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S. Avtar Singh and ors. Vs. State of Jammu and Kashmir and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberC. Misc. (Writ) Petn. No. 122 of 1978
Judge
Reported inAIR1980J& K50
ActsConstitution of India - Article 226; ;Code of Civil Procedure (CPC) , 1908 - Section 141 - Order 1, Rule 8; ;Sikh Gurudwara and Religious Endowment Act, 1973
AppellantS. Avtar Singh and ors.
RespondentState of Jammu and Kashmir and ors.
Appellant AdvocatePetitioner No. 1 in person
Respondent Advocate S.D. Sharma and; Amarchand, Advs.
Cases Referred and State of Rajasthan v. Smt. Laharkunwar
Excerpt:
- .....in all proceedings in any court of civil jurisdiction'. now it is to be seen whether the writ proceedings in this court are proceedings in a court of civil jurisdiction. if that be so, then by virtue of the provisions of section 141 of the code the procedure provided therein in regard to suits shall be followed, as far as it can be made applicable, for their disposal. when can a court in any proceedings be called a court of civil jurisdiction the language employed in this section shows that when a court is trying a suit, then that court can be called a court of civil jurisdiction, in other word, if any other proceedings are before a court, which are in the nature of a suit, then that court can be called a court of civil jurisdiction, the point then arises, whether it can be.....
Judgment:
ORDER

I.K. Kotwal, J.

1. The petitioners, out of whom two are practising advocates of this court, profess faith in Granth Sahib and Ten Gurus -- the core of Sikh religion. They have challenged the constitutional validity of some provisions of the Sikh Gurudwara and Religious Endowment Act, 1973 (hereinafter the Act') as well as some Rules made thereunder. All other reliefs which they have claimed flow from this relief They have filed this writ petition not only on their own part but also on behalf of the entire Sikh community for which they have also made a separate application under Order 1, Rule 8 of the Code of Civil Procedure, seeking permission of the court to sue the respondents as such, This is CMP No. 122 of 1978. Respondent No. 2 alone has filed objections to this application, which are to the effect, that neither the petitioners have any Individual right to file the writ petition, nor the provisions of Order 1, Rule 8 are attracted to it.

2. Mr. Amarchand appearing for respondent No. 2 has during the course of arguments confined his residence to the prayer of the petitioners to two grounds only. One, that in no case could Order 1 Rule 8 apply to Writ petitions, and two, that on the specific allegations made in the petition this provision would not be attracted to the present case, assuming that it was otherwise applicable to writpetitions. Two questions which, there-fare fall for consideration are :

(i) are the provisions of Order 1, Rule 8 applicable to writ petitions and

(ii) if so, whether they are attracted, to the peculiar facts of this case

3. Section 141 of the Code of Civil Procedure lays down that the procedure provided in the Code for suits shall, as far as possible apply to all proceedings in any court of civil jurisdiction, Authorities are legion that a writ petition brought to enforce a civil right is a proceeding in a court of civil jurisdiction. The High Court of Punjab in Sona Ram Ranga Ram v. Central Govt. AIR 1963 Punj 510 has after noticing a number of authorities on the point held as under:--

'(5) The relevant section for our present purpose is Section 141 of the Code, which runs thus :--

The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction'. Now it is to be seen whether the writ proceedings in this court are proceedings in a court of civil Jurisdiction. If that be so, then by virtue of the provisions of Section 141 of the Code the procedure provided therein in regard to suits shall be followed, as far as it can be made applicable, for their disposal. When can a court In any proceedings be called a Court of civil jurisdiction The language employed in this section shows that when a Court is trying a suit, then that Court can be called a Court of civil jurisdiction, in other word, if any other proceedings are before a Court, which are in the nature of a suit, then that Court can be called a Court of civil jurisdiction, The point then arises, whether It can be said that the writ proceedings are in the nature of a suit. Any proceedings in a Court of law brought to indicate or enforce a civil right would fall within the word 'sue' (see in this connection Province of Bombay v. Khushal Dass S. Advani, AIR 1950 SC 222). It is manifest that in a suit civil rights are involved and, therefore, the proceedings therein are of a civil nature. In other words they can be termed as 'civil proceedings'. Are the proceedings under Article 226 of the Constitution civil proceedings In my opinion, if in a petition under Article 226 civil rights are involved, then the proceedings would be civil proceedings, but, on the other hand, if the proceedings do not involve such rights, then they cannot be termed as such. It follows, therefore, that in writ petitions, where civil rights are involved, the proceedings are in the nature of a suit and by virtue of the provisions of Section 141 the procedure provided in the Code in regard to suits shall apply, as far as it can be made applicable. In this view of mine, T am supported by a Bpnch decision of the Andhra Pradesh High Court, consisting of Subba Rao C. J. and Srinivasachari J., in Annam Adinarayana v. State of Andh. Pra., AIR 1958 Andh. Pra. 16, wherein it was held that an application under Article 226 of the Constitution of India was a proceeding in a court of Civil jurisdiction and Section 141 of the Code was, therefore, directly attracted.'

