Hajee Sahib Hameed Labbai vs S. Mahamud Khather Pillai Marakayar and Others

Srinivasa Iyengar, J.—This is a civil revision petition by the defendant in a suit now pending before the District Munsifs Court at Paramakudi

to revise an order made by the District Munsif allowing the plaintiffs to sue under Order 1, Rule 8 of the C.P.C. in a representative capacity on

behalf of all the worshippers at a mosque.

The contention on behalf of the defendant is two-fold. It is stated that there is a large body of worshippers who have not agreed with the

plaintiffs either in the institution of the suit or in the proceedings that led up to it and that, therefore, it cannot be stated that all the worshippers at

this mosque have the same interest. It seems to me that, if the construction of the terms of Order I, Rule 8, C.P.C., should be that it is only where

all the members of the body are of the same opinion with regard to the litigation as the plaintiffs that the rule should be applied then the provision

contained in the rule would be practically useless. Most of the cases that come up before Courts in which the provision contained in this rule is

invoked are cases of temples or mosques in which we know that there are always two factions one opposed to the other. If it should be stated that

this rule should be applied only in cases where the whole body is of the same opinion, then, it follows that the rule cannot be applied to such cases

at all. Further, who is to ascertain and determine in such cases that all the persons on whose behalf the suit is sought to be instituted are of the same

opinion? and what is the strength of the minority which would or should be deemed sufficient by the Court for saying that in these circumstances,

the suit should not be allowed to be instituted as a representative suit? I believe the true principle underlying this rule is that the suit should in form

be constituted into a representative suit merely to prevent the defendant from being vexed and molested as he may well be, by similar suits by other

persons of the body. For the application of this principle, it is really unnecessary to determine whether or not all the members of the body on

whose behalf the suit is sought to be instituted are of the same opinion. The order only means this, that all the members of the body on whose

behalf the suit would, on the passing of the order, be constituted into a representative suit, would be prevented thereafter from instituting any

proceedings on the cause of action alleged in the plaint; and such body being an indefinite body and the order being given only to sue in respect of

all persons having the same interest, the order would have the effect only of preventing multiplicity of suits and would not be calculated in any

manner or to any extent to prejudice the rights of any of the worshippers or of the defendant I have been referred to the decision in Harkisondas

Shivlal v. Chhaganlal Narsidas 33 Ind. Cas. 264 : 40 B.K 158 : 18 Bom. L.R. 1 but reading the case I cannot say that the learned Judges really

based their decision on the view they took of the meaning of the rule in question. However, that may be, so far as I am concerned, I feel bound to

follow the decision of Old field and Sadasiva Iyer, JJ., in Katha Pillai v. Kanakasundaram Pillai, 45 Ind. Cas. 123 : (1918) M.W.N. 794 : 24

M.L.J. 20 : 8 L.W. 160. I agree with the construction placed by these learned Judges on the rule.

It, therefore, follows that the order of the District Munsif was right. But even if: I thought the order was wrong, I should not have been disposed

in the least to interfere in such a case as this, because there is no reason why such wrong order should not in due course be set right in appeal and

no reason whatever why this Court should interfere at this stage.

In the result, the civil revision petition is dismissed with costs.