{"id":608,"date":"2004-07-22T00:00:00","date_gmt":"2004-07-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/karpoora-sundarapandian-vs-the-director-of-school-education-on-22-july-2004"},"modified":"2015-06-15T14:06:44","modified_gmt":"2015-06-15T08:36:44","slug":"karpoora-sundarapandian-vs-the-director-of-school-education-on-22-july-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/karpoora-sundarapandian-vs-the-director-of-school-education-on-22-july-2004","title":{"rendered":"Karpoora Sundarapandian vs The Director Of School Education on 22 July, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Karpoora Sundarapandian vs The Director Of School Education on 22 July, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 22\/07\/2004\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE V.KANAGARAJ\n\nCIVIL REVISION PETITION (PD) No.651 of 2004\nAND C.M.P.NO.6429 of 2004\n\n\n1.  Karpoora Sundarapandian\n   Ramalakshmi Ammal Kalvi\n   Valarchi Kuzhu,\n   (Educational Agency)\n2. S.Nallathambi\n3. G.Sangamirtham                               ... Petitioners\n\n-Vs-\n\n1.  The Director of School Education,\n    College Road,\n    Nungambakkam, Chennai-34.\n2.  The Joint Director (Higher Secondary\n    Education), College Road,\n    Nungambakkam, Chennai-34.\n3.  The Chief Educational Officer,\n    Sivaganga.\n4.  The District Educational Officer,\n    Sivaganga.\n5.  K.Rajasekaran\n6.  K.R.Sathiyendran\n7.  S.Kapoorasundaram\n8.  S.P.Karpoorasundarapandian\n9.  Mrs.A.Rajeswari\n10. Mrs.R.Ramalakshmi\n11. R.Karpoorasundarapandian\n12. S.Karunakaran\n13. S.Rajasekaran\n14. S.Rathnakaran\n15. Mrs.S.Thangam\n16. S.Kotravan\n17. S.Vendhan                               ...  Respondents\n\n\n         Civil Revision Petition filed under Article 227 of  the\nConstitution of India as stated therein.\n\n\nFor Petitioners :       Mr.G.K.R.Pandiyan\nFor 5th Respondent     : Mr.N.Thiagarajan SC\n                         for M\/s.Rajnish Pathiyal\n                         For Respondents\n                         1 to 4 & 6 to 17           :  No appearance\n\n\n:O R D E R\n<\/pre>\n
        The above Civil Revision Petition is directed  against  the  fair  and
\ndecretal order  dated  25.3.2004 made in unnumbered I.A.  in D.No.1745 of 2004
\nin O.S.No.108 of 1998 by the Court of Subordinate Judge, Sivaganga.\n<\/p>\n
        2.  Tracing the history of the above Civil Revision Petition coming to
\nbe filed before this Court, what comes to be known is that the  petitioners  1
\nand 2 herein have filed the above suit in O.S.No.108 of 199 8 before the lower
\nCourt  seeking  to  declare  that  the  Educational  Agency constituted by the<\/p>\n
Plaintiff on 27.1.1998  is  validly  constituted  Educational  Agency  of  the
\nschedule  mentioned  institution,  in  the  alternative direction for a decree
\nproviding for a scheme of management wherein all the members of  Founders  are
\nduly  and  properly  represented  in  proportion  to  their  contribution made
\noriginally and providing for a rotational management of the schedule mentioned
\ninstitution and for costs.  Pending the suit, the third petitioner herein  who
\nis  the 7th defendant in the above suit has filed an Interlocutory Application
\nin the above suit praying to transpose her as the third plaintiff in the above
\nsuit.\n<\/p>\n
        3.  It further comes to be known that the  learned  Subordinate  Judge
\nhas rejected  the  above unnumbered I.A.  in O.S.No.108 of 1998 on ground that
\nsince the High Court has directed to dispose of the suit within  a  period  of
\nsix months  as per the judgment dated 19.11.2003 in W.  A.Nos.1095 and 1096 of
\n1998 and W.P.Nos.8515 and 15151 of 1999 and  since  the  second  plaintiff  is
\nacting  as the representative of the first plaintiff institution and since the
\nthird petitioner herein who is the 7th defendant in the suit has already filed
\na memo.  on 25.7.2003 to the effect that she has agreed to accept the decision
\nto be taken by the Court, the present application to transpose  her  as  third
\nplaintiff  in  the above suit on the ground that the whereabouts of the secibd
\nplaintiff is not known, is with an intention to drag on the suit  proceedings.
