RAMACHANDRA LAXMAN DODDAMANI Vs. TILAKARAJ BHAKTAVARMAL MAHAJANSHET

JUDGEMENT

(1.) THE petitioners who are the plaintiffs in O. S. No. 434 of 1995 on the file of the Principal Civil Judge (Junion Division), Dharwad, have filed the suit for a decree for an injunction as against the defendant. The prayer in the suit reads as follows: "that the defendants or any other persons on their behalf, restrained permanently from erecting any permanent structure in the suit property, as the suit property is already acquired by the corporation and is left for public purpose". By reading of the above prayer, it is clear that the suit has been instituted by the petitioners in the representative capacity for the benefit of the general public. The person who files the suit in the representative capacity requires permission of the Court before instituting the suit as required under Order 1, Rule 8 of the CPC read with Order 7, Rule 4 of the CPC. In the case on hand, the plaintiff/petitioner had not obtained the permission of the Court before instituting the suit as provided under order 1, Rule 8 read with Order 7, Rule 4 of the CPC. During the pendency of the suit, the petitioners/plaintiffs having realised the mistake made an application under Order 1, Rule 8 read with Order 7, Rule 4 of the CPC for permission to treat the suit as a suit instituted in a representative capacity. The said application has been rejected by the trial Court, on the ground that the plaint does not disclose that the suit has been instituted in a representative capacity and no application was filed along with the plaint for permission as required under Order 1, rule 8 of the CPC.

(2.) NO doubt, the person who files a suit in a representative capacity is required to obtain the permission under Order 1, Rule 8 of the CPC. But, at the same time, if no permission is obtained, it cannot be said that it is not open for the Court to entertain an application if filed during the pendency of the suit, if there are averments in the plaint that the suit has been instituted for the benefit of the general public. From the prayer in the plaint, it is seen that the suit is for an injunction on the ground that the suit schedule property has already been acquired by the Corporation and it is left for public purpose.

(3.) IN case of Mookka Pillai alias Sudalaimuthu Pillai v Valavanda pillai and Others, has held as follows: