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Mahagujarat Hawkers Vepari Mahajan Vs. the Municipal Corporation - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR274
AppellantMahagujarat Hawkers Vepari Mahajan
RespondentThe Municipal Corporation
Cases ReferredRatnaswami Nadar v. Prince of Arcot
Excerpt:
- - thus, a representative suit for declaration by some of the agriculturists (call ryots) that they are entitled to certain permanent remissions under a contract with a zindar is maintainable under order 1 rule 8. the rule is a rule of convenience based upon reason and good policy and saves the trouble and expenses which would otherwise have to be incurred in such cases. in the event of final success, such persons are made liable for court fees......upon to furnish the names of its members from time to time and it appears from-the order of the learned judge now under fire in this revision application that in all 131 names of the members of the association were given. mr. shah for the petitioner before me tells me that these names were furnished at the instance and say of the corporation to enable the corporation to know who were the members of the association. mr. shelat for the corporation and mr. thaker for the state could not dispute this particular statement of mr. shah and, therefore, i take it as true. now it so happened that the inspector of court-fees came to examine this plaint and he submitted the report to the court that as in final analysis, 131 persons were expected to derive benefit out of the court's injunction,.....
Judgment:

N.H. Bhatt, J.

1. This revision application under Section 115 of the Civil Procedure Code raises an important question of law concerning theft court fees. The petitioner before this Court is the original plaintiff, an Association, known as Mahagujarat Hawkers Vepari Mahajan of Ahmedabad, claiming to espouse the cause of hawkers in the City of Ahmedabad, both its members and non-members. The said Association had filed the Civil Suit No. 10 of 1976 in the City Civil Court, Ahmedabad against the Municipal Corporation of Ahmedabad and the State of Gujarat, claiming in paragraph II of the plaint ,he following reliefs:

(a) restrain the officers of these defendants (the Corporation and the State) from changing the fixed stands or deciding anything contrary without hearing the members and other persons concerned, who are carrying on their business in barrows, cabins, etc. placed on the stands specified and restrain them and their agents and servants from acting singly or conjointly from removing the said cabins either in the presence or absence of these people, who are members of the plaintiff Association or others;

(b) The defendants and their officers and servants be restrained from taking any action either under the Municipal Act or the Bombay Police Act by removing hand-barrows, cabins etc. of the hawkers and from doing anything which would interfere with their right.

2. The above suit was filed by the Association through its General Secretary, one Vadilal Shah and permission under Order 1 Rule 8 of the Civil Procedure Code was sought. The said permission was given by the then City Civil Court Judge and the suit had proceeded.

3. During the pendency of the suit, the plaintiff was called upon to furnish the names of its members from time to time and it appears from-the order of the learned Judge now under fire in this revision application that in all 131 names of the members of the Association were given. Mr. Shah for the petitioner before me tells me that these names were furnished at the instance and say of the Corporation to enable the Corporation to know who were the members of the Association. Mr. Shelat for the Corporation and Mr. Thaker for the State could not dispute this particular statement of Mr. Shah and, therefore, I take it as true. Now it so happened that the Inspector of Court-fees came to examine this plaint and he submitted the report to the court that as in final analysis, 131 persons were expected to derive benefit out of the court's injunction, which is sought, the plaintiff Association must be made to pay court fees at the rate of Rs. 30/- for each of the 131 persons alleged to be interested in the-final and favourable outcome of the litigation. This report of the Court Fees Inspector came to be registered by the learned Judge as the Court Fees Reference No. 38 of 1976 in that suit. According to the said Inspector, valuation for the purposes of court fees should be aggregate of the valuation of the causes of action for as many member persons as there are members of the Association. The reference was heard by the learned Judge of 10th Court there, who ultimately agreed with the report of the Inspector of Court Fees and directed the plaintiff to pay up the court fees amounting to Rs. 3930/- so far as the members of the Association were concerned. He, therefore, directed that the plaintiff should pay the additional amount on the plaint, failing which necessary certification under Sub-section 6 of Section 12 of the Act should be issued. It is this order of the learned Judge that is sought to be revised by this Court.

