Madras High Court
Leela vs Coimbatore District Athupalam ... on 8 March, 2022
CRP.No.4793 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.03.2022
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
Civil Revision Petition [PD] No.4793 of 2013
& M.P.No.1 of 2015
1. Leela
2. CPM Raja ... Petitioners
..Vs..
1. Coimbatore District Athupalam Puthiya Pallivasal
Kattum Oor Committee
rep. by its President M.M.Abdul Rahim
Secretary P.S.Abudhahir,
Present Treasurer K.Jahir Hussain,
Athupalam, Coimbatore.
2. S.Piyarijan
3. S.H.Syed Sukur
4. Syed Kasim
5. Syed Sultan
6, Anthoniammal
[Not necessary party, hence, given up] ... Respondents
1/8
https://www.mhc.tn.gov.in/judis
CRP.No.4793 of 2013
Prayer: This Civil Revision Petition has been filed under Article 227 of
Constitution of India against the fair and decreetal Order dated 26.03.2013
made in I.A.No.300 of 2012 in O.S.No.187 of 2012 on the file of the
Principal Subordinate Judge, Coimbatore.
For petitioners : Mr.S.Mukunthan
for Sarvabhauman Associates
For Respondents : Mr.L.Mouli – R1
Mr.N.Manokaran – R2
ORDER
Aggrieved against the allowing of the application filed in I.A.No.300
of 2012 in O.S.No.187 of 2012 to reopen the suit for the purpose of
receiving the application seeking permission to prosecute the suit in a
representative capacity for the reliefs prayed in the suit.
2. The suit in O.S.No.187 of 2012 before the Principal Sub Ordinate
Judge, Coimbatore has been filed by the plaintiff for the relief of specific
performance and other reliefs. In the suit, evidence has already been
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CRP.No.4793 of 2013
completed and arguments of both sides have been heard and when the case
has been reserved for judgment, the Court has suo motto framed an issue
namely “whether the plaintiffs have the right to file the suit in a
representative capacity without complying the mandatory provisions of
Order I Rule 8 CPC”. To avoid any technicalities, the petitioner filed
I.A.No.300 of 2012, application for reopening the main suit to seek
necessary permission to prosecute the suit in the representative capacity.
3. The respondents filed a counter stating that the application filed by
the petitioner therein under Order I Rule 8 of CPC is barred by limitation
and the same has been filed after the suit was reserved for pronouncing of
judgment. It is further stated that the office bearers of the petitioner Oor
Committee cannot represent the said Committee as the same is an
unregistered body and merely because the Court suo moto framed an issue
regarding maintainability of the suit, it does not mean that the petitioner is
entitled to file an application under Order 1 Rule 8 of CPC and hence,
submitted that the petitioner cannot reopen the case for receiving the above
petition.
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CRP.No.4793 of 2013
4. After hearing both sides, the Court below has allowed this
application giving an opportunity to the petitioner to adduce evidence with
regard to issue suo motto framed. Challenging the same, the respondents
therein have filed the present Civil Revision Petition to set aside the Order
passed in I.A.No.300 of 2012.
5. The main contention of the petitioners herein is that the trial Court
ought not to have entertained the application filed for reopening the main
suit when the same was reserved for judgment and the application seeking
permission to prosecute the suit in a representative capacity was not filed at
the time of the filing of the suit. It is his further contention that the first
respondent, which is an unregistered body, cannot maintain the suit as well
as the application and hence, prayed to allow this Civil Revision Petition
and set aside the Order passed in I.A.No.300 of 2012.
6. Perusal of records would go to show that the plaintiffs have filed
the suit for specific performance. According to the petitioners, after the
arguments is over and when the matter is reserved for judgment, the Court
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CRP.No.4793 of 2013
has framed an issue “whether the plaintiffs have a right to file an application
to seek permission to prosecute the suit in the representative capacity
without complying the mandatory provisions of Order I Rule 8 CPC.”
Therefore, it is seen that to avoid technicalities, the plaintiffs have filed this
application for reopening the suit for seeking permission to prosecute the
suit in a representative capacity. Before the Court below, the learned
counsel for the respondents objected the application on the ground that the
above application has been filed at the fag end of the suit and therefore, they
cannot reopen the case. The learned Judge considering the fact that an issue
has been framed in this regard, has allowed the above application filed to
reopen the case.
7. Further, the learned counsel for the respondents relied on the
judgment in Rt. Rev. Timothy Ravinder Dev Pradeep, the Bishop, CSI,
Coimbatore Vs. Rev. Charles Samraj, N.Presbyter & Chairman
reported in 2002 [1] CTC 157 wherein it has been held that non filing of an
application under Order I Rule 8 of CPC is only a procedural error and such
an application can be filed even during the pendency of the appeal and
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CRP.No.4793 of 2013
allowed the application. In the present case, the plaintiffs have filed an
application under Order I Rule 8 of CPC during the pendency of the suit
along with this application to reopen the case. Hence, the above judgment
is applicable to the facts of the present case. Therefore, the learned counsel
contended that the trial Judge has rightly allowed the application and
prayed for dismissal of this Civil Revision Petition.
8. Heard the learned counsel for both sides and perused the materials
placed before this Court.
9. Considering the judgment relied upon by the learned counsel for
the respondent in Rt. Rev. Timothy Ravinder Dev Pradeep, the Bishop,
CSI, Coimbatore Vs. Rev. Charles Samraj, N.Presbyter & Chairman
reported in 2002 [1] CTC 157 wherein it has been held that non filing of an
application under Order I Rule 8 of CPC is only a procedural error and such
an application can be filed even during the pendency of the appeal and
allowed the application. Here, in the present case on hand, the Court below
had framed suo moto issue and the learned Judge has rendered a finding that
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CRP.No.4793 of 2013
an opportunity has to be given to the petitioner to adduce the evidence with
regard to the same and had allowed the application. Therefore, this Court
finds no infirmity with the order, dated 26.03.2013 passed by the learned
Principal Subordinate Judge, Coimbatore in I.A.No.300 of 2012 in
O.S.No.187 of 2012 and interference of this Court is not necessary.
10. Accordingly, this Civil Revision Petition is dismissed.
Consequently, connected miscellaneous petition is closed. No costs. The
learned trial Judge is directed to dispose of the suit in O.S.No.182 of 2012
within a period of three months from the date of receipt of a copy of this
Order.
08.03.2022
Index:yes/no
Internet:yes
vrc
To
The Principal Subordinate Judge,
Coimbatore.
https://www.mhc.tn.gov.in/judis
CRP.No.4793 of 2013
J.NISHA BANU, J.
vrc
Civil Revision Petition [PD] No.4793 of 2013
08.03.2022
https://www.mhc.tn.gov.in/judis