\nIt  is  only  testifying the validity of the said fair and decretal order, the
\npetitioners have come forward to file the above  Civil  Revision  Petition  on
\ncertain grounds as brought forth in the grounds of revision.\n<\/p>\n
        4.   During  arguments, the learned counsel appearing on behalf of the
\nrevision petitioners, reiterating the stand  taken  by  the  third  petitioner
\nherein,  who  is the 7th defendant in the suit and who filed the Interlocutory
\nApplication in the above suit praying to transpose her as the third plaintiff,
\nwould submit that the rejection of the said petition by the  trial  court  has
\ngiven way  for  the  above  civil  revision  petition to be filed by her.  The
\nlearned counsel lay emphasis on her legal right to file an application of that
\nsort before the lower Court  and  would  also  cite  the  following  judgments
\nrespectively reported in:\n<\/p>\n
1.  AIR 1931  P.C.   162 (BHUPENDRA NARAYAN SINHA BAHADUR vs.  RAJESWAR PRASAD
\nBHAKAT AND OTHERS)<\/p>\n
2.  AIR 1931 MADRAS 590 (MAHOMED KANNI ROWTHER vs.  NAINA MAHOMED ROWTHER)<\/a><\/p>\n
3.  AIR (34) 1947 MADRAS 205 (MOOKKA  PILLAI  ALIAS  SUDALAIMUTHU  PILLAI  vs.
\nVALAVANDA PILLAI AND OTHERS)<\/a><\/p>\n
4.  AIR  (38)  1951  MADRAS  296  (G.F.F.FOULKES  AND  OTHERS  vs.  A.S.SUPPAN
\nCHETTIAR AND ANOTHER)<\/a><\/p>\n
5.  AIR 1955 MADRAS 281 (KODIA GOUNDAR AND ANOTHER vs.   VELANDI  GOUNDAR  AND
\nOTHERS)<\/a><\/p>\n
6.  AIR  1958  S.C.  394 (Sm.SAILA BALA DASSI vs.SMT.NIRMALA SUNDARI DASSI AND
\nANOTHER)<\/p>\n
7.  AIR 1965 S.C.  1812 (R.S.MADDANAPPA (DECEASED)  AFTER  HIM  BY  HIS  LEGAL
\nREPRESENTATIVES vs.  CHANDRAMMA AND ANOTHER)<\/p>\n
8.  AIR  1990  S.C.    642 (THE CHAIRMAN, TAMIL NADU HOUSING BOARD, MADRAS vs.
\nT.N.GANAPATHY)<\/a><\/p>\n
9.  AIR 2003 KARNATAKA 348 (VEERABHADRAPPA AND ANOTHER vs.  SMT.  GANGAMMA AND
\nANOTHER)<\/p>\n
        5.  So far as the first judgment cited above, which is a Privy Council
\njudgment, is concerned, it is held therein:\n<\/p>\n
“The course of adding pro forma defendants as co-plaintiffs should  always  be
\nadopted  where  it is necessary for a complete adjudication upon the questions
\ninvolved in the suit and to avoid multiplicity of proceedings.”\n<\/p>\n
        6.  In the second judgment cited above, which was  delivered  way-back
\nin 1931 by a single Judge of this Court, it has been held:\n<\/p>\n
“There  is  no abatement in the case of a representative suit by reason of the
\nplaintiff’s death ….  any of those persons on whose behalf  suit  was  filed
\ncan apply to be made plaintiff.”\n<\/p>\n
        7.   In the third judgment cited above, a learned single Judge of this
\nCourt, way-back in the year 1947, has held in a  Second  Appeal  while  giving
\nexpression to Order 1 Rule 8 CPC that:\n<\/p>\n
“Rule applies  even  to  appeals.    Appellate  Court  can  allow amendment by
\npermitting persons suing in  individual  capacity  to  sue  in  representative
\ncapacity when such amendment does not materially change nature of suit.”\n<\/p>\n
        8.  In the fourth judgment cited above, a Division Bench of this Court
\nin a case reported in the year 1951 has held:\n<\/p>\n
“Where the plaintiffs applied for an order under O.1, R.8 and obtained such an
\norder,  it  is impossible thereafter for them to contend that the suit was not
\nbrought by them in a representative capacity.”\n<\/p>\n
        9.  In the fifth judgment cited above, a Full Bench of this Court,  in
\nthe year 1954 while giving expression to Order 1 Rule 8 and Section 47 CPC has
\nheld:\n<\/p>\n
“Order 1, Rule 8, sub-rule(2) provides that “any person on whose behalf or for
\nwhose  benefit a suit is instituted or defended under subrule (1) may apply to
\nthe Court to be made a party to such suit.” A ”  party”  to  such  a  suit  is
\ntherefore  one  who is impleaded as a party or one who on an application under
\nO.1 R.(8), sub-rule (2) is brought on record, that is, one who is ‘eo  nomine’
\nmade a  party.  The others who are not brought on record can be only deemed to
\nbe parties and will not be parties as such.”\n<\/p>\n
