Madras High Court
P.V.Mohan vs Covai Property Centre (India) on 9 July, 2021
C.R.P.No.2457 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 09.07.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.2457 of 2019 and
C.M.P.No.16054 of 2019
1. P.V.Mohan
2. Uma Mohan
3. Visalakshi Balasubramanian
4. S.Balasubramanian
5. Mahalakshmi Sivaswamy
6. V.Sivaswamy
7. Rukmani Gopal ... Petitioners
Vs.
1. Covai Property Centre (India)
Private Limited rep. By its
Managing Director
Col. (Retd) A.Sridharan
No.145, II floor,
Bharathi Colony Main Road,
Peelamedu, Coimbatore – 641 004
2. Serene Senior Care Private Limited
a Private Limited Company incorporated
Under the Companies Act, 1956 rep. By its
Director, presently having its office at
Door No.828, 3rd Floor, RKK Complex,
Trichy Road, Ramanathapuram,
Coimbatore – 641 045
3. P.C.Seethalekshmy
4. H.Parameswaran ... Respondents
1/15
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C.R.P.No.2457 of 2019
Civil Revision Petition is filed under Article 227 of the Constitution of
India as against the fair and decreetal order dated 24.01.2019 passed in
I.A.No.59 of 2018 in I.A.No.2958 of 2014 in O.S.No.2569 of 2014 on the
file of the learned IV Additional District Munsif, Coimbatore.
For Petitioners : Mr.T.N.Rajagopalan
For Respondents : Mr.K.R.Arun Shabari for R1
R2 to R4- Served – No appearance
ORDER
The present Civil Revision Petition has been filed under Article 227
Constitution of India against the order dated 24.01.2019 in I.A.No.59 of
2018 in I.A.No.2958 of 2014 in O.S.No.2569 of 2014 passed by the learned
IV Additional District Munsif, Coimbatore.
2. The facts leading to the filing of the present Revision Petition is
that the petitioners herein and the respondents 3 and 4, who are the
plaintiffs in O.S.No.2569 of 2014 had filed the said suit to declare the suit
schedule property as part of the common area, exclusively meant for the
benefit of the owners / residents of the senior citizen projects, viz.,
Sounthariyam, Santhosam and Santhosam Extention, who had since
become the beneficiary owners of the same and for certain declaration and
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C.R.P.No.2457 of 2019
mandatory injunction as against the respondents 1 and 2, viz., defendants
therein. The plaintiffs have also taken out an application in I.A.No.2958 of
2014 under Order 1 Rule 8 read with Section 151 of Civil Procedure Code,
wherein one person may sue or defend on behalf of all, who are having
the same interest. The learned District Munsif, Coimbatore, on
10.02.2017, closed the petition on compliance of the notices and the
formalities under Order 1 Rule 8(2) CPC. Thereafter, several defendants
have been impleaded by various orders as and when the parties came to
be impleaded in the suit.
3. The 1st and 2nd defendants had filed the written statement in
O.S.No.2569 of 2014 in December, 2015. Thereafter, the 1st defendant /
1st respondent herein had taken out an application in I.A.No.59 of 2018 for
re-opening the petition filed the petitioners herein [viz., I.A.No.2958 of
2014, which was closed on 10.02.2017] and to decide the same on merits.
The said Application came to be allowed by the learned IV Additional
District Munsif, Coimbatore dated 24.01.2019, as against which, the
present Revision Petition is filed.
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C.R.P.No.2457 of 2019
4. Mr.T.N.Rajagopalan, learned counsel appearing for the
petitioners, contended that the order allowing to re-open the petition, which
was closed four years back without assigning any valid reason has to be
set aside. Apart from that, the learned counsel would submit that once the
petition under Order 1 Rule 8 of CPC was closed, after following due
process of law, it cannot be reopened at the instance of the respondents
herein. The learned counsel also would further point out that the said I.A.,
allowing to re-open has been filed after the trial was commenced and the
intention of the respondents is only to drag on the proceedings, thereby
prayed to set aside the order passed by the court below.
5. The learned counsel for the petitioners in support his contention
has relied on the following Judgments:-
(i) The order of this Court in C.R.P.No.3013 of 1989 [The Executive
Officer, Vadakku Valliyur Town Panchayat and another Vs. M.Mattar
mohideen and another] wherein it is held as follows:-
“Notice was issued in the application under Order 1 Rule
8 C.P.C., and even publication has been done. The procedure
has been followed. The only thing is that final order granting
permission has not been expressly passed. In view of the
observation in 1980 TNLJ 86 and 1977 Allahabad 421, it should
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C.R.P.No.2457 of 2019
be presumed that a conditional permission has been given by
implication. Therefore, the objection taken by the petitioners'
counsel based on Order 1 Rule 8 C.P.C., cannot be sustained.”
(ii) The order of this Court reported in 2005 (5) CTC 411
[Chennimalai Yarns Pvt., Ltd., and Another Vs. S.Chandrasekar and
Others] wherein at Paragraph Nos.16 and 21 it is observed as under:-
“16. Under Section 20(b) C.P.C., the leave must be
specifically sought and granted for filing the suit. Leave of the
Court may be obtained after institution of the suit. When some
of the defendants reside within the jurisdiction and some of the
other defendants reside outside the jurisdiction, the Court may
be granted leave for filing the suit. By exercise of discretion
where leave is granted, the defendants who are residing
outside the jurisdiction cannot raise objection. In the absence of
any express Clause, conferring jurisdiction upon the Courts at
Erode, no valid objection could be raised by the defendants.
21. Order 1, Rule 8, C.P.C., is the enabling Rule,
prescribing the condition to file the suit or to be sued in the
representative capacity. When the permission has been
granted, it becomes the duty of the Court to direct notice to be
given to the opposite parties. It is contended that the
requirements of Order 1 Rule 8, C.P.C., has not been complied
with and that notice to other shareholders has not been issued.
In support of this contention that no public notice was issued to
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C.R.P.No.2457 of 2019
the other shareholders, no material had been produced. In the
absence of any material, it is not possible to accept the
contention that necessary conditions of Order 1, Rule 8 C.P.C.,
was not complied with. The contention of the Revision
Petitioners raising objection regarding the representative
capacity of D-6 cannot be accepted. However, it is open to the
parties to put-forth their objection at the time of adducing
evidence.”
6. In contrary, the learned counsel appearing for the 1st respondent
contends that they were not heard at the time when the application under
Order 1 Rule 8 of CPC was closed, and hence the 1st respondent, has filed
the petition to re-open the I.A.No.2958 of 2014, which is just and
necessary, the same was considered by the trial court and appropriately
order has been passed and same need not be interfered in the present
Revision Petition.
7. The learned counsel ford the 1st respondent to substantiate his
contention has relied on the following order and submitted that the said
case squarely applies to the facts and circumstances of the present case
and pleaded that the order passed by the court below has to be sustained:-
(i) The Order of High Court of Bombay reported in 2017 SCC Online
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C.R.P.No.2457 of 2019
Bom 5269 [Tata Sons Limited and Others Vs. Ratan N.Tata & Ors.] at
Paragraph No. 14 wherein among other things it is stated as follows:-
“....If the suit is truly a representative suit, any decree
passed therein would bind every other person who is
represented in the suit. A number of such other persons whom
the plaintiffs claim to represent, but who actually oppose the
suit, will be forced to join the suit with a view to contest it, for if
they do not, the decree, which they perceive to be their
detriment, will bind them. That would be clearly unjust, if in the
first place, there was no warrant in allowing the plaintiff to
represent them. In the present case, the non-promoter
shareholders, who do not want reinstatement of Mistry, would
be bound to accept his reinstatement if the plaintiffs were to
succeed and on top of it, suffer such reinstatement as
something which was prayed for on their behalf or for their
benefit. To avoid such predicament, they would be forced to
join the suit and defend it, when they really had no intention or
obligation to do so. Nothing could be more unjust.”
8. Heard the learned counsel on either side and perused the
documents placed on record.
9. This Court is unable to accept the arguments put forth by the
learned counsel appearing for the 1st respondent. It is clear that when the
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C.R.P.No.2457 of 2019
Original Suit was filed, i.e., as early as December, 2014, it is seen from the
records that an I.A.No.2958 of 2014 was also filed seeking leave of the
Court. Since the suit was addressing the interest of the numerous persons,
all the plaintiffs, who are senior citizens, has approached the 1st and 2nd
defendants for construction of their villas and the issue that has crept in
with regard to the common area, that is still retained by the 1 st and 2nd
defendants, who are builders and contractors, which forced the plaintiffs to
approach the court for their redressal.
10. As it is seen that there are numerous senior citizens, who had
approached the 1st and 2nd defendants for their villas to be constructed, it is
not possible for joining all the affected persons and the petitioners /
plaintiffs and defendants 6 and 7 thought it fit that the issue involves
interest of numerous persons having same interest in one suit, took out an
application in I.A.No.2958 of 2014, after the service, publications and
objections received, the learned District Munsif, Coimbatore has closed the
same on 10.02.2017 and said order is extracted hereunder:-
“Both counsel present. On perusal of record, already
ordered for taking court notice and private notice and the same
also effected. As per Order 1 Rule 8(2), the notice to the
General public will arise only after giving permission to sue in
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C.R.P.No.2457 of 2019
representative capacity. After giving notice nothing available in
this petition to adjudicate. Hence, this petition is closed. No
costs.”
The petition, which was closed on 10.02.2017 was sought to re-open by
the 1st respondent / 1st defendant in I.A.No.59 of 2018.
