IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 16.11.2010. CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN C.R.P.(PD)No.3811 of 2010 and M.P.Nos.1 and 2 of 2010 1. E.D.Charles 2. R.Benjamin Jayaraj 3. IEP.Gnanaraj 4. R.Pushparaj 5. P.J.Thilagar 6. Rev.R.Albert Sockeno 7. Rev.P.Immanuel 8. Rev.C.San Jebaraj Stephenson ..Petitioners Vs. 1. G.Selvaraj 2. Tamil Evangelical Lutheran Church, rep by its President/Bishop, Having office at Tranquebar House, Tiruchirappalli. ..Respondents Civil Revision Petition to strike off the suit in O.S.No.130 of 2010 on the file of the Sub Judge, Ariylaur. For petitioners : Mr.G.Masilamani, Senior Counsel for M/s.Mani Sundaragopal For R1 : No appearance. For R2 : Mr.P.S.Raman, Advocate General for Mr.N.Devarajan ORDER
Defendants 1 to 8 in O.S.No.130 of 2010 on the file of the Sub Court, Ariyalur are the revision petitioners. The revision petition is filed to strike off the plaint in O.S.No.130 of 2010.
2. The above suit was filed by the first respondent for injunction restraining the revision petitioners herein from interfering with the administration and governance of the second respondent Church by the President/Bishop Trichy. The first respondent/plaintiff also filed an Application in I.A.No.186 of 2010 for temporary injunction and the learned Sub Judge passed an order of ad interim injunction on 17.9.2010 and adjourned the case to 30.9.2010. On 30.9.2010, the revision petitioners appeared through counsel and on the very same day, the first respondent herein/plaintiff filed a memo before the court below stating that he is not interested in prosecuting the suit and prayed for dismissal of the suit as not pressed. The first respondent also filed another memo to revoke the vakalat of his counsel. The learned Sub Judge, after entertaining the memos filed by the first respondent/plaintiff, passed an order on 30.9.2010 that the application is filed by some parties to implead themselves as plaintiffs in the suit and the same is pending and the suit is filed on behalf of the members of the said church and the suit was not filed by the plaintiff for his personal interest and therefore, the petition filed under Order 1 Rule 8 has to be pursued to find out whether those persons have to be impleaded and ordered the petition and adjourned the case to 18.10.2010 and also extended the injunction already granted. The case was taken up on 18.10.2010 and on that date also the learned Sub Judge adjourned the case to 29.10.2010 and extended the interim order of injunction and on 29.10.2010 also the case was adjourned to 29.11.2010 and the interim order was extended till then. In the circumstances, the present revision petition is filed by the revision petitioners to strike off the plaint in O.S.No.130 of 2010 on the file of the Sub Court, Ariyalur.
3. Mr.G.Masilamani, learned Senior Counsel for the revision petitioners submitted that the court below has no jurisdiction to extend the order of injunction, when the plaintiff has filed a memo for withdrawal of the suit, and the court has no other option except to permit the plaintiff to withdraw the suit and the court cannot adjourn the case by extending the interim orders already granted. He further submitted that the interim orders passed in the suit can be extended only during the pendency of the suit. When once the suit is withdrawn by the plaintiff, the interim orders cannot be extended and having come to know that the plaintiff has filed the memo to withdraw the plaint, the court below should not have extended the order of injunction. The learned Senior Counsel further submitted that the court below erred in holding that the application under Order 1 Rule 8 is filed by some parties to implead themselves in a representative capacity and that application has to be pursued and the suit is also filed by the plaintiff in a representative capacity. The learned Senior Counsel further submitted that under Order 1 Rule 8(3) of the Code of Civil Procedure, only when a suit is instituted in a representative capacity after getting leave of the court, any person can be impleaded as defendant after getting necessary permission, but, in this case, the suit was not filed in a representative capacity and no permission was granted by the court permitting the plaintiff to file the suit in a representative capacity and therefore, the observation of the court below that the application filed under Order 1 Rule 8 is pending and therefore, the injunction can be extended, cannot be allowed to stand and therefore, the plaint has to be struck off. In support of his contention, the learned Senior Counsel relied upon the following decisions:-
1. KALYAN SINGH v. CHHOTI ((1990) 1 SCC 266)
2. SHALINI SHYAM SHETTY v. RAJENDRA SHANKAR PATIL
((2010) 8 SCC 329)
3. HULAS RAI BAIJ NATH v. FIRM K.B.BASS AND CO.
(AIR 1968 SC 111 = (1967) 3 SCR 886)
4. On the other hand, Mr.P.S.Raman, learned Advocate General appearing for the 9th defendant/second respondent submitted that the court below has not committed any irregularity in extending the injunction order as the court below was of the opinion that the suit was filed in the nature of a representative capacity and the application is also filed by some third parties to get impleaded themselves as parties to the suit and therefore, no motive can be attributed to the learned Sub Judge for having extended the injunction order.
