Laxminarayan ' Laxmidhar Behera and Others vs Tahetul Masjid and Others

B.K. Ray, J.—Defendant Nos. 1 to 3 are the Appellants in this appeal against a confirming judgment.

Tahetul Masjid through as many as five persons as Plaintiffs for themselves and as representing the Muslim inhabitants of Mangalpur village instituted the suit out of which this appeal arises for declaration that the suit land was the wakf property appertaining to Mangalpur public mosque and that Defendant Nos. 1 to 3 had acquired no right, title or interest in the same on the strength of a lease executed in their favour by proforma Defendant Nos. 4 to l1/Ka along with other Muslim villagers, for recovery of possession of the suit land by evicting Defendant Nos. 1 to 3 after demolition of structures standing the reon and for other ancillary reliefs.

The principle Defendants, viz., Defendant Nos. 1 to 3, and the proforma Defendants, viz., Defendants Nos. 4 to n/Ka, contested the suit by filing two separate written statements.

The trial Court decreed the suit and this decision was confirmed in appeal filed by Defendant Nos. 1 to 3, Hence the present appeal.

It is not necessary to narrate in detail the respective cases of the parties. Suffice it to say that the five persons arrayed as Plaintiffs in the plaint instituted the suit for themselves as well as for other Muslim inhabitants of Mangalpur village. In paragraph 6 of the plaint the Plaintiffs craved leave of the Court to institute the suit on behalf of Muslim public of the Mangalpur under the provisions of Order 1, Rule 8, CPC Code. In other words, the suit was instituted in a representative capacity by the five persons named in the plaint representing the Muslim public of village Mangalpur. Order 1, Rule 8(1). CPC provides that where there are numerous persons having the same interest in one suit, one or more of such persons may with permission of the Court institute a suit on behalf of all the rest of the persons having the same interest as the person or persons suing. Under Sub-rule (2) of the aforesaid rille, when the Court grants permission to some person or persons to sue in a representative capacity, it shall, at the Plaintiff''s expense, give notice of the institution of the suit to all persons of the number of persons such service is not practicable, by public advertisement. It is now well settled that notice by public advertisement 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 cause or to defend against it. These requirements are mandatory in nature and noncompliance with anyone of them vitiates the decree. In the case before me, the only contention that has been raised by Mr. R.C. Patnaik, learned Counsel for the Appellants, is that there has not been compliance with the aforesaid requirements of law by the Plaintiffs, and sa, the decree passed in their favour has to be vacated. In short, what is argued by Mr. Patnalk is that the decree in the present case in favour of the Plaintiffs cannot be allowed to stand in law for failure on the part of the trial Court to comply with the requirements of Order 1, Rule 8, CPC Code. Mr. Sk. Rahenoma, learned Counsel for the Plaintiff-Respondents, does not dispute the position that the provisions of Order 1, Rule 8, CPC have not been complied with in the case by the trial Court, and so, he concedes that the decree in favour of the Plaintiffs cannot be sustained in law. But he urges that the present suit has been instituted to set aside lease in favour of Defendant Nos. 1 to 3 in respect of the property belonging to the Tahetul Masjid which is a religious endowment of the Muslim public and to recover possession of the leasehold by evicting Defendant Nos. 1 to 3 therefrom on behalf of the Masjid. According to Mr. Rahenoma, it was not necessary for the Plaintiffs to institute