GANESH SARKAR Vs. AINUL HAGUE ANSARI

JUDGEMENT

(1.) THIS Rule is is directed against order No. 48 dated 8. 2. 80 passed by the learned Judge, 4th bench, City Civil Court, Calcutta. The Rule was issued by his Lordship Mr. Justice g. N. Ray. After the Rule was issued, on the prayer of some of the opposite parties consented to by the petitioners, upon an application being made, his Lordship Mr. Justice D. C. Chakravorti was pleased to issue certain directions and also to appoint as Special Officer, one of the opposite-parties, to hold the election which is the subject-matter of dispute in the suit being title Suit No. 1603 of 1968, now pending in the City Civil Court, 4th Bench. After the election was duly held by the Specialofficer application was made on behalf of the petitioners for certain directions before the vacation Judge Mr. Justice S. C. Ghosh', and another application was filed for modification of the order passed by his Lordship mr. Justice S. C. Ghosh and an application was filed on behalf of some of the opposite parties for recalling the order of the 1st ' october. 1980 passed by Mr. Justice D. C. Chakravorti. The Rule as well as these applications have been heard together.

(2.) THE petitioners Who are defendants in Title Suit No. 1603 of 1978 challenged the order, as already stated, passed by the learned Judge, City Civil Court, Calcutta on the 8th February, 1980. Before proceeding to deal with the merits Of the Rule, it is necessary to state some of the salient features of the case. The plaintiffs who are three in number, filed a title suit being title Suit No. 1603 of 1978 against the defendants and prayed for leave of the learned Judge under Order 1 Rule 8 of the code of Civil Procedure to file the said suit for and on behalf of the members of the west Bengal Pradesh National Trade Union congress and for a declaration that the purported election of the bearers and the members of the West Bengal Pradesh National trade Union Congress held on 23rd July, 1978 is void, inoperative and that the defendants are not the legally elected office bearers and/or working committee members of the West Bengal Pradesh national Trade Union Congress and for a permanent injunction restraining the defendants from interfering with the functioning of the plaintiffs as Vice President and members of the working committee and general council member of the West Bengal Pradesh national Trade Union Congress and/or further giving effort to the purported election held on the 23rd July, 1978 and/or representating themselves as the office bearers of the working committee members and/or permanent injunction restraining the defendants from holding the working committee meeting and/or sending any representatives etc. The learned Judge, City Civil Court granted leave to file the suit as a representative suit by the plaintiffs and he further directed that notices may be inserted in the statesman to the effect that a representative suit has been filed for and on behalf of the members of the West Bengal Pradesh national Trade Union Congress. It appears from the records that the insertion in the statesman was not made at all. On the 12th November, 1979, the parties to the said suit agreed to have the matter resolved through an arbitrator and accordingly the learned Judge by his Order No. 39 dated 12th November. 1979 was pleased to pass an order appointing Shri Shiba Prosad Roy, secretary of the City Civil Court Bar Association as Arbitrator who was to see that the election of the working committee is held within 15 days from the date of the said order. Shri Shiba Prasad Roy in pursuance of the order passed by the learned judge issued notices to the general council members for holding the election of the working committee and its office bearers on 24th of November, 1979 at 3 P. 'm, in the hall of the Bar Association of the City civil Court but the election could not be held as there was pandemonium amongst the members. Thereafter Sri S. P. Roy resigned and an application was made on behalf of the parties for appointment of another Arbitrator for holding the election but this application was not heard and it was adjourned to 11. 2. 80 for orders. It is alleged that before the date fixed, for final hearing of that application on 8. 2. 80 the defendant No. 5 and defendant No. 19 were appointed as joint Arbitrators by the learned judge upon an application being made by some of the defendants and some of the plaintiffs. But this application was not signed by all the defendants nor by all the plaintiffs but their learned Advocates signed the application. This order of appointment of joint Arbitrators, viz. , the defendant No. 5 and 19 upon the application signed by the learned Advocates of the parties is challenged in the Rule as being without jurisdiction being a violative of Order 23 rule 3 (b) of the Code of Civil Procedure. It was strenuously argued by the learned advocate, Mr. Gupta representating the plaintiffs opposite parties and Mr. Subhas banerjee representing the petitioners that the suit being a representative suit, it was incumbent on the parties before coming to an agreed order in respect of the appointment of joint Arbitrators to have the application signed by all the parties and not their lawyers only. Order 23, rule 3 after the amendment makes it clear that a lawful agreement or compromise can only be made in writing and signed by the parties. Furthermore, it has been pointed out by the learned Advocates for the petitioners and the plaintiffs opposite parties that by virtue of rule 3 (b) of the said Order no agreement or compromise in a representative suit shall be entered into without the leave of the court expressly recorded in the proceeding and in the explanation to the said rule representative suit has been defined as "a suit under rule 8 of Order 1. " Hence the impugned order is a nullity, as it does not satisfy the above conditions. Accordingly that is liable to be set aside. On the other hand, Mr. Nani Chakravorti, on behalf of the opposite parties defendants has pointed out that the provisions of Order 3 runs thus "that any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting as the case may be, on his behalf. " so far as Order 23 rule 3 is concerned which enjoins that any lawful agreement or compromise must be in writing and signed by the parties it is submitted by Mr. Nani chakravorti that when there is an appearance by the party in person then alone this provision of Order 23, rule 3 will apply but when he is represented by a pleader or by his recognised agent, it is sufficient if a pleader or the learned Advocate signs any application for compromise, as in the instant case. Further it is argued by Mr. Nani chakravorti that the suit, from which the rule arises is not a representative suit, in as much as in the case of a representative suit order 1 rule 8 enjoins under clause (1) (a)that the suit will be filed with the permission of the court under clause (2 ). In a representative suit, the court shall give, at the expense of the plaintiffs, notice of institution of the suit to all persons, either by personal service or where by reason of the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct. In this case, it is admitted that the court granted the plaintiffs leave to file the suit in a representative capacity and also directed that the plaintiffs shall insert in the newspaper (Statesman) that such a suit has been filed so that, that may operate as a notice to all other persons interested in the suit to join either as plaintiffs or as defendants in case they wanted to contest the suit. This last part of the order of the learned Judge was not parried out and the application was madeby some of the parties through their learned advocates for appointment of joint arbitrators to hold the election, viz,, order dated the 8th February, 1980. It is argued by mr. Nani Chakraborti that this suit cannot be said to have been filed in a representative capacity as the insertion has not been made in the 'statesman' to serve as notice to those who would like to join and support the suit or to contest the suit.

