Kesava Pillai Sukumara Pillai Kalloore v. Ajayakumar, Madhavan Pillai Gopala Pillai Thevaruparabil, Viswan, The Public of Chirakkadavu Grama Panchayat, Ward V (represented by Ward Member V.G. Lal), and Addl. Respondents Ammini Amma, Ramya, Soumya

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN MONDAY, THE 27TH DAY OF OCTOBER 2014/5TH KARTHIKA, 1936 ## **CRP.No. 1851 of 2003 (E)** AGAINST THE ORDER IN CMA NO.16/1999 ON THE FILE OF THE COURT OF THE ADDL.DISTRICT JUDGE, FAST TRACK COURT (ADHOC)-II, KOTTAYAM DATED 14-07-2003. ## REVISION PETITIONER: FIRST RESPONDENT: PLAINTIFF: KESAVA PILLAI SUKUMARA PILLAI KALLOOR, CHIRAKKADAVU VADAKKUM BHAGOM, CHIRAKKADAVU VILLAGE. BY ADVS.SRI.M.NARENDRA KUMAR SRI.SALISH ARAVINDAKSHAN ## RESPONDENTS: FIRST APPELLANT AND RESPONDENTS 2 TO 4: 1. AJAYAKUMAR, S/O.KARUNAKARAN PILLAI, KURUMANOOR HOUSE, CHIRAKKADAVU, VADAKKUMBHAGOM, CHIRAKKADAVU VILLAGE. 2. MADHAVAN PILLAI GOPALA PILLAI THEVARUPARABIL, CHIRAKKADAVU, VADAKKUMBHAGOM, CHIRAKKADAVU VILLAGE. (DIED - LRS. IMPLEADED) 3. VISWAN, THEVARUPARAMBIL, CHIRAKKADAVU VADAKKUM BHAGOM, CHIRAKKADAVU VILLAGE. 4. THE PUBLIC OF CHIRAKKADAVU GRAMA PANCHAYAT, WARD V, REPRESENTED BY WARD MEMBER V.G.LAL. ## ADDL.R5 TO R7 IMPLEADED: 5. AMMINI AMMA, AGED 50, W/O.MADHAVAN PILLAI GOPALA PILLAI, THEVARUPARAMBIL, CHIRAKKADAVU, VADAKKUMBHAGOM, CHIRAKKADAVU VILLAGE. 6. RAMYA, D/O.AMMINI AMMA, AGED 20, RESIDING AT -DO- -DO- 7. SOUMYA, D/O.AMMINI AMMA, AGED 18, RESIDING AT -DO- -DO- ADDL.RESPONDENTS 5 TO 7 ARE IMPLEADED AS PER ORDER DATED 27.10.2014 IN I.A.NO.704 OF 2004. R1,3 & 4 BY ADV. SRI.K.P.SREEKUMAR (KADAYANICKADU) R1,3 & 4 BY ADV. SRI.K.P. JAYACHANDRAN R1,3 & 4 BY ADV. SRI. K.HARISANKAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.1830/2003 IN C.R.P.NO.1851/2003** DISMISSED 27.10.2014 SD/- **K.T.SANKARAN, JUDGE** //TRUE COPY// AHZ/ **“C.R.”** ## **K.T. SANKARAN, J. ---------------------------------------------------C.R.P. NO.1851 OF 2003 (E) ----------------------------------------------------Dated this the 27[th] day of October,2014** ## **O R D E R** The question involved in this Revision is whether a person who is not eo-nomine a party to a suit under Rule 8 of Order I of the Code of Civil Procedure could maintain an application under Order IX Rule 13 of the Code of Civil Procedure to set aside an exparte decree passed in the suit. 2. The revision petitioner filed O.S.No.388 of 1996, on the file of the Court of the Munsiff of Kanjirappally, against respondents 2 to 4 for a permanent prohibitory injunction restraining the defendants from constructing a new road through plaint schedule item No.3 or causing any obstruction to the plaintiff to erect a gate in item No.3. The case of the plaintiff is that plaint schedule item Nos.1 and 2 belonged to him and item No.3 is a private road starting from the public road and ending in plaint schedule item No.1. The third defendant in the suit is “The Public of Chirakkadavu Grama Panchayat, Ward No.V, represented by Ward Member V.G.Lal”. The suit was filed invoking Order I Rule 8 of the Code of Civil Procedure, the third defendant representing similarly interested persons in Ward No.V of Chirakkadavu Grama Panchayat. The C.R.P. NO.1851 OF 2003 :: 2 :: defendants remained exparte in the suit. The suit was decreed on 25.9.1997. 3. The first respondent, who was not eo-nomine a party to the suit, filed I.A.No.2142 of 1998, to set aside the exparte decree. He alleged that he came to know of the decree only on 12.11.1998. The first respondent was employed in a Gulf country and, according to him, he returned to India only on 25.5.1997. The first respondent also put forward a contention that the decree was obtained by fraud and misrepresentation. 4. The revision petitioner (plaintiff in the suit) opposed I.A.No.2142 of 1998 on the ground that the application is not maintainable at the instance of a person who is not eo-nomine a party to the suit. He also raised a contention that the first respondent was aware of the pendency of the suit and that the application is devoid of merits. 5. The trial court dismissed I.A.No.2142 of 1998 on the ground that the application under Order IX Rule 13 of the Code of Civil Procedure is not maintainable at the instance of a person who is not eo-nomine a party to the suit. The trial court also held that the contention of the first C.R.P. NO.1851 OF 2003 :: 3 :: respondent herein that he came to know of the exparte decree only on 12.11.1998 cannot be accepted. The first respondent challenged the order of the trial court in C.M.A.No.16 of 1999, on the file of the Court of the Additional District Judge Fast Track (Adhoc) – II, Kottayam. The Appellate Court reversed the order of the trial court, allowed I.A.No.2142 of 1998 and set aside the exparte decree. The Appellate Court held that an application under Order IX Rule 13 is maintainable at the instance of a person who is not eo-nomine a party to the suit. The judgment of the Lower Appellate Court is under challenge in this Civil Revision Petition at the instance of the plaintiff in the suit. 6. Learned counsel for the petitioner submitted that Rule 13 of Order IX contemplates an application for setting aside the exparte decree at the instance of a defendant who was eo-nomine a party to the suit and the rule does not contemplate an application by a person who was deemed to be a party in the light of Rule 8 of Order I of the Code of Civil Procedure. The learned counsel stressed the words “he” and “him” occurring in Rule 13 of Order IX of the Code of Civil Procedure. The learned counsel relied on several decisions, all of which are not relevant for consideration in view of the judgment of the Supreme Court and that of this Court on the point. C.R.P. NO.1851 OF 2003 :: 4 :: 7. Rule 13 of Order IX of the Code of Civil Procedure provides that in any case in which a decree is passed exparte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. In the present case, the suit was filed in a representative capacity, the third defendant acting in a representative capacity representing the public of the locality who may have similar interests as that of defendants 1 to 3. Defendants 1 to 3 did not appear before Court and an exparte decree was passed. According to the first respondent (who filed the application under Rule 13 of Order IX CPC), he is an immediate neighbour and he has got a right to use plaint item No.3 as a pathway. Rule 8 of Order I CPC provides that where there are numerous persons having the same interest in one suit, 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. Sub-rule (2) of Rule 8 of Order I CPC provides that the Court C.R.P. NO.1851 OF 2003 :: 5 :: shall, in every case where a permission or direction is given under subrule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. Sub-rule (3) of Rule 8 of Order I CPC permits any person on whose behalf or for whose benefit the suit is instituted or defended to apply to the Court to be made a party to such suit. Sub-rule (6) of Rule 8 of Order I states that a decree passed in a suit under the rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. _Explanation VI_ to Section 11 of the Code of Civil Procedure provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of Section 11, be deemed to claim under the persons so litigating. Even a person who is not eo-nomine a party to the suit, would be bound by the decree passed in the suit, going by sub-rule (6) of Rule 8 of Order I as well as _Explanation VI_ to Section 11 of the Code of Civil Procedure. If a person is bound by such a decree, there is no reason why he should not be granted liberty to apply for setting aside the exparte decree passed against the defendants who were eo-nomine C.R.P. NO.1851 OF 2003 :: 6 :: parties to the suit, particularly when the case of the person who applies to set aside the exparte decree is that the suit was decreed exparte on account of the fraud perpetrated by the plaintiff as well as the defendants who were eo-nomine parties to the suit. It is to be noted that sub-rule (4) of Rule 8 of Order I CPC provides that no part of the claim in any representative suit shall be abandoned and no such suit shall be withdrawn under sub-rule (1) or sub-rule (3) of Rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in a representative suit under Rule 3 of Order XXIII, unless the Court issues notice to all persons interested in the manner specified in sub-rule (2). Sub-rule (4) is a safeguard to protect the interests of the persons who are not eo-nomine parties to a representative suit. If fraud is alleged and proved, an exparte decree passed in a representative suit would be set aside, depending upon the facts and circumstances of each case. It cannot be held that a person who is not eo-nomine a party to a representative suit but who will be bound by the decree, is not entitled to get rid of an exparte decree by resorting to the remedy provided under Rule 13 of Order IX and that his only remedy is to file an appeal against the exparte decree. If such an argument is accepted, it would result in multiplicity of proceedings. C.R.P. NO.1851 OF 2003 :: 7 :: 8. In **Thomas** v. **Pathrose Abraham (2005 (3) KLT 572)** , a learned Single Judge of this Court, relying on the decision in _Swaminatha Mudaliar_ v. _Kumaraswami Chettiar and others (AIR 1923 Madras 472)_ , held that the persons bound by the decree in a representative suit, though they are not eo-nomine parties, would be entitled to maintain an application to set aside the exparte decree and to implead them as parties. The decision of this Court in **2005 (3) KLT 572** (supra) was affirmed by the Supreme Court in **Thomas** v. **Pathrose Abraham (2008** **(1) KLT 746 (SC))** . While holding that an application under Rule 13 of Order IX of the Code of Civil Procedure at the instance of parties who are made eo-nomine parties in a representative suit would be maintainable, the Supreme Court held thus: “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 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 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 C.R.P. NO.1851 OF 2003 :: 8 :: that a decree which has been obtained by suppression of fact or collusively would not be executable against those who were not parties to the suit.” 9. In **Kodia Goundar and another** v. **Velandi Goundar and others (AIR 1955 Madras 281),** a Full Bench of the Madras High Court held that in a representative suit, persons who were not impleaded as eonomine parties or who were not brought on record under sub-rule (2) of Rule 8 of Order I, can only be deemed to be parties and they will not be parties as such. It was held that Section 47 of the Code of Civil Procedure cannot therefore be a bar to file a fresh suit against such persons. It was also held thus: “5. ...... There can be no doubt that the defendants who were impleaded in the suits, represented a larger body of persons on whose behalf they were sued, in which case the decree will be binding on the entire body of villagers by operation of the principle of 'res judicata' as enacted in S.11, Explanation VI. The mere fact that such a decree would be binding as 'res judicata' on others who were sought to be represented cannot make such a decree enforceable as and by way of execution or otherwise.” The Full Bench of the Madras High Court also held that a decree obtained in a representative suit against the defendants in a representative C.R.P. NO.1851 OF 2003 :: 9 :: capacity cannot be executed personally against persons who are not eonomine parties. 