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Muthukaruppa Ethandar and ors. Vs. Appavoo Nadar and ors. - Court Judgment

LegalCrystal Citation
Subjectcivil
CourtChennai
Decided On
Reported inAIR1943Mad161
AppellantMuthukaruppa Ethandar and ors.
RespondentAppavoo Nadar and ors.
Cases ReferredKrishnamachariar v. Chinnammal
Excerpt:
.....police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and 16 of the..........section no. 82 of 1929 was not binding upon them or upon the other ryots of this village. in that suit defendants 1 to 4, as the representatives of the village of arasankudi, sued four ryots of the village of natarajapuram, as the representatives of that village, to recover a sum of rs. 1667-4-0 which they claimed was due to the villagers of arasankudi by the villagers of natarajapuram in respect of the construction of a road connecting the two villages with the main road. both the villages had asked the taluk board authorities to construct the road and promised that they would contribute one-third of the cost, if the taluk board would bear the rest. it was afterwards arranged that the two villages should contribute a total sum of rs. 4000 which was to be borne by them equally. at a.....
Judgment:

Leach, C.J.

1. The case for the appellants is completely devoid of merit, but questions of law have been raised and it is necessary to consider them. The appellants and respondent 4 are the managers of the communal lands of the village of Natarajapuram (also known by the name of Ethandarpatti) in the Trichinopoly Taluq. They sued in the Court of the District Munsif of Trichinopoly for a declaration that the deoree obtained in Order Section No. 82 of 1929 was not binding upon them or upon the other ryots of this village. In that suit defendants 1 to 4, as the representatives of the village of Arasankudi, sued four ryots of the village of Natarajapuram, as the representatives of that village, to recover a sum of Rs. 1667-4-0 which they claimed was due to the villagers of Arasankudi by the villagers of Natarajapuram in respect of the construction of a road connecting the two villages with the main road. Both the villages had asked the Taluk Board authorities to construct the road and promised that they would contribute one-third of the cost, if the Taluk Board would bear the rest. It was afterwards arranged that the two villages should contribute a total sum of Rs. 4000 which was to be borne by them equally. At a later stage, it was agreed between the villagers of Arasankudi and the villagers of Natarajapuram that the Arasankudi villagers should pay Rs. 2250 of the Rs. 4000 and the villagers of Natarajapuram Rs. 1750. The villagers of Arasankudi paid the full amount and the villagers of Natarajapuram reimbursed them to the extent of Rs. 500 but they failed to pay the balance, and in consequence defendants 1 to 4, suing on behalf of all the villagers of Arasankudi, instituted the suit to recover the balance.

