OP(C) Nos. 1887 & 1931/2022: Stephen Isaac v State of Kerala and Others; Peoples Action for Education and Economic Development of Tribal People v State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946** **OP(C) NO. 1887 OF 2022** **AGAINST THE ORDER DATED 10.12.2021 IN I.A.NO.15/2020 IN OS NO.72 OF 2019 OF SUB COURT, PALA** ## **PETITIONER/PETITIONER/3RD PARTY:** **STEPHEN ISSAC AGED 49 YEARS S/O ESSAKKIMUTHU, INJAKKATTIL HOUSE, UPPUTHARA P.O., PEERMADE, IDUKKI, PIN - 685505** **BY ADVS. ALEX.M.SCARIA BEAS K. PONNAPPAN A.J.RIYAS SARITHA THOMAS ALEN J. CHERUVIL SAHL ABDUL KADER SANJITH KUMAR R.** ## **- RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 4:** - **1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM, KOTTAYAM, PIN - 686002** - **2 AYANA CHARITABLE TRUST REPRESENTED BY ITS MANAGING TRUSTEE, SINI PUNNOSE, BELIEVERS CHURCH CAMPUS, ST. THOMAS NAGAR, KUTTAPPUZHA, PIN - 689103** **3 M/S. HARRISON'S MALAYALAM LTD. 24/1624, BRISTOW ROAD, WILLINGDON ISLAND, ERNAKULAM DISTRICT, KOCHI, REPRESENTED BY ITS MANAGING DIRECTOR, PIN - 682003** **4 K.P. YOHANNAN BISHOP'S HOUSE, GOSPEL FOR ASIA, SEMINARY CAMPUS, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN - 689103** OP(C) Nos.1887 & 1931/2022 -:2:- **5 SINI PUNNOOSE BELIEVERS CHURCH CAMPUS, ST. THOMAS NAGAR, KUTTAPPUZHA, PIN - 689103 BY ADVS. SRI.GOPALAKRISHNA KURUP, ADVOCATE GENERAL HARIDAS P GOPIKRISHNAN NAMBIAR M K.JOHN MATHAI(J-212) JOSON MANAVALAN(J-526) KURYAN THOMAS(K/131/2003) PAULOSE C. ABRAHAM(MAH/58/2006) RAJA KANNAN(K/356/2008) BIJU HARIHARAN(K/1767/1995) SHIJIMOL M.MATHEW(K/907/2005) P.C.SHIJIN(K/397/2012) RISHIKESH HARIDAS(K/000630/2018) GREESHMA T.G.(K/002281/2022)** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 9.04.2024, ALONG WITH OP(C).1931/2022, THE COURT ON 20.05.2024 DELIVERED THE FOLLOWING:** OP(C) Nos.1887 & 1931/2022 -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946** **OP(C) NO. 1931 OF 2022** **AGAINST THE ORDER DATED 10/12/2021 IN IA NO.17/2020 IN OS NO.72 OF 2019 OF SUB COURT, PALA** ## **PETITIONERS/PETITIONERS:** - **1 PEOPLES ACTION FOR EDUCATION AND ECONOMIC DEVELOPMENT OF TRIBAL PEOPLE, MADHUVANAM, KOVILAKATHUMURI, NILAMBUR P.O, NILAMBUR VILLAGE, NILAMBUR TALUK, MALAPPURAM DISTRICT REPRESENTED BY S.RAMANUNNI, AGED 63 YEAR, S/O SREEDHARAN NAMBOOTHIRI, MADHAVAKRIPA, CHALAPPURAM, KOZHIKKODE., PIN - 679329** - **2 S.RAMANUNNI,AGED 63 YEARS MADHAVAKRIPA, CHALAPPURAM, KOZHIKKODE, NOW RESIDING AT CHERUVALLI MANA, ALAPURAM, ELANJI P.O, ELANJI VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DIST., PIN - 686665 BY ADVS. M.NARENDRA KUMAR HARSHADEV M.** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY GOVERNMENT PLEADER,HIGH COURT OF KERALA, PIN - 682031** - **2 AYANA CHARITABLE TRUST (FORMALLY KNOWN AS GOSPEL FOR ASIA A RELIGIOUS AND CHARITABLE TRUST) BELIEVERS EASTERN CHURCH CAMPUS, ST. THOMAS NAGAR, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT REPRESENTED BY ITS MANAGING TRUSTEE DR.SINI PUNNOSE, AGED 48 YEARS, W/O PUNNOSE, AYANA CHARITABLE TRUST -, PIN - 689101** OP(C) Nos.1887 & 1931/2022 -:4:- **3 M/S HARRISON'S MALAYALAM LTD. 24/1624, BRISTOW ROAD, WELLINGTON ISLAND, KOCHI682 003 REPRESENTED BY ITS MANAGING DIRECTOR, PIN - 682003 4 MAR ATHANASIUS YOHAN METROPOLITAN, AGED 70 YEARS, S/O. CHACKO PUNNOOSE, BISHOP'S HOUSE GOSPEL FOR ASIA, SEMINARI CAMPUS, PUNNAKUNNAM MURI, KUTTAPPUZHA VILLAGE, PIN - 689103 THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT., PIN - 689103 5 SINI PONNOOSE, AGED 48 YEARS W/O PONNOOSE , MANAGING TRUSTEE, AYANA CHARITABLE TRUST, BELIEVERS EASTERN CHURCH CAMPUS, ST. THOMAS NAGAR, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK, PATHANATHITTA DISTRICT., PIN - 689103 BY ADVS. SRI.GOPALAKRISHNA KURUP, ADVOCATE GENERAL HARIDAS P GOPIKRISHNAN NAMBIAR M K.JOHN MATHAI(K/413/1984) JOSON MANAVALAN(J-526) KURYAN THOMAS(K/131/2003) PAULOSE C. ABRAHAM(MAH/58/2006) RAJA KANNAN(K/356/2008) BIJU HARIHARAN(K/1767/1995) SHIJIMOL M.MATHEW(K/907/2005) P.C.SHIJIN(K/397/2012) RISHIKESH HARIDAS(K/000630/2018) GREESHMA T.G.