        10.  In the sixth judgment cited above, dealing with Order 1  Rule  10
\nand  Section  151  CPC regarding transposition of appellant as respondent, the
\nHonourable Apex Court has held:\n<\/p>\n
“The Court can, if necessary, take action suo motu either under O.1,  R.10  or
\nin  its  inherent jurisdiction and transpose an appellant as respondent in the
\nappeal.”\n<\/p>\n
        11.  In the 7th judgment cited above, the Honourable Apex Court  while
\ndealing with Section 99, Order 1 Rule 10(2) and Order 41 Rule 33 CPC regarding
\ntransposition of defendant as plaintiff has held:\n<\/p>\n
“The power  under the provision is exercisable by the Court even suomotu.  The
\npower ought to be exercised by a court for doing complete justice between  the
\nparties.”\n<\/p>\n
        12.   In  the  8th judgment cited above, the Honourable Apex Court has
\nheld for Order 1 Rule 8 CPC.:\n<\/p>\n
“…  the grant of permission to the plaintiff to proceed under O.1, R.8 would
\nbe proper.  Nobody in this situation can  complain  of  any  inconvenience  or
\ninjustice.  On the other hand, the Board is being saved from being involved in
\nunnecessary repeated litigation.”\n<\/p>\n
        13.   In  the  last  judgment  cited  above,  a  Divison  Bench of the
\nKarnataka High Court has held:\n<\/p>\n
“On careful perusal of he written statement, there has been a specific mention
\nthat the second plaintiff and her mother  first  plaintiff  succeeded  to  the
\nestate  of  deceased  Smt.Shivalingamma and in fact, there had been a specific
\nprayer for joint declaration of title in respect of ‘B’ schedule properties in
\nfavour of both the plaintiffs.  In view of the discussion supra and the  legal<\/p>\n
position in this regard, in the opinion of this Court, there is absolutely  no
\nlegal  hurdle  in  upholding  the  claim  of  the  second  plaintiff  in  this
\nbehalf….”\n<\/p>\n
Citing  the  above judgments, the learned counsel for the revision petitioners
\nwould pray to allow the above civil revision petition.\n<\/p>\n
        14.  On the other hand, the learned senior counsel appearing on behalf
\nof the 5th respondent, in his crisp arguments advanced adhering to  the  facts
\nand  circumstances  involved  in  this particular case and citing the petition
\nfiled by the petitioner herein would point out that defendant No.7, who is the
\npetitioner, has no cause of action to seek the remedy to transpose her as  the
\nsecond  plaintiff  in  the  place  of  the  original  second  plaintiff  whose
\nwhereabouts are not known, so as to represent the first plaintiff institution;
\nthat so far as the 7th defendant is concerned, the suit is already over;  that
\nshe has already given her consent to a decree to be passed and therefore since
\nshe  has  no  existing  cause  of  action,  she has no locus standi to file an
\napplication of this sort to transpose her as a plaintiff to continue the  suit
\nparticularly representing the first plaintiff institution.  The learned senior
\ncounsel  would  also  cite  a  judgment  reported  in  AIR 2 001 ALLAHABAD 280
\n(SIHASAN RAI vs.  RAM NARAIN ALIAS RAMAYAN RAI AND OTHERS) wherein  a  learned
\nsingle Judge of the Allahabad High Court has held:\n<\/p>\n
“A  defendant  can  be  transposed  as  the  plaintiff  if the interest of the
\nplaintiff as  against  the  contesting  defendant  is  common  but  where  the
\nplaintiff  enters  into a compromise with the contesting defendants, the cause
\nof action against the contesting defendants ceases as  regards  the  plaintiff
\nwho has  filed  the  suit.  If the pro forma defendant has any cause of action
\nindependently, it is always open to him to file suit against such  defendants,
\nwho  were  impleaded  in  the suit, but the matter was compromised between the
\nplaintiffs and such defendants.   A  suit,  which  has  already  been  decided
\nbetween  the plaintiff and the defendant, cannot be reopened by permitting the
\npro forma defendant to be impleaded as the plaintiff in the suit.”\n<\/p>\n
On such arguments, the learned senior counsel would seek to dismiss the  above
\ncivil revision petition with costs.\n<\/p>\n
