Skip to content


(Rayavarapu) Narasimham and ors. Vs. Sooma Javalli Trade Committee of Chirala and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtChennai
Decided On
Reported inAIR1929Mad633; 118Ind.Cas.285
Appellant(Rayavarapu) Narasimham and ors.
RespondentSooma Javalli Trade Committee of Chirala and anr.
Cases Referred and Abdul Ghani Sahib v. Subramania
Excerpt:
.....and it is that petition which invokes the aid of order 1, rule 8. i therefore think that the lower court' would be well-advised in issuing a notice under order 1, rule 8, to those dissentient members of the committee who have not joined as defendants, and i direct that this be now done......exercised it with gross irregularity, since the amendment fundamentally alters the nature of the suit. defendants contend that this is not a case for a suit in a representative character, that each plaintiff is not a person having or claiming a separate right by way of the relief sought for, and that the members of the committee are by no means unanimous in seeking this relief.4. assuming for the sake of argument that the committee as a body is suing to recover from certain individuals whether members of itself or not does not matter, the moneys deposited with or lent to thorn and that is really the substance of the plaint, how ought the committee to appear on the record of the suit and who ought to represent it. clearly every member cannot be made a plaintiff since some of them are.....
Judgment:

Wallace, J.

1. These are two connected civil revision petitions in the matter of the amendment of a plaint. The original petitions asked for the same relief and were disposed of in the lower Court: by one order. They will be dealt with together.

2. The plaintiff is the Seema Javilli Trade Committee of Chirala by its manager. The defendants are a company Rayavarapu Narasimham and Bros. Maduri Kottayya & Co. and partners. The substance of the plaint is that out of the fees collected: by the manager, the plaintiff, on behalf of the plaint committee from the members for the upkeep of certain charities the defendants borrowed from time to time moneys as a loan, and that on the debt owing on the date of the plaint the principal and interest amounted to Rs. 6,000 and odd. Two of the defendants are themselves members of the plaint committee. The plaint states that when notice of the meeting for 9th March 1927 to the committee to settle this matter was sent to these defendants they ignored it and that at that meeting the members of the committee present unanimously resolved to sue for the balance and authorized the manager to sue. The defence was, inter alia, that the committee no longer existed-, that the plaintiff is no longer manager and that the committee is not registered and, therefore cannot sue in its own name. That the defendants held Rs. 5,818 of the collections was admitted but they said these were deposited with and not lent to them, to be devoted to such charities as the committee chose, and that as there is now a split in the committee they have withheld the money until the members are agreed as to its destination. The defendants have since, I understand, filed a scheme suit to determine what is to be done with the funds.

3. To meet the objection, that the committee not being registered cannot sue, the plaintiff put in an amendment petition asking that the manager plaintiff be allowed to sue in a representative character an behalf of himself and all the members of the committee. The lower Court allowed this and the defendants come up in revision, contending that the lower Court has exceeded its jurisdiction or exercised it with gross irregularity, since the amendment fundamentally alters the nature of the suit. Defendants contend that this is not a case for a suit in a representative character, that each plaintiff is not a person having or claiming a separate right by way of the relief sought for, and that the members of the committee are by no means unanimous in seeking this relief.

4. Assuming for the sake of argument that the committee as a body is suing to recover from certain individuals whether members of itself or not does not matter, the moneys deposited with or lent to thorn and that is really the substance of the plaint, how ought the committee to appear on the record of the suit and who ought to represent it. Clearly every member cannot be made a plaintiff since some of them are the defendants with holding the money. The committee must therefore be represented by some one and that person is naturally the person whose duty it would be to receive the money from the defendants if there was no suit and no objection to pay it over. That person is the manager. The committee has by resolution authorized him to sue. That is the original frame of the suit. The plaintiffs wish, however, by way of abundant caution to have the manager regarded as representative of the members of the committee under Order 1, Rule 8, Civil P.C. I do not think that rule is inapplicable because each member of the committee has not an individual right to recover this money. Each has clearly the same right as such member to recover the money for the committee from those who are withholding it and to hold it for them or deliver it to the manager; the very same general right in fact as the defendants themselves claim, only the latter consider themselves at present justified in withholding the money and not delivering it to the manager. I certainly do not see how the amendment of all changes the nature of the suit.

5. It has been argued on the strength of Harikisandas v. Chhaganlal Narasidas [1916]40 Bom. 158, that the suit cannot be representative unless there is absolute unanimity among those represented. Harikisandas Shivlal v. Chhaganlal Narasidas [1916] 40 Bom. 158 does not seem to imply such a proposition, but if it does, I respectfully dissent from it. If a suit cannot be representative unless and until it is ascertained that all the community represented is unanimous in supporting such a suit, the utility of such representation is lost. In many cases, for example, village rights, water rights, caste rights, rights of worship, it is impracticable even to decide who all are interested and much more to get the consent of all. Nor does Order 1, Rule 8 imply such a procedure. All that is necessary under the rule is that the matter should be notified and sufficiently advertised to enable persons who are interested to know about the suit and come on record if they wish. The decision in Harikisandas Shivlal v. Chhaganlal Narasidas, has been disapproved of by a Bench of this Court in Periyava Nadar v. Velu Muruga Nadar A.I.R. 1921 Mad. 682, and by two single Judges of this Court in Hameed Labbai v. Mahamed Khather Pillai : AIR1925Mad985 , and Abdul Ghani Sahib v. Subramania-Chettiar A.I.R. 1929 Mad. 14. Obviously the notice under Order 1, Rule 8, is required in order to give the Court material from which to determine whether or not permission should be given.

6. So the only point that seems to me worth further notice in this case is that the amendment appears to have been allowed without notice having been issued as required by Rule 8, the object of that notice being to enable parties who are not already on the record and who have an interest in the matter of the suit to come forward if they wish and be placed on the record. If this safeguard was not carried out an individual or a minority could represent the majority of a community and bind them by a decree entirely against the wishes of the majority. It is quite true that the representative character of a suit depends not on any exprees or implied counting of the heads of the community but on the order of the Court but the Court before giving its sanction requires to be satisfied that the community as a whole is aware of the suit as giving forward on its behalf. In the present case it is not open to the defendants who are members of the committee to plead ignorance. There appear, however, to be some ten others who were dissentient members of the committee and who have not been joined as defendants. I consider that even now a notice should be issued to them, under Order 1, Rule 8, to give them, an opportunity if they wish to come on the record. The trial of the suit has just begun and there is still time for this to be done The plaintiffs no doubt state that notice of the meeting at which the resolution to sue was taken was sent to all members of the committee but that is denied by the defendants. It does not in any case appear that the petition to amend the plaint was put before the committee and it is that petition which invokes the aid of Order 1, Rule 8. I therefore think that the lower Court' would be well-advised in issuing a notice under Order 1, Rule 8, to those dissentient members of the committee who have not joined as defendants, and I direct that this be now done. With these remarks, I dismiss these petitions with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //