Kangayam Taluk, rep. by C.D. Dhandapani and Others vs Kangayam Taluk, rep. by M. Rangasami and Others

P. Sathasivam, J.—Heard both sides.

The learned District Munsif, Kangayam, taking note of the relief prayed for in O.S. No. 26 of 2002 and finding that the plaintiffs have not

prayed for any relief against the public of Uppupalayam Village and that the relief relates to ""ABCD"" fence, has dismissed Application Nos. 412

and 413 of 2004 filed by the third parties seeking for impleadment in the suit as well as to defend the suit in a representative capacity.

A perusal of the relief prayed for in the suit shows that the plaintiffs have not prayed for a declaratory decree; it is for a permanent injunction

against the defendants therein and also for a mandatory injunction for removal of ""ABCD"" fence. In the affidavit filed in support of the applications

in I.A. Nos. 412 and 413 of 2004, the third parties have specifically stated that all of them belong to Uppupalayam, Vellakovil Village and they

filed the said application on behalf of the entire villagers of Uppapalayam. It is further stated that they came to know that the plaintiffs have filed the

said suit in respect of a Pavadi. It is their claim that inasmuch as the said place-Pavadi is a common property being used by all the villagers, if any

dispute/claim regarding the same has to be decided by hearing all the parties, including the villagers of Uppupalayam.

It is not in dispute that plaintiffs have filed the said suit in a representative capacity, viz., on behalf of Mudaliar community of Uppupalayam,

Vellakovil village, Kangayam Taluk. Though no specific objection was raised with regard to the filing of the suit in a representative capacity,

particularly as to the non-compliance of Order 1, Rule 8 of C.P.C., learned Counsel appearing for the petitioner in this revision pointed out that the

plaintiffs have not strictly adhered to the provisions as stated in Order 1, Rule 8 of C.P.C., as well as Rule 13 and the Form provided in Civil Rules

of Practice. Order 1, Rule 8, C.P.C. enables the parties, either as plaintiffs or as defendants, if they have some common interest, to join together

and pursue their remedy before the appropriate Court. However, they have to fulfil the conditions prescribed in Order 1 and Rules 8 and 8A,

C.P.C.

The learned Counsel for the petitioner, by drawing my attention to the publication effected in ""Daily Thanthi"" dated 11.02.2002 by the plaintiff,

has submitted that in the absence of any details regarding the relief prayed for and the description of the suit property, the villagers had no

opportunity to participate in the suit. He further contended that the plaintiffs have to strictly comply with the provisions of Order 1, Rule 8 and 8-A,

C.P.C. The learned Counsel for the petitioner also relied on the Judgment of the Orissa High Court reported in Sukadev Tapaswai and Others Vs.

Sri Sidheswar Mahadev Bija Silod and Others, , wherein a learned Judge of the said Court, while considering the Order 1 Rule 8(2) of C.P.C.,

has concluded as follows:

Courts when called upon to deal with applications under O.1, R.8, C.P.C., should bear in mind that the provisions contained therein are

mandatory and not merely directory and are essential pre-conditions for trial of the case as a representative suit. Courts must see that if they direct

that the notice should be by public advertisement, it must disclose the nature of the suit as well as the reliefs claimed therein in order to enable the

persons interested to get themselves impleaded as parties to the suit either to support the case or to defend against, it. Further the notice must

mention the names of the persons who have been permitted to represent them so that the persons interested may have an opportunity of knowing

who have been selected to represent them.

Learned Counsel also relied on a decision of this Court reported in AIR 1987 Madras 187 (The Assistant Commissioner, H.R. & C.E., Salem v.

N.K.S.E. Mudaliar), wherein it is held that the procedure under Order 1, Rule 8 of CPC has to be followed and without doing so, no relief could

be granted to the individual concerned.

A reading of the above provisions viz., Order 1, Rules 8, 8-A of C.P.C. and Rule 13 and the Form of the Civil Rules of Practice, clearly show

that public notice should disclose full details of the suit viz., nature of the suit as well as the relief/claim made therein to those who are impleaded as

parties to the suit, either to support the case or to defend it. Though there is no need to decide the compliance of the said provisions in this revision,

as rightly pointed out, in view of the claim of the proposed parties in respect of the subject matter of the property, I am of the view that their

presence in the suit would ultimately help the residents of the Uppupalayam village. These materials have not been considered by the learned

District Munsif, Kangayam and therefore, I am inclined to accept the claim of the petitioner. Taking note of the fact that the property in question

viz., Pavadi is in existence and is being used by all the villagers, only by participating in the suit, it would be possible for them to highlight their

stand. However, it is needless to mention that it is for them to substantiate their plea/defence at the time of trial.

In these circumstances, the common order passed by the learned District Munsif, Kangayam dated 19.04.2005 made in I.A. Nos. 412 & 413

of 2004 in O.S. No. 26 of 2002 is set aside. Both the revisions are allowed. No costs. CMP No. 16631 of 2005 is closed.