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Judgment
V. Ramasubramanian, J.—These Civil Revision Petitions arise out of separate orders passed by the Principal District Munsif, Karaikudi, allowing one application, under Order I Rule 8 of CPC in respect of the plaintffs and another application under the same provision in respect of the defendants 2 and 3.
Heard Mr. V.R. Shanmuganathan, learned Counsel for the petitioners and Mr. A.R.L. Sundaresan, learned Senior Counsel appearing for the second respondent and T.S. Mohammed Mohideen, learned Counsel appearing for the third respondent.
The petitioners herein are defendants 2 and 3 in O.S. No. 164 of 2006, on the file of the District Munsif Court, Karaikudi. The said suit was instituted by the respondents 1 and 2 herein, praying for:
(a) a mandatory injunction to remove the first petitioner herein from the post of member of the Board of Control of the first defendant temple.
(b) a mandatory injunction to nominate the first respondent/first plaintiff as the representative of one branch to the Control Board of the temple and for other consequential reliefs to which they may be entitled to.
The suit was instituted by the respondents 1 and 2 herein, claiming themselves as representing Alagappa sub group in a larger group known as "Na.Na" among Karaikudi Nattukkottai Nagarathars. Similarly the petitioners herein (cited as defendants 2 and 3) were described in the plaint as representing the branch of one Karuthan Chettiyar among Na.Na. Group of Karaikudi Nattukkotai Nagarathars.
In view of such a description of the plaintiffs as well as the defendants 2 and 3, the plaintiffs took out two applications in I.A. Nos. 254 and 255 of 2006, both under Order I Rule 8 of Civil Procedure Code, seeking to institute the suit in a representative capacity and seeking permission for defendants 2 and 3 to represent the group. Both the applications were allowed by separate orders dated 28.03.2008 . It is against the said independent orders that the defendants 2 and 3 have come up with the present Civil Revision Petitions.
In so far as the application of the respondents 1 and 2/plaintiffs in the suit seeking to file the suit in a representative capacity is concerned, Mr. V.R. Shanmuganathan, learned Counsel for the petitioners contended that the plaintiffs did not seek any permission of the body of persons whom they seek to represent in the suit. On this ground, he assailed the order passed in I.A. No. 254 of 2006. However, I am unable to accept the said contention for the simple reason that Order I Rule 8 of CPC does not contemplate any prior permission of the group or body of persons whom the plaintiffs in a suit seek to represent. In other words, no prior consent is contemplated under Order I Rule 8 of Civil Procedure Code.
At the time of institution of a suit or entering the defence, the scheme of Order I Rule 8 CPC, contemplates four stages vis.,:
(i) Persons having the same interest in one suit seeking the permission of the Court to sue or be sued or to defend a suit on behalf of or for the benefit of all persons interested.
(ii) The Court passing an order granting permission or issuing a direction that one or more of such persons may be sue or be sued or may defend the suit.
(iii) The Court thereafter issuing notice of the institution of the suit to all persons interested either by personal service or by directing the publication of an advertisement, to enable all persons interested, to know about the institution of the proceedings in a representative capacity and
(iv) Application by a person on whose behalf or for whose benefit the suit is instituted or defended, to be made a party to the suit, so that his interest can be taken care of by himself and not left to the wisdom of the other person who represents him.
After the institution of a suit or entering into defence, Order I, Rule 8 CPC, provides two safety valves under Clauses (4) and (5) by providing:
(a) that no such suit shall be compromised or withdrawn or abandoned without notice to all, and
(b) that the Court may always substitute any person in the place of the person who was originally permitted to represent all.
In a decision in State of Andhra Pradesh v. Gundugola Venkata Suryanarayana Garu reported in AIR 1965 SC 2 (V 52 C 3), the Surpeme Court has held that there is no necessity for a person filing a suit in a representative capacity to obtain sanction of the persons interested, on whose behalf the suit is proposed to be instituted. It is upto the body of persons whom the plaintiffs seek to represent, to respond to the public notice issued under Sub-rule (2) of Rule 8 of Order I of Civil Procedure Code. If any one or more persons among the group is opposed to the plaintiffs filing the suit in a representative capacity, it is open to them to apply to the court under Sub-rule (3) of Order I, Rule 8 of CPC to be impleaded as a party to the suit. Therefore Prior sanction is not contemplated by Order I Rule 8 of Civil Procedure Code.
In such circumstances, the objections to the order passed by the court below in I.A. No. 254 of 2006, cannot be sustained. All that the court below has done now is to allow the application and grant permission under Sub-rule (1). In the next stage, the court below has to order paper publication under Sub-rule (2) and in response to such a paper publication, it is open to the members of the group to take recourse to Sub-rule (3) of Order I, Rule 8.
Therefore C.R.P. No. 1185 of 2008 is dismissed and the order passed in I.A. No. 254 of 2006 is confirmed. It is now open to the court below to proceed under Sub-rule (2) and order the paper publication and follow the other procedures contemplated in the rule.
In so far as the other application is concerned, the petitioners herein as stated above, are defendants 2 and 3 in the suit. Though Order I Rule 8 of CPC applies in equal terms to the plaintiffs as well as the defendants, the rule does not contemplate a situation where an unwilling defendant can be compelled to represent a group of persons while the plaintiffs who invoke Order I Rule 8 of CPC come to the court seeking to represent a body of persons on their own volition, the defendants against whom Order I Rule 8 of CPC is invoked by the plaintiffs, are there in Court not out of a choice but by an involuntary act. In other words, the plaintiffs have dragged then to Court. Therefore, to compel the defendants to represent a body of persons, much against their wish, may not be in the scheme of Order I, Rule 8. Left to himself, a defendant in a suit has serveral choices. The exercise of anyone or more of such choices may even be adverse to the interest of the body of persons whom he is asked to represent. This is why the Court has power under Sub-rule (5) of Order I, Rule 8, to substitute anyone in his place at a later point of time. Moreover, Clauses (a) and (b) of Sub-rule (1) of Rule 8, Order I, use the word "may" indicating thereby that it is only discretionary. The Court will not exercise the discretion under Order I, Rule 8(1)(b) to direct an unwilling defendant to represent a body of persons.
In this case, the petitioners herein, by opposing the order passed in I.A. No. 255 of 2006, have clearly expressed their unwillingness to defend the group of persons. In such circumstance, the court below ought to have followed a different procedure. The procedure that should not have been followed in such cases is to issue a paper publication under Sub-rule (2) of Rule 8 of Order I of Civil Procedure Code, indicating among other things, the unwillingness on the part of the defendants 2 and 3 to represent a group and also inviting persons who wish to come on record for representing the group by filing impleading application under Order I Rule 8(3) of C.P.C. Such a procedure would have resolved the conflict that has arisen in this case, on account of petitioners claiming that they are not representing that group.
Therefore C.R.P. No. 1184 of 2008 is allowed to a limited extent, directing the court below to issue appropriate directions in accordance with Sub-rule (2) of Rule 8 of Order I of Civil Procedure Code. The Court below shall make it clear that the plaintiffs shall indicate in the paper publication that the defendants 2 and 3 have expressed unwillingness to represent a sub-group among the larger group and that therefore it is open to any other person claiming to belong to the sub-group (if such a group is in existence) to come on record representing that group so that the petitioners herein can continue in the suit only in their individual capacity and some other persons may represent the group against which the suit is instituted. Consequently, connected Miscellaneous Petitions are closed. No costs.