Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 469 (ORI)

Fakir Mohan Satpathy v. Bighneswar Swain

2018-04-25

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. Defendant no.2 is the appellant against a reversing judgment. 2. Plaintiff-respondent no.2 instituted the suit for declaration that the decree passed in T.S. No.126 of 1978 is illegal, notification issued pursuant to the decree passed in Title Suit No.126 of 1978 as null and void, declaration that the name of the labour colony is Khapuria Labour Colony and permanent injunction. Case of the plaintiff is that Khapuria Labour Colony is situated at Village-Khapuria. The inception of the colony relates back to the year 1955. People worked in the small industrial units in the industrial estate at Khapuria were living there. The colony spread over some vacant lands in Nuapada village. Government of Orissa in its Labour Department took a decision to name the labour colony as Khapuria Labour Colony. The people of Nuapada are in no way concerned with the Labour Colony. On 15.3.1979, the plaintiff came to know that Fakir Mohan Satpathy, defendant no.2 herein, representing the inhabitants of village Nuapada has filed Title Suit No.126 of 1978 in the court of Munsif, Cuttack to set aside the decision of the State of Orissa in changing the name of Khapuria Labour Colony to Nuapada Labour Colony. The State of Orissa in collusion with the plaintiff did not contest the suit and was set ex parte. The suit was hit under Sec.34 of the Specific Relief Act (in short, “the Act”). The Civil Court had no jurisdiction to entertain the suit. 3. Defendant no.1 entered contest and filed a written statement denying the assertions made in the plaint. It was pleaded that by order dated 29.2.1968 of the Labour, Employment and Housing Department, Government of Orissa, the old name of Khapuria Labour Colony was renamed as Nuapada Labour Colony. There was no collusion between the plaintiff and the State of Orissa in the earlier suit. The change of name from Khapuria Labour Colony to Nuapada Labour Colony would not affect the administration of Government or any scheme of the Government for improvement of the industrial labourers. 4. Defendant no.2 filed a written statement stating, inter alia, that Title Suit No.126 of 1978 being a suit under Order 1 Rule 8 CPC, the judgment is binding on the plaintiff and other villagers. The present suit is also a representative suit. Provisions contained in Order 1 Rule 8 CPC had not been complied. 4. Defendant no.2 filed a written statement stating, inter alia, that Title Suit No.126 of 1978 being a suit under Order 1 Rule 8 CPC, the judgment is binding on the plaintiff and other villagers. The present suit is also a representative suit. Provisions contained in Order 1 Rule 8 CPC had not been complied. The plaintiff does not represent the residents of the said Labour Colony. His house is situated in village Tinigharia adjoining village Nuapada. He is not the inhabitant of the said colony. On the application of defendant no.2, an enquiry was conducted by the Revenue Inspector. The colony is within the revenue village of Nuapada. 5. On the inter se pleadings of the parties, learned trial court struck eight issues. Parties led evidence, both oral and documentary, in support of their case. Learned trial court came to hold that the plaintiff has not filed any revenue paper to show that there is any revenue village called Khapuria. No such revenue village called Khapuria exists in any revenue record. Labour Colony situates within the revenue village of Nuapada. The subsequent decision where Government has named it Khapuria Labour Colony is not correct. The plaintiff has filed the suit in the individual capacity. The earlier suit was filed in the representative capacity. The Civil Court had jurisdiction to decide the earlier suit and there was no bar to entertain the suit. Plaintiff failed to prove any collusion or fraud in obtaining the decree in the earlier suit. State had no interest in the matter. Though written statement had been filed by the State, but then it had chosen not to contest the suit. The suit is barred by res judicata. Held so, it dismissed the suit. Felt aggrieved, the plaintiff filed Title Appeal No.54 of 1984 before the learned Civil Judge (Senior Division), 1st Court, Cuttack. Learned appellate court allowed the appeal with a finding that the declaration sought for in the earlier suit is unenforceable. The plaintiff in the earlier suit could not have claimed for declaration in the negative form as regards the status of the defendants. Therefore, the plaintiff had no locus standi to institute the suit. The suit was hit under Sec.34 of the Act. Publication in daily newspaper ‘Prajatantra’ does not appear to be sufficient under Order 1 Rule 8 CPC. The plaintiff in the earlier suit could not have claimed for declaration in the negative form as regards the status of the defendants. Therefore, the plaintiff had no locus standi to institute the suit. The suit was hit under Sec.34 of the Act. Publication in daily newspaper ‘Prajatantra’ does not appear to be sufficient under Order 1 Rule 8 CPC. The people of Labour Colony having not been impleaded in the earlier suit, the decision is not binding on them. The decision rendered in the earlier suit would not operate as res judicata. There is