Judgment:
Sathasivam, J.
1. Plaintiff in O.S. No. 411 of 1980 on the file of the Sub Court, Nilgiris at Ootacamund is the appellant in the above second appeal. The said plaintiff filed the suit for permanent injunction restraining the defendants or any of the party men of Indira Congress or anybody claiming through the defendants from interfering with the peaceful possession and enjoyment of the suit premises by the plaintiff or its agents.
2. The case of the plaintiff is briefly stated as follows: The suit premises is situate at Lower Bazaar Road commonly known as Kamaraj Bhavan is being used as the office premises of the plaintiff party and the Secretary of the plaintiff party is having control of the said premises. The records of the plaintiff party, both at the District level and the Town level are kept in the said premises. The plaintiff has been in effective possession and enjoyment of the said premises eversince the Janatha Party was formed. The defendants, who are the members of Indira Congress party have been conspiring to take possession of the suit property by force and illegal means. The defendants during the split in congress in the year 1969 have joined Indira Congress and since then they have severed all their ties with the old Congress members which subsequently came to known as Janatha Party in the year 1977 and have never at any time been in possession of the suit premises. The defendants are bent upon entering into the premises by force and commit acts of loot, vandalism, which necessitated the plaintiff to file the present suit.
3. The defendants 1 to 4 have filed a common written statement contending that the plaintiff has no locus standi to file the present suit and Nilgiris District Janatha Party is not a legal entity and therefore the plaintiff is not entitled to file the suit. The defendants are office bearers of Ootacamund Town Congress Committee and to the Nilgiris District Janatha Party. The split of the Congress in the year 1969 has no bearing whatsoever regarding the ownership of the premises in question as the property in question, belongs only to Ootacamund Town Congress Committee. The defendants are all law abiding citizens and there is no need for them to take the law into their hands or to indulge in any illegal activities. On the date when the plaintiff has filed the above suit, the plaintiff was not in possession of the suit property, hence the plaintiff is not entitled to the relief of permanent injunction and the suit is liable to be dismissed.
4. P.Ws. 1 to 6 were examined on the side of the plaintiff apart from marking Exs. A-1 to A-21. On the other hand, the first defendant was examined as D.W. 1 and the fourth defendant as D.W. 2. They have also marked Exs. B-1 to B-13 in support of their defence. The report of the Commissioner has also been marked as Ex. C-1.
5. The learned Subordinate Judge, after framing necessary issues and on the basis of the evidence on record held that the plaintiffs are in possession of the suit property and accordingly granted a decree as prayed for with costs.
6. Aggrieved by the judgment and decree of the trial court, the unsuccessful defendants filed an appeal in A.S. No. 12 of 1982 before the District Court, Coimbatore. The lower appellate court on the basis of the evidence confirmed the findings of the trial court with regard to the possession of the plaintiff and accordingly answered the point No. 1 in favour of the plaintiff. However on the objection raised by the defendants before the lower appellate court, namely, in the absence of any permission by the court under Order 1, Rule 8 of Civil Procedure Code, the suit as framed is not maintainable, allowed the appeal and dismissed the suit filed by the plaintiff holding that it has no locus standi to maintain the suit in the absence of permission under Order 1, Rule 8 of Civil Procedure Code.
7. Against the judgment and decree of the lower appellate court dismissing the suit, the plaintiff has filed the present appeal before this Court. While entertaining the appeal, this Court has framed the following substantial question of law for consideration:
Whether on the facts and circumstances of the case, the lower court is right in finding that the suit is not maintainable especially when the point is not raised in the written statement?
8. Mr. K. Govindarajan, learned Counsel for the appellant submits that both the courts below have concurrently held that on the date of the suit, the plaintiff was in possession, accordingly, the trial court granted decree and the finding regarding possession has been upheld by the lower appellate court also. He submits that since the plaintiff failed to obtain prior permission under Order 1, Rule 8 of Civil Procedure Code, the lower appellate court non-suited the plaintiff and dismissed the suit. In view of the above position, he has not canvassed the other factual findings, which are in his favour. At this stage, he has brought to my notice the CM.P. No. 9496 of 1996 filed by the appellant under Order 1, Rule 8 read with Section 151 of Civil Procedure Code, for seeking permission to file the suit O.S. No. 411 of 1980 on the file of the Sub Court, Nilgiris at Ootacamund, in the representative capacity for and on behalf of the members of the Nilgiris District Janatha Party. After notice to the respondents defendants the said petition is also posted along with the main second appeal for hearing. Though the said petition and affidavit has been served on the respondents they have not chosen to file any counter-affidavit. It is useful to extract the relevant portion from the affidavit filed in support of the above petition..Since the petitioner was not advised to file the petition under Order 1, Rule 8 of C.P.C. in the trial court, the petitioner without knowing the procedure proceeded with the suit. The defendants also did not raise any specific plea regarding the same. So, the trial court proceeded with the suit on merits. Only in the appeal stage, the defendants raised the said points. It is well settled that the non-filing of the petition under Order 1, Rule 8 of Civil Procedure Code would not make the decree nullity but it is a procedural irregularity which can be rectified at any stage. So, I am advised to file the present petition to rectify the said mistake.
Further it is mentioned as follows:
It is humbly submitted that I filed the suit on the basis of the resolution passed by the General Body held on 10.1.1980. So, the General Body has authorised me to file the suit on their behalf otherwise it should be construed that they have given powers to me to file the suit. Both the courts below have categorically found that the petitioner is in effective possession of the property. So, on the technicality the petitioner should not be prevented from enjoying the decree granted by the trial court. In the interest of justice, the petitioner should be permitted to file this petition at this stage. As submitted already, the petitioner filed the suit on the basis of the approval or the members and so he is permitted to file the suit for and on behalf of all the members of the plaintiff party. By allowing this petition, the respondents will not in any way be prejudiced.
9. In the light of the averments made in the said petition Mr. K. Govindarajan, submits that since this Court has ample court power to permit the appellant to prosecute the suit in a representative capacity, the said civil miscellaneous petition may be allowed, and the defects pointed out by the lower appellate court may be cured. While spear heading the above point, he cited the following decisions in support of his contention:
1. M. Pillai v. S. Pillai 59 L.W. 707 : A.I.R. 1947 Mad. 205;
2. Anandan v. Ayyanna Gounder : (1993)2MLJ493 ;
3. Mohamed Hanifa v. Abdul Latheef Sahib 100 L.W. 438;
4. Singhai Lal Chand Jain v. E.S.S. Sangh, Panna : [1996]2SCR739 .
Before going into the decisions cited by the learned Counsel for the appellant, it is useful to refer Sub-clause (2) of Section 107 of Civil Procedure Code, which reads as follows:
107 Powers of appellate court: (1)....
(2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same, duties as are conferred and imposed by this Code on courts of original jurisdiction in respect of sliits instituted therein.
The above referred provision gives the same powers and this Court can perform the same duties as are conferred and imposed by the Code of Civil Procedure on courts of original jurisdiction in respect of suits instituted therein. Hence, even in this second appeal the request of the appellant to permit them to sue in a representative capacity under Order 1, Rule 8 of the Civil Procedure Code can be entertained. Now I shall consider the first decision namely, M. Pillai v. S. Pillai A.I.R. 1947 Mad. 205. In similar circumstances in the said decision this Court has held as follows:
An amendment can be made at any stage so long as it does not alter the nature or the character of the suit or the cause of action. There is nothing which prevents a court from permitting persons suing in their individual capacity to sue as representatives of a larger group even during the stage of appeal. When the appellate court finds that an amendment of this land which does not materially change the substance of the suit is necessarily in the interest of justice, it should be allowed to overcome a technical difficulty in the way of the plaintiffs. I cannot be held that Order 1, Rule 8 applies only to the suits and not to appeals.
10. The second decision referred to by the learned Counsel for the appellant is reported in Anandan v. Ayyanna Gounder : (1993)2MLJ493 . In an elaborate judgment, considering all the earlier decisions Abdul Hadi, J. has held as follows:.The language used in Order 1, Rule 8(1)(a) is as follows: 'One or more of such persons may, with the permission of the court to sue.' It must also be noted that the permission speaks to the Order 1, Rule 8, Civil Procedure Code is not and has also not been held to be a condition precedent as in the case of leave under Section 92, Civil Procedure Code. Permission under Order 1, Rule 8, Civil Procedure Code may be granted even after the institution of the suit and even at the appellate stage by allowing an amendment if such amendment does not materially change the nature of the suit.
12. The other decision relied on by the learned Counsel for the appellant is reported in Mohammed Hanifa v. Abdul Latheef Sahir 100 L.W. 438. In the said decision a Division Bench of this Court in similar circumstances permitted the appellant therein to file a petition under Section 4 of the Partition Act. It is useful to extract the relevant portion of the above referred to Division Bench decision hereunder:.In view of the above pronouncements, it is clear that the pendency of the second appeal will tantamount to the suit being pending and an application under Section 4 of the Act can be filed before the suit is finally concluded. Since in this case, application under Section 4 of the Act is filed when the second appeal is pending the petitioner, viz. the appellant herein, is entitled to enforce the provisions contained in Section 4 of the Act.
