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Dr. Iqbal Hasan Khan Vs. Iiird Additional District Judge and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. No. of 1983 in Writ Petn. No. 676 of 1983
Judge
Reported inAIR1984All259
ActsCode of Civil Procedure (CPC) , 1908 - Sections 141 - Order 1, Rules 6, 8 and 8(4) - Order 47, Rule 1; Constitution of India - Article 226
AppellantDr. Iqbal Hasan Khan
Respondentiiird Additional District Judge and ors.
Advocates:Manzarul Islam, Adv.
DispositionApplication dismissed
Excerpt:
(i) civil - withdrawal of suit filed - order 1 sub rule 4 of rule 8 of code of civil procedure, 1908 -procedure for withdrawal under order 1 rule 8 (4) - does not apply in case of any interim application filed - not even applied to any subsequent petition based on interim application. (ii) review application - order 47 rule 1 and order 1 rule 8 of code of civil procedure, 1908 - writ application filed against order in interim application - review filed against order under writ - party filing review neither party to original application nor to writ application - held, review application not maintainable. - - cpc contemplate withdrawal as well as the agreement. as amended by the cpc (amendment) act, 1976 now clearly has added an explanation to this effect that the expression 'proceeding'..........of rule 1 of order xxiii, cpc permits the court to grant the plaintiff permission to withdraw the suit. rule 3 at order xxiii. cpc empowers the court to pass a decree in accordance therewith. both sub-rule (3) of rule 1 and rule 3 of order xxiii. cpc contemplate withdrawal as well as the agreement. compromise or satisfaction of the suit finally. these provisions do not contemplate of a case where any agreement is arrived at while deciding an application for an ad interim relief. the legislature has placed no prohibition against the parties to a representative suit from agreeing to the passing of an ad interim order in the suit. i am consequently, of the opinion that sub-rule (4) of order 1, rule 8, cpc would apply only to a case where either the suit is finally withdrawn or there is an.....
Judgment:
ORDER

S.D. Agarwala, J.

1. This is an application for review moved in Writ Petition No. 676 of 1983, Dr. Iqbal Hasan Khan v. The 3rd Additional District Judge, Aligarh, and others. The review application has been moved by two applicants. S. M. Zahid Hasan and Khurshiduzzaman Khan. They were not parties to the petition.

2. The writ petition had been filed by Dr. Iqbal Hasan Khan for issue of a Writ. Order or Direction in the nature of a Writ of Certiorari quashing the order of the learned 3rd Additional District Judge. Aligarh. dt. 14th Dec. 1982.

3. Briefly, the facts giving rise to the present petition are as under :--

Dr. Iqbal Hasan Khan, the petitioner, filed a Suit No. 345 of 1982 against respondents Nos. 2 to 19 in the court of the Munsif, Koil, Aligarh, for the appointment of a receiver of the Aligarh Muslim University Old Boys Association, to hold elections of the said Association and to hand over the properties of the said Association to the newly elected office-bearers. A further prayer was made in the said suit that the defendants of the suit be restrained from holding elections of 25 representatives of the Association to the Executive Council. A further relief was sought against the defendants directing them to render all accounts of income and expenditure with effect from 1970.

4. This suit was filed under Order 1. Rule 8, CPC as a representative suit on behalf of the entire body of the members of the Aligarh Muslim University Old Boys Association (hereinafter referred to as the Association). The membership was alleged to be 1000 in number. After the filing of the suit, an application was made for the appointment of an ad interim receiver. This application was contested by the parties. Ultimately, by an order dated 1st Dec. 1982, the Munsif appointed Sri Zaki Uddin Khairoowala, Advocate, as a receiver with a direction that he would take over charge and possession of the movable and immovableproperties of the Association.' would call the meeting of the general body of the Association and shall hold elections of the members of the General Body. The order dated 1st Dec. 1982. was challenged by means of a Misc. Civil Appeal! No. 220 of 1982 by the defendants, who are respondents Nos. 2 to 19 in the present petition. The 3rd Additional District Judge, Aligarh, by his order dated 14th Dec. 1982. allowed the appeal and the application moved for an ad interim order by the plaintiff petitioner was refected. Aggrieved by the decision dated 14th Dec. 1982. the present petition was filed in this Court.

5. This petition came up for final hearing before me. I heard the parties at length. During the course of arguments, the parties compromised their dispute outside the Court and it was stated before me that the parties are agreed that the elections of the representatives of the Association be held under the supervision of an officer authorised by this Court. It was also agreed that the elections of the Central Executive Committee and its office bearers be also held. An agreement was also arrived at in regard to the expenses for conducting the elections and it was also agreed that the elections will be held within a period of two months. These terms of the agreement were incorporated by me in my order dated 10th Mar. 1983, and I directed the District Judge. Aligarh, either, to himself act as an officer for the purpose of holding elections and after the elections had been held, the properties of the Association be handed over to the newly elected Central Executive Committee.

6. In pursuance of the order of this Court, on 16th Mar. 1983, the election of 25 representatives of the Association to, the University Court was held and before the elections of the Central Executive Committee could be held, the present review application has been filed by the applicants.

7. Learned counsel for the applicants has contended that since the petition was disposed of in view of the agreement arrived at between the parties, the procedure, as prescribed under Order 1, Rule 8 (4), CPC should have been followed, namely, that a notice should have been given to all the persons interested in accordance with Sub-rule (2) of Rule 8 and since this procedure has not been followed, the order dated 16th Mar. 1983, is void and. as such, is liable to be reviewed.

8. The counsel appearing for Dr. Iqbal Hasan Khan, has, in reply, urged that the present application for review is not maintainable on the part of the two applicants, as they were not parties to the petition nor to the suit. It has been further urged that the applicants are, in fact, persons set up by respondents Nos. 2 to 19 in order to challenge the ejections of the 25 representatives of the Association to the Court of the University and, as such, the application is not bona fide and the applicants are not entitled to any relief from this Court.

9. It is riot disputed by the parties that the suit had been filed under Order 1, Rule 8. CPC. namely, that it is a representative suit: Sub-rule (4) of Rule 8. for convenience, is quoted below :--

'(4) No part of the claim in any such suit shall be abandoned under Sub-rule (1) and no such suit shall be withdrawn, under Sub-rule (3) of Rule 1 of Order XXIII: and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule 3 of that order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified, in Sub-rule (2).'

10. Sub-rule (3) of Rule 1 of Order XXIII, CPC permits the Court to grant the plaintiff permission to withdraw the suit. Rule 3 at Order XXIII. CPC empowers the Court to pass a decree in accordance therewith. Both Sub-rule (3) of Rule 1 and Rule 3 of Order XXIII. CPC contemplate withdrawal as well as the agreement. compromise or satisfaction of the suit finally. These provisions do not contemplate of a case where any agreement is arrived at while deciding an application for an ad interim relief. The legislature has placed no prohibition against the parties to a representative suit from agreeing to the passing of an ad interim order in the suit. I am consequently, of the opinion that Sub-rule (4) of Order 1, Rule 8, CPC would apply only to a case where either the suit is finally withdrawn or there is an agreement, compromise or satisfaction in the suit itself on the basis of which a decree has to be passed by a Court. It is then alone that this provision will apply and not otherwise. It would, therefore, not apply to a case where an application for ad interim prayer is being considered by the Court. The review application, in the instant case, has been moved in a petition under Article 226 of the Constitution of India. Even assuming that this provision applies to a petition under Article 226 of the Constitution, then too, since the petition arose out of an application moved for an ad interim prayer, the provisions of Rule 8 (4) of Order 1, CPC would not apply and, as such, it cannot be said that the Order dated 10th Mar. 1983, was manifestly erroneous or void in law.

11. Section 141, CPC, as amended by CPC (Amendment) Act, 1976, reads as under :--

'The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court, of Civil jurisdiction.

Explanation--In this section, the expression 'proceeding'' includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.'

12. The Civil P. C. as amended by the CPC (Amendment) Act, 1976 now clearly has added an Explanation to this effect that the expression 'proceeding' shall not include any proceeding under Article 226 of the Constitution. In view of this specific provision, the provisions of Order 1, Rule 8, CPC would not apply to proceedings under Article 226 of the Constitution of India. Since the order dated 10th Mar. 1983, was passed in proceedings under Article 226 of the Constitution of India, the provisions of Order 1, Rule 8 (4), CPC do not at all apply. Even in this view of the matter, it cannot be said that there was any violation of the statutory provision, as contained in Sub-rule (4) of Rule 8 of Order 1, CPC.

13. In regard to the maintainability of the application, as has been urged by the learned counsel for the applicants, this submission also, in my opinion, is well founded. Order 1. Rule 8. CPC contemplates of a case where a representative suit may be filed and one person may sue or defend on behalf of all having same interest. The Court has been authorised to give permission to a person to sue or defend on behalf of a large number of persons interested. In the instant case. Dr. Iqbal Hasan Khan had filed the suit under Order 1, Rule 8. CPC. It is not disputed by the parties that he had an implied permission to prosecute the suit under Order 1. Rule 8. CPC. The effect would be that the Court had permitted Dr. Iqbal Hasan to sue on behalf of the entire body of members of the Association.

14. Sub-rule (3) of Rule 8 empowers a person to apply to a Court to be made a party in a suit for whose benefit the suit was instituted. Sub-rule (5) of Rule 8 further empowers a person to Ret a plaintiff substituted in case the said plaintiff to whom the permission has been granted does not proceed with due diligence in the suit. The plaintiff Dr. Iqbal Hasan Khan would be representing the applicants, in law, in the suit. If the applicants thought that the plaintiff was not prosecuting with due diligence the suit, they would have applied for substituting his name by some other persons. They could also have applied for being made a party to the suit themselves. No such action was taken. The position, consequently, is that the applicants are not parties to the suit As I have already stated above, they were not parties to the petition also. In the circumstances, in my opinion, the present application made by the two applicants, who were neither parties to the suit nor parties to the petition, is not maintainable in law.

15. It is not necessary for me to go into the further question raised by the learned counsel for the petitioners that the applicants have filed this petition with a mala fide motive, as they are aggrieved by the election which has been held in regard to the 25 representatives of the Association to the Court of the University. As I have already held that the application itself is not maintainable in law and even otherwise the provisions of Order 1, Rule 8 (4) CPC do not apply to the case.

16. In the result, I find no force in this review application. It is, accordingly, dismissed, but, in the circumstances of the case. I direct the parties to bear their own costs of this application.


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