BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/08/2008 CORAM THE HON'BLE MR.JUSTICE V. RAMASUBRAMANIAN C.R.P.(NPD)(MD)No.1204 of 2008 and M.P.(MD) No.1 of 2008 1.R.S.Kanagavel (P1) 2.R.Radhakrishnan (P2) 3.G.Anandaiah (P3) 4.J.Suresh Kumar (P4) 5.K.Ravindran (P5) 6.K.Radhakrishnan (P6) 7.P.Venkatesh (P7) 8.M.Muthuraj Nadar (P8) 9.M.Balaji (P9) 10.K.Meenakshi Sundaram (P10) 11.S.aathiraja (P11) 12.K.Ayyappan (P12) 13.P.M.S.Ashokan (P13) 14.P.Thangavel Nadar (P14) 15.D.Balakrishna Nadar (P15) 16.J.Vignesh Babu (P17) 17.S.Rajesh Kumar (P18) 18.M.Manoharan (P19) 19.M.Karunai Anandam (P20) 20.S.K.A.P.Kishan (P21) 21.P.Palanikumar (P22) 22.M.John (P23) 23.K.S.Balakrishnan (P24) 24.K.R.Paulraj (P25) 25.K.A.Thiagarajan (P27) 26.N.Karthikeyan (P28) 27.J.Ragulan (P29) 28.P.Senthilnathan (P30) 29.N.Jayanathan (P31) 30.G.J.Karuppiah (P32) 31.S.A.K.C. Murugesan (P33) 32.R.Sreedara Prabhu (P34) 33.P.Vetrivel Pandian (P35) 34.D.Arun Kumar (P36) 35.D.Gajendra Kumar (P37) 36.M.S.Manoharan (P38) 37.S.Dhanasekaran (P40) 38.D.Karthikeyan (P41) 39.J.Thangamurali (P42) 40.K.Selvakani (P43) 41.S.Mohan (P44) 42.M.Ameer Thangadaran (P45) 43.D.Jayavel (P46) 44.J.A.Thalaimuthu (P47) 45.P.K.Gurusamy (P48) 46.P.Pratheep (50) 47.S.Raman (P51) 48.A.M.Ponnupandian (P52) ...Petitioners Vs. 1.M.Palanikumar 2.P.S.Pandian 3.A.S.R.Jayaseelaln 4.S.K.A.P.Balakrishnan 5.O.K.Thirupathi 6.R.V.Kamaraj 7.P.P.Sowrirajan (P16) 8.N.S.Mariappan (P26) 9.S.Balakrishnan (P39) 10.A.S.K.Karunanidhi Raghavan (P 49) (Petitioners 16,26,39 and 49 are transposed as Respondents 7 to 10 vide order of this Court dated 12.8.2008 in MP(MD) No.2 of 2008) ...Respondents PRAYER Petition filed under Article 227 of the Constitution of India against the fair and decretal order made in I.A.No.70 of 2008 in O.S.No.58 of 2007, dated 01.04.2008 on the file of the Principal District Court, Theni. !For Petitioners ... Mr.G.Prabhu Rajadurai ^For Respondents-1&2 ... Mr.S.Balasubramania Iyer For Respondents-3to6 ... Mr.M.Ajmalkhan For Respondents-7 to 10... Mr.S.S.Sundar - - - :ORDER
This Civil Revision Petition arises out of an order dismissing an
application filed by the petitioners herein under Order I Rule 10 CPC to implead
themselves as parties to O.S.No.58 of 2007 pending on the file of the Principal
District Court, Theni.
2. Heard Mr.G.Prabhu Rajadurai, learned counsel for the petitioners,
Mr.M.S.Balasubramania Iyer, learned counsel for the respondents 1 and 2
(plaintiffs in the suit), Mr.M.Ajmalkhan, learned counsel appearing for the
respondents 3 to 6 and Mr.S.S.Sundar, learned counsel appearing for the parties,
who were earlier shown as petitioners in the Civil Revision Petition and who
later got transposed as respondents-7 to 10, on the ground that they never were
parties to the Civil Revision Petition.
3. Theni Melappettai Hindu Nadargal Uravinmurai, is a society
registered originally under the Societies Registration Act and later deemed to
have been registered under the Tamil Nadu Act. The history of litigation in this
Society is much longer than the history of the very Society itself. Since the
whole history of this litigation may consume many pages, I could not trace the
same in entirety. But I shall take the date 7.4.2007 as the starting point for
disposing of this Civil Revision Petition.
