IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 WP(C).No. 9402 of 2010(O) ------------------------- AGAINST THE ORDER DATED 1.3.2010 IN I.A.NO.737/2004 IN A.S.NO.47/1997 OF THE ADDL.DISTRICT COURT, MANJERI. O.S.NO.436/1990 OF THE MUNSIFF COURT, MANJERI. .................... PETITIONERS: --------------- 1. ANSARUL MUSLIMEEN SANGAM SECRETARY USMAN, S/O.MUHAMMEDKUTTY, OTTAKATH HOUSE, VETTIKKITTARI AMSOM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 2. ANSARUL MUSLIMEEN SANGAM REPRESENTED BY PRESIDENT CHAKKIPARAMBEN MUHAMMED MOULAVI, S/O.ABDULLA, PANDALLUR AMSOM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. MR.T.SETHUMADHAVAN MR.PUSHPARAJAN KODOTH MR.K.JAYESH MOHANKUMAR RESPONDENTS: --------------- 1. KALAKAPPARA AHAMED HAJI, S/O.MOIDEEN. 2. THAYYIL MOOSA, S/O.KUNHALAVI. 3. KALAKAPPARA UNIT AVARANKUTTY, S/O.AHAMMED. 4. VATTAKANDAN UMMER HAJI, S/O.MAMMEDKUTTY HAJI. 5. MADARI KARUVANTHODY MOHAMMED, S/O.MOINKUTTY. 6. MADARI MELVEETTIL MAJEED, S/O.MOHAMMED. (CNTD......2) WP(C).No. 9402 of 2010(O) ::2:: 7. CHAKKAPARAMBAN KUNHIMOHAMMED, S/O.CHERIYA MOIDEEN. 8. MADARA PALLIYALIL MOIDEEN, S/O.KUNHAHAMED @ KUNHIPPA. ALL ARE RESIDING AT PANTHALLUR AMSOM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. *ADDL.R9 & R10 9. MADARI KARUVANTHODY ABDUL REHMAN, AGED 47 YEARS, S/O.KUNHIMOHAMMED, RESIDING AT VADAKKUPARAMBU. 10. KAPPIKUZHIYAN IBRAHIM, AGED 46 YEARS, S/O.ALAVIKUTTY HAJI RESIDING AT VADAKKUPARAMBU. * ADDL R9 & R10 IMPLEADED AS ADDITIONAL RESPONDENTS 9 & 10 AS PER ORDER DATED 20.9.2010 IN I.A.NO.12724/2010. ADV. MR.M.GOPIKRISHNAN NAMBIAR FOR R1,3,4 MR.M.GOPIKRISHNAN NAMBIAR FOR R5,6 & 8 MR.C.KHALID FOR R9,10 MR.T.P.SAJID FOR R9,10 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9402 of 2010(O) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: JUDGMENT OF THE MUNSIFF COURT, MANJERI DATED 30.11.1996 IN O.S.NO.436/1990. EXT.P2: APPEAL MEMORANDUM OF A.S.NO.47/1997 FILED BY THE PETITIONER BEFORE THE DISTRICT COURT, MANJERI. EXT.P3: AFFIDAVIT ACCOMPANYING I.A.NO.737/2004 IN A.S.NO.47/1997 OF THE DISTRICT COURT, MANJERI. EXT.P4: COUNTER TO EXT.P3 I.A.NO.737/2004 IN A.S.NO.47/1997 FILED BY THE RESPONDENTS. EXT.P5: ORDER OF THE ADDITIONAL DISTRICT JUDGE, MANJERI IN I.A.NO.737/2004 IN A.S.NO.47/1997 DATED 1.3.2010. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.9402 Of 2010 ---------------------- Dated this the 2nd day of December, 2010. J U D G M E N T Petitioners are the plaintiffs in O.S.No.436 of 1990 on the file of the Munsiff Court, Manjeri. They are the appellants 2 & 3 in A.S.No.47 of 1997 on the file of the Additional District Court, Manjeri. Respondents are the defendants in the suit. Suit was instituted for a declaration that Mahdanul Uloom Madrassa is under the management of Ansarul Muslimeen Sangam headed by the petitioners and that the registration of another sangam as per registration No.253/1983 of District Registrar, Malappuram by the defendants is not valid and binding on the plaintiffs or the Madrassa. Consequential prohibitory injunction was also prayed for in the suit. 2. It is alleged by the petitioners that defendants in the written statement did not as such challenge the frame of the suit. The trial court, while deciding the issues framed, held that the suit is not maintainable and that the plaintiffs are not legally competent to represent the sangam which is not a registered society. The trial court while dealing with issue No.1 observed that the Ansarul Muslimeen Sangam is not a registered society W.P.