IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 OP(C).No. 2879 of 2011(O) ------------------------------------- [O.S.NO.30/2008 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM] .................... PETITIONER/PETITIONER (NOT A PARTY TO THE SUIT): -------------------------------------------------------------------------------- DN. MANOJ VARGHESE, ERACHERIL HOUSE, KANJIKKUZHI KARA, KANJIKUZHI VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. BY SRI.N.SUKUMARAN, SENIOR ADVOCATE, ADVS. SRI.S.SHYAM, SRI.N.K.KARNIS, SRI.BOBBYMATHEW KOOTHATTUKULAM, SRI.SAJI VARGHESE KAKKATTUMATTATHIL. RESPONDENTS/RESPONDENTS: ------------------------------------------------ 1. ST. GEORGE JACOBITE SYRIAN ORTHODOX CHURCH, KATHIPPARATHADAM, CHELACHUVADU, IDUKKI, REPRESENTED BY ITS TRUSTEE KURIAN, KALLUVETTAMKUZHIYIL HOUSE, KEERITHODU KARA, KANJIKUZHI VILLAGE, IDUKKI DISTRICT -685 602. 2. FR. POULOSE NJATTUMKALA, S/O. MATHAI, VALAMBOOR, KADAYIRUPPU, ERNAKULAM DISTRICT, VICAR - 682 311. 3. BINOY VARGHESE, ERACHERIL HOUSE, KANJIKKUZHI.P.O, KANJIKKUZHI VILLAGE, IDUKKI DISTRICT - 685 602. 4. ELDHOSE ISSAC, KEEPALAKKATTU HOUSE, THALLAKANAM KARA, KANJIKKUZHY VILLAGE, IDUKKI DISTRICT -685 602. O.P.(C).NO.2879/2011-O: 5. MATHEW ULAHANNAN, VETTUCHIRAYIL HOUSE, MANIPPARA.P.O, ATTIKULAM, KANJIKUZHY, IDUKKI – 685 602. 6. H.G. MATHEWS MAR IVANIOS METROPOLITAN, KANDANADU DIOSES BASELIOS POULOSE-II, CENTRE, KADACKANADU.P.O, KOLENCHERY, ERNAKULAM DISTRICT - 682 311. 7. FR. VARGHESE, VALLIKKATTIL, VADAVUKODU VILLAGE, KOLENCHERY, ERNAKULAM DISTRICT - 682 311. 8. PAULOSE KURIAN, KANJIRAKKATTU, CHELACHUVADU.P.O, KANJIKKUZHI VILLAGE, IDUKKI DISTRICT - 685 602. 9. MATHEW JOSEPH, THAYANKERI, KEERITHODU.P.O, KANJIKKUZHI VILLAGE, IDUKKI DISTRICT - 685 602. 10. ELIYAS SCARIA, CHIRACKACHALIL HOUSE, RAJAPURAM.P.O, MURICKASSERY, VATHIKUDY VILLAGE, IDUKKI DISTRICT. 11. H.B. BASELIOS THOMAS -I, CATHOLICOSE, CATHOLICATE ARAMANA, MOUNT SENAI, KOTHAMANGALAM, ERNAKULAM DISTRICT - 686 691. 12. H.G. DR. THOMAS MAR ATHANASIUS METROPOLITAN, BISHOP'S HOUSE, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686 661. R1 TO R6 AND R11 BY ADV. SRI. ARUN, R7 TO R10 AND R12 BY SRI. S. SREEKUMAR, SENIOR ADVOCATE, ADV. SRI. PREJITH. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2879/2011-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DT. 12/11/2010 IN O.S. NO.30/2008 ON THE FILES OF THE FIRST ADDL. DIST. COURT, ERNAKULAM. EXT.P.2: COPY OF THE PETITION FILED AS I.A. NO.6297/2010 IN O.S. NO. 30/2008 ON THE FIES OF THE 1ST ADDL. DISTRICT COURT, ERNAKULAM. EXT.P.3: COPY OF THE PETITION FILED AS I.A. NO.6298/2010 IN O.S. NO. 30/2008 ON THE FILES OF THE 1ST ADDL. DISTRICT COURT, ERNAKULAM. EXT.P.4: COPY OF THE PETITION FILED AS I.A. NO. 6299/2010 IN O.S. 30/2008 ON THE FILES OF THE 1ST ADDL. DISTRICT COURT, ERNAKULAM. EXT.P.5: COPY OF THE PETITION FILED AS I.A. NO. 6300/2010 IN O.S. 30/2008 ON THE FILES OF THE 1ST ADDL. DISTRICT COURT, ERNAKULAM. EXT.P.6: COPY OF THE COUNTER AFFIDAVIT DTD. 29/07/2011 IN EXT.P.2. EXT.P.7: COPY OF THE COMMON ORDER DTD. 23/08/2011 ON EXTS.P2 TO P5 ON THE FILES OF THE 1ST ADDL. DISTRICT COURT, ERNAKULAM. EXT.P.8: COPY OF THE PUBLICATION MADE IN MANORAMA DAILY DTD. 02/03/2008. EXT.P.9: COPY OF THE ORDER DT. 09/10/2009 IN I.A. 5190/2009 IN O.S. NO.30 OF 2008 ON THE FILES OF THE 1ST ADDL. DIST. COURT, ERNAKULAM. EXT.P.10: COPY OF THE ORDER DTD. 09/06/2010 IN F.A.O.NO.271/2010 OF THE HONOURABLE HIGH COURT OF KERALA. EXT.P.11: COPY OF THE APPLICATION FILED AS I.A. NO. 4533/2010 IN FAO.NO.271/2009 (WITHOUT ANNEXURES) OF THE HONOURABLE HIGH COURT OF KERALA. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2879 of 2011 --------------------------------------- Dated this 31st day of August, 2011 JUDGMENT Adv.Sri.Arun takes notice for respondents 1 to 6 and 11. Adv.Sri.P.Prijith takes notice for respondents 7 to 10 and 12. 