Viswakarma Samudayam and Others vs S. Dasan and Others

K.K. Sasidharan, J—The application filed by the petitioners seeking leave under Order 1 Rule 8 of Code of Civil Procedure was dismissed by the learned Trial Judge. The said order is under challenge in this Civil Revision Petition.

The petitioners filed a suit against the respondents in O.S. No. 284 of 2000. The suit was filed in the name of Viswakarma Samudayam, Panagudi, represented by its Office Bearers. The respondents, on appearance, challenged the maintainability of the suit. The petitioners, therefore, filed an application in I.A. No. 1256 of 2010 seeking leave to file the suit in a representative capacity.

The learned Trial Judge was of the view that the very nature of the suit would be changed, in case the application is allowed. Accordingly, the application was dismissed.

The learned counsel for the petitioners contended that the suit was originally filed in the name of the Society. Since it is an unregistered Society, the petitioners wanted to convert the suit as a representative one. The learned Trial Judge dismissed the application, without considering the factual matrix.

The learned counsel for the first respondent, by placing reliance on the judgment of this Court in Inbaraj v. Kalunguvilai CMS Sudhanga Suvisesa Sabai [2004 (1) MLJ 617], contended that in case the application is allowed, it would change the very nature of the suit.

The suit in question was instituted only by Viswakarma Samudayam. The first petitioner represented the Viswakarma Samudayam in his capacity as its President. The other plaintiffs are also stated to be the Office Bearers. The Society is an unregistered one. The contesting respondent is a tenant.

The petitioners wanted to convert the suit by invoking Order 1 Rule 8 of Code of Civil Procedure.

The learned Trial Judge applied the ratio of the judgment in Inbaraj and another case cited above. In Inbaraj''s case, the suit was filed by the President. The learned Judge was of the view that the President would be removed at any point of time and in such an event, the suit would become infructuous. However, that is not the case here. The suit was instituted by the President and other Office Bearers of the Society. The petitioners wanted the Trial Court to grant them leave to convert it as a representative suit, by following the procedure contemplated under Order 1 Rule 8 of Code of Civil Procedure.

The respondents would be justified, in case the suit was originally filed in personal capacity and thereafter, it was sought to be converted as a representative suit. Even, the original suit was filed only in the name of Viswakarma Samudayam. Therefore, it cannot be said that by permitting amendment, the very nature of the suit would be changed. Even after allowing the application, the petitioners have to follow the procedure contemplated under Order 1 Rule 8 of Code of Civil Procedure. I am, therefore, of the view that the learned Trial Judge was not correct in dismissing the application.

In the result, the order dated 24 January, 2011 is set aside. The application in I.A. No. 1256 of 2010 is allowed. The petitioners are directed to comply with the procedure contemplated under Order 1 Rule 8 of Code of Civil Procedure before proceeding further.

The Civil Revision Petition is allowed to the extent indicated above. No costs. Consequently, the connected miscellaneous petition is closed.