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Judgment
R.C. Kathuria, J.—This revision petition is directed against the order dated 15.6.2000 passed by the Civil Judge (Junior Division), Faridabad whereby application filed by the Respondent-Plaintiff seeking permission of the Court to sue in a representative capacity under Order 1, Rule 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as ''the Code'') was granted.
The facts have to be noticed in detail in view of the litigation which has ensued between the parties. Satyendra Bhadana and four others Plaintiffs had instituted a suit for declaration with a consequential relief of permanent injunction and mandatory injunction against the Defendants- It was prayed that the Defendants be restrained from holding the elections of four office bearers of Maharishi Dyanand Education Society (hereinafter referred to as ''the Society''), Defendant No. l on 21.2.1993 on the basis of list of members Annexure-A, as the genuine life members of the Society detailed in Annexures-B and ''D'' had been excluded from participation in the election. In the alternative, it was also claimed that the Defendants be directed to delete the names of persons detailed in Annexure-A, who are not members of the Society and include those members, whose names are detailed in Annexure-C from the list of membership notified by Defendant No. 1 in the election programme and the lists of the members published on 9.2.1993 Annexure-A be declared, as void ab initio and illegal. Disqualification of Defendant Nos. 2 to 4 from the founder members of Defendant No. l was also sought.
The stand of the Respondent-Plaintiff is that the Petitioner-society, which is a registered educational society has been engaged in propagating the teachings of Maharishi Dayanand and promotion of education. It has been running various educational institutions, schools and colleges in the area of Faridabad. The Governing Body of the said society consists of 15 members out of which 4 are office bearers and others are members. In terms of rules of the Society, election of the members of the General Body is to be held after every three years. It is only the members of the General Body, who are eligible to elect members of the Governing Body, as the term of the Governing Body had expired, a public notice was issued for the election of the offices of the President, the Vice-President, the Secretary and the Treasurer of the Society. As no notices were sent to the Plaintiff, they sought the protection of the Court by filing the suit on the ground that they are bona fide members of the General Body of the Society having paid their subscription upto date. According to them, names of 70 persons had been shown as enrolled as members of the Society despite the fact that they had not paid any subscription. Rather, the Governing Body of the Society had been conducting the affairs of the Society detrimental to its interest resulting in financial loss to the Society. The Defendants had designed to fabricate the record of the members of the General Body and had included the names of 70 members in order to allow them to cast their votes so as to materially affect the result of the election. As the election programme so notified is illegal, the same was sought to be set aside.
The suit was contested by the Defendants primarily on the ground that Plaintiff Nos. 2 and 5 were not members of the Society and for that reason they have no locus standi to file the suit. It was also pleaded that election notice to elect the members of the Governing Body was published in two local newspapers. In addition, separate notices were also sent on 21.2.1993 to all the bona fide life members of the society as borne out in the record of the society as on 1.2.1992 and 2.2.1993. According to them, only Plaintiff No. 1 was a life member of the Society. They also maintained that about 50 persons had filed objections which were found false and thus rejected. It was also explained that two receipt books were issued under the signatures of K.L. Mehta, which were found missing and used for making false members of the Society regarding which case was registered with the police and a public notice regarding its misplacement was also issued. They denied that they had mismanaged the affairs of the Society and they were attempting to have permanent control over the Governing Body.
During the pendency of the case before the learned trial judge, an application under Order 39, Rules 1 and 2 of the Code was filed by the Plaintiffs. The learned trial Judge vide order dated 11.2.1994 granted ad interim injunction and restrained the Defendants from holding election till dispute regarding the eligible and ineligible members was resolved. This order was upheld in appeal filed by the Appellant-Defendant by the Additional District Judge. Faridabad vide his order dated 5.6.1998. Revision Petition No. 2849 of 1998 filed by the Defendants was also rejected as per order dated 17.11.1998 of this Court. In the appeal a grievance was made from the side of the Defendants, who are now Petitioners in this case, that the trial Judge had not granted any permission regarding the application filed under Order 1, Rule 8 of the Code moved by the Plaintiffs and for that reason no order including ad interim of injunction could be passed. Dealing with this matter it was observed as under:
There is an important reason in this regard in the peculiar facts of this case. The application under Order 1 Rule 8 of the Code had been filed along with the plaint. The learned trial Court did not grant any permission at that time. Indeed, nobody is to suffer or take benefit of the fault of the Court. As noted above, such permission should be considered and effective steps taken. Once such an application has been appended along with the suit, then the Plaintiff cannot be made to suffer in this regard. Permission granted now will not invalidate the suit. Therefore, it must be held that the permission so granted during the pendency of the suits would save dismissal of the suit.