2. This original petition is in challenge of Ext.P7, order whereby learned Additional District Judge, Ernakulam has dismissed Exts.P2 to P5, applications filed by the petitioner in O.S.No.30 of 2008 of that Court. Respondents 1 to 6 filed the suit originally before learned Munsiff, Idukki as O.S.No.67 of 2007 praying for decree for declaration and other reliefs. Later, that suit was transferred to the Court of learned Additional District Judge, Ernakulam and renumbered as O.S.No.30 of 2008. This Court while disposing of Writ Appeal No.1656 of 2009 by judgment dated 10.08.2009 directed learned Additional District Judge to hear maintainability of the suit for want of sanction under Sec.92 of the Code of Civil Procedure (for short, "the Code”) within the time frame mentioned in the judgment. At that time, respondents 1 to 6 reported that the suit is not pressed. Thereon, learned Additional District Judge dismissed O.S.No.30 of 2008 as not pressed. Petitioner filed Exts.P2 to P5, O.P(C).No.2879 of 2011 -: 2 :- applications - Ext.P3 for review of Ext.P1, 'order' dated 12.11.2010 dismissing the suit, Ext.P2, for leave to permit petitioner seek review (as per Ext.P2), Ext.P4 for his impleadment as additional plaintiff and Ext.P5, for stay of operation of the dismissal of the suit. Those applications were resisted by respondents 7 to 10 and 12 by Ext.P6, counter. Learned Additional District Judge dismissed Exts.P2 to P5, applications by Ext.P7, order dated August 23, 2011 observing that there was no publication made under Order 1 Rule 8 of the Code and hence, it was within the right of respondents 1 to 6 to report that the suit is not pressed. Learned Additional District Judge also observed that if at all petitioner is interested in the matter, he can get himself impleaded in O.S.No.125 of 2010 pending consideration before learned Sub Judge, Katappana. Ext.P7, order is under challenge. 3. Sri.N.Sukumaran, learned Senior Advocate appearing for petitioner has contended that dismissal of the suit by an 'order' by itself is wrong since in view of Sec.33 of the Code, there should have been 'judgment' followed by the decree dismissing the suit, whatever be the reason thereof. It is also contended by learned Senior Advocate that learned Additional O.P(C).No.2879 of 2011 -: 3 :- District Judge was factually not correct in observing that no publication was made under Rule 8 of Order I of the Code. My attention is invited to Ext.P8, publication produced in the original petition. It is contended that even if the publication was not produced before learned Additional District Judge, it was of no consequence since what Rule 8 of Order 1 of the Code requires is only that the publication has to be made for the benefit of persons who are similarly interested as plaintiffs in the suit (respondents 1 to 6), that publication having already been made there should have been no dismissal of the suit without a similar publication as provided under sub rule 4 of Rule 8 of Order I of the Code. It is contended that dismissal of the suit suffers from a serious illegality. Reliance is placed on the decision in Muhammed Vs. Avarankutty Haji (1996(1) KLT 474). It is also contended by learned Senior Advocate that in a representative suit, even after an ex parte decree is passed, any person affected can get impleaded and file an application to set aside the ex parte decree. Reliance is placed on the decision in Thomas Vs. Pathrose Abraham (2005(3) KLT 572). It is contended that in the circumstance, learned Additional District Judge ought to have corrected the mistake committed by allowing O.P(C).No.2879 of 2011 -: 4 :- the petitioner to come on record and directed respondents 1 to 6 to make the publication under sub rule 4 of Rule 8 of Order I of the Code and decide the matter accordingly. 