4. On 7.4.2007, a General Body Meeting was convened and elections
were held in the aforesaid Society. After the elections, another General Body
Meeting was convened to be held on 28.5.2007 for electing members to various
Committees and sub Committees. This was done by a notice dated 1.5.2007.
5. Upon receipt of the said notice dated 1.5.2007, the respondents 1
and 2 herein filed a suit in O.S.No.114 of 2007 on the file of the District
Munsif Court, Theni, challenging the notice and seeking various other reliefs.
In the said suit, the respondents 1 and 2 described themselves as representing
the members of the Society. In other words, the plaint showed the respondents 1
and 2 herein as persons suing in a representative capacity.
6. Therefore an application was directed to be taken out under Order
I, Rule 8 CPC, in which an order was passed for publication of a notice. A
notice was accordingly published on 24.5.2007 in ‘Daily Thanthi” news paper.
7. It appears that in response to the said notice, some of the
members of the Society merely filed vakalats before the Trial Court, without
necessary applications in terms of sub Rule (3) of Rule 8 of Order I CPC.
Therefore, those vakalats were not actually taken note of.
8. In the meantime, there were various proceedings arising out of
the filing of Form No.7, on the writ side of this Court. Ultimately, the
Division Bench of this Court, directed the suit to be transferred to the file of
the District Court, Theni to be tried along with another connected suit and
further directed the District Court to dispose of the suit on or before
31.3.2008. In pursuance of the said order, the suit was transferred from the
file of the District Munsif Court, Theni to the file of the District Court,
Theni and got renumbered as O.S.No.58 of 2007.
9. In the meantime, 8 elected Office bearers of the Society filed
I.A.No.127 of 2007 seeking to implead themselves as parties to the suit. The
said application was rejected by the District Court by an order dated 7.3.2008.
Similarly a group of 311 members of the Society filed an application for
impleading in I.A.SR No.1065 of 2008 and the same was also dismissed by the
District Court by an order dated 28.3.2008.
10. As against the said orders, both the groups viz., the group
comprising of 8 elected Office bearers and the other group comprising of 311
persons, filed two Civil Revision Petitions in CRP (PD)(MD) Nos.616 and 818 of
2008. Both the Civil Revision Petitions were disposed of by a common order dated
29.4.2008 by R. Banumathi, J. The operative portion of the order disposing of
both the Civil Revision Petitions, is extracted as follows:-
“24. To avoid the procedural difficulties, the Revision Petitioners in CRP
No.616 of 2008 are permitted to defend the suit on behalf of 311 Objectors. The
names of 311 Objectors may be furnished to the Court and list of 311 Objectors
shall form part of the records in O.S.No.58 of 2007.
25. CRP No.616 of 2008:- The impugned order in I.A.No.127 of 2007 in
O.S.No.58 of 2007 dated 7.3.2008 is set aside and CRP No.616 of 2008 is allowed
with the following directions:-
The Revision Petitioners in CRP No.616 of 2008 are ordered to be impleaded
as Defendants 5 to 12 in O.S.No.58 of 2007.
Defendants 5 to 12 are permitted to defend the suit in a representative
capacity representing 311 other Objectors. The list of 311 Objectors whom D5 to
D12 would represent shall be furnished in a separate list and the list shall
form part of the Court records.
While impleading the Revision Petitioners as D5 to D12, in the cause
title, it shall be stated that D5 to D12 for themselves and on behalf of 311
other Objectors.
The Revision Petitioners are hereby permitted to defend the suit for
themselves and on behalf of the other Objectors in a representative capacity.
26. In view of the above directions, CRP No.818 of 2008 is disposed of.
Consequently, the connected MPs in both the Revisions are closed.
In view of the order passed in these Revision, the learned Principal
District Judge, Theni shall obtain extension of time for disposal of the suits
by writing to the Registry.
All parties concerned are directed to co-operate with the trial Court to
dispose the suits within the time frame fixed by the Bench.”
11. In pursuance of the said order passed by this Court, the group
of 311 persons have actually come on record without either being plaintiffs or
being defendants. However, the other group of 8 persons were impleaded as
defendants 5 to 12 in the suit and they have been allowed to represent those 311
persons by virtue of the order passed in both the aforesaid Civil Revision
Petitions.
12. Subsequently, a third group of 52 persons filed a similar
application for impleading in I.A.SR No.1300 of 2008 under Order I, Rule 10 CPC.
