Skip to content


Abdul Ghani Sahib and ors. Vs. N.P.R.M.V.R.M. Subramania Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1929Mad44
AppellantAbdul Ghani Sahib and ors.
RespondentN.P.R.M.V.R.M. Subramania Chettiar and ors.
Cases ReferredMarkt & Co. Ltd. v. Knight Steamship Co. Ltd.
Excerpt:
- .....to grant leave to the petitioners, plaintiffs, to institute the suit on behalf of the village community concerned under order 1, rule 8, civil p.c. the brother of defendant 1 claimed title to certain properties under purchase from the alleged original defendant 2 as manager of the endowment and got a decree in his favour.2. in the present plaint, the plaintiffs, three mahomedans of the locality alleged that the decree in the prior suit was not binding upon the trust, and the plaintiffs prayed to have the appropriate reliefs granted to them in respect of the matters. at the time of filing the plaint, the plaintiffs also put in an application under order 1, rule 8, civil p.c., for permission to be allowed to sue on behalf of the village community interested in the matter. defendants 1.....
Judgment:

Ananthakrishna Aiyar, J.

1. This is a revision petition filed by the plaintiffs in suit No. 165 of 1926 on the file of the District Munsif's Court of Koilpatti against an order passed by the learned District Munsif by which he declined to grant leave to the petitioners, plaintiffs, to institute the suit on behalf of the village community concerned under Order 1, Rule 8, Civil P.C. The brother of defendant 1 claimed title to certain properties under purchase from the alleged original defendant 2 as manager of the endowment and got a decree in his favour.

2. In the present plaint, the plaintiffs, three Mahomedans of the locality alleged that the decree in the prior suit was not binding upon the trust, and the plaintiffs prayed to have the appropriate reliefs granted to them in respect of the matters. At the time of filing the plaint, the plaintiffs also put in an application under Order 1, Rule 8, Civil P.C., for permission to be allowed to sue on behalf of the village community interested in the matter. Defendants 1 and 5 (Chetties) are the main contesting defendants. They opposed the application. The learned District Munsif has upheld the objection of defendants 1 and 5 and he has dismissed the application filed under Order 1, Rule 8, by the plaintiffs.

3. The main arguments mentioned in the order of the lower Court may be noticed. The first argument is that the plaintiffs have not proved that the community concerned has got confidence in the plaintiffs. In fact, the defendants contend that the community concerned has no confidence in the plaintiffs and that accordingly the plaintiffs are not entitled to be granted the permission prayed for. In answer to this, I may say that Order 1, Rule 8 has been enacted for the benefit of the defendants only to this extent, namely, to prevent multiplicity of suits against them. The question whether the community concerned has got confidence in the plaintiffs as regards the proper conduct of the suit or not is not a matter with which the contesting defendants 1 and 5, members of a totally different community, are concerned and it is not a point for them to take. The law has provided sufficient safeguards in case the community concerned resolve to conduct the suit in any other manner, such as by taking the conduct of the suit from out of the hands of the plaintiffs or otherwise. I may in this connexion refer to the decision of the Privy Council in the Kamudi case, Sankara Linga Nadan v. Rajeswara Dorai [1908] 31 Mad. 236. There, a suit was instituted under Section 30 of the old Civil P.C., which corresponds to Order 1, R.8, of the present Code. After the first Court granted a decree in favour of the plaintiff, the plaintiff on record thought it proper to compromise with the contesting defendants. Then the cestui que trust and other persons who were also interested in the institution and consequently in the proper conduct of the suit, wanted to be allowed to be made themselves parties and also to have the further conduct of the litigation taken out of the hands of the original plaintiff, who, by compromising with the defendants after obtaining a decree showed himself to be no longer worthy of the confidence of the community concerned. The Privy Council at p. 250, [31 Mad.] make this observation:

After the case had been decided in his favour by the Subordinate Judge, this person (the original plaintiff) thought fit to profess that her now saw that he and the Judge were wrong and he asked that the judgment should be altered so as to defeat his own action. A very sordid motive for his surrender was specifically asserted and has not been disproved. The Court on being applied to, very properly reinforced the causa of the worshippers of the temple by joining certain new plaintiffs to the original plaintiff

and allowed the new persons to further conduct the litigation. The decision of the High Court on an application filed by such new people to be made parties and the reasons which generally guide the Court in granting such applications will be found referred to in Narayanaswamy Gurukkal Etal v. Irulappa : (1902)12MLJ355 . Under the Code under Order 1, Rule 11 the Court may give the conduct of the suit to such persons as it deems proper, and the Court also could add as parties any persons who wish to be on the record eo nomine if proper grounds were made out for that course being taken. For the above reasons, I am of opinion that the learned District Munsif was not right in the first reason that he gave for not allowing permission asked for in this particular case.

