SEKAR REPORTER

Court News from Madras High Court

Admk party case full order of A.No.1204 of 2022 in C.S.DR.No.119663 of 2021 P.VELMURUGAN,J.

by ·

A.No.1204 of 2022 in C.S.DR.No.119663 of 2021

P.VELMURUGAN,J.

This application has been filed under Order XIV Rule 8 of the Original Side Rules read with Order 1 Rule 8 of the Code of Civil Procedure (CPC) to grant leave to sue against the defendants in a representative capacity under Order 1 Rule 8 of CPC representing the interest of justice and equity in the above mentioned civil suit.

  1. The applicants are the Plaintiffs and the respondents are the defendants in the Suit.
  2. The facts of the case are as follows:-

The first respondent/first defendant is recognized as a State Political

Party by the Election Commission of India in the State of Tamil Nadu and Pondicherry.  The second respondent is the Coordinator of the party and the third respondent is the Joint Coordinator of the party.  The applicants are the primary members of the Party.   The first respondent/first defendant has its own constitution called the Rules and Regulations as per Guidelines prescribed by the Election Commission of India.  The General Secretary is responsible for entire administration and function of the party and as per Rule 19(viii), the General Secretary will be the Supreme Authority to frame policies and programmes of the party  and the decision of the General Council is final and binding on all the members of the Party.  As per Rule 20 of the Rules, the General Secretary shall be elected by the primary members of the party units of Tamil Nadu and Pondicherry, Andhra Pradesh, Kerala and Andaman Islands. After the demise of former General Secretary Dr.J.Jayalalithaa, on 05.12.2016, as per Rule 20(ii) of the original Constitution, Smt.V.K.Sasikala was appointed as interim General Secretary by the Emergency General Council on 29.12.2016.

  1. Thereafter, the second respondent/second defendant claimed himself having majority support in party cadres as against Smt.V.K.Sasikala. Subsequently, the second respondent/second defendant and then Presidium

Chairman filed a petition in Dispute Case No.2 of 2017, before the Election Commission of India on various grounds and sought a direction to conduct fresh party election for the post of General Secretary in accordance with the provisions of the party and other reliefs.  The Election Commission of India passed an interim order on 22.03.2017, frozen the first respondent/first defendant party symbol two leaves and prohibited both rival factions from using the first respondent/first defendant party name and two leaves symbol during the pendency of the dispute. In the mean while, most of the MLAs, MPs, Executive Council Members and General Council Members under the leadership of third respondent/third defendant merged with the second respondent/second defendant faction on 21.08.2017.  Thereafter, on 12.09.2017, the General Council passed 12 resolutions.  This according to the applicants/plaintiffs, resolution nos.7,10,11 and 12 were ultra vires to the Original Constitution of party.  Further, the resolution created new posts  viz.,

Coordinator, Joint Coordinator and Deputy Coordinators.   As per resolution

No.11, all the administrative powers of All India Anna Dravida Munnetra Kazhagam were conferred on the Coordinator and the Joint Coordinator who are assuming the administrative responsibilities of the Khazhagam.   The Coordinator and the Joint Coordinator have absolute power to relax or exclude any Rule of the bylaw of the party which came into force from 01.12.2021 which was decided in the Executive Committee meeting.  The amendments made in the first respondent/first defendant party Constitution violated the rights of the primary members, disturbed basic structure of the original party constitution/the rules and regulations and ultra vires to the spirit of the provisions of Section 29A of the Representation of the People Act, 1951. Thereafter, in the Executive Committee Meeting held on 01.12.2022, a special resolution was passed creating the Coordinator and the Joint Coordinator and announced that the Coordinator and the Joint Coordinator will be elected by the members of the Executive Council and General Council jointly.  Therefore, the applicants have filed the Suit on behalf of the members of the first respondent/first defendant under the representative capacity in order to ensure strict adherence of the provisions of the first respondent/first defendant party original constitution by all the members including the respondents/defendants and hence to safeguard the rights of the Primary Members, to fulfill the interest of the primary members of the first respondent/first defendant party.   It is necessary to file this civil Suit to sue against the defendants in a representative capacity under Order 1 Rule 8 of CPC and Section 151 of CPC representing the interest of several others, similarly situated.

