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Judgment
B.K. Somasekhara, J.—This is the second round of litigation in the form of the revision petition as against the impugned order of the learned Principal District Munsif Nizamabad in I.A.No. 531 of 1996 in O.S.No. 122 of 1994 dated 21-8-1996. the application of the petitioner under Order 1 Rule 8(3) CPC to come on record as the defendant in a representative capacity has been rejected by the learned Munsif. Before that, the petitioner herein made I.A.No. 1406 of 1995 under Order 1 Rule 10 CPC to be impleaded as a defendant and that was dismissed on 14-2-1996 and when it was challenged before this Court, this Court dismissed the revision petition with the following observations.
"In the nature of the allegations made in I.A.No. 1406 of 1995, perhaps the question was whether the petitioner could be an organisation or a group of persons or numerous persons having the same interest in the same suit in regard to the subject matter of the suit or the relief claimed therein so that it could have been impleaded as a party under Order 1, Rule 8 Sub-clause (3) of the Civil Procedure Code. For that purpose, the provision contemplates an application to be made to the Court to be made as a party to the suit when it will be considered on merits. It is also open for the petitioner to file a suit or any other proceedings which is available in law before an appropriate forum. Barring these observations, there is no reason to interfere with the order in revision.
After the decision was rendered by this Court, the petitioner-Society made the application in question for the relief supra only not to succeed. Aggrieved by that, the revision is filed.
The petitioner is a society registered under the Telangana Societies Registration Act, 1350 Fasli meant for the residents of the Saraswatinagar. The respondent No. 1 claiming to be the owner in possession of the suit site filed, the suit against Respondent No. 2, Muncipality for permanent injunction restraining it from interfering with his possession and to restrain it from preventing him from constructing on the suit land. It is the case of the petitioner that the 1st respondent-plaintiff is trying to raise construction encroaching upon the land ear-marked for roads thereby causing obstruction and inconvenience to the residents of the locality. The learned Munsif did not permit the petitioner herein to come on record as it is neither a necessary party nor a proper party. This Court also did not interfere with such an order under the circumstances stated above. The learned Munsif has examined the matter again and by interpreting Order I Rule 8 (3) CPC has come to the conclusion that such an application is not maintainable as no suit is instituted or defended by anybody in the representative capacity to either permit or not to permit anybody to come on record to be impleaded as a party under Order I Rule 8(3) CPC.
Mr. Ravi Kiran Rao, the learned advocate for the petitioner has contended that the learned Munsif has traversed beyond the implications of the observations of this Court and consequently has interpreted the law in such a manner as to totally deprive the petitioner of any remedy as against the respondent No. 1-plaintiff in the suit although the conditions of Order 1 Rule 8 CPC have been fulfilled. Mr. Sanaka Venkateswarlu, the learned advocate for respondent No. 1-plaintiff has contended that the learned District Munsif is right in interpreting the law as above since the Provision Order I Rule 8(1)CPC only means that the leave can be granted only in case where certain persons having common interest either want to sue or be sued if they are already impleaded as parties and not otherwise. It is also his contention that unless such a leave is obtained, no order to implead such parties under Order I Rule 8(3) can be passed. It is also his contention that not only this Court in the revision petition disposed of earlier pointed out that the petitioner could seek any other remedy including a suit but also the law does not prevent it from filing a separate suit by the petitioner and there was no reason for it to come to the Court again and again to come on record although the law did not contemplate it.
Order I Rule 8 Sub-clause (sic. Sub-rules) (1) and (3) may be repeated for convenience and to read:
"8(1) Where there are numerous persons having the same interest in on 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 c be sued, or may defend such suit, on behalf of, or for the benefit o all persons so interested.
8(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under Sub-rule (1), may apply to the Court to be made party to such suit."