10. In **Soman** v. **Appukutty (1987(2) KLT Short note 59 Case No.87),** the Kerala High Court relied on the decision in **Kodia Goundar and another** v. **Velandi Goundar and others (AIR 1955 Madras 281)** and held thus: “Order I rule 8(3) provides that any person on whose behalf the suit is instituted or defended may apply to be made a party. A party to such a suit is one who is impleaded as a party or who on an application is brought on record as an 'eo nomine' party. Others who are not brought on record can be only deemed to be parties and will not be parties as such. S.47 of the Code cannot therefore be a bar to a fresh suit against them. Though a decree obtained in a suit instituted in accordance with the provisions of Order 1 rule 8 will be binding on all members that belong to the class sought to be represented, by operation of the principle of 'res judicata' embodied in Explanation VI to S.11 of the Code, it may not be enforcible in an injunction suit personally against persons who are not 'eo nomine' parties, in order to make them liable for disobedience of the decree. For that purpose the injunction may have to be revived as against them by a separate suit in case such necessity arises. But they are also persons bound by the decree.” C.R.P. NO.1851 OF 2003 :: 10 :: 11. In **Narayani Kamalakshi and others** v. **Kunchiyan Bahulayan and others (AIR 1972 Kerala 269)** , Justice P. Subramonian Potti cautioned the Court as to what should be done in a suit under Order I Rule 8 and it was held: “3. In suits where there are numerous parties it is open to any party to seek representation by resort to Order I, Rule 8 of the Code of Civil Procedure. The term 'numerous' has received judicial interpretation and it has been said that this is not a term of art. It is not to be read either as innumerable or as limitless or even as unascertainable. The determination of the question whether the parties are 'numerous' must necessarily depend upon the allegations in the plaint and the nature of the suit. These are matters for consideration by the Court at the time of granting permission. Who are sought to be represented and whether they are persons whose addresses are ascertainable is a matter which the Court must be told. The party who seeks such representation under O.I, R.8 must necessarily furnish addresses of such persons. That is because notice to such persons by publication is to be resorted to only when personal service on them is found to be not reasonably practicable. The Court will be in a position to decide whether such notice by personal service could be taken only when all these facts are before Court. When the Court decides to grant permission, and issues notice to the parties, the proceedings in the suit will be binding on the parties who are C.R.P. NO.1851 OF 2003 ## :: 11 :: sought to be represented. Since the consequence of a decision reached with parties represented under Order I, Rule 8 is one of debarring them from raising the question over again, courts have necessarily to consider the requirements under Order I, Rule 8 not as mere formalities or matters of form. I am mentioning this here because in my experience, motions made under Order I, Rule 8 have been considered by the subordinate courts very lightly and as a matter of course. Judicial discretion of the courts in the matter of grant of such permission have rarely been seen exercised. Courts must remember that by granting such permission, the court is really seeking to bind those parties who are not on the party array in the suit, and any contest by them on the same question later would be barred by res judicata. Therefore, the Court owes a duty to those who are not on the party array but are still considered as represented in the suit to see that they are not prejudiced. In considering any application that may come up before Court seeking permission to represent parties under Order I, Rule 8, the courts have to keep this in view. The Court must insist upon parties furnishing the addresses of persons when their addresses are ascertainable and when the number is such that personal service would not be impracticable, the Court must necessarily direct such personal service on the parties besides publication. ......” In the light of the principles mentioned above, the judgment of the C.R.P. NO.1851 OF 2003 **==> picture [38 x 10] intentionally omitted <==** Lower Appellate Court does not call for any interference under Section 115 of the Code of Civil Procedure. The Civil Revision Petition is, accordingly, dismissed. **K.T.SANKARAN Judge** ahz/