  1. The respondents 1 to 3 have filed their counter affidavits stating that

the application is not maintainable at the instance of the applicants, who are not the members of the first respondent/first defendant political party.  Further it is stated that the membership of first applicant/first plaintiff has not been renewed after 2019 and the second applicant/second plaintiff has not even pleaded the details of his membership.  Therefore, the applicants/plaintiffs who are not members of the party cannot file a suit in representative capacity for other members.  Further it is stated that the plaintiffs are neither members of the General Council nor do they hold any post in the first respondent/first defendant party to claim any right of office and the Suit itself is not maintainable.   Further, it is stated that all the allegations made by the applicants/plaintiffs are denied except those averments.  It is further stated that the applicants/plaintiffs are outsiders of the first respondent political party and have no locus standi to maintain the present Application. Further it is stated that the second applicant’s father has indulged in criminal activities by fraudulently running a website by the name www.aiadmk.org.in with several official photographs of the party and therefore, the applicants are acting at the behest of father of the second applicant/second defendant, whose intention is to thwart the functioning of the political party.     Further it is stated that if at all any suit is to be filed in respect of the party, it can only be done in the event that there is a dispute relating to the properties of the party if the applicant/plaintiff is a personally aggrieved person, but however, it is clear that the applicants/plaintiffs are not personally aggrieved and have not initiated this Suit in respect of the properties of the party and therefore, the present application deserves to be dismissed as not maintainable.  The by-laws of the political party were amended on 12.09.2017 in the General Council Meeting and the copy of the by-laws were forwarded to the Election Commission of India on 16.04.2018, after which the same was uploaded in the website.

Further it is stated that Dr.J.Jayalalithaa was declared as an eternal General Secretary of the political party and therefore, there was a need to create the posts of Coordinator and Joint Coordinator and accordingly, resolutions were passed on 12.09.2017 and the second and third respondents were appointed to the respective posts.  It is further stated that on 01.12.2021, necessary amendments have been introduced to the effect that the primary members shall vote to elect the Coordinator and Joint Coordinator.  There was no opposition whatsoever to the above amendments and as such the first respondent party has been functioning in the said manner since 2017.

  1. Further, it is submitted that the attempt of the applicants/plaintiffs isnothing but to reopen and rekindle all the issues that have been resolved and the judicial orders relating to the said issues have attained finality. Infact, it is interesting to note that the first applicant/first plaintiff filed a W.P.(MD).No.15818 of 2017, before the Madurai Bench of this Court to direct the Election Commission to decide Election Dispute No.2 of 2017 by adopting the test of majority as approved by the Hon’ble Supreme Court in Sadiq Ali case.  The Madurai Bench by order dated 15.09.2017, directed the Election Commission to dispose of the Election Dispute No.2 of 2017 on merits as per law as expeditiously by 31.10.2017.  Against the said order, one Mr.T.T.V.Dinakaran had preferred a Special Leave Petition before the Hon’ble Supreme Court.  The Hon’ble Supreme Court by order dated 06.10.2017, directed the Election Commission to dispose of the proceedings expeditiously preferably by 10.11.2017.   Accordingly, the Election Commission by order dated 23.11.2017 held that the first respondent party is the original party and thus entitled to the reserve symbol of two leaves and thereafter, the Election Commission also recognized that the first respondent/first defendant party was headed by the second and third respondents/defendants.   It is therefore submitted that the  first applicant/first plaintiff is trying to unsettle all the issues by filing the present Suit and application.   The intention of the applicants thus stand exposed and as such they are nothing but frivolous

litigants.

  1. The learned counsel appearing for the applicants/plaintiffs submitted that originally the applicants/plaintiffs are the members of the first respondent/first defendant party and validity of their membership card came to end in the year 2019 and subsequently they have renewed the same. The learned counsel produced the original membership card of the first applicant/first plaintiff signed by the General Secretary in the year 2000 and subsequently signed by the Coordinator and the Joint Coordinator in the year 2018 and also produced the optional petition fee receipt of the second applicant/second plaintiff for nomination to the Legislative Assembly Election 2021 and submitted that these documents would show that the

applicants/plaintiffs are the members of the party.  Further the learned counsel contended that the Suit having been instituted under Order 1 Rule 8 CPC was a representative suit filed for and on behalf of the members of the political party, which means “common interest” in nature and therefore they have all right to file a suit and hence, the application filed under under 1 Rule 8 is liable to be allowed.

  1. This Court by order dated 18.03.2022, directed the

applicants/plaintiffs to effect paper publication both in Tamil daily and English daily viz., “Dina Malar” and “The Hindu” respectively for inviting objections from the general public and members of the party, but however, no objections have been received so far and private notice was also permitted vide the said order.

