D GOPALAN Vs. RAGHAVA NAICKER

JUDGEMENT

(1.) This appeal is directed against the order passed in application No. 2957 of 1988 dismissing the application filed by the appellant herein under O.3, R. 2 of the Original Side Rules for leave to institute a suit in a represenlative capacity under O.1, R.8, C.P.C. In the affidavit filed in support of that application, in paragraph 3, the deponent to the affidavit stated that he is the General Secretary of the Madras District Social Welfare Association comprising of namely 6,000 members residing in and around the area and near the Adhi Chenna Kesavaperumal Devasthanam and the deponent and the majority of the members of the Association are devotees and the proceedings are initiated in a representative capacity on behalf of the member of the Association. It has been further stated in the affidavit that if notice is to be sent to the members of the Association, it would be an expensive process and it would, therefore, suffice to give notice by beat of tom tom. In the counter-affidavit filed on behalf of the contesting respondents, they disputed the very existence of the Association as well as the interest of the Association in the suit property and also the identity of the interest of the members of the Association in the suit property. Several other grounds had also been raised by them in opposition to the application filed by the appellant for the grant of leave to institute the suit in a representative capacity. Certain other' application praying for interlocutory relief had also been filed by the appellant and they had also been contested and those applications came to be considered along with Application No. 2957 of 1988 and disposed of by a common order. In so far as Application No. 2957 of 1988 is concerned, the learned Judge on the original side examined the deponent to the affidavit in order to satisfy himself about the bona fides of the claim and on a consideration of the evidence, found that the Association had not in any manner authorised the institution of the suit on behalf of its members by Mr. D. Gopalan with reference to the suit property and that the very existence of the Association on whose behalf the suit was stated to have been instituted was doubtful and no elections had also been conducted in the Association between 1977 and 1988 and, therefore, he was not entitled to seek leave before Court to institute the suit in a representative capacity and in that view, dismissed the application. It is the correctness of this that is questioned in this appeal.

(2.) Learned Counsel for the appellant first contended that an application under O. III, R. 2 of the Original Side Rules read with O. 1, R. 8, C.P.C. should have been dealt with and disposed of only by the Master sitting on the Original Side under O. XIV, R. 10(xiv) of the Original Side Rules and the enquiry by the Judge sitting on the Original Side had deprived the appellant of a further right of appeal under O. XIV, R. 12 of the Original Side Rules. Learned Counsel for the appellant even went to the extent of characterising the order of the learned Judge as non est. On the other hand, learned counsel for the contesting respondents, inviting attention to O. I, R. 4(3) and (8), O. I, R. 8, O. III, Rr. 1 and 2, O. IV, O. XVI, Rr. 1, 8, 9, 10, 11 and 13 of the Original Side Rules, contended that there is absolutely no substance in the contention of the learned Counsel for the appellant and no objection whatever was raised in the course of the proceedings and in the absence of any prejudice having been caused to the appellant, he cannot be permitted to complain of unavailability of a right of appeal.

(3.) Under O.I, R.4(3) of the Original Side Rules, the expression "Court" includes a Judge, or Master, or the First Assistant Registrar, Original Side. "Master" is defined under O.I, R.4(8) of the Original Side Rules as the Master of the High Court at Madras. O. III, R.2 of the Original Side Rules provides that an application under O.I, R.8 of the Code of Civil Procedure, shall be supported by an affidavit stating the number or approximate number of the parties, and the plAccs where they respectively reside; that they have all the same interest in the subject matter of the suit as well as the nature of the said interest and also set out the best means of giving notice of the institution of the suit to the said parties as well as the probable cost thereof. The further provision is to the effect that if the application is made before suit, it shall be entitled as mentioned in O.III, R.I and shall be accompanied by the plaint or a copy thereof. O.XIV of the Original Side Rules provides for interlocutory applications. Under R.7 of O. XIV, the Judge, in case of urgency, may hear any application with respect to any matter. R.8 of O.XIV provides that all applications other than those mentioned under R.10 of O.XIV, shall be disposed of by the Judge and R.10(xiv) of O.XIV of the Original Side Rules takes in an application under O.I, R.8 of the Code of Civil Procedure for leave to sue and defend on behalf of or for the benefit of all, in the same interest. Under R.11 of O.XIV of the Original Side Rules, the Master may refer to the Judge any matter which he considers to be a proper one to be so referred, and the Judge may either dispose of the matter or refer the same back to the Master with such directions as he may think fit. O.XIV, R.13 of the Original Side Rules provides that all applications except appeals filed under R.12 of O.XIV, shall be posted before the Master in the first instance and if the application is one which, either by the Rules or by a direction of the Judge is required to be dealt with by a Judge, the Master shall adjourn the matter to the Judge as soon as the matter is ready for hearing. It would also be necessary to bear in mind O.I, R.8 of the Original Side Rules to the effect that non-compliance with any of these rules shall not render the proceedings in any suit or matter void, unless the Court so directs, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with, in such manner and upon such terms as the Court thinks fit. It is in the background of the aforesaid provisions of the Original Side Rules that the contention of the learned Counsel for the applicant has to be considered.