P.Mahendran vs State Of Tamil Nadu
2023 Latest Caselaw 8128 Mad

Citation : 2023 Latest Caselaw 8128 Mad
Judgement Date : 12 July, 2023

Madras High Court

P.Mahendran vs State Of Tamil Nadu on 12 July, 2023

                                                                              C.R.P.No.3307 of 2019

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 12.07.2023

                                                          CORAM :

                                  THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN

                                                   C.R.P.No.3307 of 2019
                                                            and
                                                  C.M.P.No.21450 of 2019

                     1.P.Mahendran
                     2.Manimekalai                                                   .. Petitioners
                                                             vs

                     1.State of Tamil Nadu
                       Rep. By the District Collector,
                       Collector's Office,
                       Erode – 638 011.

                     2.The Revenue Tahsildar,
                       Taluk Office,
                       Anthiyur Taluk,
                       Erode District.

                     3.The Block Development Officer,
                       Anthiyur Panchayat Union,
                       Anthiyur Taluk,
                       Erode District.

                     4.The District Manager,
                       Tamil Nadu Prohibition and Excise,
                       Suriyampalayam,
                       Vasavi College Post,
                       Erode District.

                     5.Sithaiyan                                                  .. Respondents


                                  Petition filed under Article 227 of the Constitution of India to

                     set aside the fair and decreetal order dated 04.09.2019 made in


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                     1/8
                                                                             C.R.P.No.3307 of 2019

                     I.A.No.1 of 2019 in CFR No. 3641 of 2019 on the file of the learned

                     Principal District Munsif Court, Bhavani.


                                  For Petitioners        :      Mr.S.Shrish
                                                                for Mr.N.Manokaran

                                  For Respondents        :      Mr.B.Tamil Nidhi
                                                                Additional Government Pleader
                                                                for R1, R2
                                                                Mr.S.P.Karthik, GA
                                                                for R3
                                                                Mr.Sekar for R4


                                                             ORDER

The test for an application under Order 1 Rule 8 of CPC is that

(i) there must be numerous persons, (ii) they must be having a

common interest and (iii) they must seek permission of the Court to

sue or to defend, for the benefit of all persons.

2. In the present case, the villagers of Bhrammadesam

Pudur village do not want a liquor vending shop to be opened in

their village. In pursuance thereof, they have sent representation on

several dates. Since the representations were not considered, they

filed a suit in unnumbered CFR No. 3641 of 2019.

3. Along with the said plaint, they moved an application

under Order 1 Rule 8 of the Code of Civil Procedure seeking leave of

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C.R.P.No.3307 of 2019

the Court to institute the suit. The said suit was objected by the

TASMAC stating that, it is a policy decision of the Government to

open liquor shops wherever they want as long as, it is not in

contravention of the Tamil Nadu Liquor (Retail Vending) Rules,

2003.

4. A few more villagers objected saying that they wanted

the liquor shop to be opened in the Bhrammadesam Village.

5. Considering the arguments on either side, the learned

trial Judge dismissed I.A.No.1 of 2019 holding that since it is a

policy decision, Order 1 Rule 8 application is not maintainable.

6. Heard Mr.S.Shrish, learned counsel representing

Mr.N.Manokaran, learned counsel for the petitioner;

Mr.B.TamilNidhi, learned Additional Government Pleader (CS) for

respondent nos. 1 and 2, Mr.S.P.Karthik, learned Government

Advocate for respondent no. 3 and Mr.Sekar, learned counsel for

respondent no. 4.

7. I have already stated what is the principle on which an

application under Order 1 Rule 8 should be tried. The test is

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C.R.P.No.3307 of 2019

commonality of interest. The petitioners by filing their

representations dated 28.06.2019 and 03.07.2019 have shown the

commonality in interest. They had also produced the

acknowledgement card as plaint document nos. 4 and 5. At the

stage of Order 1 Rule 8, the learned Judge is not dealing with the

policy matter of the State but is only dealing if there is a

commonality interest in the suit. I have gone through the

representations which have been placed for my perusal and I am

satisfied that there is a commonality in interest and, therefore, the

dismissal of the application is wrong.

8. Learned counsel appearing for the TASMAC would

submit that the remedy is only by way of a writ petition and not by

way of suit. It is trite that where there are more than one remedy,

the party can choose that remedy but not simultaneously proceed

on both the remedies.

9. It is not the case of learned counsel for TASMAC that

the plaintiffs have filed a writ petition also seeking the same relief.

In order to substantiate the conclusion that there were more than

one remedy the party can avail, learned counsel for the petitioner

drew my attention to a judgment of this Court in the case of Abdul

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C.R.P.No.3307 of 2019

Ghani Sahib and Ors v N.P.R.M.V.R.M.Subramania Chettiar and Ors

reported in AIR 1929 Mad 44, in particular paragraph 8 which reads

as follows:-

“8. Finally, it was argued by Mr.T.M.Ramaswami Iyer, the learned vakil for the respondent, that the more appropriate remedy that the plaintiffs would be entitled to is to file a suit, after obtaining the necessary sanction, under Section 92, Civil P.C. I will assume for the present that the plaintiffs would be entitled to that remedy also; but as remarked by Becon, Vice Chancellor in 10 Ch.Dn.153

there may be other remedies, there may be 500 or 5000 other remedies, but if this one remedy which the appellant has invoked be one of them there is no reason why he should have recourse to this one out of the 5000.”

10. A perusal of the same shows that as long as the party is

entitled to invoke a remedy a Court cannot non-suit the party

saying such remedy cannot be invoked because there is an

alternative remedy. The best judge to choose a course of remedy

are the plaintiff themselves and they have chosen to file a suit.

11. The next point urged by learned counsel appearing for

the TASMAC is that on dismissal of Order 1 Rule 8 application, a

liquor vending shop has been opened in the village. The event has

happened pending the litigation before this Court and, therefore, it

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C.R.P.No.3307 of 2019

is always open to the plaintiff to amend the plaint and seek for

mandatory injunction for closure of the shop. Therefore, the

dismissal of application on the grounds not contemplated under

Order 1 Rule 8, namely that though the plaintiffs are having interest

in common, they are not entitled to invoke the remedy by way of a

suit, is untenable. It is accordingly set aside. I.A.No.1 of 2019 in