Madras High Court
C.S.I. Ayar Mandala vs A.Stanly on 6 January, 2022
C.R.P.(MD)Nos.1396 & 1397 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD)Nos.1396 & 1397 of 2019
and
C.M.P.(MD) No.7442 of 2019
1.C.S.I. Ayar Mandala
Kaspa Sapai Arumanai, (CSI Home Church)
Rep by Secretary, Pallivilai,
Arumanai Post, Vellam Code Village,
Vilavan Code Taluk,
Kanyakumari District.
2.The Pastor,
CSI Home Church,
Pallivilai, Arumanai Post,
Vellam Code Village,
Vilavan Code Taluk,
Kanyakumari District. ... Petitioners in both CRPs.
-vs-
1.A.Stanly
2.Semon Aruldhas
3.S.Rajesh
4.The Executive Officer,
Arunanai Town Panchayat,
Pallivilai, Arumanai Post,
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C.R.P.(MD)Nos.1396 & 1397 of 2019
Vellamcode Village,
Vilavancode Taluk,
Kanyakumari District.
5.The Revenue Divisional Officer,
Padmanabhapuram,
Thuckalay Post, Kallulam Taluk,
Kanyakumari District.
6.The District Collector,
Kanyakumari District,
Nagercoil-62900.
7.Jalaja
8.S.Mini
9.T.Kingsly
10.S.Vijaya
11.Sevaraj
12.Sundar Raj
13.Chandra
14.Sarasam
15.Lalitha.R
16.Packiaraj
17.J.David Raj
18.Vasantha
19.Sunitha.K
20.N.Saraswathy
21.Soman
22.J.Daisy
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C.R.P.(MD)Nos.1396 & 1397 of 2019
23.S.Radhakrishnan
24.A.Saleen
25.Bai
26.C.Murugan
27.Anusha
28.M.Ramesh
29.S.Saravana
30.J.Vijayalakshmi
31.P.Palus
32.Mary Pushpam
33.P.Anil kumar
34.Baby
35.Sunitha
36.S.Dhas
37.G.Usha
38.T.Christudhas
39.T.Sunitha kumari
40.Immanuvel
41.J.Sujatha
42.C.Isravel
43.S.Megala
44.P.Nagarajan
45.N.Johnson
46.T.Thangam
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C.R.P.(MD)Nos.1396 & 1397 of 2019
47.C.Painkili
48.M.Suresh
49.R.Sunil
50.Suppulakshmi
51.C.Vijayan
52.M.Leela
53.P.Muthupillai
54.Ponnesan
55.D.Esthakki
56.C.Leela
57.P.Vincent
58.A.Bai
59.S.Manikandan
60.S.Sivanesan
61.P.Rajendran
62.V.Santhi
63.Santha Bai
64.Saraswathy
65.Robinson
66.Kavitha
67.N.Bai
68.R.Pappa
69.V.Leema Rose
70.Ajitha
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C.R.P.(MD)Nos.1396 & 1397 of 2019
71.George
72.M.Selvan
73.Raju
74.R.Mohan Raj
75.N.Geetha
76.R.Raj kumar
77.P.Soumiya
78.R.Latha
79.D.Kurusumuthu
80.R.Raj
81.I.Suja
82.L.Anitha
83.S.Sivakumar
84.T.Ramesh
85.The Bishop,
CSI Diocase,
Bishop House,
Kanyakumari District. ... Respondents in both CRPs.
Prayer in CRP.(MD)No.1396 of 2019 :- Petition filed under Article 227
of the Constitution of India, to allow the Civil Revision Petition and set
aside the order and decreetal order in I.A.No.452 of 2017 in I.A.No.242
of 2017 in O.S.No.98 of 2016 on the file of the First Additional District
Munsif Court, Kuzhithurai dated 27.02.2017.
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C.R.P.(MD)Nos.1396 & 1397 of 2019
Prayer in CRP.(MD)No.1397 of 2019 :- Petition filed under Article 227
of the Constitution of India, to allow the civil revision petition and set
aside the order and decreetal order in I.A.No.242 of 2017 in O.S.No.98
of 2016 on the file of the First Additional District Munsif Court,
Kuzhithurai dated 07.10.2017.
For Petitioners : Mr.V.M.Balamohan Thambi
For R1 : Mr.Ananth C.Rajesh
For R4 : Mr.J.Gunaseelan Muthiah
COMMON ORDER
The above civil revision petitions emanate from the proceedings in
IA No.452 of 2017 (CRP(MD) No.1396 of 2019) and IA No.242 of 2017
(CRP(MD) No.1397 of 2019) in OS No.98 of 2016.
2.The brief facts are as follows:-
(i) The suit O.S.No.98 of 2016 was filed by the respondents 1 to 3
herein against the petitioners herein as well as the respondents 4 to 6 for
an injunction restraining the revision petitioner herein from using the suit
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C.R.P.(MD)Nos.1396 & 1397 of 2019
property as a burial ground and the respondents 4 to 6 from granting
permission to use the property to till the disposal of the above suit.
