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Ram Kumar Dani Agarwal Vs. Jeevanlal S/O Dhuma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 331 of 1959
Judge
Reported inAIR1960MP288
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 1, Rule 8
AppellantRam Kumar Dani Agarwal
RespondentJeevanlal S/O Dhuma and ors.
Appellant AdvocateA.D. Deorao, Adv.
Respondent AdvocateI.S. Mishra, Adv.
DispositionRevision allowed
Cases ReferredWood v. McCarthy
Excerpt:
.....piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - in a suit of this nature, where a suit is instituted by or against the inhabitants of a town or village, order 1, rule 8 is well attracted. 6. it is also urged by shri mishra that in a matter like this court has no power to interfere under section 115 of the code......on behalf of the local inhabitants. thus the persons who can really be interested in resisting the suit are the defendants in particular and all other inhabitants of the vicinity in general. the allegations may be right or wrong; that will be determined at the proper stage. in a suit of this nature, where a suit is instituted by or against the inhabitants of a town or village, order 1, rule 8 is well attracted.5. the next question is whether the defendants can be asked to represent the inhabitants of the locality even when they refuse to do so? my answer is in the affirmative. if not, it might lead to impracticable and absurd results. today the three non-applicants decline to be representatives. tomorrow if the plaintiff nominates a and b they may also refuse. then the plaintiff names c.....
Judgment:
ORDER

Shiv Dayal, J.

1. This revision is directed against an order, rejecting the application of the plaintiff under Order 1, Rule 8 of the Code of Civil Procedure for permission to sue the defendants for the benefit of all persons who may be interested in the suit.

2. The plaintiff nominated Jcevanlal, Jhadu and Krishna to represent the numerous persons residing in the vicinity of his tank known as 'Naya-talao' and its embankments, situate at Raipur, bearing Khasra Nos. 400 and 401 respectively. The allegations in the plaint arc that in or about the month of October 1955, the above-named three defendants wrongfully planted certain trees on theplaintiff's land without any right and without hisknowledge or consent.

When the plaintiff came to know of this on or about October 5, 1955, he tried to remove them whereupon the defendants came to the spot and asserted that the trees had been planted by them and they would not allow him to remove them at any cost and further they also asserted that they had planted the trees and were preventing him from removing them in the interests of and tor the benefit of the public residing in the vicinity. The plaintiff prayed in the suit for a permanent injunction to restrain the defendants from planting trees on his land and from obstructing him from removing them.

3. The plaintiff made an application under Order 1. Rule 8 of the Code of Civil Procedure seeking leave of the Court that the three defendants may represent all the inhabitants of the locality. The learned trial Judge dismissed this application without giving any reasons. His order reads thus:

'I have gone through the application of the plaintiff dated 4-10-1958 under Order 1, Rule 8, C. P.C. The application has no force and the same is rejected'.

In my opinion to say the least, this is not a judicial order. It is the right of every litigant to know the grounds on which a prayer made by him is allowed or rejected.

4. It is firstly contended by Shri Mishra that this is not a suit against a class of persons or against 'numerous persons'; it is a suit against the public and such a suit is not contemplated under Order 1, Rule 8. I find myself unable to accept this contention. This provision in the Code of Civil Procedure is embodied for the sake of convenience. It is only just and proper that in a case where a person's rights are threatened by numerous persons, he should be permitted to sue them, making a few of them to represent themselves and the rest I do not see why Order 1, Rule 8, was not attracted in a suit of this nature.

In order to decide the plaintiff's application under that Rule, the allegations contained in the plaint are to be looked into. It is very clear from the averments in the plaint that the defendants prevented the plaintiff from removing the trees from his land saying that they had planted them on behalf of the local inhabitants. Thus the persons who can really be interested in resisting the suit are the defendants in particular and all other inhabitants of the vicinity in general. The allegations may be right or wrong; that will be determined at the proper stage. In a suit of this nature, where a suit is instituted by or against the inhabitants of a town or village, Order 1, Rule 8 is well attracted.

5. The next question is whether the defendants can be asked to represent the inhabitants of the locality even when they refuse to do so? My answer is in the affirmative. If not, it might lead to impracticable and absurd results. Today the three non-applicants decline to be representatives. Tomorrow if the plaintiff nominates A and B they may also refuse. Then the plaintiff names C and D; they too refuse. What is then to be done? How is the suit to proceed? Here, the defendants are admittedly residents of the locality.

They can validly be sued as representatives; it is their choice whether to pursue the matter or to allow it to go to default. After all, a notice to public will be advertised and any person interested may apply to the Court to be made a party to such suit. Order 1, Rule 8 of our Civil Procedure Code. it appears. has been taken from Order 16. Rule 8 of the Rules of the Supreme Court of England, which runs as under:

'where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorized by the Court or a Judge to defend in such cause or matter, on behalf of or for the benefit of all persons so interested.'

The case of Wood v. McCarthy, (1893) 1 QB 775 becomes apposite where it was observed:

'An order may be made under Order XVI, Rule 9, Rutborizing one or more persons to defend onbehalf of all persons interested, against the will of the person so authorized.

The plaintiff, a member of a labour protection league, sued to enforce his rights under a rule of the league which provided that, in case of a member having permanently disabled by an accident, a levy should be made on the members of the league for his benefit, and applied for an order authorizing the president and secretary of the league to defend on behalf of all the members. The president and secretary opposed the application. It was held that an order could properly be made.'

With respect, I follow the dictum of this case and hold that it is no ground to reject an applicationunder Order 1, Rule 8, where a person sought to be made a representative refuses to do so.

6. It is also urged by Shri Mishra that in a matter like this Court has no power to interfere under Section 115 of the Code. I see no force in this objection. This is a case where the learned trial Judge refused to entertain an application under the said rule without proceeding in accordance with iaw. The order of the trial Judge is arbitrary. It does not disclose any application of the mind and in such circumstances, in order to prevent abuse of the process of the Court and for the ends of justice, I consider it to be a duty of this Court to interfere.

7. The revision is allowed. The order passed by the trial Judge is set aside and it is directed that the three defendants named above shall represent. in the suit, all the inhabitants of the locality concerned. Costs in this revision shall be costs in the cause.


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