13. The last decision referred to by the learned Counsel for the appellant is reported in Singhai Lal Chand Jain v. R.S.S. Sangh Panna : [1996]2SCR739 . The facts in the above Supreme Court decision are as follows:
Eviction suit was laid against the Kashtriya Swayam Sevak Sangh represented by the Manager, the President, who was a practising advocate and also a member. All three of them had jointly filed the written statement with the defence available to them. The trial court after framing the appropriate issues, had accepted the plea of the defendants and dismissed the suit. The appeal, filed by the plaintiff was defended. The High Court on consideration of the evidence, did not accept the plea of the Sangh and accordingly, granted a decree. The matter did not rest there. Appeal to the Supreme Court by way of special leave was filed. That was argued by one of the most eminent member of the Bar on behalf of the Sangh. The leave was refused. The decree passed by High Court thus become final. The question was whether the decree passed by the High Court was a nullity as in the suit the permission under Order 1, Rule 8 was not obtained. In the said decision it was contended that since the appellant therein had not followed Order 1, Rule 8 of the Civil Procedure Code, the decree was nullity and Section 11 of the Code is not a bar. In the said case, the executing court has upheld the objection and on the petition on representation, the High Court Confirmed the same. When the matter came up before the Supreme Court, an arguments was advanced that permission in representative suit under Order 1, Rule 8 of Civil Procedure Code in mandatory in law and no permission having been obtained by the appellant, the decree passed by the High Court on appeal is a nullity, In the light of the objection their Lordships of the Supreme Court posed a question, whether the view taken by the High Court is correct in law? The answer given by the Supreme Court is extracted hereunder:.Relevant part of Order 1, Rule 8 provides thus:
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 persons may, with the permission of the court, sue or 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.
Procedure is the handmaid to the substantive justice. The suit was laid against the sangh represented by the Manager, Mr. Gorelal Soni, the President, Shiv Behari Srivastava, a practising advocate also a member who is none other then a Head Master of a School, three of them had jointly filed the written statement with the defence available to them. The trial court had proceeded on that basis. After framing the appropriate issues, the trial court had accepted the plea of the defendants and dismissed the suit, on appeal, when the correctness thereof was canvassed, the respondents defended the action. The High Court on consideration of the evidence, did not accept the plea of the sangh and accordingly, granted a decree. The matter did not rest there, they came in appeal by way of special leave which was argued by one of the most eminent members of the Bar on behalf of the Sangh. The leave was refused by this Court. This it can be concluded that the sangh was properly represented by the President, the manager who was at the relevant time in office of behalf of the Sangh and also member of the Sangh who was none other than a Head Master and a practising advocate as President. The High Court, after hearing counsel on either side, considered the case and decreed the suit. With dismissal of the special leave petition by this Court, the decree became final. Therefore, it cannot be passed to be a collusive suit not a shadow of negligence is traceable so as to treat the decree a nullity. It is true that no permission of the court was taken to be sued in a representative capacity by or on behalf of the Sangh. But Clause (b) Of Order 1, Rule 8 indicated that it may sue or be sued, or may defend such suit, on behalf of, or for the benefit of all persons so interested. Clause (b) clearly applies to the facts in this case. The President of the Sangh, the Manager of the Sangh and a Member have duly represented the Sangh and defended the suit for the benefit of all persons so interested in the Sangh.
The above decision clearly shows that,the failure to obtain permission under Order 1, Rule 8 of the Civil Procedure Code is only a procedural irregularity.
14. On the basis of the above referred catena the decisions Mr. K. Govindarajan, learned Counsel for the appellant submitted that even at this stage, this Court can grant permission to sue the plaintiff in a representative capacity under Order 1, Rule 8 of Civil Procedure Code. He also submitted that by granting such permission it does not alter the nature or character of the suit or the cause of action. However, the learned Counsel for the respondents without basing any decisions, simply mentioned that in as much as the plaintiff failed to obtain prior permission under Order 1, Rule 8 of Civil Procedure Code before the trial court, it is not open to them to seek permission at the appellate stage. As mentioned above, the learned Counsel for the respondents is unable to point out any contra decision with regard to the proposition of law demonstrated by Mr. K. Govindarajan. In the light of the factual position as well as the decisions of this Court and the Apex Court referred above, I am of the view that by allowing the appellant/plaintiff to file the suit in a representative capacity under Order 1, Rule 8 of the Civil Procedure Code it does not materially change the substance of the suit or alter the nature or character or cause of action of the suit. Hence, in the interest of justice it should be allowed to overcome a technical difficulty in the way of the plaintiff. I am of the firm view that the provisions under Order 1, Rule 8 of the Civil Procedure Code applies not only to suits but also to appeals. Hence the submissions made by the learned Counsel for the appellant is well founded. Accordingly, I allow the C.M.P. No. 9496 of 1996 filed by the appellant/plaintiff under Order 1, Rule 8 read with Section 151 of Civil Procedure Code.
15. As pointed out at the beginning, the lower appellate court has dismissed the suit filed by the plaintiff only on the ground that they have not obtained prior permission of the court under Order 1, Rule 8 of Civil Procedure Code. Inasmuch as now the said difficulty has been cured, the dismissal of the suit by the lower appellate court for want of prior permission cannot be sustained. Accordingly, the judgment and decree of the lower appellate court are set side and the judgment and decree of the trial court are restored. The net result is the suit filed by the plaintiff is decreed as prayed for arid the second appeal is allowed. C.M.P. No. 9496 of 1996 is allowed. However, in the circumstances, of the case, there will be no order as to costs.