SHRI V.J. THOMAS v. SHRI PATHROSE ABRAHAM & ORS.

G The Judgment of the Court was delivered by S.B. SINHA, J. 1. Leave granted. T -

2Copy pinpoint2. A question of some importance as to whether a third party can be impleaded in a suit filed under Order I Rule 8 of the H Code of Civil Procedure is involved in this appeal which arises

SHRI V.J. THOMAS v. SHRI PATHROSE ABRAHAM 3~1 & ORS. [S.B. SINHA, J.]

out of the judgment and order dated 30th June, 2005 passed by A a Learned Single Judge of the Kerala High Court in CRP No. 272 of 2004 dismissing the revision application filed by tt)e appellant herein challenging the order dated 17.10.2003 pass~d by Additional sub Court, Kottayam.

3Copy pinpoint3. The basic fact of the matter is not in dispute. B

4Copy pinpoint4. Appellant herein filed Original Suit No. 364 of 1997 in the Court of Additional Sub Court, Kottayam, for declaration of his title and for possession of the suit property. A prayer therein was made for restraining the defendants who were three in c number (Respondent Nos. 3 to 5 herein) from interfering with his right to enjoy the property by entering upon it or using it as a pathway as if it was a public pathway; A purported publication was also made in a newspaper purported to be in terms of Order I Rule 10 of the Code of Civil Procedure. D

5Copy pinpoint5. Respondent Nos. 3 to 5 herein did not appear in· the suit as a result whereof, an ex-parte decree was passed on 26.3.1998. An application for execution of the said decree was filed. Respondent Nos. 1 and 2 herein in the said execution case filed five applications, the details whereof are as under: E l.A.No.965/2002- Under Order 9 Rule 13, for setting aside the exparte decree. l.A.No.966/2002- For Condonation of Delay l.A.No.967/2002- Application for Stay of all the proceedings in.the execution. l.A.No.968/2002- Application filed by the respondent no.1 for permission to contest the suit . and to add himself in the array of parties as additional defendant No.1. l.A.No.969/2002- Application filed by respondent No.2 for permission to contest the suit and for making her as additional defendant No.5. H

382 SUPREME COURT REPORTS [2008] 2 S.C.R. .

6Copy pinpoint6. The Executing Court allowed I.A No. 968 of 2002 and 969 of 2002 impleading respondent Nos. 1and 2 as defendant No. 5 and 7 in the suit. The Revision Application filed thereagainst has been dismissed by a Single Judge of the High Court by · reason of the impugned judgment.

7Copy pinpoint7. Mr. V.J. Francis, learned counsel appearing on behalf of the appellant, submitted that a· suit, wherein notice under Or:Qer I Rule 8 of Code of Civil Procedure has been issued, * ~ could not have been reopened at the instance of the respondent Nos.1 and 2 herein without allowing their application for c condonation of delay and for setting aside the ex pa rte decree. It was urged that no case has been made out for condonation of delay as the applications for setting aside the ex parte decree was filed after more than four years from the passing thereof. Respondent Nos. 1 and 2, in any event, it was contended, could not have represented the panchay·at and, thus, the impugned order is unsustainable.

8Copy pinpoint8. Mr. M.T. George, learned counsel appearing on behalf of the respond~nt, however, would support the impugned judgment.

9Copy pinpoint9. The suit land measuring 450 ft. x 4 ft. starts from Vattachalpady junction of Manarcadu-Thengana PWD road and ends at Kuttiyilpadyperumpanachi Panchayat road on the east.

F Respondent Nos. 1 and 2 were not parties to the suit. They, ""l in their applications, inter alia, contended that the appellant and the respondent Nos. 3 to 5 herein are neighbours and close associates. The suit was a collusive one. Leave of the Court under Order 1 Rule 8 was obtained on a misrepresentation.

10Copy pinpoint10. A specific contention was also raised that plaintiff- petitio·ner deliberately and intentionally had not impleaded the -"t users of the pathway in the said suit. ltwas stated that publication of the notice purported to be under Order 1 Rule 8 CPC was made is the newspapers which did not have wide circulation in H the locality.

SHRI VJ. THOMAS v. SHRI PATHROSE ABRAHAM 383

& ORS. [S.S. SINHA, J.] ... · 11. The High Court has, inter alia, relying upon the decision A ·of th.e Madras High Court in Swaminatha Mudaliar vs. Kumaraswami Chettiar and others [(1923) 44 MLJ 282] accepted the said contentions of the respondent, holding : "It may be unusual to bring fresh plaintiffs on the record after a decree has been passed; but there is authority for 8 doing so under Order I Rule 10. ~ A Order 1 Rule 8 expressly permits any person on whose behalf a representative suit is instituted to apply to the Court to be brought on the record, and the words of this c ·- rule are not limited, as they are by Order 1 Rule 10 by the purpose being expressetl as that of adjudication on the questions arising in the suit. "

12Copy pinpoint12. The plaint is not before us. The application purported to have been filed by the applicant under Order 1 Rule 8 is also not before us. On what basis, the respondent Nos. 3 to 5 were

' . impleaded in the suit and in which capacity, thus, is not known.