(K/002281/2022) SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 9.04.2024 ALONG WITH OP(C).1887/2022, THE COURT ON 20.05.2024 DELIVERED THE FOLLOWING:** OP(C) Nos.1887 & 1931/2022 **==> picture [37 x 10] intentionally omitted <==** **==> picture [48 x 11] intentionally omitted <==** **==> picture [134 x 10] intentionally omitted <==** The dismissal of two applications filed by different applicants to get themselves impleaded as supplemental defendants in response to a publication made under Order 1 Rule 8 of the Code of Civil Procedure (for short, “the C.P.C.”) in a representative suit is under challenge in these original petitions. Since the issue involved in both the original petitions is the same, I am disposing of the original petitions together. 2. The State of Kerala instituted a suit for a declaration of title, recovery of possession and permanent prohibitory injunction as OS No. 72/2019 before the Sub Court, Pala (for short, “the trial court”) against four defendants. The 1[st] defendant is Ayana Charitable Trust, the 2[nd] defendant is M/s.Harrison Malayalam Ltd., the 3[rd] defendant Mar Athanasius Yohan Metropolitan is the trustee, and the 4[th] defendant Dr.Sini Punnoose is the managing trustee of the 1[st] defendant Trust. It is alleged in the plaint that OP(C) Nos.1887 & 1931/2022 -:6:- the plaint schedule properties belong to the State of Kerala. However, the defendants claim that the 2[nd] defendant who is the predecessor in interest of defendants 1, 3 and 4 obtained a purchase certificate in respect of the plaint schedule properties and it sold the plaint schedule properties to the 1[st] defendant. But, according to the plaintiff, the defendants did not get lawful title over the plaint schedule proprieties since they were vested with the State of Kerala as per the Kerala Land Reforms Act. The plaintiff initiated proceedings against the defendants 1 and 2 and others under the Kerala Land Conservancy Act, 1957 to recover the properties. The Special Officer appointed under the Kerala Land Conservancy Act passed an order dated 28/5/2015 observing, inter alia, that the Government could proceed under the Land Conservancy Act against the plaint schedule properties. The defendants challenged the order of the Special Tahsildar before this court and this court set aside the order of the Special Tahsildar on the ground of lack of jurisdiction and the plaintiff was granted liberty to approach the civil court. It was thereafter that the plaintiff instituted the suit to declare its title over the OP(C) Nos.1887 & 1931/2022 -:7:- plaint schedule properties, to recover possession of the same from the 1[st] respondent trust and everybody claiming under it, to restrain the defendants 1, 3 and 4 by a permanent prohibitory injunction from creating documents to alienate the plaint schedule properties or committing any waste therein, and to realise damages from the 1[st] defendant for illegal use and occupation of the plaint schedule properties. 