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.
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W.P.(C).No.11401 OF 2009
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Dated this the 9th day of July 2009
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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