4. Adv.Sri.S.Sreekumar, learned Senior Advocate who appeared for respondents 7 to 10 and 12 contended that on the facts and circumstances reopening of the case is not required as it is only a futility. It is contended that no publication as required under Rule 8 of Order I of the Code was made and at any rate, produced either before the learned Munsiff, Idukki or before learned Additional District Judge, Ernakulam so that the latter was required to direct respondents 1 to 6 to make a publication under sub rule 4 of Rule 8 of Order I of the Code. In the circumstance, dismissal of the suit, be it by an 'order' does not require interference. It is pointed out by learned Senior Advocate that a similar suit is pending before the learned Sub Judge, Kattappana as O.S.No.125 of 2010 and hence if petitioner is interested in the Church in question, it is open to him to seek his impleadment in that suit and contest the same. 5. I have been taken to Ext.P8, photocopy of a vernacular daily dated March 02, 2008 where a publication dated February 15, 2008 is given. That is in respect of O.S.No.67 of O.P(C).No.2879 of 2011 -: 5 :- 2007 of the Court of learned Munsiff, Idukki. That publication is made under Rule 8 of Order I of the Code as per order on I.A.No.386 of 2007. It is not disputed that it was O.S.No.67 of 2007 of the said Court which was transferred to the Court of learned Additional District Judge, Ernakulam and renumbered as O.S.No.30 of 2008. Thus, it is revealed from Ext.P8 that there was a publication under Rule 8 of Order I of the Code. 6. Then the next question is whether dismissal of the suit without a publication under sub rule 4 of Rule 8 of Order I of the Code is justified. Learned Senior Advocate appearing for respondents 7 to 10 and 12 submitted that such a publication is required only when the suit is 'abandoned' and not when the suit is 'not pressed'. I however, find myself unable to accept the argument. When the suit is 'not pressed', it is equivalent to abandoning it. It follows that in view of the publication already made under Rule 8 of Order I of the Code, before the suit was either not pressed or abandoned, it was required to make a publication under subrule 4 of Rule 8 of Order I of the Code. The dismissal of the suit without complying with the said mandatory requirement is illegal and cannot be sustained. O.P(C).No.2879 of 2011 -: 6 :- 7. Then the next question is whether interference is required with Ext.P1, order in view of my above finding or, petitioner should be relegated to agitate his grievance in O.S.No.125 of 2010. Learned Senior Advocate for respondents 7 to 10 and 12 has referred to me the various circumstances that led to this Court in Writ Appeal No.1758 of 2009 by judgment dated 10.08.2009 directing learned Additional District Judge to hear maintainability of O.S.No.30 of 2008 for want of leave under Sec.92 of the Code. It is not necessary to refer to all the back history of the proceeding. Suffice to say, this Court had directed learned Additional District Judge to hear the maintainability of O.S.No.30 of 2008 for want of leave under Sec.92 of the Code and it is at that stage that respondents 1 to 6 reported that the suit is not pressed and consequently Ext.P1, 'order' was passed. 