MUNICIPAL COUNCIL AMRAVATI Vs. GOVIND VISHNU SARNAIK

JUDGEMENT

(1.) An interesting point with regard to the procedure required to be followed by Court while permitting representation to others under Order 1, Rule 8, of the Code of Civil Procedure, has been raised by the present revision.

(2.) Few facts need be stated to appreciate the submissions of the learned counsel. The opponents purported to institute a suit on July 30, 1971 claiming relief of permanent injunction against the applicant Municipal Council restraining it from imposing, assessing or levying scavenging tax, general water tax and light tax for the year 1970-71 and the consolidated property tax for 1971-72 on the basis of tentative assessment lists of 1969-70 and 1971-72 respectively, and also for costs. In the body of the plaint, plaintiffs purported to aver that they along with rest of the tax prayers own houses within the limits of the Municipal in Old Camp Area and that the defendant-Council is imposing taxes for the years 1970-71 and 1971-72. Plaintiffs sought to challenge the taxation on the grounds inter alia stated in paragraph 2 of the plaint. Along with this plaint, as per Exh. 4, these plaintiffs who are three in number, purported to file application under Order 1, Rule 8, of the Code of Civil Procedure, stating that the suit has been brought on behalf of the plaintiffs themselves and on behalf of other house owners and tax prayers of Champ Area of the Municipal Council, Amravati. They further stated that all the house owners of the Camp Area have common and same interests and therefore they sought permission to file the representative suit and prayed that notices be given to the interested persons by public advertisement. When the matter came before the Court along with this application, the present applicant Municipal Council filed objections to the application under Order 1, Rule 8, Civil Procedure Code, inter alia contending that the application was entirely misconceived and further that the terms of Order 1, Rule 8, were not satisfied. By the impugned order made on October 13, 1971 the Court rejected the objection of the Municipal Council and held that the application of the three plaintiffs was entertainable. While deciding this application, the Court granted permission to the plaintiffs to sue in the representative capacity but as it was not practicable to serve individual notices to every tax payer, it further directed that notice of the suit be published in the local newspapers. Thus having granted the permission to sue under Order 1, Rule 8, the public notice was directed to be issued to the tax payers. This order is questioned.

(3.) Apart from the other grounds raised by the learned counsel appearing for the Municipal Council, Mr. Chandurkar, about the merits of the plaintiff's entitlement to seek to sue in representative capacity, the question of procedure under Order 1, Rule 8, has been argued, in that it is contended that Rule 8 of Order 1 is in the nature of an exception to the general provisions contained in Order 1 with regard to joinder of plaintiffs or with regard to joinder of defendants in a given cause. It is submitted that all the conditions of Rule 8 will have to be strictly complied with before the Court can exercise its power of permitting certain persons to sue on behalf of others. For this, emphasis is laid on the second part of sub-rule (1) of Rule 8, which indicates that before the permission is granted the Court is bound to give notice at the plaintiff's expense of the institution of the suit to all such persons either by personal service or by public advertisement on whose behalf such a suit is purported to have been filed. Emphasis is laid on the preposition "But" employed by the Legislature in Rule (1) with which the second part of the rule begins. As a matter of construction the learned counsel submits that the said preposition "But" should be interpreted to mean "unless". Without notice, therefore, the Court should not proceed to grant permission under this rule, for, according to the learned counsel, there are obvious reasons which are involved in every litigation that may bind the fate of several persons by improper or even slovenly representations in such causes.