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2017 Supreme(Mad) 1344

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
J. NISHA BANU, J.
Arputha Dhas – Petitioner
Versus
Thomas Blute – Respondent
C.R.P. (MD) Nos. 247 of 2004, 39 of 2005, 328 of 2006 & C.M.P. (MD) No. 1103 of 2004
Decided On : 21-06-2017

Advocates Appeared:
For the Petitioner: Mr. S. Meenakshi Sundaram.
For the Respondent: Mr. C. Godwin.

Headnote:

Civil Procedure Code, 1908 – Section 151 – Order 1 Rule 8 – Civil Revision Petitions are taken up together and disposed of by a common order – Parties are referred to as per the rank mentioned in the Court below – All the Civil Revision Petitions are sprouted out of the order made in O.S. pending on the file of the Principal Subordinate Judge, Nagercoil – However, the short facts leading to filing of the Civil Revision Petitions are geographically narrated below –Held, Facts of the case as averred in CRP (MD) – Petitioner filed a suit in O.S. on the file of the Subordinate Court, Nagercoil seeking for a declaration and prohibitory injunction along with I.A. on the file of the Principal Subordinate Judges Court, Nagercoil, under Order 1 Rule 8 of Section 151 of CPC seeking permission to institute and prosecute with the afore-said suit in a representative capacity –Prescribing the condition to file the suit or to be sued in the representative capacity. When the permission has been granted, it becomes the duty of the Court to direct notice to the opposite parties. It is contended that the requirements of Order 1 Rule 8 CPC has not been complied with and that the notice to other share holders are not issued. In support of this contention that no public notice was issued to other share holders, no material had been produced – In the absence of any material, it is not possible to accept the contention that the necessary conditions of Order 1 Rule 8 CPC is not complied with – Contention of the revision petitioners raising objection regarding the representative capacity of D-6 cannot be accepted – However it is open to the parties to put forth their objection at the time of adducing evidence. – Civil Revision Petitions and allow

ORDER :

1. By consent, all the Civil Revision Petitions are taken up together and disposed of by a common order.

2. The parties are referred to as per the rank mentioned in the Court below. All the Civil Revision Petitions are sprouted out of the order made in O.S. No. 95 of 2004 pending on the file of the Principal Subordinate Judge, Nagercoil. However, the short facts leading to filing of the Civil Revision Petitions are geographically narrated below.

3. The facts of the case as averred in CRP (MD) No. 247 of 2004 is as follows:-

3.1. The petitioner filed a suit in O.S. No. 95 of 2004 on the file of the Subordinate Court, Nagercoil seeking for a declaration and prohibitory injunction along with I.A. No. 360 of 2004 on the file of the Principal Subordinate Judges Court, Nagercoil, under Order 1 Rule 8 of Section 151 of CPC seeking permission to institute and prosecute with the afore-said suit in a representative capacity. The Court below dismissed the interlocutory application in I.A. No. 360 of 2004 by stating that the petitioner had not mentioned in his petition on whose behalf the petition was filed and also regarding the names of the persons who had the same opinion like that of the petitioner was also not mentioned and as against which, C.R.P. No. 247 of 2007 is filed before this Court.

3.2. According to the petitioner, in paragraph No. 7 of the affidavit filed in support of the petition, it is mentioned that there are numerous and similar catholic Christians who has similar interest like that of the petitioner in that subject matter of the suit. Therefore, in order to adjudicate the subject matter of the suit, the suit was filed in a representative capacity by the petitioner. Apart from that, in paragraph No. 2 of the affidavit, the petitioner has clearly stated that plaint may be read as part and parcel of that affidavit. In paragraph No. 5 of the plaint, the petitioner has already mentioned that he is the Member of the Holy Family Church and he has held the post of Office bearer in Christian Catholic Associations and therefore, the trial Court ought not to have dismissed the petition in filing the suit filed in a representative capacity. Further, in a representative capacity suit, there is no necessity to mention the addresses and names of the persons for whom the petitioner represents. There are circumstances to prove that the petition is filed in the representative capacity.

3.3. It is the further case of the petitioner that the dismissal of the petition by the Court below on the ground that the paper publication was done by the petitioner is not in order, cannot also be accepted as the trial Court has erred in adjudicating the petition even in the preliminary stage. Therefore, he prayed for allowing the Civil Revision Petition by setting aside the order of the Court below in I.A. No. 360 of 2004 filed by the said Arputha Dhas on the file of the Principal Subordinate Judges Court, Nagercoil.

3.4. The facts of the case as averred in CRP No. 328 of 2006 is as follows:-

CRP No. 328 of 2006 has been filed by R.C. Diocese of Kottar, represented by its Bishop against the order dated 07.12.2004 in I.A. No. 427 of 2004 in O.S. No. 95 of 2004 on the file of the Principal Subordinate Judge, Nagercoil, Kanyakumari District dismissing the impleading petition filed by the petitioners to implead 2&3 as additional plaintiffs/ petitioners in O.S. No. 95 of 2004 filed by the petitioner, namely, one Arputhadas.

3.5. The case of the petitioners is that the suit being a representative suit, the petitioners being the Bishop of RC Diocese of Kottar, Nagercoil, Kanyakumari District and the Parish Priest of the Holy Family Church, Carmel Nagar, Ramanputhoor, Nagercoil, have filed a petition to implead them as petitioners before disposing of I.A. No. 359 of 2004.

3.6. It is their further case that the petitioners filed a petition to implead themselves in the above interlocutory application in I.A. No. 427 of 2004 and it was posted for counter on 15.0
























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