Nilanchal Estate Pvt. Ltd. vs Ambar Ghosh (Dr.)

Amitava Lala, J.—This is an application u/s 115 of the CPC challenging the order passed by the learned Civil Judge (Jr. Divn.) 5th Court, Alipore, 24-Parganas (South) dated July 2, 2002. By such order, the learned court below finally allowed the application under Order 1 Rule 8 of the CPC and a suit for declaration and injunction etc. instituted in 1997 was converted into a representative suit. Naturally, a challenge has been thrown by way of revisional application by saying that the order suffers from illegality or material irregularity. From the plain reading under Order 1 Rule 8 or the Code of Civil Procedure, I find that one person may sue or defend on behalf of all in same interest. Sub-rule (1)(a) of Rule 8 of CPC says that 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. 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. Now, a question arose before this Court that at what stage such order can be passed. According to me, a suit under Order 1 Rule 8 of the CPC can be instituted or be defended. Therefore, one has to institute a suit of such nature and after service a Defendant can plea in such a manner. In any event, the Court may also direct in such manner. Whether the Court may direct or not i.e. the discrimination of the Court and nobody can interfere with the same. But in this prospective, if Clauses (a) and (b) under Sub-rule (1) of Rule 8 of the Code of Civil Procedure, are to be read together. It will be able to understand that at the initial stage, all steps are to be taken in this regard.

In the instant case, the suit was not only instituted in the year 1997 but also interim order of injunction with regard to supply of service was obtained. Now, from the notice as issued on the basis of such order, I find that for appointment of Receiver by replacing the Defendant to look after the ''Maintenance Services'' of the complex where the flat owners are residing the conversion was needed to be made. Therefore, the true import is to obtain such order in the garb of conversion of the suit in the category of representative suit. This cannot be allowed because the same is an afterthought. In a suit of declaration and injunction it is obvious that a question of appointment of a Receiver may arise. But that does not necessarily mean that court will give premium to the illegality by converting the suit into the category of suit under Order 1 Rule 8 of the Code of Civil Procedure. Moreover there is no embargo to the Plaintiff to make an application for appointment of Receiver and in case take any difficult seek leave from the Court to issue public notice. There is also no embargo for the parties who are notified to be added as party Defendants to get an appropriate relief. But the Plaintiff is debarred from taking such plea after a period of 5 years for the purpose of certain benefits arise in the nature of interlocutory business. Such type of order ought not to be sustained in the eye of law.

The Learned Counsel appearing for the Petitioners has also taken a plea that the interest of the Plaintiff and the interested parties who wanted to be joined cannot be common because the Plaintiffs are not holding conveyance and enjoying the possession only on the basis of agreement for sale.

The Learned Counsel appearing for the Respondents contended before this Court that if an effect in respect of the circular dated December 2, 1996 is directed to be given, it will be open to all the flat owners. Under such circumstances, the flat owners cannot be segregated by saying that one has conveyance and other has not.

I do not want to enter into such controversy and it is kept open for the Court below for passing an appropriate order. But for the same the suit cannot be allowed to be converted into a representative suit under Order 1 Rule 8 of the Code of Civil Procedure. It is open for the Court to decide the issue in accordance with law. The parties are entitled to seek such relief in accordance with law, if so advised.

Thus, taking into totality of the matter, I am of the view that the application u/s 115 of the CPC be allowed upon setting aside the order passed by the learned Court below and upon converting into an application under Article 227 of the Constitution of India subject of payment of Court fees within a period of 7 days from this date. It is expected that if any application is made, the same will be heard as expeditiously as possible preferably within a period of one month from the date of communication of this order. It is recorded herein that the Lower Court Records has not been brought. Therefore, no order is needed to be passed in this respect.

There will be no order as to costs.

Let an urgent xerox certified copy of this order, if applied for, be given to the Learned Counsel for the parties within the period of a fortnight from the date of putting the requisites.