VINOD Vs. PANDURANG

JUDGEMENT

(1.) The petitioners in this petition are defendants-1 and 2 on the file of the Court of II Additional Munsiff at Hubli (hereinafter referred to as 'the Munsiff) and this revision petition is presented by them aggrieved by the order dated 11th July, 1996, passed on I.A.II in O.S.No. 309/1996, filed by the lst respondent seeking permission to file the suit in a representative capacity under O. 1, R. 8 of the Code of Civil Procedure (hereinafter referred to as 'the Code').

(2.) Sri Chaitanya Hegade, learned counsel appearing for the petitioners, submitted that the order passed by the Munsiff is illegal and liable to be set aside by this Court as the said order came to be passed in disregard of the provisions of O. 1, R.8 read with 0.7, sub-rule (2) of R. 4 of the Code. According to Sri Hegade, the provisions of O. I, R. 8 and O. 7, sub-rule (2) of R. 4 of the Code are mandatory in nature and the order passed in disregard of the said provisions seriously affect the jurisdiction of the Court to entertain the suit filed by the plaintiff-lst respondent in a representative capacity. He further submitted that the learned Munsiff has committed serious material irregularity and illegalities in exercising the jurisdiction conferred on him, inasmuch as the learned Munsiff has failed to consider that the allegations in the plaint do not satisfy the requirement of O. I, R. 8, read with O. 7, sub-rule (2) of R. 4 of the Code. In support of his submissions, Sri Hegade relied upon the decision of the Kerala High Court in the case of Narayani Kamalakshi v. Kunchiyan Bahulayan reported in AIR 1972 Kerala 269, and drew my attention to paragraphs-3 of the judgment, which reads as hereunder (at p. 270):

(3.) However, Sri Subhash B. Adi, learned counsel appearing for the lst respondent submitted that the order impugned does not suffer from any error muchless an error which calls for interference by this Court in exercise of its jurisdiction under S. 115 of the Code. According to the learned counsel, the learned Munsiff after applying his mind to the allegations made in the plaint and the affidavit filed in support of the application filed seeking permission to file the suit in a representative capacity has passed the order impugned.