4. The second reason given by the District Munsif is that he cannot say that the number of villagers concerned is 'numerous' within the meaning of Order 1, Rule 8. What particular number would really constitute 'numerous' within the meaning of O.1, Rule 8, need not be definitely laid down in this particular case. There is evidence that about a hundred people are interested in this matter and the learned District Munsif himself says there are not over 100 Muhammadans even according to the petitioners.' The Munsif evidently thinks that 100 is not a sufficient number to justify the appellation numerous ' within the meaning of this rule. I am not able to agree with him. If authority is necessary on such a point, fortunately in Mulla's Commentaries under Order 1, Rule 8. the learned commentator mentions a case decided by the English Courts Andrews v. Salmon [1888] Eng.W.N. 102, where it seems to, have been hold that where the number of defendants was thirty, it was considered as 'numerous' within the meaning of the corresponding English rule Order 16, Rule 9, Supreme Court rules. Having regard to the facts before me, namely that the number of persons interested in this suit would be about 100, I have no doubt that this is a case to which O.1, Rule 8, should be held to be applicable.

5. Then it was argued that the plaintiffs have not adduced evidence that they consulted the community, or that they have got the opinion of the majority in their favour, before filing the suit. The extreme view held in Bombay: [vide Harkison Das Shivlal v. Chhaganlal Narsidas [1916] 40 Bom. 158] has not been followed in Madras: see Katha-Pillai v. Kanakasundaram Pillai [1918] 8 M.L.W. 160, and Periyava Nadar v. Vehimuruga Nadar A.I.R. 1921 Mad. 682. As has been remarked in these Madras cases it is not possible to have the opinion of every member of the community as regards the advisibility of instituting the suit ascertained before filing such a suit. Usually, there are factions in communities; and even if otherwise, it often happens that there are very honest differences of opinion in the matter of filing such suits. In fact, the case of Periyava Nadar v. Velumuruga Nadar A.I.R. 1921 Mad. 682, specifically states that it is not necessary that the plaintiffs should prove that they consulted the community or obtained the opinion of the majority in support of the suit.

6. The learned District Munsif states finally that the granting of permission may inflict great hardship on the community. As at present advised, I am not able to appreciate this argument. Either the community is in favour of filing the suit, or it is not. If it is in favour of filing the suit, it could not have any cause for complaint. If on the other hand, the community is not in favour of such a suit, then the only persons who would really suffer would be the plaintiffs whose suit would ultimately be dismissed and the plaintiffs would have to pay costs of the defendants. As has been remarked by Srinivasa Aiyangar, J., in Hamed Labbai Mahomed v. Mahomed Khather : AIR1925Mad985 , the object of filing such a petition and obtaining permission under it is to prevent the defendants from being vexed by further suits by other members of the community. Thus if the community be not in favour of such a suit, all that the defendant has to care is to meet the present plaintiffs and succeed in this suit. I am not now concerned with the other rights, if any, of the community in respect of this matter. For these reasons I am not able to appreciate this argument either of the learned District Munsif.

7. My attention was also drawn to an observation in the recent Full Bench decision of this Court in Sonachalam Pillai v. Kumaravelu Chettiar A.I.R. 1928 Mad. 77, where the Court, after quoting a sentence from the decision in Markt & Co. Ltd. v. Knight Steamship Co. Ltd. [1910] 2. K.B. 1021 remarks that it is not necessary in cases of suits filed under Order 1, Rule 8, to obtain the permission or consent of the community concerned.

8. Finally, it was argued by Mr. T. M. Ramaswami Iyer, the learned vakil for the respondent, that the more appropriate remedy that the plaintiffs would be entitled to is to file a suit, after obtaining the necessary sanction, under Section 92, Civil P.C. I will assume for the present that the plaintiffs would be entitled to that remedy also; but as remarked by Becon, Vice Chancellor in 10 Ch. Dn. 153

there may be other remedies, there may be 500 or 5000 other remedies, but if this one remedy which the appellant has invoked be one of them there is no reason why he should not have recourse to this one out of the 5000.

9. On principle, one cannot agree that the defendants should be the judge to dictate the choice of the remedies on behalf of the plaintiffs.

10. For these reasons, I think that the order passed by the learned District Munsif is erroneous and should be set aside as I think that he has failed to exercise his jurisdiction in the matter in accordance with legal principles applicable to the case. I think the petitioners are entitled to their costs in this Court. Costs of the petition in the lower Court will abide the result of the suit.


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