the suit in a representative capacity representing the Muslim public. The Masjid through anyone of its Mutwalis or through anyone member of the Muslim public could have instituted the suit for the very same reliefs which have been claimed in the present case. It is on account of this that Mr. Rahenoma has filed two applications to amend the plaint, while keeping in fact the reliefs in the original plaint, for the purpose of converting the suit to one instituted by the Tahetul Masjid represented through one of its Mutwalis and some members of the Muslim public. These two applications are dated 7-11-1977 and 21-11-1977 and are supported by affidavits. Mr. Rahenoma prays that the proposed amendments may be allowed and the case sent back to the trial Court for fresh disposal in the context of altered circumstances which would result on account of the amendments. These two applications are opposed by Mr. R. C. Patnaik, learned Counsel for Defendant Nos. 1 to 3 and by Mr. R. N. Mohanty-2, learned Counsel appearing for some of the proforma Respondents. On behalf of the Respondents two counters have been filed objecting to the two petitions for amendment. It is urged on behalf of the Respondents that the proposed amendments would change the nature and character of the suit. Mr. R. C. Mohanty-2 further argues that Sk. Yusuf Ali who under the proposed amendments has been described as the Mutwali of the Masjid is not actually the Mutwali, the Wakf Board having formed a managing committee with Sk. Amiruddin as its President after the death of Sk. Alim. In support of this contention Mr. Mohanty has filed a certified copy of the resolution of the Orissa Board of Wakf passed in its meeting held on 27-7-1975 and has by a separate application under Order 41, Rule 27, CPC prayed for acceptance of the said certified copy as a piece of additional evidence. Reliance is placed by the Respondents while opposing the applications for amendments on the decisions Maguni Swain and Ors. v. Bareswar Deb and Ors. ILR 1974 Cutt. 1126, Rajendra Nath Tikku Vs. The Royal Calcutta Turf Club, , Chatrabhoj Keshavji v. Ghanshyamlatji Ratanji AIR 1952 Kut 92 and Brij Mohan v. N.V. Vakharia AIR 1985 Raj. 172. None of these decisions, In my view, supports the contention of the Respondents. It is no doubt true that where the proposed amendment entirely changes the nature and character of a suit or introduces a fresh cause of action or being a belated one deprives a litigant of a valuable right which has accrued to him on account of lapse of time under the law of limitation, the same should not ordinarily be allowed. At the same time, it is also the settled law that where a proposed amendment has the effect of advancing the cause of justice instead of defeating it and does not cause prejudice to any party, Courts should not be reluctant on technical grounds to throw out the amendment to the pleadings. In the decision in Maguni Swain and Ors. v. Bareswar Deb and others1 the Plaintiffs in a representative capacity representing a public deity (Plaintiff No. 1) instituted a suit for a declaration that the Defendants representing the villagers of another village had no right to perform the seba puja or to manage the affairs of the deity. The suit having been dismissed in the trial Court the Plaintiffs preferred an appeal against the decision of the trial Court. While the appeal was pending one of the Defendants died and at the instance of the Plaintiff-Appellants the name of the deceased Defendant was expunged horn the record without substituting his legal representatives in his place. Question arose as to whether on account of non-substitution of the legal representatives of the deceased Defendant the appeal abated. This Court while rejecting the contention that the appeal abated, observed as follows:

Viewing the matter on the basis of first principle it will be noticed that Order 1, Rule 8 of the Code of CPC is a rule of convenience established to prevent delay expenses and multiplication of suits to establish same right. The scope of a representative suit is essentially of a different nature than a mere suit to enforce a claim based on a general right but in an individual or personal character.

Relying on the aforesaid observation it is argued in the present case on behalf of the Respondents that as by the proposed amendments the suit originally instituted by the Plaintiffs in their representative capacity is going to be changed to a suit to enforce a claim in an individual or personal character, it cannot be said that the nature of the suit would remain the same after amendments. The observation made in the aforesaid decision has to be understood in the context in which it has been made. In the case before me, as per the original plaint Tahetul Masjid was the main Plaintiff and the other Plaintiffs in their representative capacity were representing the Masjid. By the proposed amendments the same Masjid sought to be represented by persons not representing the general Muslim public of the locality but in their capacity either as a Mutwali or as a worshipper. The relief which was sought in the original plaint would remain the same after amendments. The question whether the persons who are to represent the Masjid by the proposed amendments can legally represent the Masjid is not being decided now and the matter has to be decided in the suit itself at the time of hearing. In these circumstances, the proposed amendments, according to me, cannot be said to change the nature and character of the suit. In the case in Rajendra Nath v. R. O. Turf Club2, a suit was brought against the Royal Calcutta Turf Club which was neither an incorporated body nor one registered under the Societies Registration Act. On an objection by the Defendants that the suit was not properly framed, the Plaintiff sought to amend the plaint and also prayed for an order for leave under Order 1, Rule 8, CPC to sue the proposed Defendants as representing all the members of the club. In these circumstances it was held that as there was no mis-description of the Defendants in the original plaint the said defect was not curable by amendment as contended. Secondly, it was held that by allowing the application for amendment incalculable harm would result to the Defendants by reason of the plea of limitation. That case, according to me, has no application to the present case. The Tahetul Masjid, even after the proposed amendments are accepted, will remain the main Plaintiff. The relief originally claimed in the plaint is on behalf of the Masjid and the said relief after amendments will not undergo any change. Law is also well settled that non-compliance with the provisions of Order 1, Rule 8, CPC vitiates the decree when it is passed against or in favour of persons representing the general public. In other words, such a decree is not binding so far as the general public sought to be represented in the suit are concerned. But the decree is not ineffective against the persons impleaded in the suit individually. In the decision reported in Chatrabhoj Keshavji v. Ghanshyam-lalji Ratanji3, it was held that where the Plaintiffs sue in their individual capacity, they cannot be allowed to sue in a representative capacity by affecting amendment to the Plaintiff as the amendment would result in changing the character of the suit. That decision is clearly distinguishable. As I have already stated, the relief claimed in the original plaint in the case before me is to set aside a deed of lease in favour of Defendant Nos. 1 to 3 and to restore the property to the Masjid. In the suit the Masjid is the main Plaintiff. After the proposed amendments are accepted, the relief remains the same and if the suit is decreed, the property will be restored to the Masjid who remains as the principal Plaintiff. The Muslim community interested in the Masjid could institute the suit representing the Masjid for setting aside the lease deed. Similarly, the Mutwali of the Masjid or anyone of its worshippers can also institute the suit for the same relief representing the Masjid. The principal Plaintiff remains the same even after the proposed amendments are accepted. Originally the Masjid was represented by the Muslim public, and after the amendments the same Masjid is sought to be represented by its Mutwali or anyone of its worshippers So, the character of the suit will not undergo any change if the proposed amendments are accepted. The decision Brij Mohan v. N. V. Vakharia4 rather supports the contention of Mr. Rahenoma that the proposed amendments would not fundamentally change the character of the suit. It has been held in that decision that Courts should be liberal and at any rate not unduly rigid in allowing amendments which may be necessary for the purpose of determining the questions in real controversy between the parties. It has been further held in that decision that this power has its limits, viz., where amendment would radically or fundamentally change the character of a suit or introduces a new case therein which is inconsistent with the case originally put forward, such amendment should not be allowed, particularly when the prayer for the amendment is made at a belated stage. As I have pointed out earlier the proposed amendments have not the effect of changing the character and nature of the suit fundamentally and the case to be made out after the proposed amendments is not inconsistent with the case originally made in the plaint. For all these reasons, therefore, I allow the amendment petitions and direct the amendments to be made in the plaint as prayed for.

It has been noticed earlier that Mr. R. N. Mohanty-2 has raised an objection on the basis of the certified copy of the resolution of the Orissa Board of Wakf passed in its meeting held on 27-7-1975 that the managing committee appointed by the Board of Wakf can only represent the Plaintiff-Masjid and that Sk. Yusuf Ali who has not been described in the amended plaint as Mutwali of the mosque cannot represent the Masjid. By a separate petition under Order 41, Rule 27, Code of Civil Procedure. Mr. Mohanty has prayed for acceptance of the aforesaid certified copy of the resolution as additional evidence in the case. After amendment of the plaint the relevant question which thus arises for consideration in the suit is as to whether the Plaintiff-Masjid can maintain the suit through the present Plaintiffs or the suit is bound to fail on account of the fact that the Masjid is not represented by the managing committee appointed by the Wakf Board. For determination of this question fresh evidence is necessary. It would be proper, therefore, to send the case back on remand to the trial Court for determination of the question raised by Mr. Mohanty and to dispose of the suit afresh according to the said decision to be arrived at keeping in view the relevant provisions of law in force.

In view of the fact that the case is going on remand it is not necessary to dispose of the petition for acceptance of additional evidence filed by Mr. R. N. Mohanty-2 since it would be open to the Defendants to rely upon the resolution of the Orissa Board of Wakf as a piece of evidence to be adduced in support of the plea raised by, the Defendants in their additional written statement in the trial Court.

I, therefore, allow the appeal, set aside the impugned judgment and decree of the Court below and remand the case to the trial Court with the following directions: The trial Court after receipt of the records from this Court shall give opportunity to the Defendants to file additional written statements, if they so like, in view of the amendments made in the plaint, and thereafter shall frame an issue in view of the plea raised in the additional written statements, if any, on the question as to whether the Masjid can be represented by Plaintiff Nos 1(a) to 5. If a new issue is raised, as stated above, the trial Court shall give opportunity to the parties to lead evidence on the new issue so raised and thereafter on hearing arguments from both sides on the evidence led by the parties, after remand as wen as on the evidence already on record finally dispose of the suit according to law. Costs of the appeal will abide the final result.

Appeal allowed and case remanded.