Patna High Court
Saran Club vs Chandradeo Theosophical Lodge on 29 June, 1973
Equivalent citations: AIR1974PAT158, AIR 1974 PATNA 158
ORDER S. Sarwar Ali, J.
1. These two civil revision applications have been heard one after the other and are being diseased of by a common judgment.
2. The plaintiff-opposite party filed a suit for eviction of the defendant-petitioner from the suit property. The description of the plaintiff and the defendant in the suit was as follows:--
Plaintiff; "Chandradeo Theosophical Lodge, through Sri G.P. Verma, Secre-tary....."
Defendant. "Saran Club, through Sri Mahendra prasad. Secretary....."
3. During the pendency of the suit, an application under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act was filed in the Court below. Various objections wera taken on behalf of the defendant, including the objection regarding the non-maintainability of the suit. The application aforesaid was allowed by the Court below on the 11th November, 1971. The defendant filed Civil Revision No. 1319 of 1971 against the said order, A limited rule was issued in respect of this application, the relevant order being as follows:--
"This application will be heard on the limited question as to whether the title suit (T. S. No. 20 of 1971) filed by the plaintiff-opposite party before the Munsif III, Chapra is maintainable......"
During the pendency of this civil revision application, an application was filed in the Court below on the 10th January. 1972, by the plaintiff, seeking amendment in paragraph No. 1 of the original plaint Another application dated the 12th January. 1972, under Order 1, Rule 8. of the Code of Civil Procedure, was also filed to permit the plaintiff to sue representing all the members of the Chandradeo.' Theosophical Lodge against the defendant representing all the members of the Saran Club. These applications have been allowed by the learned Munsif by its order dated the 11th May, 1972. Civil Revision No. 873 of 1972 is directed against that order.
4. It will be proper first to consider whether the order passed by the learned Munsif on the 11th May. 1972. is fit to be interfered with. This Is so, because if this order is sustained, then there cannot be any defect in the suit as framed after the amendment Thus, if the latter order of the learned Munsif is upheld, the earlier civil revision application will become infructuous.
5. Learned counsel for the defendant-petitioner contended that the applications filed on behalf of the plaintiff could not be allowed by the Court below as there was no properly constituted suit before it, so as to enable the Court to exercise its power of amendment or the power under Order 1, Rule 8 of the Code. He relied on the decision in the case of the G.I.P. Kailway Sr. Institute v. Mohit Kumar. AIR 1954 Nag 29. Learned counsel for the plaintiff-opposite party contended that the Court below has committed no error of jurisdiction, nor has it acted with material irregularity in the exercise of jurisdiction in passing the impugned orders. Reliance in this connection was placed on the decisions in the cases of Harichandra Khunderdao Kokhara v. A.B. Craig. AIR 1945 Bom 465: M.B. Sirkar & Sons v. Powell & Co., AIR 1956 Cal 630 and Union of India v. Shalimar Tap Products Ltd., AIR 1953 Pat 131. It was further contended that in view of the definitions of the landlord and tenant as given in the Bihar Buildings (Lease. Rent and Eviction) Control Act. 1947, the suit was maintainable and was a properly constituted suit even without the amendment, and, as such, the order passed by the learned Munsif on the 11th May. 1972, could not be said to be erroneous.
6. In the case reported in AIR 1954 Naff 29 the defendants were described as--
"The G. I. P. Railway Senior Institute, Aini Naepur. by its President Treasurer, Secretary and Members of the Managing Committee, all of Nagpur, Tahsil and District Nafipur, viz....."
Certain names of the members of the Managing Committee were also mentioned. Objection was taken to the maintainability of the suit in the written statement. After the written statement was filed, the plaintiff applied for amendment of the plaint and also made an application under Order 1. Rule 8 of the Civil Procedure Code. These were allowed. Mudholkar, J., interfered with the order allowing those applications. His view was that the defendant institute being an unregistered and non-proprietary institute, the proper course was to sue individually the members thereof. His Lordship was further of the view that Order 1, Rule 8, Civil Procedure Code, could not apply where there was no properly constituted suit before the Court. With great respect, I am not prepared to 20 to the extent Mudholkar. J., has gone in this decision.
7. In my view, the proper approach in cases of this nature is to see whether there is any person or individual before the Court in the suit as framed; and if there is a person, although that person may not in the eye of law have any representative capacity, the Court will have jurisdiction to permit the amendment, so as to bring on the record all those who have been left out or permit the suit to be proceeded with in a representative capacity. Thus, a distinction must be made between a case where there is no one before the Court in the eve of law and a case where there is some-one before the Court but not a person who could be said to represent an association which is unregistered. To illustrate, if the plaint mentions the plaintiff as 'X' and the defendant as 'Y', it can very well be said that there is really no one before the Court so as to permit the applicability of the provisions relating to amendment of Order 1. Rule 8 of the Code, but, where there is a case of mis-description or a case where a person who does not have a representative capacity is deemed to have a representative capacity (though wrongly), there cannot be absence of jurisdiction in the Court to permit amendment, so as to remove the defects in the suit as originally framed. Although none of the cases relied upon by the learned counsel for the opposite party is a direct authority on the question involved in these applications, they, in my view, support the view that I have taken in this case. Thus, judged in this light, it appears that the order of the Court below is not such an order as to require interference in the exercise of revisional powers of this Court In the view that I have taken, it is not necessary for me to discuss the alternative contention put forth on behalf of the opposite party.
8. In the result, Civil Revision No. 873 of 1972 is dismissed on merit and Civil Revision No. 1319 of 1971 is dismissed as being infructuous. In the present circumstances, there will be no order as to costs in either of these two applications.