(C).No.9402 Of 2010 ::2:: that the plaintiffs are not entitled to institute the suit on behalf of the said sangam since no steps were taken by the plaintiffs to file an application under Order I Rule 8 of the Code of Civil Procedure in order to represent all the persons interested in the sangam. The trial court after considering the case on merits as well dismissed the suit finding that the plaintiffs are not entitled to any reliefs claimed in the suit. 3. Plaintiffs preferred appeal in 1997. Pending appeal plaintiffs filed I.A.No.737 of 2004 seeking permission to institute the suit in a representative capacity and also to prosecute the above appeal under Order I Rule 8 of the Code of Civil Procedure. Ext.P3 application was filed, which according to the appellants, is to rectify the technical difficulty in not filing the suit in a representative capacity. Ext.P4 is the counter affidavit filed by the respondents. 4. The learned Judge did not pass any orders within a reasonable time though the application was filed on 27.10.2004. The learned Judge considered Ext.P3 application on 1.3.2010. The learned Judge dismissed Ext.P3 application stating the reason that the application is a belated one and is filed to drag W.P.(C).No.9402 Of 2010 ::3:: the disposal of the appeal. The learned Judge observed that if the petition is allowed it has to be published as per Order I Rule of the Code of Civil Procedure, new parties may appear and they will be given an opportunity to file their statement and fresh issues are to be raised and the case has to be remanded to the lower court for fresh disposal. Ext.P5 is the order passed by the learned Judge. 5. The reasons stated by the court are irrelevant or I may say irrelevant for the purpose of deciding an application of this nature. The learned Judge should not have observed that if the petition is allowed then it has to be published as per Order I Rule 8 of the Code of Civil Procedure, new parties may appear and they should be given opportunity to file written statement and the court may have to remand the case to the lower court. Essentially, the application was filed for publication. The question is whether an application filed though belatedly is to be allowed or not. The learned counsel pointed out that the respondents did not raise any contentions in the written statement that the suit is not properly framed and that the publication under Order I Rule 8 of the Code of Civil Procedure is necessary. The trial court W.P.(C).No.9402 Of 2010 ::4:: noticed the defect in the filing of the suit while passing the judgment and held that the plaintiffs are not legally competent to represent the sangam which is not a registered society. Therefore it has become necessary to file application under Order I Rule of the Code of Civil Procedure in order to bind the members of the sangam. It is true that such application was filed before the appellate court belatedly. For that reason alone the court may not be justified in dismissing the application. In this case, the learned Judge, for so many other reasons which are extraneous for considering an application of this nature, held that the prayer cannot be allowed. In fact, in order to rectify the technical defect the learned Judge ought to have heard the application within a reasonable time from the date of filing of the application. It took about 6 years for considering Ext.P3 application. In the circumstances, this Court is of the view that Ext.P5 order is not sustainable in law. Hence, Ext.P5 order is set aside. The application is filed after 7 years from the filing of the appeal. Considering the conduct of the appellants in filing the application so belatedly, this Court order that Ext.P3 application can be allowed on terms. Ext.P3 is allowed on condition that the W.P.(C).No.9402 Of 2010 ::5:: petitioners shall pay Rs.2,500/- (Rupees Two Thousand and Five Hundred only) each as cost to the counsel appearing for respondents 1, 3, 4, 5, 6 & 8 and the counsel appearing for respondents 9 & 10, within a period of two weeks from today. The learned Judge shall order publication immediately and the publication shall be effected within a period of 45 days from the date of receipt of a copy of this judgment. The learned Judge shall also hear and dispose of the appeal within a period of four months thereafter. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-