13Copy pinpoint13. A suit filed in terms of Order 1 Rule 8 should ordinarily be premised on the ground that. the defendants represent the parties interested in the suit Defendants in such a suit, although must be able to represent the public in general, but no personal decree can be passed against them. To what extent the original defendants were interested in t_he suit property at least in respect of the portion thereof is not known. F + 14. A litigant may execute a decree which was obtained for the benefit of the people of the locality but if he intends to ' execute a decree which was obtained for his own benefit, those \ _ who would be affected thereby should ordinarily be made parties

• •' T to the suit. Similarly, if a village pathway is the subject matter of the suit on the premise that it is the personal property of the plaintiff, those who use the said pathway or at least have lands G

.... adjacent thereto should ordinarily be impleaded as parties. In the latter case, like the present one, applying the legal principles, as noticed hereinbefore, we are of the opinion that a decree H

384 SUPREME COURT REPORTS [2008] 2 S.C.R.

-f· A which has been obtained by suppression of fact or collusively ; would not be executable against those who were not parties to the suit.

15Copy pinpoint15. Reliance has been placed by Mr. Francis on Chairman, Tamil Nadu Housing Board, Madras v. T.N. Ganapathy [(1990) B 1 sec 608] wherein the question which arose for consideration centered around the maintainability of the suit at the instance of -t the plaintiffs who belonged to the category of low income group ...t. against Housing Board for a permanent injunction from demanding and calculating from the allottees any additional c price, was answered in the following terms : ~

"Coming to the relevant circumstances in the present case, it will be seen that all the allotments in Ashok Nagar were made under the same scheme and all the relevant facts are common. The basis of the impugned demand of the appellant is equally applicable to all the allottees and the plea of the plaintiff is available to all of them. The trial court was, therefore, perfectly right in permitting the plaintiff to proceed under Order I, Rule 8 of the Code of Civil .. "

Procedure. Nobody in this situation can complain of any inconvenience or injustice. On the other hand, the appellant - is being saved from being involved in unnecessary repeated litigation."

16Copy pinpoint16. As indicated hereinbefore, we have no idea as to what was the nature of interest was claimed by the Original Defendant F No. 1 to 3 (Respondent Nos. 3 to 5) in the suit land. In any event, -+ whether the service of notice was proper would also be the subject matter of an enquiry by the learned trial court. It has also to be seen as fo whether the notice in terms of Order I Rule 10 of the Code was published in a newspaper having a wide G circulation in the locality. -+-

17Copy pinpoint17. In Union of India & Ors. v. DinanathShantaram Karekar & Ors. [1998 (4) SCALE 659], this Court held: ' "So far as the service of show cause notice is concerned, H

SHRI V.J. THOMAS v. SHRI PATHROSE ABRAHAM 385

& ORS. [S.S. SINHA, J.] ' .,. it also cannot be treated to have been served. Service of this notice was sought to be effected on the respondent by publication in a newspaper without making any earlier effort to serve him personally by tendering the show cause notice either through the office peon or by registered post. There is nothing on record to indicate that the newspaper in which the show-cause notice was published was a t popular newspaper which was expected to be read by the ;,_ public in general or that it had wide circulation in the area or locality where the respondent lived. The show-cause notice cannot, therefore, in these circumstances, be held c to have been served on the respondent. In any case; since ~ the very initiation of the disciplinary proceedings was bad for the reason that the charge sheet was not served, all subsequent steps and stages, including the issuance of the stiow-cause notice would be bad." D In Church of North India v. Lavajibhai Ratanjibhai & Ors. [(2005) 10 sec 760], it was observed "71 ...... bars a suit to enforce a right on behalf of a public trust. C.N.I. got itself registered as a public trust in the year

1981. A suit evidently was filed by the plaintiffs in the year E 1980 because C.N.I. was not then entitled to file a suit. It may be true that the suit was filed under Order 1, Rule 8 of the Code of Civil Procedure but therein the question as to whether the Appellant herein, being a registered trust became entitled to the properties of Brethren Church could F not have been gone into. What is prohibited is to enforce a right· on behalf of a public trust. When the plaintiffs intended to enforce a right on behalf of the Appellant, the

.., suit was evidently not maintainable." G

18Copy pinpoint18. If for the purpose of examination of the said question, t- amongst others, the executing court has allowed the applications for impleadment of the respondent Nos. 1 and 3 herein as defendant No. 4 and 5, so as to enable them to press their applications for setting aside the ex-parte decree upon H

386 SUPREME COURT REPORTS [2008] 2 S.C.R.

A condonation of delay; we do not see any reason .to interfere therewith iii exercise of our discretionary jurisdiction under Article 136 of the Constitution of India.

19Copy pinpoint19. For the reasons above mentioned, there is no merit in this appeal which is accordingly dismissed with costs. 8 Counsel's fee assessed at Rs. 10,000/- (Rupees ten thousand only). 1 A_ S.K.S. Appeal dismissed.