5. According to me, a perusal of the order and pleadings in the above revision would make it clear that the court below erred in extending the injunction order when a memo has been filed by the plaintiff to withdraw the suit. Further, the court below ought not have entertained the application filed under Order 1 Rule 8 by the third parties to get impleaded themselves as the suit was not filed in a representative capacity. As rightly pointed out by the learned Senior Counsel Mr.G.S.Masilamani, under Order 1 Rule 8(3), when a suit is instituted or defended in a representative capacity, any person, on whose behalf or for whose benefit the suit was instituted or defended, may apply to the court to get impleaded as a party to such suit. Admittedly, the suit was not filed in a representative capacity and therefore, nobody is entitled to file any application under Order 1 Rule 8(3) to get themselves impleaded. The court below also erred in assuming the fact that the suit has been filed on behalf of the members of the church and therefore, the petition filed under Order 1 Rule 8 by the third parties can be considered. As stated supra, unless a suit is filed in a representative capacity, it is not open to any person to invoke the provision under Order 1 Rule 8 to get themselves impleaded in that suit.
6. Further, in this case, admittedly, the plaintiff/first respondent herein filed a memo seeking permission to withdraw the suit before this court and also there is no appearance for the plaintiff/first respondent even though he had filed caveat. The learned Advocate, who filed caveat on behalf of the plaintiff/first respondent also withdrew the vakalat and even after the name of the plaintiff/first respondent was printed in the cause list, there is no appearance for the plaintiff/first respondent. Therefore, it can be presumed that the plaintiff/first respondent is not interested in prosecuting the case as he has also filed the memo seeking permission of the court to withdraw the suit. In this connection, the observation of the Supreme Court made in HULAS RAI BAIJ NATH v. FIRM K.B.BASS AND CO (AIR 1968 SC 111) is relevant. The Honourable Supreme Court, in the above judgment held as follows:-
“The language of order 23 Rul3 1 sub-rule(1) CPC, gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh suit is sought under sub-rule (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject-matter under sub-rule (3) of that Rule. There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it.”
7. Therefore, when a memo is filed by the plaintiff for withdrawal of the suit, no option is left to the court except to record the memo and dismiss the suit as withdrawn and when the suit is withdrawn, the court has no jurisdiction to extend the injunction already granted in favour of the plaintiff. Therefore, the order of the court below in extending the injunction granted in I.A.No.186 of 2010 in O.S.No.130 of 2010 is also set aside.
8. Further, the Honourable Supreme Court, in a recent judgment in SHALINI SHYAM SHETTY v. RAJENDRA SHANKAR PATIL (2010 SCC 329), laid down the principles for exercising the jurisdiction under Article 227 of the Constitution of India which are as follows:-
” a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
b) In any event, a petition under Article 277 cannot be called a writ petition. The history of the conferment
of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 277 and have been discussed above.
c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of it jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, “within the bounds of their authority.
f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
i) The High Court’s power of superintendence under Article 277 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L.Chandra Kumar V. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.
j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court’s power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court’s jurisdiction of superintendence under Article 227.
k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality.”
9. As sated in the above judgment in clause (g), the High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the Tribunals and Courts subordinate to it and in this case, the order of the court below in extending the injunction granted after the plaintiff filed an application to withdraw is a perverse one and is liable to be set aside and it is set aside. Further when the plaintiff has filed a memo for withdrawal of the suit, without passing any specific order on the memo, the court below has passed an order on 30.9.2010 stating that the petition is ordered accordingly and it is not known whether the court below has ordered the memo filed by the plaintiff or the application filed by the third parties to get themselves impleaded.
10. As the plaintiff has expressed his intention to withdraw the suit, I do not find any reason to sustain the plaint on the file. This is a clear case to invoke the extraordinary jurisdiction of this court to interfere with the proceedings of the court below and in exercise of the power, the suit in O.S.No.130 of 2010 is dismissed as withdrawn as per the memo filed by the plaintiff. In the result, the revision is allowed. No costs. The connected miscellaneous petitions are closed.
ssk.
To
1. The Sub Judge,
Ariylaur.
2. The Record Keeper,
V.R. Section,
High Court,
Chennai