IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22/07/2004
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CIVIL REVISION PETITION (PD) No.651 of 2004
AND C.M.P.NO.6429 of 2004
1. Karpoora Sundarapandian
Ramalakshmi Ammal Kalvi
Valarchi Kuzhu,
(Educational Agency)
2. S.Nallathambi
3. G.Sangamirtham ... Petitioners
-Vs-
1. The Director of School Education,
College Road,
Nungambakkam, Chennai-34.
2. The Joint Director (Higher Secondary
Education), College Road,
Nungambakkam, Chennai-34.
3. The Chief Educational Officer,
Sivaganga.
4. The District Educational Officer,
Sivaganga.
5. K.Rajasekaran
6. K.R.Sathiyendran
7. S.Kapoorasundaram
8. S.P.Karpoorasundarapandian
9. Mrs.A.Rajeswari
10. Mrs.R.Ramalakshmi
11. R.Karpoorasundarapandian
12. S.Karunakaran
13. S.Rajasekaran
14. S.Rathnakaran
15. Mrs.S.Thangam
16. S.Kotravan
17. S.Vendhan ... Respondents
Civil Revision Petition filed under Article 227 of the
Constitution of India as stated therein.
For Petitioners : Mr.G.K.R.Pandiyan
For 5th Respondent : Mr.N.Thiagarajan SC
for M/s.Rajnish Pathiyal
For Respondents
1 to 4 & 6 to 17 : No appearance
:O R D E R
The above Civil Revision Petition is directed against the fair and
decretal order dated 25.3.2004 made in unnumbered I.A. in D.No.1745 of 2004
in O.S.No.108 of 1998 by the Court of Subordinate Judge, Sivaganga.
2. Tracing the history of the above Civil Revision Petition coming to
be filed before this Court, what comes to be known is that the petitioners 1
and 2 herein have filed the above suit in O.S.No.108 of 199 8 before the lower
Court seeking to declare that the Educational Agency constituted by the
Plaintiff on 27.1.1998 is validly constituted Educational Agency of the
schedule mentioned institution, in the alternative direction for a decree
providing for a scheme of management wherein all the members of Founders are
duly and properly represented in proportion to their contribution made
originally and providing for a rotational management of the schedule mentioned
institution and for costs. Pending the suit, the third petitioner herein who
is the 7th defendant in the above suit has filed an Interlocutory Application
in the above suit praying to transpose her as the third plaintiff in the above
suit.
3. It further comes to be known that the learned Subordinate Judge
has rejected the above unnumbered I.A. in O.S.No.108 of 1998 on ground that
since the High Court has directed to dispose of the suit within a period of
six months as per the judgment dated 19.11.2003 in W. A.Nos.1095 and 1096 of
1998 and W.P.Nos.8515 and 15151 of 1999 and since the second plaintiff is
acting as the representative of the first plaintiff institution and since the
third petitioner herein who is the 7th defendant in the suit has already filed
a memo. on 25.7.2003 to the effect that she has agreed to accept the decision
to be taken by the Court, the present application to transpose her as third
plaintiff in the above suit on the ground that the whereabouts of the secibd
plaintiff is not known, is with an intention to drag on the suit proceedings.
It is only testifying the validity of the said fair and decretal order, the
petitioners have come forward to file the above Civil Revision Petition on
certain grounds as brought forth in the grounds of revision.
4. During arguments, the learned counsel appearing on behalf of the
revision petitioners, reiterating the stand taken by the third petitioner
herein, who is the 7th defendant in the suit and who filed the Interlocutory
Application in the above suit praying to transpose her as the third plaintiff,
would submit that the rejection of the said petition by the trial court has
given way for the above civil revision petition to be filed by her. The
learned counsel lay emphasis on her legal right to file an application of that
sort before the lower Court and would also cite the following judgments
respectively reported in:
1. AIR 1931 P.C. 162 (BHUPENDRA NARAYAN SINHA BAHADUR vs. RAJESWAR PRASAD
BHAKAT AND OTHERS)