(3.) ACCORDINGLY order 23 rule 3 (B)would not come into operation. Therefore, the suit was relegated to the position of an ordinary suit. In this connection, the cases cited on behalf of the petitioners may be referred to, on the effect of non-compliance of the provisions of Order 1, Rule 8 regarding failure to publish in vitiating the decree. This would also apply to any interlocutory order passed in a suit. The cases reported in AIR 1970 SC 794 and 838 as well as AIR 1964 MP 101 and 108, air 1970 Kashmir 26 and AIR 1952 bombay 76 and also 35 CWN 589 have been cited by the learned Advocate appearing for the petitioners. The case reported in AIR 1970 SC 838 has been cited by the learned advocate for the petitioners in order to substantiate his argument that there cannot be any question of estoppel or waiver against a statute as argusd by Mr. Nani chakravorti. This case, however, supports his contention that though the petitioners or some of them or their learned Advocates had signed the application praying for appointment of joint arbitrators they cannot be debarred from moving against the order passed by the learned Judge inasmuch as that order was passed by the learned Judge in violation of Order 23, Rule 3 (b) of the code of Civil Procedure. The facts of the case are as follows :- a dectee in an ejectment suit was passed in favour of the plaintiffagainst the tenant defendant in terms of compromise arrived at between the parties to the following effect : - (a) Decree for ejectment be passed in favour of the plaintiff against the defendant, the decree will be executable after the 31st December, 1958 if the defendant does not give possession till then. The standard rent of the premises will be fixed at Rs. 40/-per mensem instead of Rs 50/- paid at "present payable from the 1st July, 1955 till the defendant vacates the premises". The learned Court recorded the following order :