4. It is not the question before me whether the permission under Order 1 Rule 8 was rightly given or wrongly given. The question, if at all arising, should be dealt with by the learned Judge as and when raised before him. For the purpose of court fees, the plaint as it is before the court, is to be taken as the basis. According to the view of the learned trial Judge because there are at least 131 members, who are the ultimate beneficiaries of the injunction, for each one of them separate court fees should be contend. The fallacy of the reasoning of the learned Judge is obvious. Order 1 Rule 8 of the Civil Procedure Code is envisaged by the Legislature in two cases. Where there are innumerable or un-ascertainable number of persons, such a leave is granted. Numerous persons may in some cases be ascertainable and in some cases they may not be ascertainable. As for example, a suit under Order 1 Rule 8 can be filed for and on behalf of the residents of one place or a locality, who may be fluctuating from time to time. If the view of the learned Judge is carried to its logical limits, it would mean that in all such cases the total number of beneficiaries must be ascertained and court fees must be paid according to the number of persons entitled to the relief. If that is to be done, the very object underlying the Order 1 Rule 8 of the Civil procedure Code would be frustrated.

5. Secondly, the learned Judge has not properly construed the plaint in question. The prayer is against the alleged recurring and intermittent allegedly unauthorised action on the part of the officers of the Corporation of the Police Officers. It may be arising in respect of some persons and it may not be arising in respect of other persons. The subject matter of the suit is the injunction agonists the unauthorised action directed against a body of persons which by its very nature would be fluctuating. Aahwker may be the member of an Association to-day and may not be the member the other day. Moreover, the suit is also filed on behalf of the unnamed and unascertained hawkers in the City of Ahmedabad also. This would show that for all practical purposes, the prayer is against the Corporation, but not essentially for the benefit of 'X', 'Y' or 'Z'. Those persons become beneficiaries only incidentally because of the restraint sought to be placed on the allegedly illegal activities of the Corporation and the State of Gujarat through their officers. As said above, the total number of persons, namely 131, came to be divulged at different stages from time to time by the Plaintiff Association at the instance of the Corporation and to enable the Corporation to arrange their affairs in such a way that ad interim injunction was not even remotely violated by it. Under these circumstances, it is futile to say that there are as many as 131 distinct causes of action jumbled up in one suit. This is in fact what is found by the learned Judge. This is obvious from the employment of Section 18 of the Court Fees Act by him. Said section provides that where a suit embraces two or more distinct subjects the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suit embracing separately each of such subjects would be liable under this Act. The present suit cannot be said to be a multifarious suit of the type envisaged by the Section 18. On reading the plaint as a whole, I repeat, it is crystal clear that this Association, which is given permission to represent a fluctuating and unascertainable body of persons, is given power to file a suit against the allegedly habitual illegal acts of the Ahmedabad Municipal Corporation and the Police Officers in the City of Ahmedabad. The suit, as it ii framed, cannot be said to be a suit filed by 131 members or as a matter of fact by some definite number of persons. The plaint, which is before this Court, is to be viewed as one plaint disclosing one cause of action in respect of one plaintiff, namely, the body that is permitted to represent a number of persons.

6. The provisions of Order 1 Rule 8 of the Civil Procedure Code have given rise to a number of precedents in the annals of law. Order 1 Rule 8 presupposes the existence of the right of the suit in the community. A representative suit be brought for declaration, injunction or even possession, vide A.I.R. 1938 Madras p. 755, the case of Ratnaswami Nadar v. Prince of Arcot's Endowments. Thus, a representative suit for declaration by some of the agriculturists (call ryots) that they are entitled to certain permanent remissions under a contract with a Zindar is maintainable under Order 1 Rule 8. The rule is a rule of convenience based upon reason and good policy and saves the trouble and expenses which would otherwise have to be incurred in such cases.

7. The reasoning approved by the learned Judge has got an underlying deleterious ring. If in all suits filed, under Order 1 Rule 8, the number fultimate recipients of the fruits of the litigation is to be ascertained and court fees to be then worked out, one of the purposes underlying the enabling provisions of Order 1 Rule 8 would be frustrated. Secondly, the underlying reason decree is found to be fallacious, the moment we recall to our mind the cases where we cannot ascertain the figure of persons ultimately benefitting by the decree. If the Legislature had been keen to provide for court fees, it would have made some such provision for realising fees, as is done in the case of persons permitted to sue in forma pauperis. In the event of final success, such persons are made liable for court fees. On the same lines, the Legislature would have provided that whosoever individually wanted to enforce a decree or wanted to avail himself of the benefits of the decree would be heard only after he paid up court fees; or, the Legislature could have prescribed some specific mode of levying fees on such suits. Thus viewed from any angle, the levy of collective court-fees seems to be incompatible with the leave contemplated by Order 1 Rule 8 of the Civil Procedure Code.

The result is that the revision application is allowed. The impugned order passed by the learned Judge in Court Fees Reference No.88 of 1976 is set side. Rule is accordingly made absolute with no order as to costs.


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