        15.   In  consideration  of  the  facts  pleaded, having regard to the
\nmaterials placed on record and upon hearing the learned counsel for both, this
\nCourt is given to understand that the seventh defendant in  the  suit,  having
\nfiled an application under Order 1 Rule 10 of the CPC, has sought to transpose
\nher as the third plaintiff to the suit on the sole ground that the whereabouts
\nof  the  second  plaintiff,  who  is representing the first plaintiff, are not
\nknown.  On the part of the lower Court, it would be strongly opposed on ground
\nthat the 7th defendant, as per her memo.  filed before the trial  Court  dated
\n25.7.2003, has clearly stated that she is in perfect agreement with the decree
\nthat  is  to  be  passed and having submitted to the decree of the Court, now,
\nstating that the second plaintiff who  is  the  representative  of  the  first
\nplaintiff  has  gone somewhere and therefore to continue the suit on behalf of
\nthe first plaintiff\/institution,  she  has  to  be  transposed  as  the  third
\nplaintiff,  she has filed the petition before the trial Court and without even
\nnumbering the application filed by the said Court, it has  summarily  rejected
\nthe  claim of the 7th defendant remarking that it is only a tactic followed by
\nthe petitioner to drag on the suit endlessly and it is  this  rejection  order
\npassed  by  the  trial  Court,  which  is  being  testified in the above civil
\nrevision petition.\n<\/p>\n
        16.  Nine judgments have been cited on the part  of  the  petitioners,
\nthe propositions held wherein have been extracted in the foregoing paragraphs.
\nIn  all  those judgments it has been held that ‘in order to avoid multiplicity
\nof proceedings, the transposition of party could be held valid and  acceptable
\nand  that if necessary, the Court is having the power to transpose a defendant
\nas the plaintiff and on the vice-versa.’ This Court is  in  perfect  agreement
\nwith  regard  to  all  those  propositions held by the upper forums of law and
\ncited on the part of the revision petitioner.  But, whether  those  principles
\nlaid  down  could be applied to the facts of the case in hand is the point for
\nconsideration to decide the above application filed before the lower Court  by
\nthe 7th defendant in the suit.\n<\/p>\n
        17.   There  is  no  denying of the fact that the 7th defendant who is
\nfiguring as the petitioner before the lower Court,  and  this  Civil  Revision
\nPetition has filed a memo.  dated 25.7.2003 before the trial Court wherein she
\nhas given her consent submitting for the decree to be passed in the above suit
\nand that memo.   is not even withdrawn so far and the said memo.  is operating
\nstill.  Whether the 7th defendant has got any right or locus  standi  to  seek
\nsuch  a  luxurious relief to transpose her as the third plaintiff so as to sit
\nin the place of the second plaintiff  whose  whereabouts  are  not  known  and
\nprosecute  the  suit  of  the  first  plaintiff  institution  is the point for
\nconsideration.\n<\/p>\n
        18.  Two points are to be determined in this regard.  The first  point
\nregarding  the  right of the seventh defendant to be transposed herself as the
\nthird plaintiff in the wake of the memo.   filed  by  her  submitting  to  the
\ndecree  to  be  passed  dated 25.7.2003 and secondly whether it is possible or
\nnecessary on the part of the 7th defendant to be permitted to conduct the case
\nof the first plaintiff as the third plaintiff particularly  since  the  second
\nplaintiff  who has been acting as the representative of the first plaintiff in
\nthe conduct of the suit is missing.  In the considered opinion of this  Court,
\nthe  7th  defendant is neither entitled to seek for transposing herself as the
\nplaintiff in the wake of the memo.  filed by her submitting to the  decree  to
\nbe  passed  by  the Court thereby herself losing cause of action so far as the
\nconduct of the suit is concerned since in all sense, as rightly pointed out by
\nthe learned senior counsel for the respondents, her  relief  in  the  suit  is