3. In paragraph 27 of the plaint, it is pleaded that the plaint schedule properties are in the possession of the 1[st] defendant trust and the 4[th] defendant is the managing trustee of the 1[st] defendant. The 4[th] defendant represented the 1[st] defendant trust in the legal proceedings including the writ petition claiming that defendants 3 and 4 are legally entitled to represent the trust. The proclaimed object of the 1[st] defendant trust being Gospel work involving hundreds of people including defendants 3 and 4, they are interested in the properties of the trust including the plaint schedule properties. The 1[st] defendant claimed to be a religious minority in legal proceedings. Therefore, permission was sought to institute the suit against defendants 3 OP(C) Nos.1887 & 1931/2022 -:8:- and 4 on behalf of and as the representatives of such persons interested under Order 1 Rule 8 of C.P.C. A separate application as IA No.875/2019 under Order 1 Rule 8 was also filed by the plaintiff. The trial court allowed IA No.875/2019 and the plaintiff was permitted to sue against defendants 3 and 4 in the representative capacity under Order 1 Rule 8. The trial court then directed the plaintiff to give notice of the institution of the suit by publication in Malayala Manorama daily. Accordingly, notice was published in Malayala Manorama daily dated 11/7/2020. In the notice it was specifically stated that the suit was filed against the defendants as a representative of the persons interested in the 1[st] defendant trust and hence the persons interested to be impleaded as parties shall appear before the court on 21/7/2020. In response to the said notice, one Stephen Issac filed IA No.15/2020 under Order 1 Rule 8(3) of C.P.C. to get himself impleaded in the suit as an additional defendant. It is alleged in the application that he is a believer of Believers Eastern Church and a member of Gospel for Asia. According to him, the plaint schedule properties belong to the society named Gospel for Asia OP(C) Nos.1887 & 1931/2022 ## -:9:- and being a member of the said society, he is interested in the suit. It is further alleged that the plaintiff and the defendants 1, 2 and 3 are attempting to misappropriate the plaint schedule properties fraudulently and to unearth the true facts, he must be impleaded in the suit as an additional defendant. A public charitable trust viz., Peoples Action for Education and Economic Development of Tribal People, Malappuram District and one S.Ramanunni, founder trustee of the said trust also filed IA No.17/2020 to get themselves impleaded as additional defendants in response to the notification under Order 1 Rule 8(3) of C.P.C. It is alleged that the objective of the trust is to work among the downtrodden and poor people, especially of tribal areas and the trust has been constituted to help needy people to develop their basic amenities of safe drinking water, housing, sanitation, communication facilities etc. It is further alleged that the plaint schedule properties are government land and over 5 lakh families are living in Kerala without an inch of land and the plaint schedule properties on recovery could be distributed among the landless people. Hence, they are interested in the OP(C) Nos.1887 & 1931/2022 ## -:10:- subject matter of the dispute. 4. The plaintiff as well as the defendants opposed the applications. The trial court after hearing both sides dismissed the applications holding that the petitioners have no common interest with that of the interest of defendants 1, 3 and 4 and hence they are not entitled to be impleaded as parties to the suit under Order 1 Rule 8(3) of C.P.C. OP(C) No. 1887/2022 has been filed challenging the order in IA No.15/2020 and OP(C) No.1931/2022 has been filed challenging the order in IA No.17/2020. 