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V.J Thomas v. Pathrose Abraham And Others
Supreme Court of India – Civil Appeal (Decision dated 30-06-2005)
Factual and Procedural Background
The appellant filed Original Suit No. 364 of 1997 in the Additional Sub-Court, Kottayam, seeking (i) declaration of title over a strip of land measuring 450 ft × 4 ft, and (ii) possession and an injunction restraining three defendants (now Respondents 3 to 5) from using the land as a public pathway. A public-notice publication was made purportedly under Order 1 Rule 8 of the Code of Civil Procedure, 1908 (CPC). Respondents 3 to 5 did not appear, and an ex parte decree was passed on 26-03-1998.
During execution, two third parties (now Respondents 1 & 2) filed five interlocutory applications, notably IAs 968 & 969 of 2002 seeking to be impleaded as additional defendants to contest the decree, along with applications for condonation of delay and for setting aside the ex parte decree. The executing court allowed their impleadment. The appellant’s revision (CRP 272/2004) was dismissed by a Single Judge of the Kerala High Court on 30-06-2005. The present appeal under Article 136 of the Constitution challenged that dismissal.
Legal Issues Presented
- Whether, after an ex parte decree in a suit instituted under Order 1 Rule 8 CPC, persons who were not originally parties can be impleaded as defendants under Order 1 Rule 10 CPC at the execution stage.
- Whether such impleadment can occur without first allowing their applications for condonation of delay and for setting aside the ex parte decree.
- Whether the notice published under Order 1 Rule 8 CPC satisfied the requirement of adequate circulation in the locality.
Arguments of the Parties
Appellant's Arguments
- In a representative suit, reopening the decree at the instance of strangers is impermissible unless the ex parte decree is first set aside and delay condoned; Respondents 1 & 2 filed those applications more than four years late without sufficient cause.
- The two respondents could not represent the local Panchayat or the public, hence lacked locus to be impleaded.
- Reliance placed on Chairman, T.N. Housing Board v. T.N. Ganapathy to contend that the safeguards of Order 1 Rule 8 must be strictly observed.
Respondents 1 & 2’s Arguments
- Supported the High Court’s view that Order 1 Rule 8 expressly allows any person represented by the original suit to apply for being added even after decree.
- Asserted that the original suit was collusive; notice under Order 1 Rule 8 was published in newspapers with no wide local circulation, thereby vitiating service.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Swaminatha Mudaliar v. Kumaraswami Chettiar (1923) 44 MLJ 282 | After a decree, fresh parties may be added under Order 1 Rule 10; Order 1 Rule 8 allows persons represented to enter the record. | Cited by the High Court (and noted by the Supreme Court) to justify impleading Respondents 1 & 2 even post-decree. |
| Chairman, T.N. Housing Board v. T.N. Ganapathy (1990) 1 SCC 608 | Representative suits are appropriate where facts and issues are common to all affected persons. | Relied on by the appellant; the Supreme Court referred to it while evaluating whether the original defendants adequately represented all pathway users. |
| Union of India v. Dinanath Shantaram Karekar (1998) 7 SCC 569 | Service by newspaper publication is ineffective unless the paper enjoys wide local circulation. | Used to illustrate that adequacy of publication under Order 1 Rule 8 is a triable issue for the trial court. |
| Church of North India v. Lavajibhai Ratanjibhai (2005) 10 SCC 760 | Limits on enforcing rights on behalf of a public trust in representative suits. | Referenced while discussing maintainability and scope of representative actions under Order 1 Rule 8 CPC. |
Court's Reasoning and Analysis
1. The Supreme Court observed that the plaint and the original Order 1 Rule 8 application were not on record, leaving uncertain the capacity in which the initial defendants represented the public. In representative suits, defendants must fairly represent all interested persons, and personal decrees cannot be passed against them.
2. Where the subject is a village pathway alleged to be private property, users or adjoining landowners “should ordinarily be impleaded.” A decree obtained by suppression of material facts or collusively cannot bind non-parties.
3. Adequacy of notice under Order 1 Rule 8—including whether the chosen newspaper had wide circulation—is a factual matter requiring inquiry by the trial court. The precedent in Dinanath Karekar supports scrutiny of service by publication.
4. The executing court had limited its order to impleading Respondents 1 & 2 so that they could pursue their applications for setting aside the ex parte decree and for condonation of delay. This facilitative order did not itself decide those applications on merits.
