Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 3688 (MAD)

M. Antony Samy Suresh v. S. Joseph Rajan

2012-08-24

S.PALANIVELU

body2012
JUDGMENT 1. The present respondents are the plaintiffs in O.S.No.407 of 2010 on the file of the Principal Sub Court, Tirunelveli. There are four respondents and the first respondent is the power agent of 2 to 4 respondents who are plaintiffs in the suit. The revision petitioner is the defendant in the suit. The suit was filed by the power of attorney, the first plaintiff, for declaration that the sale deed dated 25.02.2010 is null and void and for consequential injunction. Pending trial of the suit, the first respondent filed an application under Order 1, Rule 8 r/w Section 151 CPC praying the Court to permit him to sue in representative capacity of all the purchasers of the properties who have purchased from him (first plaintiff) which originally belonged to Lakshmi Ammal from whom he (first plaintiff) got power of attorney for selling the lands. 2. In the affidavit, it is stated by the first plaintiff that on 16.07.1996 he got power of attorney from the owners of the properties and sold plots to 2 to 4 plaintiffs and others. He has sold the lands in plots more than 80%, for whom he is supervising the properties since the defendant disturbed the properties belonging to 2 to 4 plaintiffs. At present, the defendant is likely to disturb the other purchasers also others who have purchased the lands from the first plaintiff and hence, all the purchasers have got common interest in the suit lands. Hence, on behalf of all the purchasers, the first plaintiff may be permitted to proceed the case in a representative capacity. 3. The defendant has alleged in the counter that it is impermissible to permit the first plaintiff to represent all the purchasers and he has no locus standi to file the application. Merely because he sold the properties to other purchasers and he is supervising their properties, it cannot be stated that he can represent all the purchasers. In the plaint, the cause of action goes to show that the defendant disturbed the possession of 2 to 4 plaintiffs in their properties in Plot No.39, 31, and 127 on 12.11.2010 and hence, there could be no cause of action for the first plaintiff to represent the other purchasers. The purchasers have no common interest. Hence, the petition may be dismissed. 4. The purchasers have no common interest. Hence, the petition may be dismissed. 4. After hearing both parties, the learned Principal Sub Judge, Tirunelveli has allowed the application under observation that disallowing of the application may lead to multiplicity of proceedings and in the interest of justice the first plaintiff has to be permitted to represent all the purchasers. Hence, the defendant is before this Court with this revision. 5. Point for consideration: Whether the first plaintiff can be permitted to sue in a representative capacity on behalf of all the purchasers? Point: 6. Mr.S.Meenakshmisundaram, learned Counsel appearing for the petitioner would submit that the sale deeds of other purchasers pertains to various dates, there could be no cause of action with regard to the other purchasers, that there could be no common interest for the purchasers and the first plaintiff has no locus standi also to represent the other purchasers. 7. Repelling the contentions, Mr.S.Natarajan, learned Counsel appearing for the respondents would submit that those like 2 to 4 plaintiffs the other numerous purchasers are also expressing hardships at the hands of the defendant, that since they have purchased the properties even though on different dates they have got common interest to be decided in a single suit and hence, there is nothing wrong on the part of the trial Court to have allowed the application. 8. The suit was filed by the first plaintiff as power of attorney on behalf of 2 to 4 plaintiffs. Then he says that the other purchasers have got common interest, he has to derive the source of right to file the present application. To put it otherwise, when he files power of attorney executed by 2 to 4 plaintiffs, there is nothing on record for the first plaintiff to represent the other unnamed and several purchasers. In this regard, this Court has to necessarily observe that the first plaintiff has no locus standi to file the application. 9. It is argued that the first plaintiff is competent to file this application on behalf of the purchasers who are having common interest in the properties in dispute. In this regard, this Court has to necessarily observe that the first plaintiff has no locus standi to file the application. 9. It is argued that the first plaintiff is competent to file this application on behalf of the purchasers who are having common interest in the properties in dispute. The learned Counsel for the respondents placed much reliance on a Full Bench decision of this Court reported in A.I.R. 1955 Madras 281 (Vol.42, C.N. 79), (Kodia Goundar and another v. Velandi Goundar and others), wherein it is elaborately dealt with the import of Order 1, Rule 8 and Section 47 CPC. The operative portion of the judgment goes as follows: "(20). In the view we are taking that decrees obtained in a representative suit against the defendants in a representative capacity cannot be executed personally against persons who are not 'eo nomine' parties, the apprehension of any difficulty in the matter of encroachment of the decree would not arise. On the plain language of O.1, R.8, the principal requirement to bring a suit within that rule is the sameness of interest of the numerous persons on whose behalf or for whose benefit the suit is instituted, and if that requirement is satisfied, and provided the other condition as to notice is also satisfied, there is no reason why such a representative suit should