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2014 DIGILAW 3734 (MAD)

Vellaigounder @ Kuppu v. Chinnasevi Gounder

2014-10-09

K.RAVICHANDRA BAABU

body2014
Judgment 1. The Civil Revision Petition is filed challenging the order dated 25.4.2013 made in I.A.No.144 of 2012 in O.S.No.96 of 2012 on the file of the Second Additional District Munsif Court, Bhavani, in allowing the application filed by the respondents herein under Order 1 Rule 8(2) CPC, seeking permission to proceed with the suit in a representative capacity on behalf of themselves, other members of the family and the general public of the village. 2. The petitioners herein are the defendants in the said suit. The said suit was filed for mandatory injunction and permanent injunction. The respondents herein filed the said suit in a representative capacity. As per the procedure contemplated under Order 1 Rule 8 CPC, public notice had been issued. 119 objectors have appeared before the Court below on 16.4.2012 and filed their objections. However, out of those 119 objectors, a third party affidavit was filed by four persons stating that their signatures have been obtained stating wrong reasons and they do not have any objection against the plaintiffs suing in a representative capacity on behalf of them also. Another third party affidavit was filed by 11 persons stating that the plaintiffs can sue in a representative capacity with regard to the suit property on behalf of them also. Thus, out of 119, 15 persons have submitted before the Court that they do not have objections against the plaintiffs to sue in a representative capacity on behalf of them also. Thus, it is evident that the remaining 104 objectors are still having objections against the plaintiffs in filing the suit in a representative capacity. 3. The Court below allowed the application filed by the plaintiffs by observing that the objectors have not filed any petition to implead themselves as party-defendants in the suit, and therefore, they are at liberty to implead themselves as defendants. 4. Mr. N. Manokaran, learned counsel appearing for the petitioners submitted that once objections are filed in pursuant to the public notice issued under Order 1 Rule 8 CPC, the proper procedure is to implead the objectors as party-defendants in the said suit and without impleading them, the Court below is not justified in allowing the plaintiffs to conduct the suit in a representative capacity. In support of his submissions, learned counsel for the petitioners relied on a decision of this Court reported in 2011 (2) MWN (Civil) 254 (Karuppa Gounder Vs. In support of his submissions, learned counsel for the petitioners relied on a decision of this Court reported in 2011 (2) MWN (Civil) 254 (Karuppa Gounder Vs. Appavoo). 5. Per contra, Mr. K.S. Jeyaganeshan, learned counsel appearing for the respondents submitted that when the procedure contemplated under Order 1 Rule 8 CPC had been properly complied with by issuing public notice, the plaintiffs are entitled to continue the suit in a representative capacity without impleading the objectors as party-defendants. If at all they want to come on record, it is for them to file impleding petition in the suit. In support of his submissions, learned counsel for the respondents relied on a decision of this Court reported in 2013 (4) CTC 205 (Royal Villa Residents' Association Vs. The Project Management Committee). 6. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 7. The point for consideration in this Civil Revision Petition is as to whether the objectors who have appeared before the Court in pursuant to the public notice issued under Order 1 Rule 8 CPC objecting to the filing of the suit by the plaintiffs in a representative capacity, have to be impleaded as party-defendants or not and as to whether the plaintiffs can be permitted to continue the suit in a representative capacity without impleading those objectors as party-defendants. 8. Order 1 Rule 8 CPC deals with the procedure in respect of the suit to be filed in a representative capacity. Under the said provision of law, it is contemplated that 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 who are interested. Sub-clause (2) of Rule 8 of Order 1 CPC contemplates that the Court shall give notice of the institution of the suit to all persons so interested. Sub-clause (3) therein contemplates that any person on whose behalf the suit is instituted or defended, may apply to the Court to be made a party to such suit. 9. Sub-clause (2) of Rule 8 of Order 1 CPC contemplates that the Court shall give notice of the institution of the suit to all persons so interested. Sub-clause (3) therein contemplates that any person on whose behalf the suit is instituted or defended, may apply to the Court to be made a party to such suit. 9. From a perusal of the abovesaid provision, it is abundantly clear that the purpose of issuing public notice under Order 1 Rule 8 CPC is to make the public aware that the suit is being instituted in a representative capacity by contending that the same is being instituted on their behalf. Thus, the idea behind such notice is to see as to whether anyone has any objection against those person/persons who intend to file such suit in a representative capacity. Persons having no objection need not come to the Court and say that they have no objection. On the other hand, persons who have objections will have to appear before the Court and file their objections. If such objections are raised and filed, it is the duty of the plaintiffs to make them as party-defendants, without driving them to file petitions on their own to get themselves impleaded as party-defendants. That being the legal position, the Court below is not justified in holding that the objectors are at liberty to implead themselves as defendants in the said suit, without directing the plaintiffs to implead them as party-defendants in the suit. 10. At this juncture, the decision of this Court reported in 2011 (2) MWN (Civil) 254 (Karuppa Gounder Vs. Appavoo), can be safely relied upon and in paragraph 13, the learned Judge has observed as follows: "13. Be that it may, if the object behind Order 1 Rule 8 CPC is looked into, that a person who either supports or oppose the claim of the plaintiff should be heard in the matter since a decree passed in a Suit in a representative capacity may bind the person who is not actually impleaded as party defendant by name. This Court in The Victoria Edward Hall Vs. M.Samraj [ 2001 (3) CTC 129 ], in paragraph No.11, has held as follows: "11............ This Court in The Victoria Edward Hall Vs. M.Samraj [ 2001 (3) CTC 129 ], in paragraph No.11, has held as follows: "11............ It is relevant to point that a duty is case on the Court to follow the procedure prescribed under Order 1, Rule 8 C.P.C. Irrespective of the fact as to whether the defendant or defendants present before the Court to safeguard the interest of the persons who are not present before Court a petition under Order 1, Rule 8, CPC for grant of leave of Court to file a suit in representative capacity has to be filed by the first respondent herein."....... Therefore, if the instant case is looked into from the said angle, interest of justice requires that the persons who are names in the objection petition namely 28 of them should be impleaded as parties to the Suit. Since these persons have raised objections as regards the propriety of the petitioners right to use a particular property as pathway to reach his agricultural land, it is but appropriate that all 28 of them are impleaded as defendants to the Suit. However, the Court below without resorting to such procedure, dismissed the Petition and granted liberty for the petitioner to file a fresh petition by impleading parties. In my view, this procedure need not be resorted to as it would result in multiplicity of proceedings and further delay the disposal of the Suit. In order to do substantial justice, the objectors have to be necessarily made as parties to the Suit. From the tenor of the objection given, it appears that they have been opposing the claim of the petitioners on merits. Therefore, it is necessary that these objectors are also impleaded as defendants in order to fulfill the mandatory requirement under Order 1 Rule 8 CPC. Though it is contended that the objection by the 28 persons is on the merits of the Suit claim and not as regards the application under Order 1 Rule 8 CPC, ends of justice would be met only if they are impleaded as defendants, as any decree, if granted would have an effect on those objectors, who claim to be residents of the said hamlet." 11. Considering the above stated facts and circumstances and in view of the above decision of this Court, the plaintiffs have to necessarily implead all the objectors who have filed the objections before the Court, as party-defendants in the suit. 12. No doubt, learned counsel for the respondents relied on the decision of this Court reported in 2013 (4) CTC 205 (Royal Villa Residents' Association Vs. The Project Management Committee). I am of the view that the said decision is not helping the respondents in any manner, since the issue involved in the said case is as to whether there was compliance of Order 1 Rule 8 CPC and if there is non-compliance of the provision, whether that could be the reason to strike-off the plaint. Therefore, the said decision is factually distinguishable and the same cannot be applied to the facts of this case. 13. Considering all the above facts and circumstances, I am of the view that the plaintiffs, namely the respondents herein, should implead all the objectors as party-defendants in the said suit. Accordingly, the Civil Revision Petition is disposed of, with a direction to the respondents-plaintiffs to implead all the objectors as party-defendants in the suit, within a period of six weeks from the date of receipt of a copy of this order, and on such impleadment of those defendants and completion of pleadings, the trial Court shall take up the suit in O.S.No.96 of 2012 and dispose of the same on merits and in accordance with law, within a period of four months thereafter. No costs. The Miscellaneous Petition is closed.