5. Given the discretionary nature of the order and the absence of any manifest legal error, intervention under Article 136 of the Constitution was unwarranted. The Court therefore declined to disturb the impleadment.
Holding and Implications
Appeal Dismissed with costs of ₹10,000.
Immediate Effect: Respondents 1 & 2 remain impleaded as Defendants 4 & 5 and may press their applications to set aside the ex parte decree upon adjudication of delay.
Broader Implications: The decision underscores that in representative suits under Order 1 Rule 8 CPC, third parties who claim to be affected may be added even post-decree, especially where questions of collusion or inadequate notice arise. No new legal doctrine was formulated, but the Court affirmed the discretionary power of trial courts to ensure fair representation before executing decrees obtained in representative actions.
S.B Sinha, J.— Leave granted.
2. A question of some importance as to whether a third party can be impleaded in a suit filed under Order 1 Rule 8 of the Code of Civil Procedure is involved in this appeal which arises out of the judgment and order dated 30-6-2005 passed by a learned Single Judge of the Kerala High Court in CRP No. 272 of 2004 dismissing the revision application filed by the appellant herein challenging the order dated 17-10-2003 passed by Additional Sub-Court, Kottayam.
3. The basic fact of the matter is not in dispute.
4. The appellant herein filed Original Suit No. 364 of 1997 in the Court of Additional Sub-Court, Kottayam, for declaration of his title and for possession of the suit property. A prayer therein was made for restraining the defendants who were three in number (Respondents 3 to 5 herein) from interfering with his right to enjoy the property by entering upon it or using it as a pathway as if it was a public pathway. A purported publication was also made in a newspaper purported to be in terms of Order 1 Rule 8 of the Code of Civil Procedure.
5. Respondents 3 to 5 herein did not appear in the suit as a result whereof, an ex parte decree was passed on 26-3-1998. An application for execution of the said decree was filed. Respondents 1 and 2 herein in the said execution case filed five applications, the details whereof are as under:
IA No. 965 of 2002—Under Order 9 Rule 13, for setting aside the ex parte decree.
IA No. 966 of 2002—For condonation of delay.
IA No. 967 of 2002—Application for stay of all the proceedings in the execution.
IA No. 968 of 2002—Application filed by Respondent 1 for permission to contest the suit and to add himself in the array of parties as additional defendant.
IA No. 969 of 2002—Application filed by Respondent 2 for permission to contest the suit and for making her as additional Defendant 5.
6. The executing court allowed IAs Nos. 968 of 2002 and 969 of 2002 impleading Respondents 1 and 2 as Defendants 4 and 5 in the suit. The revision application filed thereagainst has been dismissed by a Single Judge of the High Court by reason of the impugned judgment.
7. Mr V.J Francis, learned counsel appearing on behalf of the appellant, submitted that a suit, wherein notice under Order 1 Rule 8 of the Code of Civil Procedure has been issued, could not have been reopened at the instance of Respondents 1 and 2 herein without allowing their application for condonation of delay and for setting aside the ex parte decree. It was urged that no case has been made out for condonation of delay as the application for setting aside the ex parte decree was filed after more than four years from the passing thereof. Respondents 1 and 2, in any event, it was contended, could not have represented the Panchayat and, thus, the impugned order is unsustainable.
8. Mr M.T George, learned counsel appearing on behalf of the respondent, however, would support the impugned judgment.
9. The suit land measuring 450 ft × 4 ft starts from Vattachalpady Junction of Manarcadu-Thengana PWD Road and ends at Kuttiyilpadyperumpanachi Panchayat Road on the east. Respondents 1 and 2 were not parties to the suit. They, in their applications, inter alia, contended that the appellant and Respondents 3 to 5 herein are neighbours and close associates. The suit was a collusive one. Leave of the court under Order 1 Rule 8 was obtained on a misrepresentation.
10. A specific contention was also raised that the petitioner-plaintiff deliberately and intentionally had not impleaded the users of the pathway in the said suit. It was stated that publication of the notice purported to be under Order 1 Rule 8 CPC was made in the newspapers which did not have wide circulation in the locality.
