IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9402 of 2010(O)
1. ANSARUL MUSLIMEEN SANGAM SECRETARY
... Petitioner
2. ANSARUL MUSLIMEEN SANGAM REPRESENTED
Vs
1. KALAKAPPARA AHAMED HAJI,
... Respondent
2. THAYYIL MOOSA, S/O.KUNHALAVI.
3. KALAKAPPARA UNIT AVARANKUTTY,
4. VATTAKANDAN UMMER HAJI,
5. MADARI KARUVANTHODY MOHAMMED,
6. MADARI MELVEETTIL MAJEED,
7. CHAKKAPARAMBAN KUNHIMOHAMMED,
8. MADARA PALLIYALIL MOIDEEN,
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent :SRI.M.GOPIKRISHNAN NAMBIAR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :02/12/2010
O R D E R
HARUN-UL-RASHID, J.
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W.P.(C).No.9402 Of 2010
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Dated this the 2nd day of December, 2010.
J U D G M E N T
Petitioners are the plaintiffs in O.S.No.436 of 1990 on the
file of the Munsiff Court, Manjeri. They are the appellants 2 & 3
in A.S.No.47 of 1997 on the file of the Additional District Court,
Manjeri. Respondents are the defendants in the suit. Suit was
instituted for a declaration that Mahdanul Uloom Madrassa is
under the management of Ansarul Muslimeen Sangam headed by
the petitioners and that the registration of another sangam as per
registration No.253/1983 of District Registrar, Malappuram by
the defendants is not valid and binding on the plaintiffs or the
Madrassa. Consequential prohibitory injunction was also prayed
for in the suit.
2. It is alleged by the petitioners that defendants in the
written statement did not as such challenge the frame of the suit.
The trial court, while deciding the issues framed, held that the
suit is not maintainable and that the plaintiffs are not legally
competent to represent the sangam which is not a registered
society. The trial court while dealing with issue No.1 observed
that the Ansarul Muslimeen Sangam is not a registered society
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that the plaintiffs are not entitled to institute the suit on behalf of
the said sangam since no steps were taken by the plaintiffs to file
an application under Order I Rule 8 of the Code of Civil Procedure
in order to represent all the persons interested in the sangam.
The trial court after considering the case on merits as well
dismissed the suit finding that the plaintiffs are not entitled to
any reliefs claimed in the suit.
3. Plaintiffs preferred appeal in 1997. Pending appeal
plaintiffs filed I.A.No.737 of 2004 seeking permission to institute
the suit in a representative capacity and also to prosecute the
above appeal under Order I Rule 8 of the Code of Civil Procedure.
Ext.P3 application was filed, which according to the appellants, is
to rectify the technical difficulty in not filing the suit in a
representative capacity. Ext.P4 is the counter affidavit filed by
the respondents.
4. The learned Judge did not pass any orders within a
reasonable time though the application was filed on 27.10.2004.
The learned Judge considered Ext.P3 application on 1.3.2010.
The learned Judge dismissed Ext.P3 application stating the
reason that the application is a belated one and is filed to drag
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the disposal of the appeal. The learned Judge observed that if
the petition is allowed it has to be published as per Order I Rule
of the Code of Civil Procedure, new parties may appear and they
will be given an opportunity to file their statement and fresh
issues are to be raised and the case has to be remanded to the
lower court for fresh disposal. Ext.P5 is the order passed by the
learned Judge.
5. The reasons stated by the court are irrelevant or I
may say irrelevant for the purpose of deciding an application of
this nature. The learned Judge should not have observed that if
the petition is allowed then it has to be published as per Order I
Rule 8 of the Code of Civil Procedure, new parties may appear
and they should be given opportunity to file written statement
and the court may have to remand the case to the lower court.
Essentially, the application was filed for publication. The question
is whether an application filed though belatedly is to be allowed
or not. The learned counsel pointed out that the respondents did
not raise any contentions in the written statement that the suit is
not properly framed and that the publication under Order I Rule 8
of the Code of Civil Procedure is necessary. The trial court
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noticed the defect in the filing of the suit while passing the
judgment and held that the plaintiffs are not legally competent to
represent the sangam which is not a registered society.
Therefore it has become necessary to file application under Order
I Rule of the Code of Civil Procedure in order to bind the
members of the sangam. It is true that such application was filed
before the appellate court belatedly. For that reason alone the
court may not be justified in dismissing the application. In this
case, the learned Judge, for so many other reasons which are
extraneous for considering an application of this nature, held that
the prayer cannot be allowed. In fact, in order to rectify the
technical defect the learned Judge ought to have heard the
application within a reasonable time from the date of filing of the
application. It took about 6 years for considering Ext.P3
application. In the circumstances, this Court is of the view that
Ext.P5 order is not sustainable in law. Hence, Ext.P5 order is set
aside. The application is filed after 7 years from the filing of the
appeal. Considering the conduct of the appellants in filing the
application so belatedly, this Court order that Ext.P3 application
can be allowed on terms. Ext.P3 is allowed on condition that the
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petitioners shall pay Rs.2,500/- (Rupees Two Thousand and Five
Hundred only) each as cost to the counsel appearing for
respondents 1, 3, 4, 5, 6 & 8 and the counsel appearing for
respondents 9 & 10, within a period of two weeks from today.
The learned Judge shall order publication immediately and the
publication shall be effected within a period of 45 days from the
date of receipt of a copy of this judgment. The learned Judge
shall also hear and dispose of the appeal within a period of four
months thereafter.
The writ petition is disposed of as above.
HARUN-UL-RASHID,
Judge.
bkn/-