2. The District Munsif took the plaint on his file on 20th February 1929 and numbered the suit as No. 82 of 1929. 'With the plaint were filed two applications, one for an order permitting the plaintiffs to sue on behalf of the villagers of Arasankudi and the other for an order allowing them to sue the defendants as the representatives of the village of Natarajapuram. Having numbered the plaint, the District Munsif directed that notice should issue to the defendants and that a general notification should be published in the District Gazette. The defendants were served, and the notification was duly published. After this had been done, namely, on 19th April 1929, the District Munsif granted leave to the plaintiffs, as representing Arasankudi, to sue the defendants as representing Natarajapuram. In his order he pointed out that there was no opposition to the application. He also directed that as defendant 3 was absent the case should proceed against him exparte. Subsequently, defendant 3 filed an application for an order setting aside the exparte order which was passed against him on 19th April 1929 and asked for permission to file a written statement. This application was granted. All the defendants filed written statements. On 2nd April 1981 the plaintiffs and defendants 1, 2 and 4, filed in Court a statement agreeing that a decree for Rs. 1250 and costs should be passed against the communal properties of the village of Nataraja-puram with full liberty to the plaintiffs to proceed in execution against these properties. Defendant 3 did not join in this application. In conjunction with the plaintiffs, he filed a memorandum stating that he was not willing to continue on the record as one of the representatives of the village of Nataraja-puram and that the plaintiffs consented to the suit being proceeded with against defendants 1, 2 and 4 as the representa-tives of Natarajapuram. In these circumstances he asked that his name be removed from the suit. On 7th April the District Munsif passed a decree in accordance with the terms agreed upon by the parties and set out in these two statements. The suit out of which this appeal arises was filed by the appellants on 4th January 1933 in accordance with the provisions of Order 21, Rule 68, Civil P.C. The decree-holders in Order Section No. 82 of 1929 had attached the communal lands of Natarajapuram in execution of their decree and the appellants' objection to the attachment had been overruled. The District Munsif decreed the suit On the following grounds, (1) In the earlier suit the requirements of Order 1, Rule 8 had not been complied with and (2) as defendant 3 had disappeared from that suit the Court had no power to pass a decree against the three remaining defendants as the representatives of Natarajapuram without an order expressly directing the suit to proceed against them. On appeal the decree of the District Munsif was confirmed. The defendants then appealed to this Court. Somayya J., held that the decree which had been passed in the former suit was binding upon the plaintiffs and consequently dismissed their suit with costs. This appeal is from the judgment of the learned Judge under Clause 15, Letters Patent.

3. As before Somayya J., the appellants have raised four contentions. The first two are the contentions which the District Munsif and the Subordinate Judge accepted. They also say that the Court has no power to pass an order allowing persons to be sued in a representative capacity when the claim is upon a mere debt. Further they say that the decree in the former suit is not binding upon them because the defendants had no power to enter into a compromise. Order 1, Rule 8 reads as follows:

(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.

(2) Any person on whose behalf or for whose benefit a suit is instituted or defended under Sub-rule (1) may apply to the Court to be made a party to such suit.

4. Mr. Muthukrishna Iyer on behalf of the appellants says that when the plaint is first filed it is incumbent upon the Court to pass an order permitting the suit to be brought in a representative capacity or the defendants to be sued as representatives, if the allegations in the plaint justify the order. After permission has been given, it is incumbent upon the Court to issue public notice that the suit has been instituted so that other persons may apply to be added as defendants. Here the permission to the plaintiffs in the former suit to sue as the representatives of the Arasankudi village the defendants named therein as the representatives of Natarajapuram village was granted after the publication in the District Gazette of the notice that the suit had been filed. Consequently, Mr. Muthukrishna Iyer argues that as the rule contemplates permission before publication of the notice it was necessary for the District Munsif to issue a fresh notice and his failure to do so vitiated the proceedings. In this connexion he has pointed to the following passage in the judgment of the Privy Council in Kumaravelu Chettiar v. Ramaswami Iyer :

On such permission being given it becomes the imperative duty of the Court to direct notice to be given to the absent parties in such of the ways prescribed as the Court in each case may require; while liberty is reserved to any represented person to, apply to be made a party to the suit.