A similar view appears to have been taken in Krishna Lal Sadhu v. State of West Bengal. AIR 1957 Cal 275, and Ibrahimbhai Karimbhai v. State of Gujarat, AIR 1968 Guj 202, in applying the provisions of Order 22 of the Code of Civil Procedure to writ petitions. In the last mentioned case it has been further held that proceedings in writ petitions are original in character and attract the provisions of Section 141. With due respects to the Judges who constituted the Bench, I am unable to agree with the contrary view taken in Management of Rain Bow Dyeing Factory, Salem v. Industrial Tribunal, AIR 1959 Mad 137 wherein it has been held that Section 141 cannot be applied to writ proceedings as they are not in the nature of civil suits. For holding so, the court, imagined a parity between an execution petition and a writ petition, which of course could not be there. A High Court trying a civil dispute will not cease to be a court of civil jurisdiction merely because it is trying the dispute in its extra ordinary jurisdiction. Apart from this, Rule 44 of the J & K High Court Rules, 1975 provides that, as far as practicable provisions of the Code of Civil Procedure shall apply to writ petitions, I have, therefore, no hesitation in holding that provisions of Order 1, Rule 8 are applicable to writ petitions.

4. Order I Rule 8 is an enabling provision and an exception to the general rule that all persons interested in theresult of the suit ought to be made parties to it. It will apply to those cases only where several persons on whose behalf the suit is sought to be filed or defended have the same interest with the plaintiff or defendant on record as the case may be. The object is to avoid unnecessary tedium and expense of litigation and to give a finality to the decision, which may be ultimately passed in the suit. As soon as a prayer under this provision is granted, a public notice of it has to be given by the Court. It is with the two-fold object of providing an opportunity to those on whose behalf the suit is instituted or defended to see whether or not the suit is collusive, fraudulent or otherwise frivolous, and also to bind them in the event of the decree which may be ultimately passed in it. Once the requirements of this rule are shown to have been satisfied, the decree passed in the suit would operate as res judicata, binding also those on whose behalf the suit is filed or defended, even though they are not parties on the record. Personal execution of such a decree can be, however, taken against only those who are parties on the record in taking this view I am supported by a Full Bench judgment of the Madras High Court in Kodia Goundar v. Velandi Goundar, AIR 1955 Mad 281 wherein it has been held :

'The point for determination is as to whether the decree for injunction could be enforced against the respondents who are 'eo nomine' parties to the suit or to the decree. Order I, Rule 8 C. P. C. lays down the conditions necessary for bringing a representative suit on behalf of or against persons having a common interest. To render a decree in a representative suit to have binding force on the class of persons who are sought to be bound by it, the procedure laid down in Order 1, Rule 8 has to be strictly followed. A decree obtained in a suit instituted in accordance with the provisions of Order 1, Rule 8 will be binding as 'res judicata', on all the members that belong to the class who are sought to be represented.........'

The sine qua non for applying Order T, Rule 8, as already observed is the existence of the 'same interest'. What is then the real connotation of the expression 'same interest' 'Same interest' implies a joint and inseparable interest.'It is not a distinct Individual interest even though arising out of or taken away by the same act or transaction. The test would be whether a judgment which a party might obtain in its favour in respect of its rights arising out of or invaded by an act or transaction, would ipso facto restore the rights of even those who are not parties on the record, and not whether the cause of action to file the suit arises out of the same act or transaction. Take for instance the order issued by the Government dismissing a bunch of employees on the interpretation of a service rule. Each employee has a grievance that the rule has been mis-interpreted against him on the peculiar facts of his case. In such a case Interest of all the employees cannot be said to be the same, even though each one of them is interested in getting the order quashed. In such a case judgment in favour of one of the employees cannot ipso facto result in quashing the order against the others. Here the interest of each employee would be distinct individual interest and provisions of Order I, Rule 8 will not be attracted. If, however, the ground urged is that the rule itself is unconstitutional, then all the affected employees would be deemed to have the same interest in the litigation. A judgment obtained by one of the employees in his favour would have the effect of total destruction of the order giving relief to even those who are not actually parties before the court and Order I, Rule 8 would aptly apply tp such a case. A similar view has been taken by the Allahabad High Court in Shiv Singh v. State Transport Appellate Tribunal, AIR 1969 All 14. In this case two appeals were filed before the State Transport Appellate Tribunal against the order of the Regional Transport Authority issuing permits in favour of the respondents. These appeals were dismissed by a common judgment on the concession of the appellant's counsel and a single writ petition was filed against the said judgment which too was dismissed on the ground that no writ would He against an agreed order. In special appeals against the order of the single Judge an objection was taken that a single petition for a writ of certiorari itself was not maintainable against an order disposing of two separate appeals which in fact related to eight records ofeight persons in whose favour one permit each had been granted. This objection was repelled by the Division Bench on the ground that there was only one record, i. e. the common judgment disposing of two appeals and that too was sought to be quashed on a common ground of ignoring a Supreme Court judgment in another case. The following observations made by the Bench are relevant :

