ASHOKA BUILDCON LTD Vs. V MANOJ PAWAR

JUDGEMENT

(1.) THE petitioner has filed this revision against the order dated 14.7.2004 passed by the Civil, Judge Class-II, Dewas in Civil Case No. 48/04, allowing the application filed by the plaintiff respondents No. 1 and 2 under Or.1 R. 8 read with S. 151 of the Code of Civil Procedure.

(2.) THIS order shall also govern the disposal of Civil Revision No. 296/04 because the aforesaid revision has also been filed against the order dated 21.7.2004 passed in the same Civil Suit by the same Judge, dismissing the application filed by the petitioner under Or.7 R. 11 of the Code of Civil Procedure. The defendants No. 11 and 2, who are students filed a suit before the Civil Judge-II, Dewas, with regard to declaration of recovery of toll tax by the petitioner of Dewas bypass road from the persons, who had not been using the aforesaid bypass road. They pleaded that they had gone Dewas to Ujjain by their own vehicle and at the place of Nagukhedi, the petitioner put up a toll barrier and recovered toll tax from them although they did not use the bypass, which was constructed by the petitioner. Hence, the petitioner defendant No. 2 has been illegally recovering the toll tax from the persons, who were not using the aforesaid bypass. The plaintiff cannot recover the toll tax from the persons, who do not use the bypass. It is clear from the pleadings that the plaint was filed in a representative capacity. However, along with the plaint, no application under Or.1 R.8 CPC has been filed, permission to file the suit in a representative capacity.

(3.) THE main contention of the learned counsel for the petitioner is that the permission granted by the trial Court is bad in law because at the time of filing of the suit, an application has to be filed and subsequently it cannot be entertained. For tnis purpose, he relied on .a judgment of this Court reported in 1983 JLJ 150 =1983 MPLJ 475 and AIR 1986 Orissa Learned counsel for the respondents submitted that there is no illegality in the order. It has a procedural defect and the application with regard tp 'filing the suit in a representative capacity, can be entertained by the Court at any time. He relied on a decision reported. in AIR 1978 Himachal Prqdesh 22.