On the face of it, two provisions are to be read together. Where the leave is granted under Order I Rule 8 (1) CPC and where after such a leave any suit is instituted or defended under Sub-rule (1) any person may apply to the Court to be made a party to the suit and not otherwise. The emphasis on person or persons in the provision should mean a person or any person not being a party to the suit or otherwise the very idea of representative suit is defeated It is only the case of persons who are not parties to the suit, the Court will think whether they can be either impleaded as parties to sue or be sued in a representative capacity or to come on record as a party either to defend himself/ herself or in the representative capacity. It is difficult to interpret the law therein that such a provision applies only after the parties are impleaded in the suit either as plaintiffs or defendants. The only ingredient to be satisfied to operate such a provision are (1) that when there are numerous persons, they must have same interest in one suit; (2) they must obtain the leave of the Court either to sue or to be sued on behalf of or for the benefit of all persons so interested; (3) either one or the other party interested in the suit whether impleaded or not can seek such a leave to sue or defend in the representative capacity. If these three ingredients are satisfied, the Court bound to grant the leave to treat the suit as a representative suit for the participation of such persons having same interest in such capacities. To pi any other meaning would defeat the very purpose of the provision. There is nothing to indicate in these provisions that no suit which is filed in the normal structure cannot be converted into a representative suit. No stage is also set down therein to seek the relief of the Court in that fashion to sue or be sued in the representative capacity. The tense of the language used therein does not mean that it applies only to the persons to the suit who are already on record and not to other persons who are not so impleaded. It is also to be pointed out that Sub-clause (sic. Sub-rule) (3) of the provision cannot be read separately from Sub-clause (sic. Sub-rule) (1). But, it follows Sub-clause (sic. Sub-rule) (1) of Rule 8 of Order I CPC. In that view of the matter, the interpretation of the provision made by the learned District Munsif is not correct. He has thereby committed a very serious legal error amounting to failure to exercise the jurisdiction to give the relief therein.
Barring such an implication of the law, this Court while dismissing the previous revision petition as above with the observations made therein, had actually implied such a meaning to the provision to consider the ingredients therein and to dispose of the application and not to interpret the law afresh. Emphatically, it must be stated that the observations in the petition practically implied that the petitioner should seek the remedy under Order I Rule 8 CPC where it cannot do under Order I Rule 10 CPC. Therefore, even on that ground, the order of the learned District Munsif cannot be supported.
The contention of Mr. Sanaka Venkateswar Rao, the learned advocate for the 1st respondent that the application of the petitioner to implead under Order I Rule 8(1) CPC is not maintainable since no leave is sought for under Sub-clause (sic. Sub-rule) (1) of Rule 8 CPC has no merit. As already pointed out, Sub-clauses (sic. Sub-rules) (1) and (3) are to be read together as an integral part of the purpose of converting a suit into a representative suit to safeguard the interest of persons having same interest in the suit, although only relief sought for is to implead under Sub-clause (sic. Sub-rule) (3) which impliedly means that it should be done after granting leave under Sub-clause (sic. Sub-rule) (1). Moreover, the law is settled that the use of the provision by parties is not conclusive of the relief to be granted and it is for the Court to mould the relief depending upon the facts and circumstances of the case and also the law operating upon them. Mr. Ravi Kiran Rao, the learned advocate has also usefully relied upon a pronouncement of this Court in Sreepuram Housing Society v. Hanumashastry 1995 (1) APLJ 5 : 1984 (2) ALT 82 wherein it has been held that the predominant object of Order 1 Rule 8 is the community of interest and to safeguard the interest of body of persons for whose benefit lis is being fought for. Undoubtedly, the order under Order I Rule 8 is discretionary. If the learned District Munsif without considering whether there was common interest of numerous persons in the lis, disposed of the application technically by the wrong interpretation of the law and failed to exercise the discretion vested in him, it must be held to be failure to exercise the discretion amounting to arbitrary disposal of the matter warranting the interference of this Court u/s 115 CPC.
On the face of it, the petitioner is claiming to be the society for the welfare of the residents of Saraswatinagar whose interest in regard to the road is being impaired due to the conduct of the plaintiff in putting up construction over the same obstructing their passage. The common interest and the representative character of the defence through the petitioner defendant is thus established. Therefore, even on facts it was a fit case to grant leave to the petitioner to defend the suit by coming on record in the representative capacity.
The revision petition is allowed and consequently, the order of the learned District Munsif dismissing I.A.No. 1406 of 1995 is set aside. Further more, I.A.No. 531 of 1996 is allowed granting leave to the petitioner to defend the suit in the representative capacity regarding which formally it shall be impleaded as a party to the suit to deal with the matter in accordance with the relevant provisions of Order I of C.P.C. No costs.