2. AIR 1931 MADRAS 590 (MAHOMED KANNI ROWTHER vs. NAINA MAHOMED ROWTHER)
3. AIR (34) 1947 MADRAS 205 (MOOKKA PILLAI ALIAS SUDALAIMUTHU PILLAI vs.
VALAVANDA PILLAI AND OTHERS)
4. AIR (38) 1951 MADRAS 296 (G.F.F.FOULKES AND OTHERS vs. A.S.SUPPAN
CHETTIAR AND ANOTHER)
5. AIR 1955 MADRAS 281 (KODIA GOUNDAR AND ANOTHER vs. VELANDI GOUNDAR AND
OTHERS)
6. AIR 1958 S.C. 394 (Sm.SAILA BALA DASSI vs.SMT.NIRMALA SUNDARI DASSI AND
ANOTHER)
7. AIR 1965 S.C. 1812 (R.S.MADDANAPPA (DECEASED) AFTER HIM BY HIS LEGAL
REPRESENTATIVES vs. CHANDRAMMA AND ANOTHER)
8. AIR 1990 S.C. 642 (THE CHAIRMAN, TAMIL NADU HOUSING BOARD, MADRAS vs.
T.N.GANAPATHY)
9. AIR 2003 KARNATAKA 348 (VEERABHADRAPPA AND ANOTHER vs. SMT. GANGAMMA AND
ANOTHER)
5. So far as the first judgment cited above, which is a Privy Council
judgment, is concerned, it is held therein:
“The course of adding pro forma defendants as co-plaintiffs should always be
adopted where it is necessary for a complete adjudication upon the questions
involved in the suit and to avoid multiplicity of proceedings.”
6. In the second judgment cited above, which was delivered way-back
in 1931 by a single Judge of this Court, it has been held:
“There is no abatement in the case of a representative suit by reason of the
plaintiff’s death …. any of those persons on whose behalf suit was filed
can apply to be made plaintiff.”
7. In the third judgment cited above, a learned single Judge of this
Court, way-back in the year 1947, has held in a Second Appeal while giving
expression to Order 1 Rule 8 CPC that:
“Rule applies even to appeals. Appellate Court can allow amendment by
permitting persons suing in individual capacity to sue in representative
capacity when such amendment does not materially change nature of suit.”
8. In the fourth judgment cited above, a Division Bench of this Court
in a case reported in the year 1951 has held:
“Where the plaintiffs applied for an order under O.1, R.8 and obtained such an
order, it is impossible thereafter for them to contend that the suit was not
brought by them in a representative capacity.”
9. In the fifth judgment cited above, a Full Bench of this Court, in
the year 1954 while giving expression to Order 1 Rule 8 and Section 47 CPC has
held:
“Order 1, Rule 8, sub-rule(2) provides that “any person on whose behalf or for
whose benefit a suit is instituted or defended under subrule (1) may apply to
the Court to be made a party to such suit.” A ” party” to such a suit is
therefore one who is impleaded as a party or one who on an application under
O.1 R.(8), sub-rule (2) is brought on record, that is, one who is ‘eo nomine’
made a party. The others who are not brought on record can be only deemed to
be parties and will not be parties as such.”
10. In the sixth judgment cited above, dealing with Order 1 Rule 10
and Section 151 CPC regarding transposition of appellant as respondent, the
Honourable Apex Court has held:
“The Court can, if necessary, take action suo motu either under O.1, R.10 or
in its inherent jurisdiction and transpose an appellant as respondent in the
appeal.”
11. In the 7th judgment cited above, the Honourable Apex Court while
dealing with Section 99, Order 1 Rule 10(2) and Order 41 Rule 33 CPC regarding
transposition of defendant as plaintiff has held:
“The power under the provision is exercisable by the Court even suomotu. The
power ought to be exercised by a court for doing complete justice between the
parties.”
12. In the 8th judgment cited above, the Honourable Apex Court has
held for Order 1 Rule 8 CPC.:
“… the grant of permission to the plaintiff to proceed under O.1, R.8 would
be proper. Nobody in this situation can complain of any inconvenience or
injustice. On the other hand, the Board is being saved from being involved in
unnecessary repeated litigation.”
