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2019 DIGILAW 1668 (RAJ)

Ranka Buildcon Sole v. Lalludas

2019-05-27

SANJEEV PRAKASH SHARMA

body2019
JUDGMENT Sanjeev Prakash Sharma, J. - Counsel for the petitioner submits that earlier a public interest litigation was filed by the respondent-plaintiffs wherein this court observed that there was no public interest involved and left it free for the respondents to either file a complaint before the Devsthan Department or file a suit if advised. There was no specific direction to the plaintiffs to file a civil suit. The trial court has however accepted the suit in representative capacity under Order 1, Rule 8 CPC without giving an opportunity to the petitioner to contest the same. 2. Counsel for the petitioner has relied on AIR 2008 SC 2187 - Dadu Dayalu Mahasabha vs. Mahant Ram Niwas and ors.; and 2017 SAR (Civil) 1071-S.N.D.P.Sakhayogam vs. Kerala Atmavidya Sangham and ors., in support of his submissions. 3. Per contra, counsel for the respondents submitted that an application was moved under Order 7, Rule 11 CPC by the petitioner-defendant which has been rejected by the trial court, against which, a revision petition is pending before this court. It is also found that in the written statement filed by the petitioner, objection regarding the maintainability of the representative suit has already been taken. The order which is impugned only is with respect to accepting suit and issuing notice and at that stage, opportunity of hearing is not required to be given to the defendant. 4. I have considered the submissions. Order 1, Rule 8 CPC provides as under: Order 1: Parties To Suits: Rule 8. One person may sue or defend on behalf of all in same interest.-(l) Where there are numerous persons having the same interest in one suit,- (a) 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 interest; (b) the court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. (2) The court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reasons of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct. (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended under sub-rule (1), may apply to the court to be made a party to such suit. (4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of Rule 1 of Order 23, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the court has given, at the plaintiff's expenses, notice to all persons so interested in the manner specified in sub-rule (2). (5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his place any other person having the same interest in the suit. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. Explanation:- For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be." 5. The petitioner is defendant in civil suit. Admittedly, in terms of Order 1, Rule 8 CPC, the application has to be moved by the plaintiffs who seeks to file a suit in representative capacity and the court would, upon such application, permit the suit to be registered and notices to be issued. However, it would not in any manner mean that the question cannot be raised by the defendants regarding maintainability of the suit. However, it would not in any manner mean that the question cannot be raised by the defendants regarding maintainability of the suit. As the petitioner has already filed its written statement, and contested the maintainability of the suit, an issue would require to be framed in this regard. Law cited by counsel for the petitioner in 5. N.D.P. Sakhayogam's case (supra), also states on similar lines as under: 22. Secondly, if the plaintiff is held entitled to file such suit, whether the facts pleaded agnd the reliefs claimed in the plaint can be said to be in the nature of representative character so as to satisfy the ingredients of Order 1, Rule 8 of the Code which are meant essentially for the benefit of public at large for grant of any relief and lastly, if the facts pleaded and the reliefs claimed ini the plaint do not satisfy the requirements of Order 1, Rule 8 of the code for grant of relief to the public at large then whether such suit is capable of being tried as a regular suit on behalf of the plaintiff for granting reliefs in their personal capacity because the suit relates to ownership of land, namely, who is the owner of the suit land. 23. Since there was neither any discussion much less finding on any of the aforesaid issues by any of the Courts below though these questions directly and substantially arose in the case (Issue no.1), we are of the considered opinion that it would be just and proper and in the interest of justice to remand the case to the Trial Court to answer these issues and then decide the suit depending upon the answer in accordance with law." 6. The question regarding non-maintainability of the suit can be taken up by the defendants either by way of moving an application under Order 7, Rule 11 CPC or even thereafter in its written statement and substantive issue can be framed under Order 14, Rule 1 or under Order 14, Rule 2 CPC, as the case may be. 7. Having noticed the aforesaid provisions, I find no error in the order passed by civil court in issuing notice to the defendants vide its order dated 7.2.2017. The trial court shall accordingly proceed in view of aforesaid observations. 8. Accordingly, the writ petition being devoid of merit is hereby dismissed.