Scope and applicability of Order 1, Rule 10, C.P.C.

Sivasubramaniam, J.

1. This revision petition is directed against an order in IA. No. 430 of 1984 in O.S. No. 97 of 1983 on the file of the Principal Subordinate Judge, Madurai.

2. The facts leading to the filing of this revision petition ate as follows :- The respondents 1 to 5 herein as plaintiffs filed the said suit against the petitioner and the sixth respondent herein as defendants 1 and 2 and another one O.R. Arunachalam Chettiar, who was the third defendant in the said suit, for framing a scheme and for other reliefs. The suit was filed in a representative capacity by the plaintiffs Under Order 1, Rules 8, C.P.C. Even before the summons were served on the third defendant, the third defendant died on 14.7.1983. This fact was intimated to the Court on 5.8.1983 and thereafter, the plaintiffs filed a petition in I.A. No. 236 of 1984 under Order 22, Rule 4, C.P.C. for setting aside the abatement and to implead the legal representative of the deceased third defendant. As the said application was not filed within ninety days from the date of death of the third defendant; it was dismissed on 28.7.1984; During the pendency of the said application, defendants 1 and 2 filed a memo into the Court on 20.12.1983 stating as follows:

The 3rd defendant, who is one of the trustee of the plaint mentioned trust, died on 14.7.1983. This fact has already been intimated to this Hon'ble Court even in August, 1983 and the plaintiffs have been directed to take necessary steps for impleading new trustee. Till now no steps have been taken by the plaintiffs to implead new Trustee. His eldest son, RMAR Arunachalam aged about 34, residing at 8, Chatrathu Street, Devakkottai has been recognised as the trustee in his place by the Sub Court. Devakkottai in accordance with the provisions of the scheme passed in regard to the said trust. The plaintiffs may be directed to take steps to implead the new trustee.

On the basis of the said memo, the plaintiffs again filed a petition in I.A. No. 430 of 1984 under Order 1, Rule 10, C.P.C. for impleading one RMAR Arunachalam, who is the son of the deceased third defendant, as one of the defendants in the suit. This was resisted by the defendants 1 and 2 on the ground that the petition in I.A. No. 236 of 1984 for impleading the very same legal representative is not maintainable.

3. The trial Court, after considering the objections of defendants 1 and 2, came to the conclusion that in view of the fact that the proposed party is alleged to have been appointed as a trustee as per the said memo dated 20.12.1983, it is just and necessary that he should be impleaded as a party with a view to avoid multiplicity of proceedings. Consequently, the said application was allowed. Aggrieved against the said order, the first defendant has filed the above revision petition.

4. Mr. O.V. Balaswamy, learned Counsel for the petitioner was highly critical of the procedure followed by the civil Courts in such matters. He complains that the lower Courts are not following the provisions contained in the Civil Procedure Code and the Civil Rules of Practice. The Courts do not take serious note of the specific provisions contemplated for the representative suits filed under Order 1, Rule 8, C.P.C. Though be initially contended that a petition filed under Order 1, Rule 8, C.P.C has not yet been ordered, learned Counsel appearing for the respondents pointed out that the petition was numbered as I.A. No. 189 of 1983 and publication also was made in daily newspapers. Mr. Baluswamy, after having perused the publication, pointed out that it is a glaring example to demonstrate that the lower Court has not cared to look into the relevant provisions in the Civil Procedure Code. He pointed out that the publication reads as if notice has been ordered in the application filed under Order 1, Rule 8, C.P.C. But that is not contemplated under the rules. He drew my attention to the provisions contained in Order 1, Rule 8, C.P.C. Sub-rule (2) of Rule 8 of Ord