The District Court, Theni, dismissed that application without even numbering it,
by an order dated 23.4.2008. Therefore the said group of 52 persons filed CRP
(PD) (MD) No.946 of 2008, challenging the rejection of the application I.A.SR
NO.1300 of 2008.
13. The said Civil Revision Petition CRP (PD) (MD) No.946 of 2008,
was allowed by K.K.Sashidharan, J., by an order dated 17.6.2008, following the
order passed in the earlier two Civil Revision Petitions. The operative portion
of the order of K.K.Sasidharan, J., in CRP (PD) (MD) No.946 of 2008 reads as
follows:-
“8. In the result, the Civil Revision Petition is allowed by setting aside
the order dated 23.4.2008 in I.A.SR No.1300 of 2008 and the matter is remitted
to the learned trial Judge to number the application in I.A.SR No.1300 of 2008
and to pass appropriate orders, after hearing both sides, and in the light of
the orders passed by this Court dated 29.4.2008 in CRP (PD)(MD) Nos.616 of 2008
and 818 of 2008, within a period of three weeks from the date of receipt of a
copy of this order. However, in the facts and circumstances of the case, there
shall be no order as to costs. Consequently, the connected miscellaneous
petition is closed.”
14. In pursuance of the said order, the District Court, Theni,
numbered the application for impleading as I.A.No.70 of 2008. But after hearing,
the Principal District Judge, Theni, dismissed the application I.A.No.70 of
2008, by the order dated 2.7.2008. It is against the said order that the
petitioners have come up with the present Civil Revision Petition.
15. Mr.G.Prabhu Rajadurai and Mr.M.Ajmal Khan, learned counsel
appearing for the petitioners as well as the sailing respondents, contended that
in the light of the orders passed in the three Civil Revision Petitions CRP
(PD)(MD) Nos.616, 818 and 946 of 2008, the Court below committed an error in
dismissing the application for impleading. Both the learned counsel contended
that when the CRP (PD)(MD)No.946 of 2008 was allowed by this Court, directing
the Court below to number the application and to pass orders in tune with the
common order passed in the earlier two Civil Revision Petitions, it was not open
to the District Court, Theni, to reject the application for impleading. The
learned counsel also drew my attention to the provisions of Order I, Rule 8 CPC
and contended that when the plaintiffs claimed to have instituted the suit in a
representative capacity, they are not entitled to object to the members of the
Society, seeking to implead themselves as parties. Order I, Rule 8 CPC, enables
a person or a group of persons to sue or be sued or to defend a suit in a
representative capacity. If the person whom the plaintiff seeks to represent, is
not willing to be so represented, it is open to such a person to come on record
as a party and that therefore the order of the Court below rejecting the
application for impleading is erroneous.
16. I have carefully considered the above submissions of the learned
counsel for the petitioners as well as the respondents who sail along with the
petitioners.
17. It is seen from the checkered history of this litigation that
the present attempt by the petitioners to get impleaded, is only one more
attempt, to prevent the trial of the suit from taking off. The suit originally
instituted, was admittedly in a representative capacity. This is why the Court
below ordered the publication of a notice in terms of Order I, Rule 8(2) CPC. In
response to the notice so published, the petitioners herein do not appear to
have filed any application under Order I, Rule 8 (3) CPC.
18. To be precise, the suit was instituted on 22.5.2007 and the
Court ordered publication of a notice in terms of Order I, Rule 8 (2) CPC, in
I.A.No.26 of 2007 on 22.5.2007 itself. The publication was effected on 24.5.2007
indicating the date of hearing as 29.5.2007. But the present petitioners filed
I.A.No.70 of 2008 for impleading them as parties only on 16.4.2008 nearly after
11 months. Thus it is obvious that the petitioners herein did not seek to come
on record in response to the notice published under Order I, Rule 8 (2) CPC.
This is why their application is only for impleading under Order I, Rule 10 CPC.
19. The affidavit in support of the application for impleading,
filed by the petitioners discloses that the petitioners want to support the
resolutions passed on 7.4.2007 and 28.5.2007. The affidavit in entirety, apart
from the narration of the history of the case, discloses only the interest of
the petitioners in supporting the resolutions said to have been passed on
7.4.2007 and 28.5.2007. In other words, the purpose of the petitioners seeking
to come on record is to support the beneficiaries of the resolutions passed in
the Meetings held on 7.4.2007 and 28.5.2007. Those beneficiaries are already on
record as defendants 1 to 4 or defendants 5 to 12. For the purpose of supporting
the case of one or the other of the parties, it is not necessary for a person to
come on record.
