii) Permanent injunction against the defendant in respect of ‘B’ scheduled property from disturbing plaintiffs’ peaceful possession, iv) Temporary injunction, and v) Other reliefs. Both the parties had adduced evidence in support of their contentions and the suit was at the stage of hearing argument over the suit. Both the parties had adduced evidence in support of their contentions and the suit was at the stage of hearing argument over the suit. By the first impugned order dated May 23, 2011, the learned Trial Judge had rejected the application under Order 1 Rule 8 of the C.P.C. filed on that day without costs fixing the next date on May 25, 2011 for further argument with indication that no further time would be granted. Thereafter, on May 25, 2011, the plaintiffs filed another application for adjournment of hearing argument on the ground that he would prefer an appeal against the order dated May 23, 2011. That application for adjournment was granted with cost of Rs.1,000/- fixing the next date as June 15, 2011 for argument and payment of costs. Thereafter, on June 15, 2011 the plaintiffs filed another application for adjournment stating that they would move the Hon’ble Court against the order dated May 23, 2011 and the prayer was adjourned at last chance with cost of Rs.300/-. Being aggrieved by such orders, this application has been preferred by the plaintiffs. On perusal of the copy of the written statement, I find that it is a specific defence of the defendant that there are other cosharers in respect of the suit property and that suit is not maintainable for want of necessary parties. The defendant has also specifically stated in its written statement in paragraph no.11 that since the public interest is involved, unless and until, any permission is obtained under Order 1 Rule 8 of the C.P.C., the suit is liable to be dismissed. Copy of such written statement was served on October 8, 2007. In spite of knowing such contentions, the plaintiffs did not care to amend the plaint to make it a representative suit under Order 1 Rule 8 of the C.P.C. up to the stage of agreement. Therefore, it is apparent that the suit is not maintainable at all. Md. N. Zaman appearing for the petitioners has referred to the decision of N. Anandan v. Ayyanna Gounder & ors. reported in AIR 1994 Madras 43 and thus, he submits that the permission to sue under Order 1 Rule 8 of the C.P.C. can be granted even after the institution of the suit. Thus, he submits that even at the belated stage, the permission could be granted by the learned Trial Judge. Md. reported in AIR 1994 Madras 43 and thus, he submits that the permission to sue under Order 1 Rule 8 of the C.P.C. can be granted even after the institution of the suit. Thus, he submits that even at the belated stage, the permission could be granted by the learned Trial Judge. Md. Zaman has also referred to the decision of Sri Sri Nitai Gour Radheshyam v. Krishna Adhikari & ors. reported in AIR 1957 Calcutta 77 and thus, he submits that sanction under Order 1 Rule 8 can be obtained after institution of the suit and the suit is treated as validated from the date of application for permission. Thus, Md. Zaman submits that even at the argument stage, there is no bar to allow the application and so, the impugned order should be set aside. With due respect to Md. Zaman, I hold that since it is the specific stand of the defendant that the suit is barred in view of the provisions of Order 1 Rule 8 of the C.P.C., the suit is not maintainable if the effects are not caused at the early stage. Relying on those decisions, the plaintiffs could have filed an appropriate application at that pre-trial stage, as soon as the plaintiffs got the copy of the written statement on October 8, 2007. But they came at the stage of argument only allowing both the parties to adduce evidence in respect of their contentions. So, the intention of the plaintiffs is nothing but to prolong the litigation for an unending period and so, the above submissions as well as such decisions cannot be applied in the instant suit. On the other hand, Mr. Samim Ahammed appearing on behalf of the opposite party has referred to the decision of Ramchander Sunda & anr. v. Union of India (UOI) & ors. reported in (1999) 9 SCC 105 and thus, he submits that the petitioner must make an application under Order 1 Rule 8 and it was not for the court to see at the time of admitting the petition whether it was in representative capacity or otherwise. Therefore, the writ petition in a representative capacity was not maintainable. Such petition was filed in 1988. Therefore, the writ petition in a representative capacity was not maintainable. Such petition was filed in 1988. An application under Order 1 Rule 8 of the C.P.C. should have been made immediately after it was filed and so, the application by the petitioners to adjourn the case to enable the petitioners to take steps under Order 1 Rule 8 was refused. Consequently, the writ application was dismissed. I think this proposition of law of the Apex Court should be applied in the instant case. Mr. Ahammed has also referred to the decision of Kalyan Singh v. Smt. Chhoti & ors. reported in AIR 1990 SC 396 : (1990) 1 SCC 266 particularly the paragraph no.12 and thus, he submits that when suit has been filed in a representative capacity but it was not done, the said suit is liable to be dismissed. I think this decision of the Apex Court is also applicable in the instant suit. In that view of the matter, I do not find any illegality in the impugned orders. The learned Trial Judge has rightly rejected the application under Order 1 Rule 8 of the C.P.C. at the stage of argument and he has rightly passed the orders relating to costs. If the application under Order 1 Rule 8 of the C.P.C. would have been allowed, it would have the effect of de novo trial without any fault on the part of the opposite party. It is also recorded that if the costs are not paid within the dated as fixed by him, the same shall be treated as part of the decree to be passed against the defendant. There is nothing to interfere with the impugned order and the learned Trial Judge has not committed any error of law in passing the impugned order under the circumstances. So, there is no scope of interference with the impugned order. The revisional application is dismissed with the observations noted above. Considering the circumstances, there will be no order as to costs.