not be allowed. In deciding therefore whether leave 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 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 as action by a separate suit. To avoid numerous suits being filed for decision of a common question, O.1, R.8 has come to be enacted. To avoid numerous suits being filed for decision of a common question, O.1, R.8 has come to be enacted. The nature of the claim whether it is a suit for a declaration of a right, or an injunction or an action for money on contract or on tort - is not very material in considering whether a suit could be filed under the simplified procedure of O.1, R.8. But as already observed, it is the existence of a sufficient community of interest among the persons on whose behalf or against whom the suit is instituted that should be the governing factor in deciding as to whether the procedure provided under O.1, R.8 could properly be adapted or not. Whatever be the law in England, and the interpretation placed on the terms of O.16, R.9 of the Supreme Court rules by the judges there we consider that in India where rights of communities to own property is recognised, it is necessary that O.1, R.8, C.P.Code, should receive an interpretation to sub-serve the practical needs of the situation." 10. It is observed in the above decision that a common right and interest of a community or members of larger sections is involved there will be practical difficulties in filing separate suits and for complaining the cause of action of all the individual concerned, there does not exist sufficient community of interest among those persons. Adverting to the facts of the present case, undoubtedly the purchasers of the lands purchased on different dates and in what way they are disturbed is not properly mentioned in the affidavit. The tenor of the affidavit would go to show that just like the plaintiffs 2 to 4 were disturbed by the defendant and anterior to the filing of the suit, he may likely to disturb the enjoyment of the other purchasers. Definitely this could not constitute any cause of action for any individual to bring a suit. There is no mention in the affidavit that the other purchasers were actually disturbed by the defendants. Further, there are no particulars with regard to the dates of disturbance by the defendant to other purchasers. Moreover, nothing is available to know how many of them are the purchasers and in what way they have got common interest. There is no mention in the affidavit that the other purchasers were actually disturbed by the defendants. Further, there are no particulars with regard to the dates of disturbance by the defendant to other purchasers. Moreover, nothing is available to know how many of them are the purchasers and in what way they have got common interest. Merely because they purchased the properties from the first plaintiff, who acted as power of attorney for the original owners, it could not be stated that every purchaser will have a common interest. 11. In this context, the learned Counsel for the petitioner would place reliance upon a decision of this Court reported in 2011 (6) CTC 832 (Maruthamuthu v. Ponni Sugars (Erode) Limited and others, wherein the learned Judge has observed as follows: "7. In other words, each individual seller had a different cause of action against the Defendants, in respect of the Sale Deeds executed by them. In respect of the enforcement of rights relating to properties, when the sellers are different persons, when the properties sold are different and when the Sale Deeds and the sale consideration were also different, it is not possible for the Petitioner to combine the causes of action of all persons and file a single Suit in a representative capacity. Therefore, on this ground, the Plaint filed by the Petitioner was liable to be rejected. Therefore, the Civil Revision Petition is dismissed, confirming the ultimate conclusion reached by the Court below. However, this will not preclude the individuals from working out their remedies independently, without joining together, if such Suits are otherwise maintainable in law." 12. Akin to the facts of this case, in the case before the learned Judge, the facts were available and on due consideration, it has been observed as above. It has been observed that in respect of the enforcement of rights relating to properties and the sellers are different persons and the property sold on different dates and the sale deeds and sale considerations were different, it is not possible for the petitioner to combine the causes of action of all persons and file a single suit in a representative capacity. I am in respectful agreement with the above said observations. 13. I am in respectful agreement with the above said observations. 13. As adverted to supra, this Court is unable to find any common interest in the other purchasers so as to entitle the first plaintiff to file application praying permission to sue in a representative capacity and that no right flows from any material for the first plaintiffs to make him competent to file the application. He could not be stated that the disallowing of the application would lead to multiplicity of proceedings. It is for the individual to face disturbance at the hands of the defendant might come to the Court seeking relief for definite cause of action. In such view of the matter, I am of the firm opinion that there is no valid ground for permitting him (the first plaintiff) to sue in a representative capacity for all the purchasers as prayed for. Hence, the order challenged before this Court is liable to be set aside and it is accordingly set aside. The revision deserves to be allowed. The points are answered accordingly. In fine, the Civil Revision Petition is allowed. Consequently, connected miscellaneous petition is closed. No costs.