11. The High Court has, inter alia, relying upon the decision of the Madras High Court in Swaminatha Mudaliar v. Kumaraswami Chettiar (1923) 44 MLJ 282 accepted the said contentions of the respondent, holding:
“It may be unusual to bring fresh plaintiffs on the record after a decree has been passed; but there is authority for doing so under Order 1 Rule 10.
Order 1 Rule 8 expressly permits any person on whose behalf a representative suit is instituted to apply to the court to be brought on the record, and the words of this Rule are not limited, as they are by Order 1 Rule 10 by the purpose being expressed as that of adjudication on the questions arising in the suit.”
12. The plaint is not before us. The application purported to have been filed by the applicant under Order 1 Rule 8 is also not before us. On what basis, Respondents 3 to 5 were impleaded in the suit and in which capacity, thus, is not known.
13*. A suit filed in terms of Order 1 Rule 8 should ordinarily be premised on the ground that the defendants represent the parties interested in the suit. The defendants in such a suit, although, must be able to represent the public in general, but no personal decree can be passed against them. To what extent the original defendants were interested in the suit property at least in respect of the portion thereof is not known.
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 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.
15. Reliance has been placed by Mr Francis on T.N Housing Board v. T.N Ganapathy (1990) 1 SCC 608 wherein the question which arose for consideration centred around the maintainability of the suit at the instance of the plaintiffs who belonged to the category of low income group against the Housing Board for a permanent injunction from demanding and calculating (sic collecting) from the allottees any additional price, was answered in the following terms:
“8. Coming to the relevant circumstances in the present case it will be seen that all the allotments in Ashok Nagar were made under the same scheme and all the relevant facts are common. The basis of the impugned demand of the appellant is equally applicable to all the allottees and the plea of the plaintiff is available to all of them. The trial court was, therefore, perfectly right in permitting the plaintiff to proceed under Order 1 Rule 8 of the Code of Civil Procedure. Nobody in this situation can complain of any inconvenience or injustice. On the other hand, the appellant is being saved from being involved in unnecessary repeated litigation.”
16. As indicated hereinbefore, we have no idea as to what was the nature of interest claimed by original Defendants 1 to 3 (Respondents 3 to 5) in the suit land. In any event, whether the service of notice was proper would also be the subject-matter of an inquiry by the learned trial court. It has also to be seen as to whether the notice in terms of Order 1 Rule 8 of the Code was published in a newspaper having a wide circulation in the locality.
17. In Union of India v. Dinanath Shantaram Karekar (1998) 7 SCC 569, (1998) 4 Scale 659 this Court held:
“4. So far as the service of show-cause notice is concerned, it also cannot be treated to have been served. Service of this notice was sought to be effected on the respondent by publication in a newspaper without making any earlier effort to serve him personally by tendering the show-cause notice either through the office peon or by registered post. There is nothing on record to indicate that the newspaper in which the show-cause notice was published was a popular newspaper which was expected to be read by the public in general or that it had a wide circulation in the area or locality where the respondent lived. The show-cause notice cannot, therefore, in these circumstances, be held to have been served on the respondent. In any case, since the very initiation of the disciplinary proceedings was bad for the reason that the charge-sheet was not served, all subsequent steps and stages, including the issuance of the show-cause notice would be bad.”
18. In Church of North India v. Lavajibhai Ratanjibhai (2005) 10 SCC 760, it was observed:
“72. … bars a suit to enforce a right on behalf of a public trust. CNI got itself registered as a public trust in the year 1981. A suit evidently was filed by the plaintiffs in the year 1980 because CNI was then not entitled to file a suit. It may be true that the suit was filed under Order 1 Rule 8 of the Code of Civil Procedure but therein the question as to whether the appellant herein, being a registered trust became entitled to the properties of the Brethren Church could not have been gone into. What is prohibited is to enforce a right on behalf of a public trust. When the plaintiffs intended to enforce a right on behalf of the appellant, the suit was evidently not maintainable.”
19. If for the purpose of examination of the said question, amongst others, the executing court has allowed the applications for impleadment of Respondents 1 and 2 herein as Defendants 4 and 5, so as to enable them to press their applications for setting aside the ex parte decree upon condonation of delay; we do not see any reason to interfere therewith in exercise of our discretionary jurisdiction under Article 136 of the Constitution of India.
20. For the reasons abovementioned, there is no merit in this appeal which is accordingly dismissed with costs. Counsel's fee assessed at Rs 10,000 (Rupees ten thousand only).
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