Madras High Court
The Victoria Edward Hall vs P.Vijyakumar on 4 December, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/12/2012 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)(MD)No.2458 of 2012 and M.P(MD)No.1 of 2012 1.The Victoria Edward Hall, through its Secretary, 32-B, West Veli Street, Madurai - 1. 2.R.Soundra Pandiyan 3.I.Ismail 4.P.Sudalai 5.R.Balachandran 6.A.Jainulabudeen 7.N.R.V.Jawaharlal 8.M.Karuppaiah 9.A.Rathinam 10.D.Nallathambi 11.R.Sannasi 12.N.Singaraj 13.K.Subbaiah 14.S.Venkatesh Mohan ... Petitioners/ Respondents 1, 3 to 15/ Defendants 1, 3 to 15 Vs. 1.P.Vijyakumar 2.G.Rajendran 3.Su.Kumar 4.V.Maragathavel 5.A.Mohammed Ismail 6.A.C.Namburaj 7.R.K.Panneerselvan 8.P.Punyakoti 9.N.Raman ... Respondents 1 to 9/ Petitioners/Plaintiffs 10.E.T.Rajendran 11.N.N.Radhakrishnan A.K.Ramamoorthy (Died) 12.S.Singarajan 13.P.Vijayakumar 14.P.Rajendran 15.M.Ramar 16.I.Jeyaraman 17.S.V.Jegannathan 18.T.Radhakrishnan ... Respondents 11 to 18/ Respondents 16 to 24/ Defendants 16 to 24 Prayer Petition filed under Article 227 of the Constitution of India, to set aside the order and decreetal order dated 18.10.2012 passed in I.A.No.707 of 2012 in O.S.No.980 of 2011 on the file of the learned Additional District Munsif, Madurai Town. !For Petitioners ... Mr.G.R.Swaminathan ^For Respondents ... Mr.A.Arumugam for R.1 to R.9 Mr.T.R.Subramanian for R.11 Dispensed with - R.10, R.12 to R.18 * * * * * :ORDER
This Civil Revision Petition has been filed to get set aside the order and decreetal order dated 18.10.2012 passed in I.A.No.707 of 2012 in O.S.No.980 of 2011 on the file of the learned Additional District Munsif, Madurai Town.
2. Heard both sides.
3. A re'sume' of facts absolutely necessary for the disposal of this Civil Revision Petition would run thus:
I.A.No.895 of 2011 was filed seeking leave of the Court to file the suit in representative capacity. It so happened that no specific order was passed thereon. Even without that, the matter was processed as representative suit. Subsequently, the said I.A.No.895 of 2011 was endorsed as not pressed and I.A.No.707 of 2012 was filed under Order VI Rule 17 of the Code of Civil Procedure for amending the plaint so as to treat the suit as an ordinary suit and not a representative suit. After hearing both sides, the lower Court passed the order allowing the said application. Whereupon, this Civil Revision Petition has been focussed by the defendants 1, 3 to 15 challenging and impugning the same.
4. The learned Counsel for the respondents 1 to 9/plaintiffs would put forth and set forth his arguments which could succinctly and briefly be set out thus:
The lower Court without taking into consideration the fact that the plaintiffs are the dominus litis, actually allowed the application to amend the plaint. It is the paramount wish and will of the plaintiffs to sue the defendants as per law and it is open for them to take a stand to have the suit as an ordinary suit rather than in a representative capacity even though initially it was filed as a representative suit. The lower Court also accepted that course and actually allowed the the plaintiffs to get the plaint amended as an ordinary suit.
5. Per contra, in a bid to slash down and torpedo the arguments as advanced on the side of the respondents 1 to 9/plaintiffs, the learned Counsel for the revision petitioners would develop his argument, the gist and kernel of it, would run thus:
The plaintiffs might be the dominus litis and that does not mean that they can flout the provisions of the law and choose their own way. Simply because, unwittingly or unknowingly, the order was not passed in the application seeking leave to sue in a representative capacity, that it does not mean that it should be construed that the Court in stricto sensu did not allow the plaintiffs to sue in a representative capacity. Having chosen to avail one facility, so to say, the representative suit procedure, they cannot veer round and have an about turn or 'U' turn and simply holus-bolus and all of a sudden, take a retrograde steps and that too without obtaining the leave of the Court for such change. The nature of the suit is such that it is pertaining to the conduct of election. The plaintiffs have not chosen to recognise the defendants as the persons fit to represent the society concerned or the governing body, because the very allegation in the plaint is that such representatives have been elected legally and it is sought to be impugned and challenged. In such a case, the Court ought not to have allowed the plaintiffs to simply convert the representative suit by getting the plaint amended without even resorting to the proper procedures contemplated under law.