no logic for giving the name of a particular place by the name of the revenue village in which it is located. In spite of changing of name, the people identified the place as Khapuria Labour Colony as noticed from the documents and evidence from the side of the plaintiff. The restoration of the original name will in no way affect the interest of the villagers. The defendant no.2 had no locus standi to bring the earlier suit. The court has lacked jurisdiction to try the suit. 6. The second appeal was admitted on the following substantial questions of law. “1. Whether the learned lower appellate court is justified in decreeing the suit on the basis of the finding that the earlier instituted suit was impliedly barred under Sec. 34 of the Specific Relief Act, when the decree of the earlier suit operates as res jduicata is to the present suit. 2. Whether the learned lower appellate court is justified in decreeing the suit without reversing the finding of the present trial court by arriving at its own finding that the decree of the earlier suit was obtained by fraud or the said court had lacks of jurisdiction. 3. In view of the concurrent finding that the suit colony situates in the revenue village of ‘Nuapada’ and the present defendant no.2 as plaintiff instituted the earlier suit representing the villagers of Nuapada, whether learned court below is justified in declaring the decree of the earlier suit to be illegal and void on the findings that the requirement of Order 1 Rule 8 CPC was not complied with. 7. Heard Mr. Arun Kumar Mishra-2, learned counsel for the appellant and Mr. Swayambhu Mishra, learned ASC for the respondent no.2. None appeared for the respondent no.1. 8. Mr. 7. Heard Mr. Arun Kumar Mishra-2, learned counsel for the appellant and Mr. Swayambhu Mishra, learned ASC for the respondent no.2. None appeared for the respondent no.1. 8. Mr. Mishra, learned counsel for the appellant submitted that Title Suit No.126 of 1978 was filed by respondent no.2 for a declaration that the labour colony is situated within the boundary of the village Nuapada. Labour Colony was first named as Nuapada Labour Colony till it was changed as Khapuria Labour Colony by letter dated 17.1.1973 of the Government. This has affected the right and character of the villagers of Nuapada. Thus Sec. 34 of the Act was not a bar for the previous suit. He further submitted that the earlier suit was filed by respondent no.2 as plaintiff representing the villagers of Nuapada. The court had approved the notice, vide Ext.J. Notice was published in the daily ‘Prajatantra’ vide Ext.K. The present plaintiff had due notice of the paper publication. Khapuria Labour Colony is included within the revenue village of Nuapada. Name of Khapuria Labour Colony or Khapuria does not find place either in the settlement ROR or in the map, vide Ext.A and B. The State is the authority in giving name of a locality. The decree is binding against all including the State. The present suit is barred by res judicata. 9. Per contra, Mr. Mishra, learned Addl. Standing Counsel submitted that the name of the colony has been changed after considering the pros and cons of the matter. The Government is the appropriate authority to assign the name of an area. 10. Title Suit No.127 of 1978 was instituted by Fakir Mohan Satpathy-appellant herein for declaration that the change of name of Nuapada Labour Colony to Khapuria Labour Colony is not correct. The suit was filed in the representative capacity. The notice, vide Ext.J, was duly approved by the court. The notice was published in the ‘Prajatantra’ having wide circulation in the area. None appeared. The suit was decreed on 8.11.1978. 11. The question does arise as to whether the judgment in the suit will operate as res judicata in the instant suit ? 12. Explanation VI to Sec. 11 CPC deals with representative capacity. The notice was published in the ‘Prajatantra’ having wide circulation in the area. None appeared. The suit was decreed on 8.11.1978. 11. The question does arise as to whether the judgment in the suit will operate as res judicata in the instant suit ? 12. Explanation VI to Sec. 11 CPC deals with representative capacity. It provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Thus the conclusion is irresistible that the present suit is barred by res judicata. 13. William Shakespeare in his play “Romeo and Juliet” has said, “What’s in a name? that which we call a rose by any other name would smell as sweet”. 14. Change of name of Labour Colony does not in any way affect the interest of the public. No element of public interest is involved in the suit. Assigning the name of a particular area is purely an executive function and it is for the Government to take a decision with reference to all facts and circumstances. On taking a holistic view of the matter, the Government have changed the name of the area. The court has limited jurisdiction to decide the issue, provided action is tainted with mala fide or arbitrariness. There is neither any pleading nor evidence on record that the decision of the Government to change the name of the locality suffers from vice of arbitrariness or tainted with mala fide. The substantial questions of law are answered accordingly. 15. A priori, the impugned judgment is set aside. The appeal is allowed. There shall be no order as to costs.