8. Though, petitioner may have the opportunity of getting impleaded in O.S.No.125 of 2010 of the Court of learned Sub Judge, Kattappana does not preclude him from challenging correctness of Ext.P1, order (it should have been a judgment in view of Sec.33 of the Code). For, had a publication been made under sub rule 4 of Rule 8 of Order I of the Code, it was open to the petitioner or other similarly interested persons to appear O.P(C).No.2879 of 2011 -: 7 :- before the learned Additional District Judge and oppose the request of respondents 1 to 6 to dismiss the suit as not pressed or as abandoned. In a suit filed in a representative capacity, all the member of the class represented are in effect parties to the suit and any one of them can come on record as an actual party. Hence, in my view petitioner is entitled to challenge Ext.P1, order which I found, cannot stand the scrutiny of law. 9. It is pointed out by learned Senior Advocate appearing for respondents 7 to 10 and 12 that the expenses for a publication under subrule 4 of Rule 8 of Order I of the Code has to be met by the “plaintiffs” ie, respondents 1 to 6 and they have already abandoned the suit. True, the provision says that before the suit is abandoned, the Court shall make a publication under subrule 4 of Rule 8 of Order I of the Code at the expenses of the “plaintiffs”. Therefore, once the dismissal of Ext.P1, order is set aside the Court has to direct respondents 1 to 6 to make a publication under subrule 4 of Rule 8 of Order I of the Code and if in spite of that direction, respondents 1 to 6 does not turn up or make the publication, it is made clear that it is open to the petitioner to bear the expenses for such publication and get the notice published (without prejudice to the claim of petitioner to O.P(C).No.2879 of 2011 -: 8 :- continue with the suit). After such publication, learned Additional District Judge has to decide whether the request to abandon the suit has to be accepted or, any of the parties appearing pursuant to such publication or the petitioner should be permitted to continue with prosecution of the suit. Needless to say that in case the suit is resurrected, learned Additional District Judge has to decide maintainability of the suit for want of leave under Sec.92 of the Code or as directed by this Court in the judgment dated 10.08.2009 in Writ Appeal No.1758 of 2009. 10. In the view I have taken above, Ext.P7, order is liable to be set aside. Resultantly this original petition is allowed and Ext.P7, order is set aside to the following extent; (i) Exts.P2 to P4, applications will stand allowed. (ii) Ext.P1, 'order' dated 12.11.2010 dismissing O.S.No.30 of 2008 of the Court of learned Additional District Judge, Ernakulam is set aside. (iii) Learned Additional District Judge is directed to issue direction to respondents 1 to 6/plaintiffs to make publication under sub rule 4 of Rule 8 of Order I of the Code within a time frame to be fixed by the learned Additional District Judge O.P(C).No.2879 of 2011 -: 9 :- and produce the publication before the said Court. In case within the time frame fixed by learned Additional District Judge respondents 1 to 6 either do not appear or do not make publication as above directed, it is made clear that it will be open to the petitioner to bear the expenses for such publication and make such publication (without prejudice to his claim to continue with prosecution of the suit). (iv) On such publication being made, learned Additional District Judge shall consider as requested by petitioner or, any other person coming forward pursuant to such publication whether, the suit is liable to be dismissed as abandoned or whether it has to be proceeded further. (v) It is directed that in case learned Additional District Judge decides to proceed with the suit, maintainability of the suit for want of leave under Sec.92 of the Code (as directed by this Court in the judgment dated 10.08.2010 in Writ Appeal No.1758 of 2009) shall be decided as early as possible having regard to the grievance of contesting respondents. (THOMAS P JOSEPH, JUDGE) Sbna/-