6. The point for consideration is as to whether there is any perversity or illegality in the order dated 18.10.2012 passed in I.A.No.707 of 2012 in O.S.No.980 of 2011 by the learned Additional District Munsif, Madurai Town?
The Point:
7. The lower Court, to say the least, was not sedulous and meticulous in passing the order in the application seeking permission to file the suit in a representative capacity.
8. My mind is redolent and reminiscent of the following legal maxims:
(i) "Actus curiae neminem gravabit". [An act of the court will prejudice no one.].
(ii) "Cursus curiae est lex curiae". [The practice of the court is the law of the court.]
9. The said legal maxims cannot unduly be ushered in all and sundry cases. If there is a customary practice, then it is different. The customary practice, as of now, is that along with the suit, the application seeking leave should be filed and pending final order to be passed in the application seeking leave, the suit itself could be numbered and processed. There are certain procedures to be adopted in respect of the representative suits under Order I Rule 8 of the Code of Civil Procedure. These are all, ex facie and prima facie, clear on a mere running of the eye over the provisions of the Code of Civil Procedure.
10. There is no knowing of the fact as to how the lower Court throwing to winds all these procedures, simply in a cavalier fashion, numbered the suit and proceeded it without passing at least a tentative order in the application concerned seeking leave for suing in representative capacity and also subsequently, allowed the plaintiffs to endorse in the said application as not pressed and delegated its function to the plaintiffs to take a decision as to what sort of suit should be filed in the facts and circumstances of this case. No doubt, before approaching the Court, the plaintiffs are the dominus litis, to file a suit within the frame work of law. But, in this case, the plaintiffs did choose to file with a specific plea that they should file a representative suit and they did so and thereafter, while the suit was half-way through, without any application seeking leave of the Court to convert the case, they had no right to endorse as not pressed the I.A., taking undue advantage of the mistake committed by the Court in not passing a specific order thereon. It is deemed that the Court permitted the plaintiffs to process the suit as a representative suit in view of the happenings which emerged in the course of the suit.
11. In a matter of this nature, to wit, election dispute, it is ex facie and prima facie clear that every plaint should be filed arraying the plaintiffs or the defendants in a representative capacity. In this case, in my considered opinion, at the first instance, subject to deciding the case on merits, appropriately, legally and convincingly, the plaintiffs instituted the suit in a representative capacity, because the plaint averments would exemplify and demonstrate, convey and portray that they sought to challenge the validity and legality of the election and that involves the interest of all the voters. Now, all the voters cannot be arrayed in the suit and for that, the plaintiffs projected themselves in a representative capacity. Without any valid reason, holus-bolus, they simply made an endorsement in the application filed under Order I Rule 8 of the Code of Civil Procedure, as not pressed and subsequently filed an I.A., seeking amendment which they got it allowed. The said procedure adopted by the lower Court in allowing the prayer for amendment, falls foul of the well settled principles of law, warranting interference in revision.
12. Hence, I am of the considered view that the suit should be deemed to be a representative suit and the plaintiffs should proceed with the matter as a representative suit as per the original plaint. The point is answered accordingly.
13. In the result, this Civil Revision Petition is allowed and the order dated 18.10.2012 passed in I.A.No.707 of 2012 in O.S.No.980 of 2011 by the learned Additional District Munsif, Madurai Town, is set aside. Consequently, the connected Miscellaneous Petition is closed. No costs.
14. On hearing the order pronounced, the learned Counsel for the respondents 1 to 9/plaintiffs would make an extempore submission that suitable direction may be given to the lower Court to dispose of the suit within a time frame. Over and above that, the learned Counsel for the respondents 1 to 9/plaintiffs also would express his apprehension that there might be spate petition at the instance of persons who may not really be interested in the suit, so as to stall the proceedings.
15. I see no reason not to respond positively to the request of the learned Counsel for the revision petitioners/plaintiffs. Accordingly, the lower Court has to proceed with the suit in O.S.No.980 of 2011 based on the original plaint and dispose of the same as per law within a period of three months from the date of receipt of a copy of this order. Further, I would like to disambiguate the ambiguity if any, by pointing up and spotlighting that no doubt, in a representative suit, the persons who are personally interested, can with the leave of the Court file applications for impleading eo nominee, but that does not mean that there should be spate of frivolous petitions and the Court cannot mechanically allow the same. The Court should always be reasonable and careful in processing such applications.
rsb To The Court of Additional District Munsif, Madurai Town.