ORDER
Pius C. Kuriakose, J.
1. Impugned in this revision initiated by the plaintiff is an order passed by the trial court in a suit in the nature of a public interest litigation. A resume of the facts is given below.
2. The plaintiff one P. Sivadasan claims to be a 34 year old businessman and son of one Sankaran of Pillakkal House, Kakkad Desom, Kannur. The suit is instituted arraying the Secretary of the local authority (1st respondent herein) and one K.V. Muhammedkunhi Haji (2nd respondent herein) as the defendants. The cause of action alleged is the construction of two buildings in gross, violation of the Building Rules by the 2nd defendant., Reliefs sought for in the suit inter alia are perpetual injunction restraining the 2nd defendant not only from conversion of the parking area provided in one of the buildings into shops, but also from letting out the building to tenants.
3. The first defendant-Municipality is yet to file a written statement in the suit. The 2nd defendant who will be affected by any decree which may be passed in the suit has filed a written statement in which he has contended inter alia as follows:-
'The plaintiff has no locus standi to file the above case against this defendant and it is to be dismissed in limine. The plaintiff is not a tax payer of Kannur Municipality............' '10. This defendant submits that one K.V. Sathyavathi and K.V. Prabhavathi have filed O. P. No. 4322/97-M before the Hon'ble High Court of Kerala challenging the exemption granted to this defendant by the Government of Kerala as per the Order dated 28.10.1996 and the same is still pending before the High Court. The plaintiff herein is a relative of the abovesaid Saihyavathi and Prabhavathi and he is also well aware of the pendency of the abovesaid P.P. before the High Court of Kerala. The above suit is also filed at the instance of and in collusion with the abovesaid Sathyavathi and Prabhavathi only to harass this defendant and making delay in proceeding with the construction. If at all the Plaintiff has any grievance he could have been. a party to the above O.P. No. 4322/97 pending before the Hon'ble High Court'.(underlining supplied)
Noticing a contention regarding maintainability of the suit in the context of O.I. Rule 8 CPC, the plaintiff filed I.A. No. 734 of 1998 seeking permission under that provision.
4. At the above juncture, the 2nd defendant filed an application alleging that the plaintiff is a fictitious person. The plaintiff quickly retorted by filing a counter-affidavit challenging the statement.
5. Noticing this interesting controversy, the learned Munsiff directed the revision petitioner to present himself in court so as to enable the court to decide whether there was any genuine human being answering the description of the plaintiff given in the plaint. The plaintiff presented himself in person. Notwithstanding the appearance of the plaintiff in flesh and blood in the Court hall and his Advocate's assertion the person present in the Court is the signatory to the plaint, the learned Munsiff called for a report from the local Tahsildar regarding 'identity of the defendant'. The Tahsildar filed a report dated 12.8.1999 which is to the effect that 'no person of the description of the plaintiff is found to reside in the address cited in the plaint'. The learned Munsiff, it appears, was very much impressed by the report of the Tahsildar. Observing that the court views the matter seriously 'since the counsel for the plaintiff insists that his client is a genuine human entity who resides in the address cited in the plaint and he has vouchsafed that fact vide the vakalath', the learned Munsiff has passed an order on 19.8.1999 directing the plaintiff 'to file an affidavit explaining the circumstances which have led to the controversy relating to his identity and the counsel appearing for the plaintiff (Sri. K.M. Purushothaman) himself may attest the affidavit making a declaration that the person who is present before the court is one and the same and he is shown to be residing in the address cited in the plaint'.
6. Pursuant to the above order, a detailed affidavit was filed by the plaintiff-revision petitioner before the court. The affidavit contains an assertion by the plaintiff regarding his identity as a genuine living homo sapien. The affidavit also contains explanation, as to why the local Tahsildar whose report is based on the report by the Village Officer could have erred. Most importantly, the affidavit contains a special declaration by Adv. Sri. K.M. Purushothaman, in the following lines:-
' 'I, K.M. Purushothaman, advocate for the plaintiff in O.S. 299 of 97 hereby declare that the deponent above and the person who is present before this Court is one and the same and he is shown to be residing in the address cited in the plaint.'