'By the very nature of its task the Regional Transport Authority was called upon to choose between the applicants by judging the relative claims of all of them together and it was only upon a comparative assessment of the suitability of all the applicants that the permits could be granted. In these circumstances the record relating to the grant of permits was, in our opinion, only one record and it was not split up into as many as the number of applicants nor further split up into two records in respect of each grantee of a permit by the fact of two separate appeals having been filed by two unsuccessful applicants. We are also of the opinion that the appellants could have filed a joint writ petition and it was not necessary that each of them should have filed a separate petition. The State Transport Appellate Tribunal did not at all consider the respective claims of the parties before it to the grant of permit and it only directed the Regional Transport Authority to fill the vacancies according to law by setting aside its order. The order of the said Transport Appellate Tribunal was, therefore not merely one which affected all the appellants equally but was also an indivisible order giving rise to a joint grievance to the appellants and, therefore, to a joint interest in all the applicants to have the grievance redressed by means of a writ quashing the order.'

Support is also available from the observations even though obiter dicta made by Bose J, in Bijoy Ranjan v. B. C. Das Gupta, AIR 1953 Cal 289 in which it was remarked that recourse could be had to the provisions of Order 1 Rule 8 by permitting the President and Secretary of the West Bengal State Medical Faculty who were already on record to represent the other members of the governing body as all of them had the same interest in the litigation.

5. For a contrary view Mr. Amarchand has invited my attention to S. M. Mahomed Ibrahim v. Deputy Commercial Tax Officer, AIR 1956 Mad 626; Revenue Patwaris' Union Punjab v. State of Pun-Jab, AIR 1962 Punj 55, and State of Rajasthan v. Smt. Laharkunwar, AIR 1974 Raj 193, In S. M. Mahomed Ibrahim's case (supra) the only consideration which appears to have weighed with the learned Judge was loss of revenue to the State. The learned Judge did not assign any other reason as to why more than one petitioner could not file a joint Writ petition to challenge an order on a common ground. There appears to be no valid reason as to why the 'same ground' in such cases should not be Identified with the 'same interest' for carrying out the object of Order I, Rule 8 which is to avoid multiplicity, tedium and expense of litigation. What is after all the point in compelling different petitioners to bring the same point to the anvil of the court over and over again even for vindicating their indivi-dual rights There may be some loss of revenue, but that is too insignificant a consideration to outweigh the benefit of short litigation. And then, the High Courts can also frame necessary rules to avoid any such Toss In revenue. The Punjab High Court in Patwaris' Union case (supra), it appears simply quoted the observations made by Rajagopala Ayyangar J. in S. M. Mahomed Ibrahim's case (supra) and relied upon the said authority holding that a joint writ petition in such circumstances was not maintainable. No reason of its own was however, given by the Punjab High Court in deciding the case before it, With dim deference to the Judges of the Madras and Punjab High Courts who constituted the Benches in the aforesaid two cases. I am unable to subscribe to the view taken by them. The third case relied upon by the learned counsel is of no help to him as in that case each petitioner was seeking to enforce his distinct individual right which was alleged to have been taken away by a common judgment.

6. Mr. Amarchand then invited my attention to para 2 of the writ petition and argued that the petitioners were in fact vindicating their individual fundamental rights even though alleged to have been taken away by the same Actimpugned in the writ petition. He, therefore, urged that provisions of Order 1, Rule 8 were not applicable. I am unable to draw any such inference from Para 2 of the petition. The petitioners have made a grievance of infraction of their fundamental rights guaranteed to them under the Constitution which they unambiguously alleged not only vested in them but also vested in all other members belonging to the Sikh community. The rights which they want to enforce are rights of worship in Sikh Gurdawaras and their control and management. These are clearly civil rights which are also jaint and inseparable. In case the writ petition succeeds and the impugned Act is struck down, it shall cease to exist not only against the present petitioners but also against all other members belonging to the Sikh community. All members of the community can, therefore have the same interest in the litigation within the meaning of Order I, Rule 8.

7. For the foregoing reasons, the permission sought for is granted. A two months' notice in terms of Sub-rule (1) of Rule 8 of Order 1 Code of Civil Procedure shall now be issued in a newspaper having circulation in the whole of the Jammu & Kashmir State and the petitioners shall deposit the necessary charges for the same within two weeks from today. The case will come up for further proceedings on a date to be fixed by the Deputy Registrar after the period fixed in the notice has expired.


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