Case: S.N.D.P. Sakhayogam Vs. Kerala Atmavidya Sangham

declaration in the reliefs.9) The appellant (defendant No.1) denied the claim set up in the plaint and defended the sale deed executed in their favour by defendant No. 2. It was contended that the sale deed dated 09.02.1978 is legal and proper. According to defendant No.1, both (plaintiff and defendant No. 1) were always independent organizations having no connection between them in any manner. Some more facts were also averred in the written statement, which are not necessary to mention here. The Trial Court framed several issues on merits arising in the case.10) The plaintiff (respondent No. 1) then applied under Order 1 Rule 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?) and sought permission of the Court to allow them to prosecute the suit as a representative suit. Defendant No. 1 (appellant) did not oppose the prayer and hence sanction to prosecute the suit seemed to have been granted to the plaintiff. (See- Issue No. 1). Parties adduced evidence.11) The Trial Court, by judgment/decree dated 21.08.1980 dismissed the suit. The plaintiff, felt aggrieved, filed first appeal being A.S. No.77 of 1981 before the Additional District Judge, Mavelikkara. The first Appellate Court, by judgment/decree dated 02.09.1986, dismissed the appeal and affirmed the judgment/decree of the Trial Court. The plaintiff, felt aggrieved, filed Second Appeal being S.A. No.299 of 1987 before the High Court.12) By judgment/decree dated 29.05.1995, the High Court allowed the appeal and decreed the suit.13) Defendant No. 1, felt aggrieved, filed special leave petition (SLP(c) No.24439 of 1995) before this Court. This Court by order dated 30.10.2003 after granting leave, allowed the appeal, set aside the order of the High Court and remanded the case to the High Court for deciding the second appeal afresh. This Court remanded the case to the High Court essentially on the ground that it was noticed that the High Court allowed the second appeal without framing any substantial question(s) of law arising in the case.14) On remand, the High Court framed three substantial questions and, by impugned order 27.01.2005, again allowed the appeal and decreed the plaintiffs suit. Against this order, defendant No. 1 felt aggrieved and filed this appeal by way of special leave before this Court.15) We have heard Mr. Jayanth Muth Raj, learned counsel, for the appellant and Mr. C.S. Rajan, learned senior counsel for the respondents.16) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside all the judgment/decrees of the Courts below remand the case to the Trial Court for disposal of the suit afresh.17) In our considered opinion, one question, which goes to the root of the case affecting the very jurisdiction of the Court to try the suit, was not taken note and if taken note of, it was not decided in its proper perspective by any of the Courts below. May be due to the reason, instead of raising the objection, the defendant appears to have conceded it.18) Be that as it may, in our considered view, the issue of jurisdiction which goes to the root of the case, if found involved has to be tried at any stage of the proceedings once brought to the notice of the Court.19) As mentioned above, the plaintiff had sought permission to prosecute the suit by taking recourse to the provisions of Order 1 Rule 8 of the Code. In other words, the plaintiff treated their suit to be in the nature of a "representative suit" within the meaning of Order 1 Rule 8 and, therefore, applied to the Trial Court under Rule 8 of the Code seeking permission to prosecute the suit in the representative capacity. This permission appears to have been granted to the plaintiff by the Trial Court (see discussion on issue No. 1) without any objection from the side of the defendants and, therefore, Issue No.1 was answered in plaintiff?s favour.20) This is how issue no 1 was answered by the Trial Court:?Issue No.1:- This is not pressed by the defendant?s counsel as sanction was obtained by the Plaintiff from Court to file the suit in a representative capacity under or Rule 8 C.P.C.?21) In our considered opinion, while deciding Issue No. 1, the Trial Court was expected to decide several material questions, namely, whether the plaintiff, who is a juristic person, i.e., ?Society" is entitled to invoke the provisions of Order 1 Rule 8 of the Code for filing a suit in a "representative capacity?. In other words, the Trial Court should have examined the question as to whether the expression "person" occurring in Rule 8 also includes ?juristic person".22) Secondly, if the plaintiff is held entitled to file such suit, whether the facts pleaded and the reliefs claimed in the plaint can be said to be in the nature of representative character so as to satisfy the ingredients of Order 1 Rule 8 of the Code which are meant essentially for the benefit of public at large for grant of any relief and lastly, if the facts pleaded and the reliefs claimed in the plaint do not satisfy the requirements of Order 1 Rule 8 of the Code for grant of relief to the public at large then whether such suit is capable of being tried as a regular suit on behalf of the plaintiff for granting reliefs in their personal capacity because the suit relates to ownership of land, namely, who is the owner of the suit land.23) Since there was neither any discussion much less finding on any of the aforesaid issues by any of the Courts below though these questions directly and substantially arose in the case (Issue No. 1), we are of the considered opinion that it would be just and proper and in the interest of justice to remand the case to the Trial Court to answer these issues and then decide the suit depending upon the answer in accordance with law.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside all the judgment/decrees of the Courts below remand the case to the Trial Court for disposal of the suit afresh.17)In our considered opinion, one question, which goes to the root of the case affecting the very jurisdiction of the Court to try the suit, was not taken note and if taken note of, it was not decided in its proper perspective by any of the Courts below. May be due to the reason, instead of raising the objection, the defendant appears to have concededBe that as it may, in our considered view, the issue of jurisdiction which goes to the root of the case, if found involved has to be tried at any stage of the proceedings once brought to the notice of the Court.19) As mentioned above, the plaintiff had sought permission to prosecute the suit by taking recourse to the provisions of Order 1 Rule 8 of the Code. In other words, the plaintiff treated their suit to be in the nature of a "representative suit" within the meaning of Order 1 Rule 8 and, therefore, applied to the Trial Court under Rule 8 of the Code seeking permission to prosecute the suit in the representative capacity. This permission appears to have been granted to the plaintiff by the Trial Court (see discussion on issue No. 1) without any objection from the side of the defendants and, therefore, Issue No.1 was answered in plaintiff?sIn our considered opinion, while deciding Issue No. 1, the Trial Court was expected to decide several material questions, namely, whether the plaintiff, who is a juristic person, i.e., ?Society" is entitled to invoke the provisions of Order 1 Rule 8 of the Code for filing a suit in a "representative capacity?. In other words, the Trial Court should have examined the question as to whether the expression "person" occurring in Rule 8 also includes ?juristic person".22) Secondly, if the plaintiff is held entitled to file such suit, whether the facts pleaded and the reliefs claimed in the plaint can be said to be in the nature of representative character so as to satisfy the ingredients of Order 1 Rule 8 of the Code which are meant essentially for the benefit of public at large for grant of any relief and lastly, if the facts pleaded and the reliefs claimed in the plaint do not satisfy the requirements of Order 1 Rule 8 of the Code for grant of relief to the public at large then whether such suit is capable of being tried as a regular suit on behalf of the plaintiff for granting reliefs in their personal capacity because the suit relates to ownership of land, namely, who is the owner of the suit land.23) Since there was neither any discussion much less finding on any of the aforesaid issues by any of the Courts below though these questions directly and substantially arose in the case (Issue No. 1), we are of the considered opinion that it would be just and proper and in the interest of justice to remand the case to the Trial Court to answer these issues and then decide the suit depending upon the answer in accordance with law.