20. In any event, the conduct of the petitioners, disentitles them
to an order under Article 227 of the Constitution. Out of 52 petitioners, who
have come up with the present Civil Revision Petition, challenging the order of
the Court below, at least 4 persons have come up with an application in M.P.No.2
of 2008 contending that they never signed the vakalats and that they were never
parties to the Civil Revision Petition. In view of such a stand taken by some of
the petitioners in the form of M.P.(MD) No.2 of 2008, the counsel for the
revision petitioners had no objection to M.P.(MD) No.2 of 2008 being allowed.
The said application was allowed today, permitting the transposition of the
petitioners in M.P.(MD) No.2 of 2008, who are petitioners 16, 26, 39 and 49 in
this Civil Revision Petition, as respondents-7 to 10, in this Civil Revision
Petition. Therefore, the bona fides of the petitioners seeking to get impleaded,
itself is highly doubtful.
21. Moreover, the respondents 1 and 2 have filed an additional
counter affidavit, where they have taken a specific stand that the names
disclosed in the cause title as petitioners in this civil revision petition are
not actually the persons who have come to Court. In paragraph-7 of the
additional counter affidavit, the respondents 1 and 2 have stated as follows:-
“7. The names and particulars of the petitioners who are also mentioned as
the Revision Petitioners but who had not subscribed to the Vakalat by putting
the signatures in it are detailed herein below:-
(i) Particulars of the petitioners who had not subscribed their signatures
in the Vakalat but their names had been written as if they had signed in it
Petitioner Numbers 2, 3, 5,6,7,8,9,10,11,12,13,14,17, 19,25,29,41,45,47 and 52.
(ii) Particulars of petitioners who were not in Theni or at nearby places,
but their names had been written as if they had signed in it (place in brackets
is the place where they reside at present)
Petitioners Numbers 7 (Madras), 24 (Thiruppur), 28 (Madras), 35 (London),
36 (Madras), 37 (Madras), 38 (Bangalore), 42 and 46 (Madras).
(iii) Particulars of the petitioners who used to sign only in English but
their names were written in Tamil as if they had signed in Tamil.
Petitioners Numbers 31 and 33.
(iv) Particulars of petitioners who have definitely asserted that they had
not signed in the Vakalat.
Petitioners Numbers 4,16, 26, 39, 48, 49.
(v) Particulars of petitioners who had not signed in the Vakalat and whose
names had been written as if they had signed in the Vakalat.
Petitioners Numbers 15, 18, 20, 21, 22, 23, 27, 30, 32, 35,40,43,44,50 and
51.”
Therefore it is clear that the petitioners have not come to Court with clean
hands. The petition to implead has been filed in the names of 52 persons. But
many of them could not have signed the vakalat or even consented to be parties.
It is amply demonstrated by the contesting respondents that at least some of the
revision petitioners never signed the vakalat nor agreed to be parties to the
Civil Revision Petition. Therefore if the Civil Revision Petition is to be
allowed and they have to be impleaded in the suit, this Court should first
conduct a roving enquiry about the signatures found in the vakalat filed with
the Civil Revision Petition and find out who forged their signatures and how the
signatures came to be attested. The petitioners do not deserve the luxury of
such a roving enquiry in a Civil Revision Petition under Article 227 arising out
of an application for impleading.
22. Moreover, it is clear that apart from supporting the case of the
defendants 1 to 12, the petitioners herein have no other interest in the subject
matter of the suit. There are actually about 500 members in the aforesaid
Society. Out of those about 500 members, 12 persons have already been shown as
defendants 1 to 12 and 311 persons have been permitted by the earlier orders of
this Court, to come on record and be represented by defendants 5 to 12.
Therefore there is no necessity for the Court below to expand the scope by
inviting more and more persons to be parties. At this rate, I doubt if the trial
of the case will be allowed to proceed any further, since the remaining about
100 members may also come up with applications for impleading, taking advantage
of the earlier orders passed. It is needless to point out that procedure is only
a handmaid and can never be allowed to become the mistress.