Regarding the merits of the matter, both the learned trial Court and the learned Additional District Judge had found that there is no prima facie case in favour of the Plaintiff. It has been noted that Mrs. Vimal Mehta and Sh.B.L. Bhatia have been shown as founder members, they were not prima facie shown to be so. It was, in fact, admitted that Defendant No. 4 Sh.B.L. Bhatia has inadvertently been included as founder member. Furthermore, it has been noted from the receipt books that members mentioned in the list have paid their subscription though they were not included in the final list of members, while certain other persons have invalidly been included as members. Further discussion in this regard would only embarrass either party. Suffice to say, prima facie case was drawn in favour of the Plaintiff-Respondents. Balance of convenience would also be in favour of the Plaintiff-Respondents if elections were held as per plan of the Petitioners. It is the Plaintiff-Respondents who would suffer irreparable loss. There is no ground thus to interfere in the impugned order.
After making the above observation in the order dated 12.11.1998, it was further directed that the Petitioners would be at liberty to challenge "the permission granted under Order 1, Rule 8 of the Code and no opinion in this regard is expressed.
Soon after the above decision, the matter was again agitated before the trial Court from the side of the Petitioner-Defendants. As per order dated 17.9.1998 passed by the Civil Judge (Jr. Divn.). Faridabad, permission was granted to the Respondent-Plaintiffs to prosecute the suit under Order 1. Rule 8 of the Code. Against the said order, Revision Petition No. 205 of 1999 was filed. During the course of hearing on 21.2.2000, both the parties agreed that the impugned order be set aside so that the trial Court should pass fresh order considering the application of the Plaintiffs under Order 1, Rule 8 of the Code in consonance with the ingredients of that provision. The matter was again taken up by the Civil Judge (Jr. Divn.), Faridabad. In terms of the above directions of this Court, as per detailed order dated 15 6.2001, the trial Judge allowed the prayer of the Plaintiffs to continue with the suit under representative capacity under Order 1 Rule 8 of the Code. It is this order which has been challenged in this revision petition.
1 have heard Learned Counsel for the parties at length.
Three-fold grievance had been made by the Learned Counsel for the Petitioners in order to assail the order of the trial Judge. Firstly, that the direction of this Court to the trial Court in the order dated 21.2.2000 to dispose of the application filed under Order 1 Rule 8 of the Code in consonance with the ingredients of the above noted provisions had not been complied with and the order suffers from illegality patent on record. Secondly, the conclusion drawn by the trial Judge that the list of the members contained in Annexure-5 as the life members of the Society is premature because this fact is to be determined on merits. Thirdly, that the trial Judge had taken into consideration the persons mentioned in Annexure-B as members without any basis and ignored the issue involved as to what was common interest between those who are yet to become members through the relief of declaration and those who are seeking restraint order by way of injunction for holding elections. Rather, on the basis of presumptions and assumptions conclusion had been drawn by the trial Judge in this regard. These submissions have been countered by the counsel representing the Respondent-Plaintiffs for the reasons given in the impugned order.
As the entire controversy centres around the order dated 15.6.2000 passed by the trial Judge, it would be appropriate to notice the conclusion drawn in that order. The learned trial Judge, after noticing the contention set out before him and the ingredients for applicability of Order 1 Rule 8 of the Code observed as under:
However, one or two receipt out of 57 receipts have some discrepancies but it is matter to be seen at the time of arguments after evidence. When as Annexure -B have names of 57 persons who are life members, so all the members have interest in the suit and the parties are definitely numerous, so far as the permission of the Court is concerned, the applicant/Plaintiffs deserved permission for contesting the suit on behalf of remaining 57 members. Prima facie it seems that the amount of 57 members came into the institution and receipts might have given by any of the member of society to those members. So far as approvement by the society regarding 57 members is concerned when receipts have been given to the members treating them as life members the approval is presumed to be given to all the members. When all the members have become life members of the society then they have similar interest in the present suit. Receipts have already been admitted by the Defendants. Consequent to whole of my above discussion. I am of the considered view that all the 57 members of who have become the member or life member of society have the same interest and parties are numerous in this case and perusal of the Court file also shows that permission for contesting the suit on behalf of the 57 members was presumed to be given by the then Presiding Officer that is why suit was proceeded further, but at this stage the application of the applicant has merits and same is hereby allowed.
