N. Bheeman and Others vs N. Bhojan and Others

R.S. Ramanathan, J.—Defendants in O.S. No. 287 of 2007 on the file of the District Munsif, Udhagamandalam are the revision petitioners.

The respondents/plaintiffs filed the suit in the representative capacity for declaration and injunction and they also filed application under Order I

Rule 8 seeking permission of the Court to file the suit in the representative capacity and also to sue the defendants in the representative capacity

and that application was allowed and aggrieved by the same, this revision is filed.

It is submitted by Mr. S.K. Rakhunathan, learned counsel for the revision petitioners that the respondents filed the suit as if they are representing

Thudagai Kudumba sect and the revision petitioners/defendants belong to Nattamakkas sect in Kuruthukuli Hamlet and there is no such sect in that

Hamlet and therefore, the filing of the suit by the plaintiffs representing Thudagai Kudumba sect against the defendants alleged to be representing

Nattamakkas sect is not maintainable and therefore, the Court below ought not to have allowed the application filed by the respondents/plaintiffs.

He further submitted that without proving that there are two sects available in the village, the Court should not have allowed the plaintiffs to

represent one sect and allowed the plaintiff to proceed against the defendants as if they are representing another sect and further submitted that in a

suit filed in a representing capacity, the decree that may be passed is binding on the parties belonging to the sect and therefore, without ascertaining

whether there are two sects in existence, the Court below ought not to have allowed the application filed by the plaintiffs.

On the other hand, the learned counsel appearing for the respondents submitted that in the earlier suit in O.S. No. 82 of 2002, the two groups

were recognized and the respondents/plaintiffs were represented as A party in Kuruthukuli village and Others as B party and the proceedings of

the Revenue Divisional Officer as seen through Exhibit P3 also would prove that there are two factions in that village and there is a dispute between

them in the performance of poojas and though O.S. No. 82 of 2002 was filed in the individual capacity, subsequently, it was altered into a suit filed

in the representative capacity by virtue of the order passed in C.R.P. NPD Nos. 793 to 795 of 2006 and therefore, having regard to the order

passed in C.R.P. NPD. Nos. 793 to 795 of 2006, it cannot now be contended by the revision petitioners that there were no two groups or two

sects and therefore, the Court below has rightly allowed the application and there is no need to interfere with the order of the Court below.

According to me, the Court below has properly appreciated the provisions of Order I Rule 8 of the CPC and rightly allowed the application.

Order I Rule 8 of the CPC reads as follows:-

(8. One person may sue or defend on behalf of all in same interest

(1) Where there are numerous persons having the same interest in one suit,--

(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of,

all persons so interested;

(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all

persons so interested.

(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiffs expense, give notice of the institution

of the suit to all persons so interested either by personal service, or, where, by reason of the number of persons or any other cause, such service is

not reasonably practicable, by public advertisement, as the Court in each case may direct.

(3) any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub-rule (1), may apply to the Court to be made a

party to such suit.

(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of Rule 1

of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order, unless the Court has

given, at the plaintiffs expense, notice to all persons so interested in the manner specified in sub-rule (2).

(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his

place any other person having the same interest in the suit.

(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended,

as the case may be.

Explanation--For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not

necessary to establish that such persons have the same cause of action as the persons on whose behalf or for whose benefit, they sue or are sued,

or defend the suit, as the case may be.)

According to the aforesaid provision, there is no need to have two different sects and it is sufficient that numerous persons, who are having the

same interest, may file a suit with the permission of the Court in a representative capacity and similarly, they also can file a suit against some group

of persons who are having similar interest and therefore, irrespective of the sect, a suit can be filed in a representative capacity by persons having

against some persons having adverse interest. Therefore, even assuming that there are no two sects available as contended by the learned counsel

for the petitioners, having regard to the fact that the plaintiffs are having identity of interest which is adverse to the identity of interest of the

defendants, the suit can be filed in a representative capacity against the defendants in a representative capacity.

Further, as per Order I Rule 8(2) notice of institution of the suit shall be given to all persons so interested either by personal service or by

publishing advertisement as the Court in each case may direct and as per Order I Rule 8(3) of the Code of Civil Procedure, any person, on whose

behalf or for whose benefit, the suit is instituted or defended, may apply to the Court to be made a party to such suit. Further, this Court has

allowed the applications filed by the plaintiff in O.S. No. 82 of 2012 to alter the suit in the representative capacity in C.R.P. NPD Nos. 793 to 795

of 2006 and therefore, having regard to the nature of allegations made in the plaint, the Court below has rightly allowed the application. Though the

revision petitioners/defendants have contended that there are no two sects as alleged by the plaintiffs, it was alleged in the written statement that

they have got as much right as the plaintiffs have got to participate in the temple pooja. Therefore, there was a dispute regarding the performance

of pooja between the two groups of persons and it is seen from the reading of the plaint and written statement that the plaintiffs claim exclusive right

to do pooja on the basis that they belong to a particular sect and the defendants claim the same right to do pooja and therefore, having regard to

the rival claims between the two class of persons, the suit filed by the plaintiffs against the defendants in a representative capacity is proper and the

decree that may be passed in that suit will be binding on the persons belonging to both the groups. Hence, I do not find any infirmity in the order of

the Court below.

In the result, the revision is dismissed. No costs. M.P. No. 1 of 2012 is also dismissed. M.P. No. 2 of 2012 is closed.