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Stewart Science College and anr. Vs. Braja Sundar Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 38 of 1965
Judge
Reported inAIR1969Ori137; 35(1969)CLT206
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 8
AppellantStewart Science College and anr.
RespondentBraja Sundar Das and ors.
Advocates:Govind Das and ;D.P. Mohanty, Advs.
DispositionRevision allowed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........other on may 6, 1964 by the said bijoy shankar moda--which both were heard together. the learned munsif allowed both the petitions.2. nobody appeared however on behalf of the plaintiff-opposite parties in spite of notice.3. the reasoning on which the learned munsif allowed the application of the plaintiff to sue in a representative character was that the plaintiff was representing the common interest of all the students in respect of their right to profess, practise and propagate their respective religions. it however, appears that at the point of time when this petition was filed the plaintiff was no longer a student of the college he having left on taking transfer certificate as early as june 18, 1963 on which date he ceased to have any interest in the college and as such he was not.....
Judgment:
ORDER

S. Barman, C.J.

1. This revision is against an order of the learned Munsiff, 1st Court, Cuttack, by which he allowed the plaintiffs application under Order 1, Rule 8, Civil Procedure Code to sue in representative capacity as one of the students of the Ste-wart Science College. The learned Munsif also allowed an application on behalf of another student Bijoy Shankar Moda for being impleaded as a co-plaintiff in the suit. This arises out of a suit filed by a student against the Stewart Science College, Cuttack, its Principal, President, Secretary and the Managing Committee of the College with prayers, inter alia, for a declaralion that the plaintiff and the students of the college have a right to profess, practise and propagate their respective religion in the Stewart Science College precincts without violating the public order, morality or health and for a formal injunction restraining the defendants from interfering with the celebration of Saraswati Puja in their right of professing, practising and propagating their respective religion in the college. Two petitions were filed--one on April 24, 1964 by the plaintiff and the other on May 6, 1964 by the said Bijoy Shankar Moda--which both were heard together. The learned Munsif allowed both the petitions.

2. Nobody appeared however on behalf of the plaintiff-opposite parties in spite of notice.

3. The reasoning on which the learned Munsif allowed the application of the plaintiff to sue in a representative character was that the plaintiff was representing the common interest of all the students in respect of their right to profess, practise and propagate their respective religions. It however, appears that at the point of time when this petition was filed the plaintiff was no longer a student of the college he having left on taking transfer certificate as early as June 18, 1963 on which date he ceased to have any interest in the college and as such he was not in a position to (sic) the suit in a representative character. The effect of the order would be to allow such a person--who has ceased to be a student of the college--to prosecute the suit in a representative capacity on behalf of the students of the college. The petitioner can-not be said to continue to have the 'same interest' as the other students of the college. It does not come within the terms of Order 1, Rule 8, Civil Procedure Code. In this view of the position the order passed by the learned Munsif is illegal.

4. As regards the other application made by Bijoy Shankar Moda for being implead-ed as a co-plaintiff in the suit, it is stated in this revision petition that he having adopted unfair means in the Pre-Professional examination, was debarred from appearing in any University Examination prior to the second examination of 1965 and that he was no longer a student of the college. Therefore, for the same reason he also cannot represent the interest of the students of the college in the suit as claimed. The statement in paragraph 4 of the revision petition has not been challenged and no counter has been filed. In these circumstances, the order impleading him as a co-plaintiff in the suit, as illegal cannot also stand.

5. In the result, therefore, the order ofthe learned Munsif dated October 27, 1964allowing the said petitions is set aside. TheCivil revision is allowed but without costs.


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