23. The Division Bench of this Court had earlier directed the suit
to proceed on an expeditious basis so as to be disposed of on or before
31.3.2008. Now more than 4 months have passed, after the deadline set by this
Court has expired. By allowing the parties batch by batch to come on record at
this rate, it appears that the suit will never see the light of the day. The
last election held on 7.4.2007, was for electing the Office bearers for a term
of 3 years. The suit was instituted in May 2007 and despite the chief
examination of PW.1, the suit could not proceed any further because of these
successive applications for impleadment. Order I, Rule 8 CPC, is intended only
to enable the parties to sue in a representative capacity and to enable some
parties to come on record if they think that their interest will not be
safeguarded by the persons already on record. But the manner in which the
applications for impleading have been filed, with some persons claiming that
they never signed the vakalat and the others conceding the application for
transposition, it is clear that Order I, Rule 8 CPC, is only sought to be
misused.
24. In any event, the petitioners herein did not take advantage of
the provisions of Order I, Rule 8(3) CPC. At the time of institution of a suit
or entering the defence, the scheme of order I, Rule 8 CPC, contemplates 4
stages viz.,:-
(i) Persons having the same interest in one suit seeking the permission of
the Court to sue or be sued or to defend a suit on behalf of or for the benefit
of all persons interested.
(ii) The Court passing an order granting permission or issuing a direction
that one or more of such persons may sue or be sued or may defend the suit.
(iii) The Court thereafter issuing notice of the institution of the suit
to all persons interested either by personal service or by directing the
publication of an advertisement, to enable all persons interested, to know about
the institution of the proceedings in a representative capacity and
(iv) Application by a person on whose behalf or for whose benefit the suit
is instituted or defended, to be made a party to the suit, so that his interest
can be taken care of by himself and not left to the wisdom of the other person
who represents him.
25. After the institution of a suit or entering into defence, Order
I, Rule 8 CPC, provides two safety valves under clauses (4) and (5) by providing
–
(a) that no such suit shall be compromised or withdrawn or abandoned
without notice to all; and
(b) that the Court may always substitute any person in the place of the
person who was originally permitted to represent all.
26. From the scheme of Order I, Rule 8 CPC, it is clear that if a
person does not want the plaintiffs to represent him, he must take advantage of
sub Rule (3) of Rule 8 of Order I CPC and seek to come on record in response to
the advertisement. He cannot seek to come after about 11 months of the
publication of the notice, by taking recourse to Order I, Rule 10 CPC.
27. In view of the above, I find no justification for reversing the
order of the Court below. The orders passed in the earlier Civil Revision
Petitions, were passed under the bona fide impression that a group of persons
did not want the plaintiffs to represent them. But the expression of such good
faith by the Court on the members has actually been misused. Therefore there is
no point in repeatedly allowing applications for impleading one after another on
the basis of the earlier Civil Revision Petitions.
28. An application for impleading, allowed by a Court, is a decision
as between the parties to the said application. Therefore any subsequent
application can always be tested on its own merits. If so tested, it is clear
that the petitioners herein are neither necessary parties nor proper parties.
All that the petitioners want is to support the case of the contesting
defendants viz., D5 to D12. This purpose can be well achieved by the
petitioners, by adducing evidence if they want. To adduce evidence, the
petitioners will necessarily have to come to the surface from wherever they are.
But to file an impleading application, all that is required is only a signature
in the pleadings. This cannot be allowed to be taken advantage of by the
petitioners. Therefore, this Civil Revision Petition deserves to be dismissed
and hence it is dismissed.
29. The learned counsel for the respondents 1 and 2 (the plaintiffs
in the suit) made a request to direct the trial Court to dispose of the suit
within a time frame. But the parties have actually nullified even an earlier
order of the Division Bench of this Court to dispose of the suit by 31.3.2008.
Therefore it may only be an empty formality if I fix a time frame. When the
suit reached the stage of examination of PW.1, the impleading parties applied
the reverse gear and brought the suit back to Order I, Rules 8 and 10 CPC. From
there, the parties have sufficient ammunition in the form of various provisions
of the CPC such as amendment, reopen, recall, send for etc. All those weapons,
in my opinion, will be well utilised by the parties to see to it that every
order passed by this Court, fixing a date for the disposal of the suit, will be
nullified. Yet I cannot lose hope as a Court of law. Therefore I direct the
trial Court to expedite the trial and dispose of the suit on or before
30.9.2008.
30. With the above observations, the Civil Revision Petition is
dismissed. No costs. Consequently connected miscellaneous petition is also
dismissed.
Svn
To
1.The Principal District Court,
Theni.
2.The District Munsif Court,
Theni.