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2006 Supreme(Kar) 545
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
H. V.G. RAMESH, J.
VEERABHADRAPP A DANDAPP A HUNCHINAMANI AND OTHERS-Appellants
Versus
NANNESAB GOUSUSAB PATHAN AND OTHERS-Respondents
Regular Second Appeal No. 64 of 2002.
Decided on: 14th .July, 2006
Sri P.G. Mogali, Advocate for Appellants;
Sri F.V. Patil, Advocate for Respondents-1, 3(a), 3(b), 5, 7, 8, 9(a) to 9(c), 12, 14(a) and 14(b);
Headnote:Acquiescence -Inference of -Encroachment of land -Mere fact that coconut trees are raised and they require ten years to grow to reach present condition cannot be the rationale to hold that there is acquiescence.
Practice and Procedure -Representative suit -Filing of -Leave of Court necessary. See, Civil Procedure Code, 1908 -Order 1, Rule 8.
Civil Procedure Code, 1908
A set of individuals filed suit seeking a common relief on their own right in respect of a wrong done to them although act complained of is injurious to some other persons having same right -Question of invoking Rule 8 does not arise much less it is not in the form of a representative suit having regard to nature of relief sought. [H. V. G. Ramesh, J]: The distinction has to be mentioned between the cases where the individual puts forward a right which he has acquired as a member of the community and cases where the right of the community is put forward in the suit. If it is the former, the individual is not debarred from maintaining the suit in his own right in respect of a wrong done to him even the act complained of may also be injurious to some other person having the same right. Here is a case where a set of individuals are maintaining the suit together seeking for a common relief on their own right in respect of a wrong done to them although the act complained of is injurious to some other person having the same right. In the circumstances, question of invoking Order 1, Rule 8, CPC does not arise much less it is not in the form a representative suit having regard to the nature of the relief sought for and also the pleading as has been noted. Even in the prayer, it is noted they have sought for a mandatory injunction against the defendants. Even if it is against the defendants to remove the encroachment, to go by the submission of the appellants counsel, if there is an ire by 7th plaintiff against any one of the defendants, that itself cannot be treated as if he has got ire against all the appellants/defendants since the defendants are also as many as nine in number and they have said to have encroached the public way which was available for the plaintiffs and others and though such encroachment is said to have been made long back, it is not specifically stated by the defendants to have advantage of the acquiescence as to when exactly that has been done. Only on assumption that coconut trees are raised and it requires ten years for the tree to grow and as such, it is stated that there is acquiescence on the part of the plaintiffs. That cannot be the rationale to hold that there is acquiescence.
Cases Referred: AIR 1990 SC 396; AIR 1973 Allahabad 281; AIR 1987 Madras 187.
Civil Procedure Code, 1908
Object -Stated. [H. V. G. Ramesh, J]: May be the object of Order 1, Rule 8 is to see that the suit is properly defended as negligence or improper prosecution of the plaint would cause loss to the community, and where the community is represented through the representatives, to see that the persons representing the community are persons who are capable of defending the suit. To achieve that object such mandate is provided under Order 1, Rule 8, CPC.
Cases Referred: AIR 1990 SC 396; AIR 1973 Allahabad 281; AIR 1987 Madras 187.
Civil Procedure Code, 1908
Suit in representative capacity -Leave of Court necessary. [H. V. G. Ramesh, J]: Permission of the Court is an essential condition for maintaining the suit in a representative capacity and it is only when such leave is granted, the Court shall issue notice that such suit has been instituted. It is also held in the said case that the object of notice required by Order 1, Rule 8 is to give an opportunity to the persons interested in the suit for knowing the names of the persons who have been selected to represent them. Such notice must therefore, mention the fact that the plaintiffs have been accorded permission to represent the community in the suit.
Cases Referred: AIR 1990 SC 396; AIR 1973 Allahabad 281; AIR 1987 Madras 187.
This second appeal is by the defendants being aggrieved by the judgment and decree passed by the Civil Judge (Senior Division), Ranebennur in RA. No. 33 of 1989 reversing the finding of the Principal Judicial Magistrate First Class, Ranebennur in 0.8. No. 11 of 1985 filed by fourteen plaintiffs against the defendants seeking for a mandatory injunction in respect of the suit schedule way.
2. According to the plaintiffs, they have got property in different survey numbers and the portion in which the property has been encroached by the defendants is a public way and the said encroachment has been causing inconvenience to them to use their land and in that capacity, they have together filed a suit seeking for the relief of mandatory injunction to remove the obstruction and to remove the encroachment. The defendants contended that the suit was a frivolous one and the plaintiffs have not come to the Court with clean hands and also denied the entire averments made in the plaint. According to them, no way was available on the land since long time and the plaintiffs do not have lands as mentioned in the plaint and there is no way as mentioned in the suit schedule. The suit was filed only at the instigation of the 7th plaintiff and there was difference of opinion between the 7th plaintiff and the defendants in respect of construction of rice mill and cinema theatre and there is no basis for the plaintiffs to file a suit.
Based on the pleadings, the Trial Court his raised as many as six issues. Although, the Trial Court has found that there is encroachment by the defendants and the same has been proved by the plaintiffs, on the ground that the plaintiffs have approached the Court belatedly, the suit came to be dismissed against which, the plaintiffs approached the Appellate Court in appeal. The Appellate Court allowed the appeal by directing the defendants to remove the encroachment as shown in the plaint sketch at ABC and also permanently injuncted defendants .5 to 10 from cultivating on the suit way and not to obstruct the plaintiffs from using the suit way. Aggrieved by the same, defendants have come up in this second appeal.
3. At the time of admission, this Court on 1-4-2004 raised the following substantial question of law for consideration - "Whether the suit filed by the respondents was maintainable in view of Order 1, Rule 8 of the CPC?"
4. Heard the Counsel for the respective parties.
5. It is the submission of the appellants' Counsel that the right claimed by the plaintiffs is representative in nature as they are claiming right over the public way and they ought not have filed a suit without permission of the Court under Order 1, Rule 8 of the CPC and as such, the suit is bad in law. The lower Appellate Court has decreed the suit despite the Trial Court having rightly applied its mind, had dismissed the suit. It is further submitted that there is acquiescence and when such acquiescence is there, there shall not be an order of injunction preventing the continuing breach. In support of his argument, learned Counsel relied upon the decisions in Kalyan Singh v. Smt. Chhoti and Others1; Smt. Munni Devi and Others v. Satgur Dayal 7'andon and Others2 and Assistant Commissioner, Hindu Religious and Charitable Endowment, Salem and Others v. Nattamai K.S. Ellappa Mudaliar and Others3.
6. Per contra, Counsel for the respondents vehemently contended that a reading of plaint averments particularly para 4, makes it clear that the plaintiffs themselves have specifically stated that they have to pass through the schedule area which has been encroached, to reach their lands and specific relief has been sought for and even if it is a public way, it has to be treated as a representative suit. According to him, there is no such pleading by the defendants in the written statement that no such permission is obtained under Order 1, Rule 8 of the CPC so as to contend that it is a representative suit. It is also his case that it is not specifically p
