Animadverting upon the order dated 19.08.2008 passed by the learnedDistrict Munsif, Gobichettipalayam in I.A.No.593 of 2008 in O.S.No.155 of 2008, this civil revision petition is focussed.
2. Heard both sides.
3. A summarisation and summation of the facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus:
The revision petitioner/plaintiff herein filed the suit O.S.No.155 of 2008 seeking following relief:
VERNACULAR (TAMIL) PORTION DELETED Along with the plaint, the revision petitioner also filed I.A.No.593 of 2008 under Order 1 Rule 8 of the Code of Civil Procedure seeking direction of the Court to file the suit in representative capacity. Notice was ordered in the interim application to the respondents and they entered appearance and filed counter. Whereupon oral evidence of PW1 was recorded and Ex.A1 was marked. The lower Court dismissed the said application. Being aggrieved by and dissatisfied with the said order, this revision is focussed on various grounds.
4. The learned counsel for the revision petitioner/plaintiff, placing reliance on the grounds of revision, would put forth his submission to the effect that ex-facie and prima facie, the averments in the plaint would demonstrate and exemplify that this is a case, in which, large number of people are interested and in such a case, the Court without going into the merits of the claim of the petitioner/plaintiff in the suit, could have very well permitted the petitioner/plaintiff to file such a suit in a representative capacity.
5. Whereas the learned counsel appearing for R2 would develop his argument to the effect that there is nothing wrong in the order passed by the lower Court and he advanced his argument in support of the order rendered by the lower Court.
6. A bare perusal of the order of the lower Court would display and evince that the lower Court entertained oral evidence at the stage of considering the application under Order 1 Rule 8 of Code of Civil Procedure, which in my opinion, could have been avoided. The scope of Order 1 Rule 8 of the Code of Civil Procedure is limited. The lower Court was expected to apply its mind in the averments as found expatiated and evinced in the plaint and thereupon, it ought to have seen as to whether Order 1 Rule 8 of the Code of Civil Procedure has to be ushered in or not. But on the other hand, the lower Court at para Nos.5 to 9 of its order elaborately dealt with the merits of the case itself unwarrantedly.
7. A mere reading of the plaint would connote and convey that the plaintiff, being one of the persons who is interested in selling cattle at the shandy being held periodically at Modachur, wanted to file the suit inveighing that R2, who happens to be the successful bidder for collecting toll from the seller of cattle at the Shandy, throwing to winds the resolution No.498 dated 29.11.2007 of the Municipality, is collecting more toll. Certainly, the scope of the suit touches upon the rights of the plaintiff as well as the persons having similar interest in selling their cattle at the Shandy. It is therefore crystal clear that ex facie and prima facie, the plaintiff is having the right to file suit in representative capacity.
8. The learned counsel for the revision petitioner relied upon the following decisions and certain excerpts from them would run thus:
(i) AIR 1981 Calcutta 325 (Harendra Nath Chakraborti and others vs. Asim Sindhu Chakraborty)
7. ".................A village pathway which comes under the description of the second class of rights intermediate between the public and private way, has its origin in custom but a public highway exists for all the citizens and has its origin in dedication. So, in case of obstruction of village pathway or road, no proof of special damage arises. Such question is relevant only in case of a public highway where there is allegation of public nuisance. ....."
(ii) AIR 1997 Karnataka 144 (Vinod and others vs. Pandurang and others) "In cases where the permission is sought for by the plaintiffs in a suit to prosecute the suit on behalf of or for the benefit of all persons with the same interest in the suit is concerned, there is no scope for the Court to direct such persons to file an affidavit furnishing the particulars required by Order 7 Rule 4 (2). The provisions of Order 7 Rule 4 (2) has no application where the leave of the Court is sought by the parties as provided under Order 1 Rule 8(1). Further, in the instant case, admittedly, an application under Order 1 Rule 8 has been filed by the plaintiff seeking permission to file the suit in a representative capacity. The allegations made in the affidavit clearly show that the nature of injury sought to be inflicted by the defendants by putting up a hospital/nursing home on the property in question would have serious health hazard on the citizens at large, and more particularly, the people who reside in the locality including the plaintiff. Further, in almost similar terms the allegations have been made in the plant. Therefore, it cannot be said that the permission sought for by the plaintiff to file the suit in a representative capacity should have been rejected for lack of necessary particulars contemplated under Order 1 Rule 8. The averments made in the affidavit filed in support of the application and also the averments made in paragraphs of the plaint, fully satisfy the requirement of Order 1 Rule 8. The power to grant permission to the parties either to sue or be sued in a representative capacity is conferred on the Court and the said power is required to be exercised after being satisfied as to whether the subject matter of the suit concerns the interest of numerous persons, or not. On this question, the Court will have to apply its mind and grant its permission."
(iii) AIR 1983 Bombay 66 (Kaira District Co-op.Milk Producers Union Ltd.and another vs. Kishore Shantilal Shah) "7. .............. So far as the present revision petition is concerned, the order which is challenged in this revision petition is restricted to the permission granted by the trial Court under Order I Rule 8 of the Civil Procedure Code and nothing more. The plaintiff has contended that he too was deceived because of the misrepresentation made by the defendants together with other persons of the Jain community. Therefore, if there is a cause of action for filing the present suit, then his interest in the litigation is common with other members of the community and hence it could safely be said that in the present case the controversy involved is of common interest for the persons to whom the plaintiff seeks to represent. This is also clear from the letters produced by the plaintiff. In this view of the matter it cannot be said that the jurisdiction vested in the Trial Court to grant permission under Order I Rule 8 of the Code of Civil Procedure was either exercised illegally or with material irregularity which has resulted in the miscarriage of justice, so as to call for an interference in a revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure."
9. The dictum as found enunciated in all those decisions would be to the effect that representative suits are maintainable, when common interest of large number of persons are involved. The factual matrix set out supra would spot light and highlight that the case of the plaintiff involves the interest of unlimited or large number of sellers at the Shandy and thereby attracts Order 1 Rule 8 of the Code of Civil Procedure.
10. Accordingly, this Civil Revision Petition is allowed setting aside the order of the lower Court in I.A.No.593 of 2008 and consequently, the I.A.No.593 of 2008 shall stand allowed. No costs.
11. Since this is a matter touching upon toll collection, I would like to direct the lower court to dispose of the suit within a period of three months from the date of receipt of a copy of this order.
Vj2 To The District Munsif, Gobichettipalayam