LAXMIDAS T MERCHAND Vs. RAMDAS GAYADIN

JUDGEMENT

(1.) THIS is an Appeal filed by the Plaintiffs against the order of the learned single Judge passed in the Chamber Summons taken out by Respondent Nos.1 to 6 and/or their heirs. Respondent Nos.4 and 6 are now represented by their respective heirs. Respondent Nos.7 to 11 are the original Defendants (wrongly described in the Memo of Appeal as original Applicants/Claimants). For convenience we will refer to Respondent Nos.1 to 6 as the Applicants and Respondent Nos.7 to 11 as the Defendants.

(2.) THE above Chamber Summons was taken out by the Applicants under the provisions of Order 21 Rule 99 of the Code of Civil Procedure for a declaration that the consent terms dated 27.11.1978 between the Appellants and the Obstructionist Nos.1 to 130 therein filed in Chamber Summons No.566 of 1977 in the above suit are not binding upon the Applicants and for order directing the Appellants/Plaintiffs to restore to the Applicants their original premises described in Annexure-1 to the Chamber Summons and in the alternative for an order directing the Appellants to provide alternative premises of similar area in the proposed new building.

(3.) ON 25th June, 1953, the Appellants filed the above suit against Respondent Nos.7 to 11. The Appellants' case was of having entered into an agreement dated 16th December, 1948 with the Defendants wherein the Appellants permitted the Defendants to use 2000 sq.yards on the said property on leave and licence basis reserving to themselves the right of changing the space so permitted to be used within the aforesaid property and certain other rights as well. It is pertinent to note that there is nothing in the said agreement which reflects on the rights of any other persons in, to, upon or in respect of the structure occupied by the said other persons on the said property. The Plaintiffs contended that the Defendants put up some unauthorised structures on the said property and failed to pay compensation in terms of the said agreement dated 16th November, 1948. The Appellants accordingly terminated the said agreement and served a notice calling upon the Defendants to vacate the said property. The Appellants filed the above suit and sought a declaration that the Defendants were trespassers on the said land and the Defendants be ordered and decreed to remove themselves and their belonging on the said land and that the Defendants and their servants and agent be permanently restrained from entering upon or remaining on the said land. It is pertinent to note that there are no averments in the plaint to the effect that the Defendants therein were sued not merely in their personal capacity but as representing the interest of any other persons. Nor is there any reference to the alleged agreement that the Defendants represented any other persons on the property. Leave under Order 1 Rule 8 of the Code of Civil Procedure was not sought. There is no averment to the effect that any other persons including the Applicants agreed to be represented by and or to be bound by the acts and deeds of the Defendants.