(ii) The case of the respondents 1 to 3 was that the suit schedule
property belongs to the first petitioner. The housing plots belonging to
respondents 1 to 3 are situated within the village of Vilavancode under
the administration of the fourth respondent herein. The case of the
respondents 1 to 3 is that suit schedule property was purchased in the
year 2009 for putting up the Church. The suit schedule property is
surrounded by over 70 dwelling houses including that of the respondents
1 to 3 In fact, the second respondent's house is located just five feet
from the eastern boundary and the house of the first and third
respondents is located 30 feet from the eastern boundary of the plaint
schedule property. The first respondent would submit that the reason for
the purchase was deliberately not made known by the Church. The first
petitioner had initially stated that the property was being purchased for
providing dwelling houses for the poor people. However, respondents
1 to 3 came to learn that the real purpose was for setting up the cemetery.
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In and around the year 2014, the first and second petitioners herein, with
the guidance of the third defendant, had constructed a compound wall
around all the four sides of the property without the fourth respondent
panchayat's permission. On 30.08.2015, the board was displayed in the
property showing the name, CSI Home Church Cemetery. The
respondents 1 to 3 would submit that the cemetery has been set up
without getting permission and that apart, the same is to close to their
house. The setting up of the cemetery has destroyed the tranquility of
the surrounding. Therefore, the respondents 1 to 3 came forward with the
suit in question.
(iii) The revision petitioners had filed a written statement inter alia
contending that within 100 metres of the suit property, on the west, there
are numerous old and new graves with tombs are spread out and used to
be a graveyard for years together. Abutting the house of the second
respondent, his father is buried 3 metres away from the well situate
therein. Inside the suit property, half portion on the north, is set apart for
putting up the residential houses for the members of the first petitioner
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church and the remaining half on the south is to be used as cemetery.
The allegation that a lot of noise pollution emanates from the cemetery is
absolutely false and respondents 1 to 3 are bound to prove the same.
The revision petitioners would further submit that the allegation that they
were using the schedule property to convert people is absolutely false.
They would submit that the suit is nothing, but to cause nuisance and
defamatory intention to religious clash among the people of the locality.
Therefore, they sought for dismissal of the suit.
(iv) Pending the suit, the respondents 1 to 3 came forward with the
petition for impleading respondents 4 to 81 as parties to the proceedings.
The only ground on which the petition is filed is that the revision
petitioners had objected that necessary parties were not impleaded.
Therefore, they had to be impleaded.
(v) The revision petitioners had filed a counter inter alia
contending that there was no necessity to implead these persons, as the
respondents 1 to 3 have not pleaded that the suit was instituted in the
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C.R.P.(MD)Nos.1396 & 1397 of 2019
name of the wrong or right plaintiffs. There is no pleading as to why
these persons have to be impleaded. These persons, who were sought to
be impleaded, have property nearly half a kms away from the suit
property and the property of the respondents 1 to 3. The revision
petitioners would therefore submit that the respondents 1 to 3 were not
able to make out the case as to why all these persons have to be
impleaded as party defendants in the suit. Therefore, they sought for
dismissal of the application.
(vi)The learned First Additional District Munsif, Kuzhithurai, after
hearing the parties allowed the application. The learned District Munsif
despite holding that the suit has not been filed in a representative
capacity, has proceeded to allow the implead application stating that the
application cannot be dismissed on a technical ground. After the order
was passed, the revision petitioners herein had filed I.A.No.452 of 2017
to review the order passed, since the revision petitioners were not heard
before the orders passed in I.A.No.242 of 2017. The review petition was
also dismissed despite the learned Judge holding that the revision
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C.R.P.(MD)Nos.1396 & 1397 of 2019
petitioners had not been heard. Challenging the same, the revision
petitioners/defendants 1 and 2 are before this Court.
3.The learned counsel appearing for the petitioners would submit
that the suit has not been filed in a representative capacity after seeking
leave of the Court under Order 1 Rule 8 of CPC. A reading of the
pleading would clearly show that the suit for bare injunction has been
filed on the allegation that the petitioners were setting up the cemetery
creating a public nuisance. Once the plaintiffs plead a cause of action
that it is a public nuisance, then the suit is not maintainable on the
ground of a wrong to an individual right and the same can be filed only
in the representative capacity. In support of the arguments, the learned
counsel relied on one judgment reported in 2008 4 MLJ 41 (Thambaiya
Naidu Vs State of Tamil Nadu, Rep. by Collector of South Arcot,
Cuddalore and others) and another unreported judgment. He would
submit that a perusal of the preamble to the order in I.A.No.242 of 2017,
would clearly show that the revision petitioners have not been heard
before the orders have been passed. The learned counsel would submit
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C.R.P.(MD)Nos.1396 & 1397 of 2019
that even in the order in I.A.No.452 of 2017 in I.A.No.242 of 2017 the
learned Judge has admitted that the revision petitioners have not been
heard. However, he has proceeded to dismiss the said application.