5. I have heard Sri.Alex M.Scaria, the learned counsel for the petitioner in OP(C) No.1887/2022, Sri.M.Narendra Kumar, the learned counsel appearing for the petitioners in OP(C) No.1931/2022, Sri.Gopalakrishna Kurup, the learned Advocate General representing the State, Sri.P.Haridas appearing for respondents 2, 4 and 5 and Sri.Gopikrishnan Nambiar, the learned counsel appearing for the 3[rd] respondent. 6. Rule 8 of Order 1 of C.P.C. deals with representative suits. The general rule is that all persons interested in a suit OP(C) Nos.1887 & 1931/2022 -:11:- ought to be joined as parties to it, so that matters involved therein may be finally adjudicated upon and fresh litigation over the same matters be avoided. Rule 8 is an exception to this general principle. Under this Rule, where numerous persons have the same interest in one suit, one or more of them may, with the permission of the court, sue or be sued, on behalf of all of them. Sub-rule (2) casts an obligation on the court to give notice of the institution of the suit to all persons interested, either by personal service or, where such service is not reasonably practicable, by public advertisement. Sub-rule (3) enacts that any person on whose behalf, or for whose benefit, a suit is instituted, or defended, may apply to the court to be added as a party to the suit. Once the permission is so granted under Rule 8, the legal effect of such permission is that if the permission is in favour of the plaintiff, the suit is deemed to have been instituted by everyone whose interest is permitted to be represented by the plaintiff and if the permission is for the defence, the representative defendant represents the interest of all those for whom the representation is allowed. The suits of all descriptions OP(C) Nos.1887 & 1931/2022 -:12:- are covered by Rule 8. 7. The first requirement for the application of Rule 8 is that numerous persons must be interested in the suit. The term ‘numerous’ does not fix any limit to the number. It has an ordinary meaning implying a group or body of persons sufficiently definite for the court to recognize participants in the suit and inconvenient to be impleaded individually. The question whether in a given case parties are numerous or not has to be decided keeping in view the allegations in the plaint, the nature of the dispute, and other relevant considerations. The second requirement for the application of Rule 8 is that the persons on whose behalf or against whom the suit is instituted must have the same interest. The interest must be common to them all or they must have a common grievance which they seek to get redressed. The sameness of interest or community of interest, is, therefore, essential and a prerequisite for the application of Order 1 Rule 8 [See. Chairman, Tamil Nadu Housing Board, Madras v. T.N.Ganapathy , AIR 1990 SC 642, Brigade Enterprises Ltd. v. Anil Kumar Virmani and Others , AIR 2022 SC 119]. The expression OP(C) Nos.1887 & 1931/2022 -:13:- ‘same interest’ used in Rule 8 should not be interpreted to mean ‘identical interest’ or ‘interest in entirety’. It may also not be understood to mean or equated with ‘joint interest’ or ‘concurrent interest’. Even if the interest is not joint, concurrent or identical, the provisions of Rule 8 will apply when such interest is similar. The Explanation to Rule 8 of Order 1 C.P.C. clarifies that the expression ‘the same interest’ does not mean the same cause of action. 