5. Emphasis is laid on the words 'imperative duty'. Divorced from its context this passage does give support to the appellants, but when the judgment is read as a whole, it is quite clear that the Judicial Committee did not intend to lay down a rule that non-compliance with the strict wording of the rule was fatal to the case. In Kumaravelu Chettiar v. Ramaswami Iyer the question was whether the decision in a former suit operated as resjudicata when no permission had been sought or granted under Order 1, Rule 8. The Privy Council held that in a representative suit the decision in a former suit does not operate as resjudicata by reason of Section 11, Civil P.C, Expln. 6, unless the former suit was instituted in compliance with Order 1, Rule 8 of the present Code. By compliance was meant the institution of the suit with the permission of the Court sifter the notice as prescribed by Order 1, Rule 8 had been given. But Lord Blanesburg in delivering the judgment of the Board said that their Lordships would not exclude the possibility of a decree being within the benefit of Expln. 6 of Section 11, where the litigation having been bona fide the omission to comply with the conditions of the rule had been inadvertent and no injury from the omission had been sustained by the plaintiff in the second suit. It was, however, imperative to have it recognised that the burden upon a defendant seeking a ruling to that effect was heavy indeed. No encouragement should, they thought, be offered to litigants if they would obtain the full benefit of Order 1, Rule 8 to be careless in securing full compliance with the conditions of the rule, both in the letter and in the spirit. The object of Order 1, Rule 8 is to permit a person who has an interest in the subject-matter of the suit to apply to the Court to be made a defendant. He may not be convinced that the defendants named in the plaint will defend the suit properly as the representatives of all persons concerned. In this case the District Munsif, strictly speaking, should have passed orders on the two applications filed by the plaintiffs in the former suit when he admitted their plaint and left the publication of the notice of the suit to a later stage but the fact that he gave to the plaintiffs as the representatives of the Arasankudi permission to sue the defendants as the representatives of Natarajapuram after he had notified by public advertisement the institution of the suit prejudiced no one. Any person residing in Natarajapuram could have applied to be made a defendant, but no one chose to do so. The villagers of Natarajapuram had notice of the institution of the suit and they were prepared to allow it to proceed with the defendants chosen by the plaintiffs. Consequently, we hold that there was sufficient compliance with Order 1, Rule 8.

6. We consider that there is no greater force in the appellants' contention that the Court was not entitled to pass a decree against defendants 1, 2 and 4, because it had allowed defendant 3 to drop out. Here Mr. Muthu-krishna Iyer has relied on the judgment of Ramesam J. in Venkatakrishna Reddi v. Srinivasachariar A.I.R. 1931 Mad. 452 and Subbayya Naicker v. Sankarappa Naioker : AIR1934Mad202 . In the former of these twp cases, Ramesam J. held that where sanction is given by a Court to certain persons eo nomine to institute or defend a suit and one of them dies, the right does not survive and therefore his heirs cannot come on the record unless the order granting the sanction can be construed as conferring the right to do so. He considered that the proper procedure was for the remaining persons to apply to the Court for directions and it was for the Court to decide whether it would permit them to continue to prosecute or defend the suit or whether it would insist upon the original number, in which case it should give directions in this respect. The judgment in Subbayya Naicker v. Sankarappa Naioker : AIR1934Mad202 was to the same effect. Somayya J. considered these two decisions and, in his opinion, it was not incumbent upon the remaining parties to apply to the Court for directions. The suit could lawfully proceed without them. It is not necessary for the purpose of this, appeal to decide whether the Court's directions are necessary or not, because it is quite clear that all parties, including defendant 3, were willing that there should be a decree against defendants 1, 2 and 4 in their representative capacity. In passing the decree which it did the Court in fact permitted the suit to proceed against the remaining defendants.

7. Soinayya J. considered that the appellants ought not to be allowed to raise the plea that there cannot be a representative suit in respect of a debt and we agree with him. Permission had been given to the plaintiffs in the former suit to sue in a representative capacity and it may be added that the plea was not raised in the plaint. It may also be pointed out that the suit was a claim to enforce payment of a debt due by the whole village in connection with the construction of a road for the benefit of all the villagers and it is difficult in such circumstances to see why the defendants could not be sued in a representative capacity. Otherwise it would mean the joining of every inhabitant of the village. The last contention, namely, that the defendants in the former suit had no power to compromise can be disposed of in a few words. There are two Bench decisions of this Court which say that persons conducting a suit on behalf of themselves and others with leave of the Court can enter into a compromise so as to bind those whom they represent and the same principle must apply when the defendants are sued in a representative capacity. The first case is Krishnamachariar v. Chinnammal : (1913)24MLJ192 and the second the unreported case of Mahalingam chettiar v. Anthony Nadar C.M.A. No. 266 of 1930. The appeal will be dismissed with costs.


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