NILANCHAL ESTATE PVT. LTD. Vs. DR. AMBAR GHOSH

JUDGEMENT

(1.) This is an application under Sec. 115 of the Code of Civil Procedure challenging the order passed by the learned Civil Judge (Jr. Divn.) 5th Court, Alipore, 24-Parganas (South) dated July 2, 2002. By such order, the learned court below finally allowed the application under Order 1 Rule 8 of the Code of Civil Procedure and a suit for declaration and injunction etc. instituted in 1997 was converted into a representative suit. Naturally, a challenge has been thrown by way of revisional application by saying that the order suffers from illegality or material irregularity. From the plain reading under Order 1 Rule 8 or the Code of Civil Procedure, I find that one person may sue or defend on behalf of all in same interest. Sub-rule (1)(a) of Rule 8 of Code of Civil Procedure says that one or more of such persons may, with the permission of the Court sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. The Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. Now, a question arose before this Court that at what stage such order can be passed. According to me, a suit under Order 1 Rule 8 of the Code of Civil Procedure can be instituted or be defended. Therefore, one has to institute a suit of such nature and after service a Defendant can plea in such a manner. In any event, the Court may also direct in such manner. Whether the Court may direct or not i.e. the discrimination of the Court and nobody can interfere with the same. But in this prospective, if Clauses (a) and (b) under Sub-rule (1) of Rule 8 of the Code of Civil Procedure, are to be read together. It will be able to understand that at the initial stage, all steps are to be taken in this regard.

(2.) In the instant case, the suit was not only instituted in the year 1997 but also interim order of injunction with regard to supply of service was obtained. Now, from the notice as issued on the basis of such order, I find that for appointment of Receiver by replacing the Defendant to look after the 'Maintenance Services' of the complex where the flat owners are residing the conversion was needed to be made. Therefore, the true import is to obtain such order in the garb of conversion of the suit in the category of representative suit. This cannot be allowed because the same is an afterthought. In a suit of declaration and injunction it is obvious that a question of appointment of a Receiver may arise. But that does not necessarily mean that court will give premium to the illegality by converting the suit into the category of suit under Order 1 Rule 8 of the Code of Civil Procedure. Moreover there is no embargo to the Plaintiff to make an application for appointment of Receiver and in case take any difficult seek leave from the Court to issue public notice. There is also no embargo for the parties who are notified to be added as party Defendants to get an appropriate relief. But the Plaintiff is debarred from taking such plea after a period of 5 years for the purpose of certain benefits arise in the nature of interlocutory business. Such type of order ought not to be sustained in the eye of law.

(3.) The Learned Counsel appearing for the Petitioners has also taken a plea that the interest of the Plaintiff and the interested parties who wanted to be joined cannot be common because the Plaintiffs are not holding conveyance and enjoying the possession only on the basis of agreement for sale.