11. On perusing the order passed by the learned IV Additional
District Munsif, Coimbatore in I.A.No.59 of 2018 dated 24.01.2019, it is
found that learned Judge in entire 7 Paragraphs of the order had discussed
the submission made by either parties and come to a conclusion at the 8th
paragraph, which is as follows:-
“Heard both sides. Records perused. After adding
objectors as party to this suit their objections are to be heard
and after hearing both the sides the point whether the
petitioners can be permitted to sue in the representative
capacity had to be decided. Since the petition was closed
without deciding the aforesaid point, the same be and hereby
ordered to be re-opened. Accordingly, the petition is allowed.”
Merely because the objectors were subsequently added in the suit, the
learned Judge thought it fit that the original application that was closed on
10.02.2017 should be reopened to hear the objectors.
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C.R.P.No.2457 of 2019
12. Further, it is seen from the above order that no objectors have
taken out an application other than the 1st defendant. As per Order 1 Rule
8, leave is sought from the court where there are numerous persons having
same interest in suit, one person may sue or defend on behalf of all the
persons, who are having same interest. The statute also provides that on
public notice being issued, the interested person may join the suit. Merely
because the interested persons have joined pursuant to the notice issued
and publication effected in one issue of Tamil Daily by order dated
22.12.2014 issued by the learned Principal District Munsif, Coimbatore,
and the said petition, viz., I.A.No.2958 of 2014, was closed on 10.02.2017,
by observing that “As per Order 1 Rule 8(2), the Notice to General Public
will arise only after giving permission to sue in representative capacity”,
does not mean that it has to be re-opened seeking objection from the newly
impleaded parties that too after a period of one year, [viz., 30.01.2018, the
day on which I.A.No.59 of 2018 was filed]. Once Publication was effected,
the respondents have not chosen to file the counter and if the claim of
newly impleaded parties is allowed in favour of respondents / defendants,
the same will definitely cause injustice to the petitioners / plaintiffs.
Moreover, after due publication only, the I.A.No.2958 of 2014 was heard
and closed.
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C.R.P.No.2457 of 2019
13. On perusing the counter filed by the petitioners to the I.A.No.59
of 2018, it is seen that the contention of the respondents that no other
person has joined the suit in support of the petitioners were denied and it
was stated that the provisions of Order 8 Rule 1 of CPC does not
contemplate that the persons on whose behalf the suit has been filed and
those supporting such suit should appear before the Court and that 20
persons, who sought to have impleaded in the suit have not opposed all
the reliefs sought for in the suit. Further, it is worthwhile to extract the
provisions of Order 1 Rule 8 of Civil Procedure Code:-
“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 plaintiff's 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
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C.R.P.No.2457 of 2019
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 suit 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 plaintiff's 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.”
therefore, this Court is of the view that the learned Judge had erred in his
decision.
14. That apart, the Judgments relied on by the learned counsel for
the petitioners have no relevance to the present case, however, to
substantiate that notice is to be issued and thereafter, orders should be
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C.R.P.No.2457 of 2019
passed, the learned counsel has relied on the said Judgments. However, in
the present case on hand, the petitioners / plaintiffs have taken out an
application in I.A.No.2958 of 2014 under Order 1 Rule 8 read with Section
151 of Civil Procedure Code; on notice, through court and paper
publication in one issue of Tamil Daily, the learned District Munsif,
Coimbatore, on 10.02.2017 had closed the petition.
15. In view of the foregoing discussions, this Court is of the opinion
that the order passed by the learned District Munsif, Coimbatore needs
interference from this Court and deserves to be set aside. The reasons
adduced by the learned District Munsif, Coimbatore for allowing I.A.No.59
of 2018 in I.A.No.2958 of 2014 in O.S.No.2569 of 2014 is incorrect.
16. Accordingly, the order dated 24.01.2019 made in I.A.No.59 of
2018 in I.A.No.2958 of 2014 in O.S.No.2569 of 2014 is hereby set aside
and the present Revision Petition is allowed. As the suit in O.S.No.2569 of
2014 is ripe for trial and the respondents are delaying the proceedings by
not cross examining the P.W.1, the learned IV Additional District Munsif,
Coimbatore is directed to proceed with the trial without giving unnecessary
adjournments, within a period of six months from the date of receipt of
copy of this order, by adhering to the principles of natural justice. It is
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C.R.P.No.2457 of 2019
needless for this Court to point out that the parties are at liberty to putforth
their contentions by letting in evidence during trial and the parties are also
directed not to take unnecessary adjournments. Consequently, the
connected miscellaneous petition is closed. No costs.
09.07.2021
Index : Yes/No
Internet : Yes/No
Speaking /Non-Speaking Order
ssd
To
1. The learned IV Additional District Munsif,
Coimbatore.
2. The Section Officer,
V.R.Section,
High Court, Madras
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C.R.P.No.2457 of 2019
V.BHAVANI SUBBAROYAN, J.,
ssd
C.R.P.No.2457 of 2019 and
C.M.P.No.16054 of 2019
09.07.2021
https://www.mhc.tn.gov.in/judis/