13. In the last judgment cited above, a Divison Bench of the
Karnataka High Court has held:
“On careful perusal of he written statement, there has been a specific mention
that the second plaintiff and her mother first plaintiff succeeded to the
estate of deceased Smt.Shivalingamma and in fact, there had been a specific
prayer for joint declaration of title in respect of ‘B’ schedule properties in
favour of both the plaintiffs. In view of the discussion supra and the legal
position in this regard, in the opinion of this Court, there is absolutely no
legal hurdle in upholding the claim of the second plaintiff in this
behalf….”
Citing the above judgments, the learned counsel for the revision petitioners
would pray to allow the above civil revision petition.
14. On the other hand, the learned senior counsel appearing on behalf
of the 5th respondent, in his crisp arguments advanced adhering to the facts
and circumstances involved in this particular case and citing the petition
filed by the petitioner herein would point out that defendant No.7, who is the
petitioner, has no cause of action to seek the remedy to transpose her as the
second plaintiff in the place of the original second plaintiff whose
whereabouts are not known, so as to represent the first plaintiff institution;
that so far as the 7th defendant is concerned, the suit is already over; that
she has already given her consent to a decree to be passed and therefore since
she has no existing cause of action, she has no locus standi to file an
application of this sort to transpose her as a plaintiff to continue the suit
particularly representing the first plaintiff institution. The learned senior
counsel would also cite a judgment reported in AIR 2 001 ALLAHABAD 280
(SIHASAN RAI vs. RAM NARAIN ALIAS RAMAYAN RAI AND OTHERS) wherein a learned
single Judge of the Allahabad High Court has held:
“A defendant can be transposed as the plaintiff if the interest of the
plaintiff as against the contesting defendant is common but where the
plaintiff enters into a compromise with the contesting defendants, the cause
of action against the contesting defendants ceases as regards the plaintiff
who has filed the suit. If the pro forma defendant has any cause of action
independently, it is always open to him to file suit against such defendants,
who were impleaded in the suit, but the matter was compromised between the
plaintiffs and such defendants. A suit, which has already been decided
between the plaintiff and the defendant, cannot be reopened by permitting the
pro forma defendant to be impleaded as the plaintiff in the suit.”
On such arguments, the learned senior counsel would seek to dismiss the above
civil revision petition with costs.
15. In consideration of the facts pleaded, having regard to the
materials placed on record and upon hearing the learned counsel for both, this
Court is given to understand that the seventh defendant in the suit, having
filed an application under Order 1 Rule 10 of the CPC, has sought to transpose
her as the third plaintiff to the suit on the sole ground that the whereabouts
of the second plaintiff, who is representing the first plaintiff, are not
known. On the part of the lower Court, it would be strongly opposed on ground
that the 7th defendant, as per her memo. filed before the trial Court dated
25.7.2003, has clearly stated that she is in perfect agreement with the decree
that is to be passed and having submitted to the decree of the Court, now,
stating that the second plaintiff who is the representative of the first
plaintiff has gone somewhere and therefore to continue the suit on behalf of
the first plaintiff/institution, she has to be transposed as the third
plaintiff, she has filed the petition before the trial Court and without even
numbering the application filed by the said Court, it has summarily rejected
the claim of the 7th defendant remarking that it is only a tactic followed by
the petitioner to drag on the suit endlessly and it is this rejection order
passed by the trial Court, which is being testified in the above civil
revision petition.
16. Nine judgments have been cited on the part of the petitioners,
the propositions held wherein have been extracted in the foregoing paragraphs.
In all those judgments it has been held that ‘in order to avoid multiplicity
of proceedings, the transposition of party could be held valid and acceptable
and that if necessary, the Court is having the power to transpose a defendant
as the plaintiff and on the vice-versa.’ This Court is in perfect agreement
with regard to all those propositions held by the upper forums of law and
cited on the part of the revision petitioner. But, whether those principles
laid down could be applied to the facts of the case in hand is the point for
consideration to decide the above application filed before the lower Court by
the 7th defendant in the suit.
