PUSHKARLAL Vs. LAXMAN SINGH

JUDGEMENT

(1.) THIS is yet another revision in a suit for redemption which is pending in the court of the learned Additional District Judge, Udaipur since 1968. Under his order dated August 24, 1981 which has been challenged in revision, the learned District Judge has dismissed the application of the non -petitioners moved before him under Order 1 Rule 8(5) C.P.C. Laxman Singh non -petitioner No. 1 filed a suit on July 1, 1968 for redemption of a mortgage dated September 11, 1941. The mortgage was with the members of the Sunar community known as 'Samast Panch Med Sunar Udaipur.' As the number of the members of the Sunar community was large, an application under Order 1 Rule 8 C.P.C. along with the suit was filed seeking the permission of the court to sue the six persons shown in the written statement representing the entire Sunar community. The learned court under Order 1 Rule 8. C.P.C. as is stood prior to the amendment by Act 104/76 which came into force with effect from February 1, 1977 gave notice of the institution of the suit to all persons interested. In pursuance of the notices which were published in the local news paper as many as 18 persons belonging to the suner community came forward to be impleaded as defendants and they were impleaded as defendants in the suit on December 17, 1968. The suit proceeded and the evidence or the plaintiff closed on August 28, 1972 and there after the case went on for the evidence of the defendants. The evidence of the defendants was also closed on December 4, 1978. On February 19, 1979 an application by the petitioners, numbering 10, under Order 1 Rule 8 C.P.C. was filed to the effect that they should be impleaded as defendants as they represent the Sunar community and were its memberS. The ground was that the defendants who were already on record including the six who were permitted to be sued in representative capacity did not safeguard the interest of the community. The learned Additional Sessions Judge, Udaipur under his order dated July 10, 1979 dismissed that application. A revision was filed in this Court but that revision was withdrawn by the petitioners. There after the petitioners filed another application under Order 1 Rule 8 C.P.C. on October 15, 1979 where in some instances about the defendants already on record not conducting the suit property and not safe guarding the interest of the community were cited. Reply to this application was filed on behalf of the plaintiff and under the impugned order the learned Additional Sessions Judge dismissed it.

(2.) I have heard the learned Counsel for the parties and perused the record of the case. It is contended by the learned Counsel for the petitioners that the order of the learned Additional Sessions Judge proceeds on irrelevant consideration in as much as the learned Additional Sessions Judge has wrongly observed that on the application dated May 7, 1973, seven persons belonging to the Sunar community were also impleaded as defendants and that the earlier order dated 10, 1979 operates as resjudicata. It is also contended that the relevant considerations for the disposal of the application under Order 1 Rule 8(5) C.P.C. were not even considered by the learned trial court and, therefore, according to the learned advocate it amounts to illegal exercise of jusisdiction by the trial court. The learned advocate further contends that in case of a suit under Order 1 Rule 8 C.P C. if some of the persons against whom permission to be sued is given die or do not take interest in the proceedings, then it is necessary that the other members of the s'ame class should be allowed to be added as defendants.

(3.) IT does appear that the learned Additional Sessions Judge wrongly observed that seven persons belonging' to the Sunar community on their application dated May 7, 1978 were ordered to be impleaded as defendants; It appears that application was filed on behalf of Doongarsingh and Daulatsingh to the effect that they should be' impleaded as co -'plaintiffs because the property sought to be redeemed is not solely owned by the plaintiff non -petitioner No. 1. That application was allowed. I have heard learned Counsel for the parties and have minutely gone through the record of the case. I will presently show that the present application does not appear to be bonafide and it can also not be said that the defendants already on record including the six who were sued in representative capacity under Order 1 Rule 8 C.P.C. were hot conducting the suit' well and the instances which have been given by the petitioners in their second application which was filed' after the rejec1 -tion of the revision are vague and do not carry any weight.