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T.C.Varghese vs Mar Yuhanon Ehidio Jacobite … on 9 July, 2009

Kerala High Court
T.C.Varghese vs Mar Yuhanon Ehidio Jacobite … on 9 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 11401 of 2009(O)


1. T.C.VARGHESE, S/O.CHACKO,
                      ...  Petitioner
2. K.K.BABY, S/O.KURIAN, KOMBANAL HOUSE,
3. V.K.POULOSE, S/O.KURIAN,
4. SAJI PAUL, S/O.PAILY,

                        Vs



1. MAR YUHANON EHIDIO JACOBITE SYRIAN
                       ...       Respondent

2. REV. FR. MATHEW,

3. A.P.PAUL, S/O.PAILY,

4. M.K.GEORGE, S/O.KURUVILA,

5. THE RECEIVER, MAR YUHANON EHIDIO

6. P.U.KURIAKOSE KATHANAR,

                For Petitioner  :SRI.K.J.KURIACHAN

                For Respondent  :SRI.M.GOPIKRISHNAN NAMBIAR

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :09/07/2009

 O R D E R
            S.S.SATHEESACHANDRAN, J.
          -----------------------------
            W.P.(C).No.11401 OF 2009
           --------------------------
       Dated this the 9th day of July 2009
     -------------------------------------


                     JUDGMENT

The writ petition is filed by the

plaintiff in O.S 51/2003 pending on the file of

First Additional District Court, Ernakulam. The

suit has been filed in a representative capacity by

the plaintiffs after getting permission from the

court under Order 1 Rule 8 of Code of Civil

Procedure. The disputes involved in the suit

pertain to a church over which rival claims are

made by two factions, known as Jacobite and

Orthodox. After the entire evidence was recorded

in the case, the plaintiff moved for withdrawal of

the suit seeking permission to file a fresh suit.

Ext.P1 is the copy of that application. Taking

note that the suit was instituted after getting

permission under Order 1 Rule 8 of Code of Civil

Procedure, as contemplated by the Rule, the court

W.P.(C).No.11401 OF 2009 2

directed the plaintiff to give notice of the

withdrawal by publication. Pursuant to such

publication the respondents 9 and 10 in the present

petition appeared and sought permission for

substituting them in the place of the plaintiffs

and to continue prosecution of the suit. The

petitioners/plaintiffs objected to such

substitution contending that the persons who are

seeking substitution belong to the rival faction,

of the contesting defendants. The contesting

defendants also filed a counter affidavit opposing

the withdrawal of the suit. Both these petitions,

the application moved by the plaintiffs for

withdrawal, and also the other moved by the persons

who sought for substitution in the place of

plaintiffs, were jointly considered by the learned

District Judge and a common order was passed.

Ext.P6 is the copy of that order. The petitioners

who sought substitution were permitted to proceed

with the case from the state on which the

plaintiffs moved for its withdrawal. However the

W.P.(C).No.11401 OF 2009 3

request of those petitioners for their substitution

in the place of plaintiffs striking out the

plaintiffs from the party array was rejected.

Propriety and correctness of that order is

challenged by the plaintiffs invoking the

supervisory jurisdiction vested with this court

under Article 227 of the Constitution of India.

2. I heard the counsel on both sides. From

the facts and circumstances presented and also the

submissions made by the learned counsel on both

sides with reference to Ext.P6 order and the

materials tendered with the writ petition, I find

Ext.P6 order cannot be sustained for more than one

reason. If Ext.P6 order is allowed to stand then

plaintiffs would continue as such in the suit, but

with two more strangers as additional plaintiffs

along with them, the persons who applied for

substitution as plaintiffs in the suit. The

persons who sought for substitution are granted

permission to prosecute the suit keeping the

W.P.(C).No.11401 OF 2009 4

original plaintiffs in the party array as such,

andboth now continue with conflicting interests as

masters of the suit. In a case where a suit is

filed in a representative capacity and permission

is accorded to proceed with the claim in a

representative capacity, but, later the court finds

that the persons who had been granted such

permission do not prosecute the suit with due

diligence it may substitute in their place some

other having the same interest in the suit. Such

substitution is covered by Clause (5) of Rule 8

Order (1) of the Code of Civil Procedure. So,

the first question that emerges for consideration

is when such substitution invoking the above rule

is sought for by a person and a challenge is made

by the plaintiffs that the party seeking such

substitution is not having identical interest in

the suit the court is expected and duty bound to

conduct an enquiry over that matter. Plaintiffs in

their counter affidavit specifically contended that

the persons who sought for substitution belong to a

W.P.(C).No.11401 OF 2009 5

different church and they are not the followers of

their faction. Whatever be the merit of such

contention, once such a challenge is raised a

preliminary finding that they have an identity of

interest in the cause shown by the plaintiff in the

suit is imperative before passing any order of

substitution. If at all any substitution is made,

then also, the plaintiffs should have been removed

from the party array when some other person is

allowed to represent the faction which have filed

the suit for the reliefs claimed thereunder; that

was also not followed in the present case. The

learned counsel for the contesting defendants

urged before me that the withdrawal of the petition

does not satisfy the mandatory requirements covered

by Order 23 Rule 1 of Code of Civil Procedure in

the sense that the plaintiffs have no case that

suit is bound to file on account of any formal

defect or for any other sufficient cause. I do

not want to express any opinion on that point since

the court below has not considered that aspect at

W.P.(C).No.11401 OF 2009 6

all. At the same time it has to be stated what is

sufficient cause is an elastic expression which has

to be considered in the totality of the facts and

circumstances presented in the case. The court

below without adverting to any of these aspects has

mechanically allowed the impleadment of additional

plaintiffs to the suit rejecting the request of the

plaintiffs for its withdrawal Ext.P6 order is

liable to be set aside, and I do so. The court

below is directed to examine afresh and dispose the

petitions moved for withdrawal and the other for

substitution in the light of the observations made

above, and, in accordance with law. The writ

petition is disposed.

Sd/-

S.S.SATHEESACHANDRAN,
JUDGE

//TRUE COPY//
P.A TO JUDGE

vdv

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