The revision has been filed by the plaintiff in the suit being aggrieved against the order passed in I.A.No.2059 of 2007 in O.S.No.291 of 2006 on the file of the Principal District Munsif Court, Tenkasi, wherein the Court below has dismissed the application filed by the petitioner under Order 6 Rule 16 and 17 of the Civil Procedure Code.
2.The petitioner herein is the plaintiff in the suit. The suit is filed for declaration seeking a claim for the pattatars of the Ayakat. Pending the suit, an application was filed by the petitioner in I.A.No.2059 of 2007, seeking to amend the cause title so as to enable the petitioner to continue the suit in a representative capacity. The said application was dismissed by the Court below and challenging the same, the revision has been filed.
3.The learned counsel for the petitioner submitted that a perusal of the averments made in the plaint as well as the relief sought for would clearly show, the suit has infact been filed in a representative capacity and due to oversight it has been filed in the personal name of the petitioner. According to the learned counsel for the petitioner, the prayer itself has been sought for on behalf of the Pattatars of Ayakat including the petitioner. It is further submitted that the Court below cannot dismiss the said application on the ground of mere delay. It is also submitted that the application seeking amendment would not alter the cause of action or respective stands of the parties.
4.The learned counsel for the petitioner also relied on the jugment of the Honourable High Court in The Victoria Edward Hall v. M.Samraj reported in 2001(3) CTC 129, wherein the Honourable High Court was pleased to observe that an application for leave under Order 1 Rule 8 C.P.C. can be allowed even at the appellate stage in a suit filed in the individual capacity by means of amendment.
5.The learned counsel for the respondents submitted that in as much as the petitioner has claimed his right also in the suit, he cannot be allowed to file the suit in the representative capacity. The learned counsel for the respondents further submitted that after arraying the defendants as the representatives of the Pattatars, the petitioner cannot seek to represent the Pattatars. Hence, the learned counsel for the respondent would submit that the revision is liable to be dismissed. The learned counsel for the respondents also relied upon the decision of the Honourable High Court reported in AIR 1987 MADRAS 187 (Asstt. Commr., H.R. & C.E., Salem v. N.K.S.E. Mudaliar) to contend that in the absence of compliance with Order 1 Rule 8, the suit is not maintainable.
6.After hearing the arguments of the counsel on either side, this Court is of the opinion that as rightly contended by the learned counsel for the petitioner a reading of the plaint would show the suit has been filed on behalf of the Pattatars. Even the prayer sought for is on behalf of the Pattatars, including the name of the petitioner. The defects sought to be rectified is only curable defects. In the judgment reported in 2001 (3) CTC 129, the Honourable High Court was pleased to hold that an application for amendment can be made in a suit filed in individual capacity by amending the same to that one of the representative capacity. The Honourable High Court has also observed in such an event the procedure contemplated under Order 1 Rule 8 can be adopted at a subsequent stage. The said principle has already been supported by earlier jugement of the Honourable High Court reported in A.I.R. 1947 Mad. 205 (M. Pillai v. S. Pillai). Similarly, in the judgment reported in 1996 (2) LW 456 (Nilgiri District Janatha Party, Etc., v. A. Rahim, and 3 others) and A.I.R. 1959 (Bom. 491 (Mukalem Das v. Chhagan Kisan), it has been held that the permission under Order 1 Rule 8 of the Civil Procedure Code can be granted even at the appellate stage. Therefore, on consideration of the above said judgments and on the facts and circumstances of the case on hand, this Court finds that the revision filed by the petitioner is liable to be allowed.
7.In sofaras the judgment relied upon by the respondents is concerned, there is no dispute of the proposition of law laid in the said judgment to the effect that the non compliance of Order 1 Rule 8 filed in a suit filed by a person seeking to advance the claim of a group of a person or community cannot be maintained. In the present case on hand, such a situation has not arisen and precisely for that reason and in order to get over the technical objections, the petitioner herein has filed the present petition seeking amendment.
8.Therefore, the order passed in I.A.No.2059 of 2007 in O.S.No.291 of 2007 dated 06.02.2008, on the file of the Principal District Munsif Court, Tenkasi is hereby set aside and the revision is allowed. It is made clear that the parties are at liberty to raise all the pleas including the non compliance of order 1 Rule 8 as well as other contentions before the Court below. The respondents are also permitted to file Additional Written Statement, if so advised, within a period of 4 weeks from the date of receipt of a copy of this Court. The Court below is directed to dispose of the suit within a period of 6 months from the date of receipt of a copy of this order. No Costs. Consequently, connected M.P.(MD) No.1 of 2008 is closed.
sj To The Principal District Munsif, Tenkasi.