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2018 Supreme(Mad) 4161

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
T. RAVINDRAN, J.
Sailappan - Petitioners
Versus
Subramanian & Others - Respondents
C.R.P.(NPD) (MD) No. 561 of 2008
Decided On : 19-12-2018

Advocates Appeared:
For the Petitioner:A. Arumugam, Advocate.
For the Respondents:Chockalingam, T. Selvan, Advocates.

Headnote:

Civil Procedure Code - Section 11 - Order 1 Rule 8 - Order I Rule 8(3) - Section 30 - Societies Registration Act - Recovery Of Money - Plaintiff laid suit, in O.S.No.15 of 2005, against defendants in representative capacity stating that they are representing Yadhava Community and accordingly, claiming that suit has been laid against them on basis that they are representatives of said community and also members of Yadhava Society - Above said suit has been laid by plaintiff seeking for recovery of money due to him, on basis of promissory note, said to have been executed by defendants for themselves as well as on behalf of Yadhava Community and contending that amount had been borrowed from him and another person, by name, Mahalingam Asari, for purpose of improving Marriage Hall and also to rectify repair works of said Marriage Hall constructed on behalf of Yadhava Community - Inasmuch as said suit had come to be laid by plaintiff against defendants – Held, Mahalingam Asari, in whose favour, defendants 1 to 3, for themselves and representatives of Pappakudi Yadhava Community People, is stated to have executed promissory note for Rs.2,00,000/-, it is found that above said Mahalingam Asari has also levied suit against defendants, in O.S.No.16 of 2005, in representative capacity and as similar to present case - It is found that dismissal of plaintiffs application, preferred under Order I Rule 8 C.P.C., by Court below, without appreciating scope and principles of law governing Order I Rule 8 C.P.C., and furthermore, without any material on record, having chosen to disbelieve case projected by plaintiff in main suit, by holding that promissory note had not been executed for benefit of Yadhava Community People mainly on averments contained in counter of defendants are found to have led to miscarriage of justice, when as above discussed, only course available to Court is, if objectors deem it fit, to permit them to get themselves impleaded as parties in suit and thereupon, after framing necessary issues in suit with reference to entitlement of plaintiff in all aspects and based on materials placed on record, should have proceeded to dispose of matter - On other hand, decision of Court below in erroneously dismissing application preferred by plaintiff under Order I Rule 8 C.P.C., is found to be not sustainable in eyes of law – Petition Allowed.

JUDGMENT :

1. Challenge in this civil revision petition is made to the fair and decreetal orders, dated 14.07.2006, passed in I.A.No.119 of 2005 in O.S.No.15 of 2005, on the file of the Subordinate Court, Ambasamudram.

2. The parties are referred to as per the rankings in the suit.

3. The plaintiff laid the suit, in O.S.No.15 of 2005, against the defendants in the representative capacity stating that they are representing the Yadhava Community of Pappakudi Village and accordingly, claiming that the suit has been laid against them on the basis that they are the representatives of the above said community and also the members of the Yadhava Society of Pappakudi Village. The above said suit has been laid by the plaintiff seeking for recovery of money due to him, on the basis of the promissory note, dated 16.05.2002, said to have been executed by the defendants for themselves as well as on behalf of the Yadhava Community of Pappakudi Village and contending that the amount had been borrowed from him and another person, by name, Mahalingam Asari, for the purpose of improving the Marriage Hall and also to rectify the repair works of the said Marriage Hall constructed on behalf of the Yadhava Community. Inasmuch as the said suit had come to be laid by the plaintiff against the defendants in the representative capacity, it is seen that the plaintiff, along with the plaint, has also preferred, I.A.No.119 of 2005, under Order I Rule 8 of the Code of Civil Procedure, and briefly stated, in the above said application also, the plaintiff has averred that the suit has been laid, on the basis of the promissory note, for the recovery of the amount and that the defendants are the President, Secretary and Treasurer respectively of the Yadhava Community of Pappakudi Village and the Marriage Hall had been constructed for the benefit of the Yadhava Community and the defendants were instrumental for the Marriage Hall and accordingly, for completing the same, as well as to make the improvements, according to the plaintiff, the defendants borrowed Rs.4,00,000/- from him on 16.05.2002, however, no amount had been repaid by the defendants and when the plaintiff insisted for repayment, according to the case of the plaintiff, the defendants had executed another promissory note, on 08.05.2002, in his favour for a sum of Rs.2,00,000/- and another promissory note in favour of the said Mahalingam Asari and further claiming that though the defendants had assured that they would repay the borrowed sum within twenty days, however, did not honour the promise and evaded the repayment and inasmuch as there are 500 contributors in the Yadhava Community of Pappakudi Village, the plaintiff was unable to levy the suit against all the people of the Yadhava Community and inasmuch as the defendants borrowed the above said sum for the benefit of the Yadhava Community and the Marriage Hall has also been constructed only for the benefit of the above said Community and furthermore, as the Yadhava Society is not a registered Society, accordingly, further claiming that there is no conflict of interest between the defendants and the Yadhava Community People of Pappakudi Village and the defendants continued to function as the office bearers of the above said Society, accordingly, sought for permission to sue the defendants in the representative capacity of the Yadhava Community of Pappakudi Village.

4. As could be seen from the materials placed on record, notice had been ordered by the Court concerned to the defendants as well as inviting objections from the people belonging to the Yadhava Community of Pappakudi Village, by directing the plaintiff to effect the service of notice through paper publication and it is also seen that necessary paper publication has also been effected and following the same, the defendants 2 and 3 had filed their counter opposing the application preferred by the plaintiff under Order I Rule 8 of the Code of Civil Procedure. In addition to that, it is also




































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