NARAYANI KAMALAKSHI Vs. KUNCHIYAN BAHULAYAN

JUDGEMENT

(1.) Both these second appeals arise from the same suit. The suit is one for declaration that the Ollal Devaswom, the properties of which are scheduled to the plaint, is a private trust of the joint family of plaintiffs and defendants 1 to 11, for removal of the first defendant from the management of the Devaswom, for recovery of the assets and properties of the Devaswom in his hands and for settling a scheme with regard to the management of the Devaswom. A preliminary decree was passed declaring that the plaint Devaswom was a private family (rust, removing the first defendant from management and directing recovery of possession of properties and funds in the possession of the first defendant, vesting the management in the second defendant and directing the preparation of a scheme for the effective administration of the plaint Devaswom. Pursuant to this preliminary decree, the court posted the matter for settling the scheme. When the plaintiffs put in a draft scheme, and none else did so, the scheme proposed by the plaintiffs was accepted on the ground that there was no objection filed by any party to the scheme though it was posted for such objection. S. A. No. 1229 of 1966 is by defendants 4 to 7 and 9 to 11 challenging both the preliminary decree as well as the final decree. S. A. No. 1152 of 1966 is the appeal by defendants 20 and 21 challenging the preliminary decree.

(2.) In the main appeal, S. A. No. 1229 of 1966, the challenge to the preliminary decree is on the ground that the suit which is apparently instituted as one on behalf of the family of the plaintiffs is had for non joinder of necessary parties. It is contended that though some members of the tarwad are impleaded as plaintiffs and some as defendants, the parties so impleaded do not exhaust the entire membership of the tarwad. That, of course is seen to be true as admitted by Pw. 1 himself when he was cross examined. A number of members have been left out from the suit. It would appear that considerations of expediency and convenience have alone been the guiding factor in impleading parties in the suit. The members whose addresses were not available and who were not residing locally, have apparently been left out. In answer to the plea of non joinder of these parties, the plaintiffs would point out that there has been a motion for treating the suit as a representative one and, therefore, though all the members are not on the party array, they must be deemed to have been represented in the suit. Along with the replication filed in answer to the written statement, a petition was filed seeking permission under O.1 R.8 of the Code of Civil Procedure and requesting orders for publication of notice to the respondents and on that, court directed publication. Counsel attacks these proceedings on the ground that no order has been passed granting permission under O.1 R.8 and, therefore, the decree passed in this case is bad. Consequently, therefore, according to counsel, those who are not actually parties, shall not be deemed to be represented in the suit. It is, therefore, urged that for that reason the suit must be found to be had and must be dismissed.

(3.) In suits where there are numerous parties, it is open to any party to seek representation by resort to O.1 R.8 of the Code of Civil Procedure. The term 'numerous' has received judicial interpretation and it has been said that this is not a term of article. It is not to be read either as innumerable or as limitless or even as unascertainable. The determination of the question whether the parties are 'numerous' must necessarily depend upon the allegations in the plaint and the nature of the suit. These are matters for consideration by the court at the time of granting permission. Who are sought to be represented and whether they are persons whose addresses are ascertainable is a matter which the court must be told. The party who seeks such representation under O.1 R.8 must necessarily furnish addresses of such persons. That is because notice to such persons by publication is to be resorted to only when personal service on them is found to be not reasonably practicable. The court will be in a position to decide whether such notice by personal service could be taken only when all these facts are before court. When the court decides to grant permission, and issues notice to the parties, the proceedings in the suit will be binding on the parties who are sought to be represented. Since the consequence of a decision reached with parties represented under O.1 R.8 is one of debarring them from raising the question over again, courts have necessarily to consider the requirements under O.1 R.8 not as mere formalities or matters of form. I am mentioning this here because in my experience, motions made under O.1 R.8 have been considered by the subordinate courts very lightly and as a matter of course. Judicial discretion of the courts in the matter of grant of such permission has rarely been seen exercised. Courts must remember that by granting such permission, the court is really seeking to bind those parties who are cot on the party array in the suit, and any contest by them on the same question later would be barred by res judicata. Therefore, the court owes a duty to those who are not on the party array but are still considered as represented in the suit to see that they are not prejudiced. In considering any application that may come up before court seeking permission to represent (parties under O.1 R.8, the courts have to keep this in view. The court must insist upon parties furnishing the addresses of persons when their addresses are ascertainable and when the number is such that personal service would not be impracticable, the court must necessarily direct such personal service on the parties besides publication. I am referring to this aspect in this case for a particular reason. I have found that applications moved for such permission are being treated very lightly. Notwithstanding the failure of a court to pass an order on a petition under O.1 R.8, the court shall assume such permission being granted to the parties where the court has directed publication. In resorting to that course, I have satisfied myself that no injustice was done to the parties concerned. I am satisfied that the decree is, in no way, prejudicial to those sought to be represented and therefore no necessity to reopen the decree arises at this distant date. On the other hand, to reopen the decree on the basis that there has been technically an irregular approach to the case in the matter of granting permission under O.1 R.8 would be to put the clock back by more than eight years and to start the litigation afresh, a litigation which has consumed considerable time of the court and the parties. I see no reason to adopt such a course.