The order impugned in this revision is passed by the learned Munsiff after perusingthe aboveuffidavit. Under the impugned order, the learned Munsiff directs the plaintiffto produce documents relating to the properties belonging to the plaintiff, lying adjacentto the properties of the 2nd defendant and 'vis-a-vis the location of which he has filedthe suit against the defendant'. The impugned order further directs the plaintiff to'prove his identity obtaining a certificate from the revenue authorities showing that heresides in the place which by virtue of its location was given him the right to sue thedefendants'. The order further directs listing of the suit for trial 'after the identity ofthe'piaintiffis established 'vis-a-vis the plaint schedule property'.
7. Heard Adv. Sri. V, Rajagopal for the revision petitioner and Adv. Sri. Issac M.Perumpallil for the 1st respondent-Municipality and Adv. Smt. Sumatra Dandapani forthe second respondent. The: relevant records such as copy of the available pleadings,the, order passed by the court on 19.8.1999 in LA. No, 2457 of 1998, copy of theaffidavit filed pursuant to the said order and copy of the petition filed for leave underOrder 1, Rule 8 were supplied to me for perusal.
8. The maintainability of the Civil Revision Petition is not disputed before me by either of the parties. According to Mr. V. Rajagopal, the learned Munsiff has been over-enthusiastic. He submits that the order has embarassed not only the revision petitioner, but also the learned Advocate who appeared for him before the learned Munsiff. According to him, Adv., Sri. K.M. Purushothaman who is the attestor of the detailed affidavit sworato by the plaintiff in response to the learned Munsiff's directions in the order dated 19.8.1999 is a practitioner in the civil courts at Tellicherry and Kannur for about 15 years. Mr. Rajagopal submits that Mr. Purushothaman's credibility as an advocate has never been in question and this submission is not disputed by the learned counsel for the respondents. According to Mr. Rajagopal, the learned Munsiff has acted illegally in not accepting the affidavit sworn to by the party in response to the court's direction dated 19.8.1999 though the same contained a special declaration by Adv. Sri. K.M. Purushothaman in the manner suggested by the court regarding the identity of his client. Smt. Sumathi Daridapani, the learned counsel for the second respondent supported the impugned order. According to her, the plaintiff is not a genuine person and, at any rate, no person answering the description of the plaintiff given in the plaint did exist as reported by the revenue authorities. The litigation has been engineered by certain others who were playing from behind the curtain, she argued. She also did not dispute Mr. Rajagopal's claim regarding the credibility and reputation of Adv. Sri. K.M. Purushothaman.
9. I notice that the instant order has been passed by the learned Munsiff without referring to his own earlier order dated 19.8.1999 and also to the events transpired earlier in the context of the controversy regarding the existence/identity of the plaintiff. The learned Munsiff seems to have missed the point that going by the written statement filed by the contesting private party respondent, it is not contended for a moment that the plaintiff is a fictitious person. In fact the contentions in the written statement will rule out even a contention regarding identity of the plaintiff. The treatment meted out by the learned Munsiff to the Advocate concerned disturbs me. Having directed the plaintiff to file an affidavit in the lines already stated and haying particularly directed the Advocate concerned to attest that affidavit and also to make a special declaration regarding the identity of the deponent and having ensured that there is compliance with those directions, the learned Munsiff should have stopped it there. I will not blame the learned Munsiff for having directed the appearance of the plaintiff before court, when it was alleged, even if it be in deviation from the pleadings, that the plaintiff is a fictitious person. I do not mind the learned Munsiff's insistence on filing of an affidavit by the plaintiff and even the insistence for attestation of that affidavit by his own counsel. But I strongly disapprove the learned Munsiff's insistence for the special declaration by the very counsel regarding his client's identity. But the counsel did comply with that direction also. Even then the learned Munsiff passes the present order without referring to the earlier order and insists on a further report from the revenue authorities regarding the identity of the plaintiff. I am at a loss to understand the learned Munsiff's preference for certificates from the revenue authorities in matters of this nature. I would have expected the learned Munsiff in situations where an issue actually arose as to the existence or otherwise of the plaintiff to insist on the production of statutory documents such as the identity card issued by the Election Commission of India or the ration card or any other like documents having authenticity. I find force in Mr. Rajagopal's submission that the present order apart from being illegal and unwarranted hurts the self-respect of the Advocate who has attested the affidavit and given the special declaration.
