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2025 DIGILAW 614 (KER)

Tevalappurathu Kudumbayogam S/o Krishnan v. Kunjaniyan S/o Kunjupanickan

2025-03-17

BASANT BALAJI

body2025
JUDGMENT : (BASANT BALAJI, J.) The petitioners are defendant Nos. 2 to 13 in O.S.No.361 of 2024 on the files of the Munsiff Court, Haripad. Respondents 1 and 2 filed the suit to set aside the decision of the general body held on 1.12.2024, suspending the plaintiffs for 10 years from the primary membership. Along with the suit, an application for an interim prohibitory injunction was also filed as I.A. No.1 of 2024. In the suit, only the members of the elected committee, having charge for one year, were arrayed as defendants. None of the family members, who participated in the general body, which took the decision to suspend the plaintiffs, were arrayed as defendants. To the interim injunction application, a detailed counter affidavit pointing out the non-joinder of necessary parties, was also filed. Immediately, respondents 1 and 2 filed a petition to amend the plaint to convert the suit into one of representative suits under Order 1 Rule 8 CPC. The application was allowed, and the plaintiff was directed to carry out the amendment. 2. The next day, the plaintiff filed an application as I.A. No.7 of 2025 under Order 1 Rule 8 for leave to convert the suit as a representative suit. A detailed counter affidavit was filed, but the learned Magistrate allowed the application on 28.2.2025. The petitioners have a case that the learned Magistrate, after allowing the application, posted the case to 12.03.2025. Ext.P9 is the e-court status. But on the very next day, P10 shows that the next date of hearing is 3.3.2025, when a carbon copy application of the order in I.A.No.7 of 2025 was filed on 01.03.2025. The petitioner challenges Ext.P8 in this O.P.(C). 3. The main ground on which this O.P. filed is that there is a total non-application of mind into the grounds raised opposing the application to allow the suit to be converted into a representative suit under Order 1 Rule 8. He contends that without making the entire members of the general body, who took the decision to suspend the plaintiffs for 10 years, the suit cannot be proceeded with. When such a contention was raised, the present application was filed to convert the suit to a representative suit, though the application was filed on 28.02.2205. He contends that without making the entire members of the general body, who took the decision to suspend the plaintiffs for 10 years, the suit cannot be proceeded with. When such a contention was raised, the present application was filed to convert the suit to a representative suit, though the application was filed on 28.02.2205. The plaintiffs have not complied with the provision under Order 1 Rule 8 till date and without doing so, they are pressing for an interim injunction which the court cannot grant. 4. Order 1 Rule 8 CPC is invoked where there are numerous persons having the same interest in one suit and one or more of such persons, with the permission of the court, sue or be sued, or may defend the suit, on behalf of, all persons so interested. The court may direct that one or more such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. The court shall, in every case where permission or a 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 reason 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. 5. The counsel relied on a judgment of this court in Narayanan M C and others v. Periyadan Narayanan Nair and others [ 2021 (3) KHC 211 ], wherein this court has held thus:- “The ordinary rule is that procedure under sub-rule (2) of Rule 8 of order 1 CPC shall be followed for the purpose of making the suit a representative one. If the procedure is not complied and publication is not made a suit will not become a representative action and is decree passed will bind only eo nominee parties.” 6. If the procedure is not complied and publication is not made a suit will not become a representative action and is decree passed will bind only eo nominee parties.” 6. Section 20 of Civil Rules of Practice, Kerala states that an application under Order 1 Rule 8 shall be supported by an affidavit stating the number or approximate number of parties and the places where they respectively reside that they all have the same interest in the subject - matter of the suit, and the nature of the said interest and the best means of giving notice of the institution of the suit to the said parties, and the probable cost thereof. If the application is made by the plaintiff, it may be in form No.9, and the estimated cost of giving notice of the institution of the suit shall, at the same time, be deposited in Court. The plaint shall state that the plaintiff sues on behalf of himself and other persons interested in the subject matter of the suit or suits the defendants as representing all persons so interested. The summons to the defendant shall contain the notice set in form No.10. The counsel for the petitioner argues that the procedure prescribed under sub-rule (2) or as well as No.9 is not complied with till date. Therefore, the suit cannot be treated as one of a representative suit. Any application filed in the said suit cannot be considered unless the procedure is completed. 7. The case of the petitioners is that the members of the General Body took a decision suspending the plaintiffs and they are not made as parties to the suit. By filing an application to convert the suit under Order 1 Rule 8, the plaintiffs intend to give publication regarding the suit so that any interested party can contest the suit. The conversion of the suit is allowed by the trial court, taking into consideration that there are so many members in the ‘kudumbayogam’, and including them individually will cause inconvenience. It is to protect the interest of the members that publication is allowed. On going through Ext.P8, I am of the considered opinion that the order allowing the petition under Order 1 Rule 8 CPC does not suffer from any infirmity, as it affects the entire members of the family. It is to protect the interest of the members that publication is allowed. On going through Ext.P8, I am of the considered opinion that the order allowing the petition under Order 1 Rule 8 CPC does not suffer from any infirmity, as it affects the entire members of the family. But the question remains is whether the public advertisement under sub rule (2) of Order 1 Rule 8 CPC is complied with or not. As of today, there is no compliance with the said rule. 8. Counsel for the respondents submits that they have submitted a draft publication, and only if it is approved by the court the same can be published. Taking note of the said submission, I dispose of this Original Petition directing the trial court to see that the mandate under Order 1 Rule 8 CPC and Section 20 of Civil Rule of Practice is fully complied with by the plaintiffs. The court below also shall take into consideration the dictum laid down by this court in Narayanan (supra). If only, the said procedure is complied with, the suit can be treated as a representative one. This O.P.(C) is disposed of as above.