17. There is no denying of the fact that the 7th defendant who is
figuring as the petitioner before the lower Court, and this Civil Revision
Petition has filed a memo. dated 25.7.2003 before the trial Court wherein she
has given her consent submitting for the decree to be passed in the above suit
and that memo. is not even withdrawn so far and the said memo. is operating
still. Whether the 7th defendant has got any right or locus standi to seek
such a luxurious relief to transpose her as the third plaintiff so as to sit
in the place of the second plaintiff whose whereabouts are not known and
prosecute the suit of the first plaintiff institution is the point for
consideration.
18. Two points are to be determined in this regard. The first point
regarding the right of the seventh defendant to be transposed herself as the
third plaintiff in the wake of the memo. filed by her submitting to the
decree to be passed dated 25.7.2003 and secondly whether it is possible or
necessary on the part of the 7th defendant to be permitted to conduct the case
of the first plaintiff as the third plaintiff particularly since the second
plaintiff who has been acting as the representative of the first plaintiff in
the conduct of the suit is missing. In the considered opinion of this Court,
the 7th defendant is neither entitled to seek for transposing herself as the
plaintiff in the wake of the memo. filed by her submitting to the decree to
be passed by the Court thereby herself losing cause of action so far as the
conduct of the suit is concerned since in all sense, as rightly pointed out by
the learned senior counsel for the respondents, her relief in the suit is
already over and whatever be the judgment that is rendered, she must submit
herself since the memo. filed by her is still in force.
19. Secondly, the reason attributed on the part of the 7th defendant
for carrying on with the claim of the first plaintiff/institution representing
the same on ground that the whereabouts of the second plaintiff, who is
representing the first plaintiff are not known, is neither satisfactory nor
reasonable. Simply stating that the whereabouts of the second plaintiff are
not known, the 7th defendant cannot seek for the relief of transposing herself
as the third plaintiff to sit in the place of the second plaintiff and to
represent the first plaintiff institution so as to conduct the suit in the
representative capacity of the first plaintiff is not an acceptable point
since unless seven years lapse from the time of missing of a person, he is
considered to be alive and only on the expiry of the 7th year, the second
plaintiff whose whereabouts are alleged to have been not known could be
declared to have died a legal death and until then, the question of the
missing of the second plaintiff and the 7th defendant being permitted to be
transposed herself as the third plaintiff to conduct the suit sitting in the
position of the second plaintiff would not arise.
20. It is for the common knowledge that in case the Court concede the
request of the 7th defendant to transpose herself as the third plaintiff and
after passing of an order of that sort, if the second plaintiff comes to the
picture, what shall be the consequence of the order passed by the Court in
transposing the 7th defendant as the third plaintiff is yet another question
to be answered by the revision petitioner and therefore under no circumstance,
regarding the facts of the case, such a relief could be granted and the lower
Court has rightly rejected the petition filed by the 7th defendant for reasons
assigned.
21. Above all, the direction issued by a Divison Bench of this Court
in the judgment dated 19.11.2003 in W.A.Nos.1095 and 1096 of 1998 and
W.P.Nos.8515 and 15151 of 1999 to complete the trial procedures and deliver
the judgment on merits and in accordance with law is yet another aspect to be
taken care of and at any cost it should not be permitted to go beyond the time
frame fixed by this Court. Therefore, the Court below is perfectly right in
rejecting the plea of the petitioner under this score also. For all the above
discussions held, this Court is not inclined to cause its interference into
the well considered and merited order passed by the lower Court in outright
rejecting the petition filed by the petitioner in the aforesaid manner and
hence the following order:
In result,
(i) the above Civil Revision Petition does not merit acceptance and the same
is dismissed.
(ii) The fair and decretal order dated 25.3.2004 made in unnumbered I.A. in
D.No.1745 of 2004 in O.S.No.108 of 1998 by the Court of Subordinate Judge,
Sivaganga is hereby confirmed.
However, in the circumstances of the case, there shall be no order as
to costs.
Consequently, C.M.P.No.6429 of 2004 is also dismissed.
Index: Yes
Internet: Yes
gr/Rao
To
The Subordinate Judge,
Sivaganga.