In fairness to the counsel for the Petitioners, he referred to the cases Govind Ram and Others Vs. Gokul and Others ; Kodia Goundar and Another Vs. Velandi Goundar and Others, Shantilal Bardichand Mahajan Vs. Champalal Radhaji and Others, Kuthukutty Kunhali''s son Kunhalavi Musaliar and Others Vs. Pakkath Enu''s son Abdulla and Others, Smt. Munni Devi and Others Vs. Satgur Dayal Tandon and Others, Jai Narain and Ors. v. Chandgi Ram and others, 1977 P.L.J. 527 ; Smt. Ram Piari Vs. Shri Amar Singh and Others, Prithipal Singh Vs. Magh Singh and Others, Kundan Singh and Others Vs. Gurrnam Singh and Others, 5 The Assistant Commissioner, Hindu Religiousand Charitable Endowment, Salem and Others Vs. Nattainai K.S. Ellappa Mudaliar and Others, R. Venugopala Naidu and Others Vs. Venkatarayulu Naidu Charities and Others, Lakhana Nayak and Another Vs. Basudev Swamy and Others, s, AIR 194 Mad 43 and Thakardawara and Others Vs. Nagar Singh and Others, . In order to pin-point that in these cases it has been laid down that obtaining of judicial permission under Order I Rule 8 of the Code is an essential condition for binding persons other than those who actually are party to the suit and their privies and for that reason permission must be obtained before and the permissions granted during the pendency of the suit would not validate the suit. All these cases were noticed in the judgment dated 17.11.1998 bearing Civil Revision No. 2849 of 1998 between the same parties but the view taken was that an application had been filed by the Plaintiffs along with the suit and the Plaintiffs cannot be made to suffer if no order had been passed by the Court on their application. It was for that reason, it was observed that permission now to be granted during the pendency of the suit would not invalidate the suit and would save the dismissal of the suit. Therefore, controversy mainly has to be decided whether there was sufficient material before the Court to grant permission in terms of the requirement of Order 1. Rule 8 of the Code.
Coming to the stand taken from the side of the Petitioners, a reading of the order under challenge leaves no manner of doubt that the trial judge had addressed itself to the principles, ingredients and conditions of applicability of Order 1 Rule 8 of the Code while granting permission. He took notice of the fact that 2 receipts out of 57 receipts were found to be discrepant which need adjudication after affording opportunity to the parties to lead evidence The trial Judge was fully justified in taking notice of the fact that 57 members mentioned in the list Annexure-B had been issued the receipts treating them as life members and at this stage there are no reasons to ignore these receipts. Prima facie they have a right to participate in the election. Needless to say they are numerous persons and it would be difficult for them to pursue their cause and the Plaintiffs can represent them as well because of commonality of their interest with that of other members as per the stand of the Plaintiffs-Respondent which has to be accepted. In fact, this very record had been taken into account while granting temporary injunction during the pendency of the suit in the Court below, which order had been upheld by this Court vide order dated 17.11.1998 and there is no reason to ignore the same record from consideration while granting permission under Order 1 Rule 8 of the Code.
After the arguments were concluded, an application was filed for placing on record a copy of Annexure-P.A. Which is a copy of public notice that had appeared in the newspaper. This notice was issued by Sh. Narender Sharma, Civil Judge (Jr. Divn), Faridabad specifically stating therein that suit for permanent injunction mentioned in the notice had been filed in the representative capacity on behalf of 57 persons detailed in the list attached as Anncxure -B along with application filed under Order 1 Rule 8 of the Code. A direction was given to the persons mentioned therein to appear personally or through some authorised agent or pleader on 28.5.2001 at 7.30 a.m. in those proceedings failing which the said suit shall be deemed to be sued in the representative capacity on behalf of 57 persons mentioned in the list Annexure-B. Obviously, this notification has to be issued after permission was granted as per order of the trial Court dated 15.6.2000. If any person wanted to contest the suit as a Plaintiff along with other persons he could have made necessary application to the Court. If any of them has any objection with regard to the suit filed in representative capacity, they can agitate the matter before the trial Court. Therefore, the issue of this notification does not, in any manner, affect the validity of the order dated 15.6.2000 passed by the trial Judge.
Therefore, I find no infirmity in the impugned order of the trial Judge.
For the aforesaid reasons, there is no merit in the revision petition and the same is accordingly dismissed.