10. The submission of Smt. Sumathi Dandapani and the obvious feeling of the leanted Munsiff is that like many other so-called public interest litigations, the present litigation is also actually a private interest litigation initiated at the behest of somebody else. May be the present suit is a frivolous and vexatious one. The learned Munsiff has misunderstood that the plaintiff has a claim that he is the owner of some property adjacent to the property where the alleged illegal constructions are going on. His claim is only that he is 'a citizen and taxpayer of Kannur Municipality'. May be, even this claim will ultimately be found to be wrong. But there are ample provisions in law which will enable the court to come down heavily upon persons who come to the court with false, frivolous and vexatious claims. In a given case the court has power to call for security also. But a suspicion in the mind of the court, however strong it may be, regarding the genuineness of the cause and regarding the genuineness of the promoter of the cause, will not be a justification for hurting the self-respect of the counsel who appears. The learned Munsiff should have remembered that under our system of justice administration, the members of the Bar are officers of the court and it is with their assistance that the courts administer justice. In my opinion, the quality of a judgment will depend, to some extent, on the quality of the assistance which the counsel on either sides render to the court. Decisions are legion where significance of the members of the Bar under our system has been underlined. I do not propose to advert to them except to mention that the decision of K.T. Thomas, J. in Jose v. Nandakumar (AIR 1997 Ker. 243 = 1993 (2) KLT 343) deals extensively with the special position and privileges which have been conferred on the members of the Bar in the Court room, with reference to Ss. 23, 29 and 33 of the Advocates' Act and also to the conventions and traditions of the English system recognised by Indian Courts during the post-Constitution period also. May be it is true that al,l the members of the noble profession are today not upto the hoary traditions of the profession. But I am sure that things have not come to such a pass that courts will be justified in beginning with a presumption that counsel who appear before them are not honest. Speaking of honesty of the counsel I may point out that Dr. Johnson's well-known views on the ethics of legal practice have several supporters:
'..,....... a lawyer has no business with the justice or injustice of the cause which he undertakes, unless his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the Judge........... If lawyers were to undertake no causes till they were sure they were just, a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it might be found a very just claim.'
(Dr. Johnson quoted - as quoted by Hon'ble Sir Robert Megarry in his interesting work, A Second Miscellany-at-Law.)
11. Coming back to the present case, I believe that the learned Munsiff has ventured to pass successive orders mentioned herein with the best of intentions. But he was over-zealous. His dver-enthusiasm made him forget many things.
12. The result of the above discussion is that I am inclined to set aside the order under revision and 1 do so. The learned Munsiff is directed to proceed with the trial of the case. If an issue arises on the basis of the pleadings which may be raised by the 2nd defendant as to the genuineness of the signatory to the plaint, he is free to decide that issue like all other issues in the suit. He shall however keep in mind that to brand a living human being as a fictitious person is a very serious matter and that on the facts of the present case the plaintiff cannot be called a fictitious person even if the evidence shows that he does not own any properties in the neighbourhood of the properties where the alleged illegal constructions are going on. The suit shall be disposed of within three months after the issues are settled for trial.
The Civil Revision Petition is allowed as above. However, in the circumstances I direct the parties to suffer their costs.