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K. John & Others v/s John Joseph & Others


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

Company & Directors' Information:- A N JOHN PVT LTD [Active] CIN = U74999WB1950PTC019260

    OP(C). No. 2724 of 2019

    Decided On, 20 January 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    For the Petitioners: S.V. Balakrishna Iyer, Sr. Advocate, Latheesh Sebastian, Advocate. For the Respondents: Arun Thomas, Santhosh Mathew, B.G. Harindranath, Jennis Stephen, Vijay V. Paul, Karthika Maria, Veena Raveendran, Advocates.



Judgment Text


1. As is now too well known to be ingeminated, Representative suits can be filed in India under Order I Rule 8 of the Code of Civil Procedure Code, (CPC for short), which specifies the procedure for filing or defending such a suit - there can hardly be anything novel in this.

2. However, what sets this case apart from the others is that the plaintiffs seek leave to sue under Order I, Rule 8 of the CPC, even when they unequivocally assert that no one but themselves have any right over the plaint schedule properties, which is the subject matter of the suit.

3. The germane question, therefore, is whether the plaintiffs' application is maintainable in the face of their afore insistence.

4. This original petition has been filed by the plaintiffs in O.S.No.34/2016, on the files of the Sub Court, Pathanamthitta, assailing Ext.P7 order issued by the said Court, rejecting their application filed under Order I Rule 8 of the CPC.

5. The petitioners assert that Ext.P7 order is untenable and therefore, that this Court must set aside the same and consequently, allow their application, filed by them under Order I Rule 8 of the CPC, so that any person, who may make a claim against the plaint schedule property in future would stand bound by the judgment and decree to be issued by the Court below.

6. I have heard Sri.S.V.Balakrishna Iyer, learned Senior Counsel, instructed by Sri.Latheesh Sebastian, learned counsel for the petitioners and B.G.Harindranath, learned counsel appearing for the respondents.

7. The learned Senior Counsel began his submissions by saying that, in fact, the application in question was filed by his clients on the basis of the assertions of defendants 9 and 10 in the Suit, a copy of which has been placed on record as Ext.P4, wherein it is asserted that they have a right of way through the plaint schedule property and further that this is a public right, enjoyed by several other persons. He says that it is in such circumstances that, by way of abundant caution, that his client has chosen to file an application under Order I Rule 8 of the CPC.

8. Even when I hear the learned Senior Counsel on the afore lines, the fact remains that, going by Order I Rule 8 of CPC, a plaintiff can make an application under these provisions only if he concedes that there are numerous persons having the same interest in the Suit. This is incontestable from the way the afore said Order and Rule are worded in the CPC, which for ease of reference is extracted below:

“8. One person may sue or defend on behalf of all in same interest-

(1) where there are numerous persons having the same interest in one suit,-

(a) one or more of such person may, with the permission of the Court, sue of be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;

(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.

(2) The court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.

(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.

(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of Rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2).

(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.

(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.”

9. However, in the case at hand, it is pertinent that the petitioners assert that no one has any right over the plaint schedule property and that the assertions of defendants 9 and 10 to such effect are wholly misplaced and without truth. That being so, I am at a total loss to understand how the plaintiffs' in the Suit could have moved an application under Order I Rule 8 of CPC, particularly when they vehemently impel the contention that no one else other than themselves have any right over the property and that defendants 9 and 8 are attempting to project a claim which is not available to them in law.

10. I am, therefore, of the firm view that the Court below has correctly dismissed the petitioners' application under Order I Rule 8 of CPC,

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which, in my weighed opinion is not maintainable unless they concede that there are numerous persons having the same interest in the Suit in question. 11. In the absence of any such assertion and in the face of their singular contention that no other person has any right over the plaint schedule property, the Court below could have only dismissed the application, which it has rightly done. In the afore circumstances, this original petition will stand dismissed, confirming the impugned order of the Court below; however, without making any order as to costs.
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