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Pushkarlal and ors. Vs. Laxman Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 347/81
Judge
Reported in1981WLN(UC)514
AppellantPushkarlal and ors.
RespondentLaxman Singh and ors.
DispositionPetition dismissed
Cases Referred and Girdhari v. Ramkaia and Ors.
Excerpt:
.....who were impleaded as defendants have died but there are still 11 persons belonging to the sunar community on record. thus including the six who were permitted to be sued, there are 17 persons belonging to the sunar community on record. the number is sufficiently large.;revision dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of..........non-petitioners moved before him under order 1 rule 8(5) c.p.c. laxman singh non-petitioner no. 1 filed a suit on july 1, 1968 for redemption of a mortgage dated september 11, 1941. the mortgage was with the members of the sunar community known as 'samast panch med sunar udaipur.' as the number of the members of the sunar community was large, an application under order 1 rule 8 c.p.c. along with the suit was filed seeking the permission of the court to sue the six persons shown in the written statement representing the entire sunar community. the learned court under order 1 rule 8. c.p.c. as is stood prior to the amendment by act 104/76 which came into force with effect from february 1, 1977 gave notice of the institution of the suit to all persons interested. in pursuance of the.....
Judgment:

M.B. Sharma, J.

1. This is yet another revision in a suit for redemption which is pending in the court of the learned Additional District Judge, Udaipur since 1968. Under his order dated August 24, 1981 which has been challenged in revision, the learned District Judge has dismissed the application of the non-petitioners moved before him under Order 1 Rule 8(5) C.P.C. Laxman Singh non-petitioner No. 1 filed a suit on July 1, 1968 for redemption of a mortgage dated September 11, 1941. The mortgage was with the members of the Sunar community known as 'Samast Panch Med Sunar Udaipur.' As the number of the members of the Sunar community was large, an application under Order 1 Rule 8 C.P.C. along with the suit was filed seeking the permission of the court to sue the six persons shown in the written statement representing the entire Sunar community. The learned court under Order 1 Rule 8. C.P.C. as is stood prior to the amendment by Act 104/76 which came into force with effect from February 1, 1977 gave notice of the institution of the suit to all persons interested. In pursuance of the notices which were published in the local news paper as many as 18 persons belonging to the suner community came forward to be impleaded as defendants and they were impleaded as defendants in the suit on December 17, 1968. The suit proceeded and the evidence or the plaintiff closed on August 28, 1972 and there after the case went on for the evidence of the defendants. The evidence of the defendants was also closed on December 4, 1978. On February 19, 1979 an application by the petitioners, numbering 10, under Order 1 Rule 8 C.P.C. was filed to the effect that they should be impleaded as defendants as they represent the Sunar community and were its memberS. The ground was that the defendants who were already on record including the six who were permitted to be sued in representative capacity did not safeguard the interest of the community. The learned Additional Sessions Judge, Udaipur under his order dated July 10, 1979 dismissed that application. A revision was filed in this Court but that revision was withdrawn by the petitioners. There after the petitioners filed another application under Order 1 Rule 8 C.P.C. on October 15, 1979 where in some instances about the defendants already on record not conducting the suit property and not safe guarding the interest of the community were cited. Reply to this application was filed on behalf of the plaintiff and under the impugned order the learned Additional Sessions Judge dismissed it.

2. I have heard the learned Counsel for the parties and perused the record of the case. It is contended by the learned Counsel for the petitioners that the order of the learned Additional Sessions Judge proceeds on irrelevant consideration in as much as the learned Additional Sessions Judge has wrongly observed that on the application dated May 7, 1973, seven persons belonging to the Sunar community were also impleaded as defendants and that the earlier order dated 10, 1979 operates as resjudicata. It is also contended that the relevant considerations for the disposal of the application under Order 1 Rule 8(5) C.P.C. were not even considered by the learned trial court and, therefore, according to the learned advocate it amounts to illegal exercise of jusisdiction by the trial court. The learned advocate further contends that in case of a suit under Order 1 Rule 8 C.P C. if some of the persons against whom permission to be sued is given die or do not take interest in the proceedings, then it is necessary that the other members of the s'ame class should be allowed to be added as defendants.

3. The learned Counsel for the non-petitioner No. 1 on the other hand contends that 'the' 'conduct' of the' defendants already on record throughout the suit has been that for the one reason or the other, they are trying to delay the disposal of the case and-when the defendants already on record failed in their attempt under Order 13 Rule 2 C.P.C. to bring on record a Copy of the 'pats' and to examine Raghunath, they filed an application under Order 1 Rule 8(5) C.P.C. which was dismissed earlier. He contends 'that there is absolutely' no instance from which it can be gathered that the defendants already on record including the six who were permitted to be sued did not take interest in the proceedings. According to him the record will show that the suit has been contested oh behalf of the1 defendants' already on record and when several- applications were dismissed by the trial court, each of them was challenged by way of revision, though' all those revisions were dismissed.

4. It does appear that the learned Additional Sessions Judge wrongly observed that seven persons belonging' to the Sunar community on their application dated May 7, 1978 were ordered to be impleaded as defendants; It appears that application was filed on behalf of Doongarsingh and Daulatsingh to the effect that they should be' impleaded as co-'plaintiffs because the property sought to be redeemed is not solely owned by the plaintiff non-petitioner No. 1. That application was allowed. I have heard learned Counsel for the parties and have minutely gone through the record of the case. I will presently show that the present application does not appear to be bonafide and it can also not be said that the defendants already on record including the six who were sued in representative capacity under Order 1 Rule 8 C.P.C. were hot conducting the suit' well and the instances which have been given by the petitioners in their second application which was filed' after the rejec1-tion of the revision are vague and do not carry any weight.

