Dakshinamoorthy and Others vs Parthasarathy Naicker and Ganapathy

R. Banumathi, J.—This Civil Revision Petition is directed against the order dated 15.09.2000 of the District Munsif cum Judicial Magistrate,

Tirukalikundram made in I.A. No. 463 of 1999 in O.S. No. 89 of 1999, dismissing the Petition filed under Order 1 Rule 8 C.P.C and declining

permission to the Plaintiffs to sue in a representative capacity. Plaintiffs are the Revision Petitioners.

The Suit Property relates to Mayanapathai in Thathalur Village. Case of the Plaintiffs is that Pathway commences from the Village Road towards

the Eastern direction till S. No. 18. Firstly, it passes through Adi Dravidar Colony, then ""B"" Schedule Property in S. No. 13/1 and then it passes

through Irular Colony and it reaches S. No. 18-Poromboke, which was initially used for burying dead. There is a graveyard for the villagers of

Thathalur Village to the immediate East of village, in which both the Villagers and the Irular used to cremate and the buried the dead. From the time

immemorial, the Villagers have been using the ""B"" Schedule Mayanapathai. The Plaintiffs, who are representing Adi Dravidar and Irular community

of Thathalur Village have perfected their Title to ""B"" Schedule land - Mayanapathai by adverse possession, by virtue of their long and continuous

and uninterrupted user of the Mayanapathai. While so, the Defendants are claiming to have purchased S. No. 126/1A1 and S. No. 9/11B.

Vendors of the Defendants have never objected to the existence of ""A"" Schedule and ""B"" Schedule Mayanapathai. While so, the Defendants have

started attempting to obliterate the existence of Mayanapathai, running in ""B"" Schedule Property. The Plaintiffs have sent their objection to

Tahsildhar, Thirukalukundram Taluk during January 1999. The Revenue Officials have inspected the Suit Mayanapathai and noted that it is the only

access to the burial ground. In this regard, the Defendants have been attempting to plough the ""B"" Schedule Property Mayanapathai. Hence, the

Plaintiffs have also lodged a Police Complaint before the Sub Inspector of Police, Thirukalukundram on 10.09.1999. Hence, the Plaintiffs have

filed the Suit for Permanent Injunction restraining the Defendants, their Men, Agents and Servants from in any way interfering with the enjoyment of

the Suit Property - Mayanapathai by the Plaintiffs.

I.A. No. 463 of 1999:- The Suit was filed in a representative capacity. According to the Plaintiffs, the First Plaintiff is the elected President of

Thathalur Village; Second and Third Plaintiffs are the elected Councilors. The entire villagers - Adi Dravidar and Irular community are entitled to

the Suit Mayanapathai and jointly interested in the Suit. Hence, the Plaintiffs have filed the Suit in a representative capacity. In this Application, the

Plaintiffs sought for permission to sue in the representative capacity.

Resisting the Application, the Defendants have filed the Counter Statement contending that there is no burial ground in S. No. 18. Only for the

purpose of winning the case earlier filed in O.S. No. 327 of 1996, the Plaintiffs have filed the present Suit. The Plaintiffs have no manner of right to

file the Suit in a representative capacity.

On such Application filed under Order 1 Rule 8 C.P.C, publication by beat of Tom Tom was effected. As many as 45 Objectors were present

in the Court and raised objection for the Plaintiffs to file the Suit in a representative capacity. Upon hearing the objections raised by the Objectors,

learned District Munsif declined permission to the Plaintiffs to sue in a representative capacity. Learned District Munsif was of the view that in view

of the objections raised by the objectors, it would not be proper to permit the Plaintiffs to represent the entire village community of Adi Dravidar

and Irular community.

Aggrieved over the dismissal of the Petition in I.A. No. 463 of 1999, the Plaintiffs have preferred this Revision Petition. Learned Counsel for the

Revision Petitioners / Plaintiffs has contended that when no evidence was recorded, the lower Court erred in saying that the Plaintiffs do not

represent the villagers. Contending that the First Plaintiff is the elected President of the Village and Second and Third Plaintiffs are the Councilors, it

is submitted that the lower Court ought to have allowed the Application accepting the averments in the Plaint. Submitting that raising of objection

by few villagers may not be the ground to decline permission to sue in a representative capacity, learned Counsel for the Plaintiff urged to set aside

the impugned order.

The Revision Petitioners / Plaintiffs claim to be the representatives of Adi Dravidar and Irular Community of Thathalur Village. They have filed

the Application under Order 1 Rule 8 C.P.C, seeking permission of the Court to permit them to file the Suit in a representative capacity for

themselves and on behalf of the Villagers of Thathalur Adi Dravidar and Irular community. Notice to the Respondent was ordered, that apart

Paper Publication and Publication by beat to Tom Tom was ordered. On 15.10.1999, the Villagers numbering 45 appeared in the Court and

submitted their objections. Hence, the Petition posted on 19.11.1999 was suo motu advanced to 15.10.1999. Thereafter, the Application was

taken up for Enquiry. The Paper Publication was also ordered.

Upon consideration of the objections raised by the Objectors, learned District Munsif found that the Plaintiffs could not be allowed to sue in a

representative capacity. Order 1 Rule 8 C.P.C applies to representative suits. It is an enabling Rule of convenience prescribing the conditions,

upon which such persons when not made a party to the Suit may still be bound by the proceedings thereon. Conditions necessary to bring a suit

within the rule are -

i. numerous parties;

ii. same interest ;

iii. permission of Court ;

iv. notice of suit.

On such permission being given it becomes the imperative duty of the Court to direct notice to be given to the absent parties in such of the ways

prescribed as the Court in each case may require.

The Court has accordingly ordered Notice. Number of Villagers, numbering about 45 appeared before the Court. When so many objectors

from Thathalur Village were present, raising objections for the filing of the Suit in a representative capacity, it would not be proper to grant

permission to the Plaintiff to file a Suit in a representative capacity.

In consideration, the question of leave to file the suit in a representative capacity, the pre consideration is to see whether substantial objection

has been raised for filing of the Suit in a representative capacity. When number of people of the same group have objected to the Plaintiffs filing the

Suit in a representative capacity, learned District Munsif has rightly declined the permission to sue in a representative capacity. Grant of permission

should not be treated lightly and as a matter of course. The Court must see that those who are not arrayed but are still considered represented in

the suit are not prejudiced. Court''s jurisdiction is not restricted to allegations in the Plaint; it can go into all relevant facts to find out whether the

Plaintiffs can sue in a representative capacity.

The Trial Court has rightly ordered Notice by Publication and by beat of Tom Tom. Learned District Munsif has rightly taken note of the

objections being raised by the Villagers. There is no improper exercise of discretion calling for interference. This Civil Revision Petition has no

merits and is bound to fail.

For the reasons stated above, the order dated 15.09.2000 of the District Munsif cum Judicial Magistrate, Tirukalukundram made in I.A. No.

463 of 1999 in O.S. No. 89 of 1999 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order

as to costs. Consequently, the connected C.M.P. No. 7458 of 2004 is closed.