\nalready  over  and  whatever be the judgment that is rendered, she must submit
\nherself since the memo.  filed by her is still in force.\n<\/p>\n
        19.  Secondly, the reason attributed on the part of the 7th  defendant
\nfor carrying on with the claim of the first plaintiff\/institution representing
\nthe  same  on  ground  that  the  whereabouts  of the second plaintiff, who is
\nrepresenting the first plaintiff are not known, is  neither  satisfactory  nor
\nreasonable.   Simply  stating that the whereabouts of the second plaintiff are
\nnot known, the 7th defendant cannot seek for the relief of transposing herself
\nas the third plaintiff to sit in the place of  the  second  plaintiff  and  to
\nrepresent  the  first  plaintiff  institution so as to conduct the suit in the
\nrepresentative capacity of the first plaintiff  is  not  an  acceptable  point
\nsince  unless  seven  years  lapse from the time of missing of a person, he is
\nconsidered to be alive and only on the expiry of  the  7th  year,  the  second
\nplaintiff  whose  whereabouts  are  alleged  to  have  been not known could be
\ndeclared to have died a legal death  and  until  then,  the  question  of  the
\nmissing  of  the  second plaintiff and the 7th defendant being permitted to be
\ntransposed herself as the third plaintiff to conduct the suit sitting  in  the
\nposition of the second plaintiff would not arise.\n<\/p>\n
        20.  It is for the common knowledge that in case the Court concede the
\nrequest  of  the 7th defendant to transpose herself as the third plaintiff and
\nafter passing of an order of that sort, if the second plaintiff comes  to  the
\npicture,  what  shall  be  the consequence of the order passed by the Court in
\ntransposing the 7th defendant as the third plaintiff is yet  another  question
\nto be answered by the revision petitioner and therefore under no circumstance,
\nregarding  the facts of the case, such a relief could be granted and the lower
\nCourt has rightly rejected the petition filed by the 7th defendant for reasons
\nassigned.\n<\/p>\n
        21.  Above all, the direction issued by a Divison Bench of this  Court
\nin  the  judgment  dated  19.11.2003  in  W.A.Nos.1095  and  1096  of 1998 and
\nW.P.Nos.8515 and 15151 of 1999 to complete the trial  procedures  and  deliver
\nthe  judgment on merits and in accordance with law is yet another aspect to be
\ntaken care of and at any cost it should not be permitted to go beyond the time
\nframe fixed by this Court.  Therefore, the Court below is perfectly  right  in
\nrejecting the plea of the petitioner under this score also.  For all the above
\ndiscussions  held,  this  Court is not inclined to cause its interference into<\/p>\n
the well considered and merited order passed by the lower  Court  in  outright
\nrejecting  the  petition  filed  by the petitioner in the aforesaid manner and
\nhence the following order:\n<\/p>\n
In result,\n<\/p>\n
(i) the above Civil Revision Petition does not merit acceptance and  the  same
\nis dismissed.\n<\/p>\n
(ii) The  fair  and decretal order dated 25.3.2004 made in unnumbered I.A.  in
\nD.No.1745 of 2004 in O.S.No.108 of 1998 by the  Court  of  Subordinate  Judge,
\nSivaganga is hereby confirmed.\n<\/p>\n
        However,  in the circumstances of the case, there shall be no order as
\nto costs.\n<\/p>\n
        Consequently, C.M.P.No.6429 of 2004 is also dismissed.\n<\/p>\n
Index:  Yes
\nInternet:  Yes
\ngr\/Rao<\/p>\n
To<\/p>\n
The Subordinate Judge,
\nSivaganga.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Karpoora Sundarapandian vs The Director Of School Education on 22 July, 2004 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-608","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKarpoora Sundarapandian vs The Director Of School Education on 22 July, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/karpoora-sundarapandian-vs-the-director-of-school-education-on-22-july-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Karpoora Sundarapandian vs The Director Of School Education on 22 July, 2004 - 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