5. The above stated suit was filed in the year 1968 and on August 17, 1968 an application was filed by one Onkarlal. belonging' to the Sunar community mentioning there in that five persons namely Mathuralal; Nathulal, Sunderlal, Yudhishtir and Moharilal should be impleaded as defendants and they shall represent the Suriar community. That application was later on disowned by Onkarlal by his application dated October 25, 1968 (D 26/1); Thereafter 18 persons applied on December 12, 1968 in pursuance of the notice issued under Order 1 Rule 8 C P.C. for being impleaded as defendantS. They were so impleaded. Though the application dated May 7, 1973 was filed by Doongar Singh and Daulat Singh for1 being impleaded as co-plaintiffs and they were ordered to be' impleaded as proforma defendants but even that order was challenged by none else but by the members of the Sunar community on the ground that there should be amendment in the written statement. Justice Mr. Joshi as he then ' was dismissed that revision petition holding that evert the court can enter the names of persons added as defendants and it is not necessary that there should be any amendment in the title of the suit. That revision was dismissed by this Court on April 11, 1975. An application under Order 13 Rule 2 C.P.C. (paper B 159/1) for production of 'pata' 'was' filed on March 18, 1978. The learned Judge dismissed that application on April 20', 1978 Observing that the' 'pata' appears to be suspicions. That order was again challenged in revision and that revision was later on not pressed in this Court. There after and application to produce one Raghunath as a witness for the Sunar community was filed on August 21, 1978 as it was alleged that the original 'Pata' was in his possession but that application too was dismissed by the learned trial court. It further appears that in the list of witnesses filed by the defendants already on record as may as 69 persons were named and 15 witnesses were summoned as will appear from paper 86/1. Many eminent lawyers-of Udaipur were representing the defendants belonging to the sunar community and the conduct of the case was in safe hands. Ihave gone through the application dated October 15, 1979 preferred by the petitioners for bring impleaded as defendants and it appears that all that is mentioned is that the defendants the members of the Sunar community did not conduct the case properly and the interest of the community was not in safe hands. To me it appears that having failed to produce the 'pata' under Order 13 Rule 2 C.P.C. which as already stated earlier, the learned Judge observed to be a suspicious document and Having failed to produce Raghunath to prove the 'pata' and after the evidence was closed, the first application under Order 1 Rule 8 (5) C.P.C. was filed, which was dismissed. Merely because no instances were mentioned therein as to how the defendants already on record did not conduct the proceedings properly, the order still stands because it was not set aside by this Court; This Court only allowed the revision to be withdrawn and it does not mean that the order of the learned' Judge under which the earlier application has been dismissed holding that no case under Order 1 Rule 8(5) C.P.C. is made out was set aside.

6. It will appear that before February 1, 1977, when under Act 104/76 Rules 8 there was no Sub-rule (5) like the present one. Sub-rule (5) of the Rule was introduced under the aforesaid amendment and it provides that when any person suing or defending any such suit does not proceed with due deligence in the suitor defence, the court may substitute in his place any other person having the same interest in the. suit. Though in the impugned order the learned Judge has not said as to whether the defendants already on record have not proceeded with due deligence in the defence, but as already slated earlier, I have gone through the said file and it does not appear to me that defendants conducting the suit in representative capacity have not proceeded with due deligence in the defence. Therefore', to me it does not appear that any case under Order Rule 8(5) C.P.C. as it stands is made out. As already stated earlier the background of the litigation and the facts will go to show that the present application is not bona-fide but appears to be malafide.

7. Mr. Gupta has placed reliance on various authority in support of his contention that in case some of the defendants die Or do not prosecute the defence properly the application of other persons of the same class belonging to the community, they should be impleaded as defendant is not necessary to refer to all the authorities referred as they have been dealt 'with in detail in the order of learned Judge in the lower court. 'That apart, none of the cases are relevant to the present controversy. If will suffice to make a reference to Sonachalam Filial and Ors. v. Kumaravelu Chettiar and Ors. : AIR1927Mad1105 . Venkatakrishna Reddy and Ors. v. Srinlvasachariar and Ors. AIR 1932 Madras 452, GFF Foulkes and Ors. v. A.S Support Chettiar and Anr. : AIR1951Mad296 and Girdhari v. Ramkaia and Ors. AIR 1937 Lahore, 601; It Has been held there in that if one from amongst those to whom permission under Order 1 Rule 8 C.P.C. to conduct or defend the suit withdraws; then it is for the court to decide whether or not the remaining plaintiffs or defendants' as to case' may be should ' continue to prosecute or defend the suit or the court should insist for the original dumber to whom the permission was granted. In the instant case only six persons were allowed to be sued in representative capacity and all of them are alive. The apart, including those six, though as many as seven persons out of 18 who were impleaded as defendants have died but there are still 11 persons belonging to the Sunar community on record. Thus including the six who were permitted to be sued, there are 17 persons belonging to the Sunar community on record. The number is sufficiently large. I am, therefore of the opinion that there is no force in this revision petition and it is here by dismissed.


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