8. It is a case where the suit is not one filed by the plaintiff in the representative capacity, but it is filed against defendants 3 and 4 in a representative capacity as the representatives of the 1[st] defendant trust. In a case where permission under Rule 8 of Order 1 is granted for the defendant, the person or persons who approach the court to get impleaded in the suit under Sub-rule (3) of Rule 8 must belong to that class of persons against whom the suit was instituted in representative capacity. So, the persons to be impleaded under Order 1 Rule 8(3) of C.P.C. must be the persons having the same interest or community of interest as that of the interest of the defendants in OP(C) Nos.1887 & 1931/2022 -:14:- whose favour permission was granted under Sub-rule (1) of Rule 8 to defend the suit in a representative capacity. The case of the petitioner in IA No.15/2020 is that he is a believer of Believers Eastern Church and a member of Gospel for Asia. According to him, the plaintiff and defendants 1, 2 and 3 are attempting to snatch the plaint schedule property which belongs to the society for Gospel for Asia, in which he is a member. The averments in the affidavit filed by the petitioner in support of the application would show that his interest is against the interest of the 2[nd] defendant and defendants 3 and 4 who represent the 1[st] defendant. The petitioner has no case that he is a member of the 1[st] defendant trust. He has no case that he is interested in the properties of the 1[st] defendant church, and he has the same interest with that of the interest of defendants 1, 3 and 4. On the other hand, his case is that the property belongs to the society of Gospel for Asia. The specific case of the petitioner in IA No.17/2020 is that the plaint schedule proprieties belong to the State and that the defendants do not have any right over the same. According to them, they are representing the landless OP(C) Nos.1887 & 1931/2022 -:15:- people of the State, those properties on recovery should be assigned to the landless person as per the Land Reforms Act and thus they are interested in the outcome of the suit. The petitioners have no case that they have the same interest with that of defendants 1, 3 and 4. In fact, the interest of the petitioner is against the interest of the defendants 3 and 4 who represents the 1[st] defendant. For these reasons, I endorse the finding of the trial court that the petitioners in both the applications do not have the same interest in the suit as that of the interest of defendants 1, 3 and 4 and, thus, they are not entitled to be impleaded as parties invoking Order 1 Rule 8(3) of C.P.C. Both original petitions fail and accordingly, they are dismissed. Sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp** OP(C) Nos.1887 & 1931/2022 -:16:- ## **APPENDIX OF OP(C) 1887/2022** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN O.S. NO. 72/2019 ON THE FILES OF THE HON'BLE SUB JUDGES COURT, PALA. Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT D FILED BY THE DEFENDANTS 1,3 AND 4 IN EXT. P-1 SUIT. Exhibit P3 TRUE COPY OF IA NO. 15/2020 FILED BY THE PETITIONER FOR GETTING IMPLEADED AS ADDITIONAL RESPONDENT IN EXT. P-1 SUIT. Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 12/02/2021 FILED BY THE 1ST RESPONDENT AGAINST EXHIBIT P-3. Exhibit P5 TRUE COPY OF ORDER DATED 10/12/2021 IN I.A. NO. 15/2020 IN O.S. NO. 72/2019 ON THE FILES OF THE SUB JUDGE'S COURT, PALA).** OP(C) Nos.1887 & 1931/2022 ## -:17:- ## **APPENDIX OF OP(C) 1931/2022** **PETITIONER EXHIBITS Exhibit-P1 THE TRUE COPY OF THE PLAINT IN O.S. NO.72 OF 2019 DATED 07.12.2019 IN THE COURT OF SUB JUDGE, PALA. Exhibit-P2 THE TRUE COPY OF I.A. NO. 17 OF 2020 IN O.S. NO. 72 OF 2019 DATED 21.06.2020 Exhibit-P3 THE TRUE COPY OF THE OBJECTION FILED Y BY THE FIRST RESPONDENT AGAINST I.A. 17 OF 2020 DATED 12.02.2021 Exhibit-P4 THE TRUE COPY OF OBJECTION FILED BY THE RESPONDENTS 2, 4 AND 5 AGAINST I.A. 17 OF 2020 Exhibit-P5 THE TRUE COPY OF THE ORDER DATED 10.12.2021 IN I.A. NO. 17 OF 2020 IN O.S. NO. 72 OF 2019**