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2025 Supreme(Online)(KER) 11639
HIGH COURT OF KERALA
BASANT BALAJI, J
ST. MARY’S CATHEDRAL @ MARTHAMARIYAM CHURCH – Appellant
Versus
DINESH T – Respondent
OP(C) 818/2024
PAUL ABRAHAM VAKKANAL ABRAHAM VAKKANAL (SR.), VINEETHA SUSAN THOMAS, G.BHAGVAT SINGH KELU BHAGVAT(K/000816/2020)
A suit filed in a representative capacity must comply with procedural requirements under Sections 91 and Order 1 Rule 8 of the Code of Civil Procedure to be maintainable.
Headnote:(A) Code of Civil Procedure, 1908 - Sections 91 and Order 1 Rule 8 - Suit for public nuisance - The suit was filed in a representative capacity without obtaining necessary leave under Section 91, rendering it not maintainable at the preliminary stage - The court below failed to consider the mandatory procedural requirements for filing such a suit. (Paras 4, 6, 8)
(B) Preliminary Issues - The court must assess the maintainability of a suit based on the proper application of procedural laws and cannot overlook the necessity of obtaining leave for representative capacities. (Paras 4, 8)
Facts of the case:
The petitioner, a church represented by its vicar, challenged the maintainability of a suit filed for setting aside an order regarding the restoration of revenue records and removal of illegally installed boards, claiming it was not filed in accordance with procedural requirements.
Findings of Court:
The court found that the lower court's decision to maintain the suit without the necessary leave under Section 91 and Order 1 Rule 8 was incorrect and set aside the order.
Issues: The main issue was whether the suit was maintainable without obtaining leave under Section 91 and following the procedures of Order 1 Rule 8.
Ratio Decidendi: The court held that a suit filed in a representative capacity must comply with Section 91 and Order 1 Rule 8, and failure to do so renders the suit not maintainable.
Result: Original Petition allowed.
JUDGMENT
(Dated: 5th February, 2025)
The petitioner, a church represented by its vicar is the 1st defendant in O.S.No.125 of 2022 on the file of the Munsiff Court, Perumbavoor. The respondents are the plaintiffs and defendants 2 to 10 in the suit. The suit is filed for a decree setting aside order No.C2- 95/95 dated 10.12.1996 of the 4th defendant who passed the order without any authority and without complying the procedures stipulated under the Act and Rules and ordered to restore the revenue and survey records before passing the said order and for a decree of mandatory injunction directing the 1st defendant to demolish ‘C’ and ‘D’ schedule properties and to remove ‘no parking’ boards, illegally installed by the 1st defendant within the ‘A’ schedule road and restore the original possession of the ‘F’ schedule pond at the cost of the 1st defendant.
2. The petitioners, along with defendants 2 and 3 filed a written statement with a counterclaim stating that the suit is not maintainable and is barred by limitation. Learned Munsiff heard the maintainability as a preliminary issue and by Ext.P3 order held that the suit is maintainable at the preliminary stage and the question of whether any rights of the parties are infringed are matters to be adjudicated later. Ext.P3 is challenged before this Court in this original petition filed under Article 227 of the Constitution of India.
3. Heard senior counsel Sri.Abraham Vakkanal, counsel for the petitioner, Sri.G.Bhagvat Singh, learned counsel for respondents 1 and 2, learned Government Pleader for respondents 5 to 10, and Sri. N.Rajesh, counsel for the 11th respondent.
4. Learned senior counsel appearing for the petitioner argued that a reading of Ext.P1 plaint would show that the suit is filed in a representative capacity by the District Secretary of Hindu Aikyavedi, Ernakulam District, and Secretary of Hindu Aikyavedi, Mudakkarayi Sthaniya Samithi. But no petition under Section 91 of the C.P.C is filed along with the suit seeking leave of the court. Moreover, no permission is sought under Order 1 Rule 8 of the Code to file the suit on behalf of the general public who has the same interest in the outcome of the suit. Though the court below has rightly observed that, a reading of the plaint would show that, it is filed in a representative capacity and went on to the extent of holding that a private right is also infringed, therefore the suit is maintainable. This is because of the stray sentence in paragraph 11 of the plaint where an averment is made that the petitioners are also entitled to get the relief sought for in the suit as they are frequent and continuous users of ‘A’ and ‘B’ schedule properties. He argued that only with the leave of the Court under , a suit can be instituted in a representative capacity alleging public nuisance. It is not in dispute that at the time of filing of the suit, a petition under was not filed by the plaintiff, and publication under Order 1 Rule 8 was also not effected, therefore, on these grounds, the findings entered in Ext.P3 that the suit is maintainable are illegal, wrong and liable to be set aside.
5. The counsel for respondents 1 and 2 opposes the argument of the learned senior counsel and argues that leave under Section 91 or permission under Order 1 Rule 8 petitions can be filed at any stage of the suit and in the present case, on coming to know that petition was not filed along with the suit, the same was filed as I.A.No.14 of 2024 seeking leave of the Court. Therefore, the contention that no petition is filed, will not stand. He further contended that once a petition under is filed, no publication is necessary under Order 1 Rule 8. Even if permission under Order 1 Rule 8 is required, the same is only a curable defect that can be rectified by the plaintiff at any stage.
6. The question to be probed into this is whether the Court below is justified in holding that the suit is maintainable against the defendants without obtaining leav