4.The learned counsel for the first respondent would submit that
the continuance of the cemetery is causing nuisance for all the residents
and therefore, in order to have a binding decree all parties were sought to
be impleaded. The learned Judge has considered the objection of the
petitioners and passed orders and the same does not require any revision.
He would therefore pray for dismissal of the revision.
5.Heard the learned counsel appearing on either side and perused
the records.
6.A mere perusal of the plaint in O.S.No.98 of 2016 would show
that the suit has been filed by the owners of the properties around the suit
property, stating that the setting up of the cemetery closed to backyard,
would cause nuisance to them. They have also contended that the
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C.R.P.(MD)Nos.1396 & 1397 of 2019
continuance of the cemetery is a public nuisance. A reading of Section
91 of CPC would indicate that where a public nuisance or any other
wrongful act affecting the public is sought to be redressed by filing a suit
for declaration and injunction or for any other relief, then it is with the
leave of the Court that two or more persons even if they have not
suffered any damage, can move a suit. In other words, the suit that is to
be filed questioning a public nuisance, can only be in the form of
representative suit and the procedure for which is provided in Order
1 Rule 8 of CPC. These ingredients have not been followed in the
instant suit.
7.While so, the petitioners in order to overcome this lacuna, has
proposed to implead all and sundry as parties to the proceedings. In the
counter, the revision petitioner has clearly stated that many of the parties
who were sought to be impleaded, are living for away from the suit
property. In the judgement of this Court reported in 2008 4 MLJ 41 in
the case of Thambaiya Naidu Vs State of Tamil Nadu and others, the
learned Judge was called upon to consider whether the plaintiff therein
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C.R.P.(MD)Nos.1396 & 1397 of 2019
could file a suit for mandatory injunction in its individual capacity
seeking removal of a hut put up in a public road. The learned Judge after
considering the provision of Section 91 of CPC, held as follows:-
as per Section 91(10(b) C.P.C., a person can
institute a suit only with the leave of the Court, but in
the case on hand, the plaintiff/appellant has filed the
suit for mandatory injunction for a direction to the
defendants 1 and 3 to remove the hut put up by the
fourth defendant in the suit property without prior leave
of the Court. In the absence of any compliance of the
provisions of Section 91(1)(b) C.P.C by the
plaintiff/appellant, the Lower Appellate Court is right in
holding that without the leave of the Court, the plaintiff
is not entitled to file a suit of mandatory injunction in
his individual capacity. The first question raised by this
Court is answered against the plaintiff/appellant and
the finding rendered by the Lower Appellate Court in
this regard is confirmed.
8.Therefore, in the instant suit, which has been filed without
seeking leave of the Court, is hit by the provision of Section 91 of CPC.
In these circumstances, the order permitting the impleadment of the
proposed plaintiffs is erroneous and the learned District Munsif has
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C.R.P.(MD)Nos.1396 & 1397 of 2019
overlooked the provision of Section 91 of CPC and Order 1 Rule 8 CPC.
Therefore, the order in I.A.No.242 of 2017 requires to be set aside.
9.As regards the order passed in I.A.No.452 of 2017, it is seen that
the main ground for filing review is that the revision petitioners have not
been heard before the passing of orders in I.A.No.242 of 2017 by the
First Additional District Judge. The learned Judge accepts the fact that
the petitioners have not been represented but however dismissed the
review application on the ground that the order has been reserved on
19.09.2017 and was ultimately delivered on 17.10.2017 during which
period, the petitioners have not taken steps to reopen the petition for
enquiry. The very fact that once it is proved that the order in I.A.No.242
of 2019 has been passed without hearing the revision petitioners, the
learned District Munsif ought to have allowed the review application.
The learned Judge has stated as follows in the said judgement:-
It is not in dispute that the petitioners who
are the respondents therein had filed their counter in the
said petition. It is true that the petition was taken up for
orders on 16.09.2017, when there was no representation
on the side of the petitioner in I.A.No.242 of 2017.
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C.R.P.(MD)Nos.1396 & 1397 of 2019
10.In the light of the catagoric admission, the order dismissing the
review application is erroneous and is liable to be set aside. Accordingly,
these Civil Revision Petitions are allowed and the order dated
07.10.2017 passed in I.A.No.242 of 2017 is set aside and the order dated
27.02.2019 passed in I.A.No.452 of 2017 is also set aside. No costs.
Consequently, connected miscellaneous petition is closed.
06.01.2022
Index : Yes/No
Internet : Yes/No
cp
To
The First Additional District Munsif,
Kuzhithurai.
Note:-
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the Advocate /
litigant concerned.
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C.R.P.(MD)Nos.1396 & 1397 of 2019
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C.R.P.(MD)Nos.1396 & 1397 of 2019
P.T.ASHA, J.
cp
C.R.P.(MD)Nos.1396 &
1397 of 2019
and
C.M.P.(MD) No.7442 of 2019
Dated: 06.01.2022
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