  1. It is therefore submitted that none of the members of the political party have filed their objections, they have got a common interest for filing the Suit for them and on behalf of the members of the party and hence, this Court has to grant leave to file the Suit in a representative capacity for themselves and on behalf of the other members of the party. Therefore, the application has to be allowed.
  2. Vijay Narayan learned Senior counsel appearing for Mr.K.Gowtham Kumar, learned counsel appearing for the first respondent; Mr.P.H.Arvindh Pandian learned Senior counsel assisted by

Mrs.P.Rajalakshmi learned counsel appearing for the second respondent; Mr.S.R.Rajagopal, learned Senior counsel for Mr.E.Balamurugan, learned counsel appearing for the third respondent; and  Mr.Satish Parasaran, learned Senior counsel appearing for the  respondents 4 to 8. The main contention of the learned counsels appearing for the respondents is that applicants/plaintiffs are not the members of the first respondent/first defendant political party, they cannot go against their own affidavit and they are not produced any substantive documents to prove the same.  The next contention is that Order 1 Rule 8 CPC and also Order 3 Rule 2 of the Original Side Rules have not been followed and they failed to follow the mandatory procedure.  Therefore, the Suit is not maintainable and the applicants/plaintiffs are not entitled to get a leave on behalf of the other members and they are not the representatives of the majority of the members of the first respondent/first defendant political party.  As per Order 1 Rule 8 CPC application of this provision is that in certain cases one person or few persons should be allowed to represent all persons interested in a Suit.  The Rule is in fact an exception to the general rule that all persons interested should be made parties to a suit.  It presupposes the existence of a right in the plaintiff.  In this regard, the learned counsel placed reliance on the judgment of this Court in the case of V.Krishna Aiyar vs. Pachiappa Chetty reported in AIR 1924 Madras 883, this Court held as follows:-

 Mr.G.Krishnaswami Aiyar, the learned Vakil for the petitioner has contended that the suit having been instituted under Order 1, Rule 8 CPC was a representative suit filed in the interests of the creditors of the insolvent, that therefore Krishnier was throughout constructively a party to the proceedings, that the application in effect was to place Krishnier on the record eo nomine as a party and that in making the application he was merely taking advantage of the provision contained in clause 2 of Rule 8. If this argument is correct, in my opinion there will be very little difficulty in acceding to the request. But the question is, is Krishnier a party to the proceeding at all: is he a party although on the record his name does not appear? The answer to this question will depend upon the construction of Order 1, Rule 8.  The application of this provision is that in certain cases one person or a few persons should be allowed to represent all persons interested in a suit.  The rule is in fact an exception to the general rule that all persons interested should be made parties to a suit.  It presupposes the existence of a right in the plaintiff.  It assumes that under the substantive law, the plaintiff has a right of suit and the rule enables him to represent the whole body of persons whom he seeks to represent.  The rule says “where there are numerous persons having the same interest in one suit, one person may sue on behalf of all persons so interested”.  The one person indicated in the rule is the person who has an interest common to himself and the body whom he professes to represent.  The community of interests between him and the others of the class as the prerequisite is necessary to the end proposed.  It is not any person that may sue on behalf of a class, but it is that person who has an interest which is the same as that possessed by the whole body of persons, “Given a common interest and a common grievance, a representative suit is in order if the relief sought is in its nature beneficial to all whom the plaintiff proposes to represent.”   (Judgment of Lord Macnaghten in Bedford Duke vs. Ellis [(1901) A.C.1].  If this condition is found wanting, if the plaintiff turns out not to be a member of the class on whose behalf he professed to institute the suit, I am of the opinion that the suit is wrongly constituted.   The permission to sue is given by the Court on the assumption that the plaintiff is a member of the class, and if the assumption is shown to be wrong the suit is not a representative suit, and no member of the class is constructively a party to it.  On the assumption therefore that the plaintiff in the present suit is not a creditor of the insolvent, Order 1 Rule 8 has no application.

  1. The learned counsel for the respondents further submitted that one of the interested party, can file a suit on behalf of other persons, provided they must have the common interest and they must be authorized to file a suit for themselves and on behalf of other members. In the absence of any common interest, they cannot file a suit and in this regard the learned counsel placed reliance on the Full Bench judgment of the Kerala High Court in the case of Entire Members of Maniyani Community of Karivellur village rep., by its President and Secretary & Anr vs. Periyadan Narayanan Nair &Ors reported in 2021 SCC Online Ker 2397, The Full Bench has held as follows:-
    1. The condition necessary for the maintainability of a representative suit is that the persons on whose behalf the suit is instituted must have the same interest. The interest must be common to them all or they must have a common grievance, which they seek to get redressed. Community of interest is therefore essential and it is a condition precedent for bringing a representative suit. The right of the claim which they seek to establish in the suit must be one which is common to them all and each individual among the body of persons must be interested in the litigation.
    2. In order to bind a decree passed in a representative suit, procedure laid down under Order I, Rule 8 CPC has to be followed. A decree obtained in a suit instituted in accordance with the provisions of Order I Rule 8 CPC will be binding as res judicata on all members that belong to the class who are sought to be represented. The decree obtained in such a suit will be binding on the entire class of persons, which is evident from Explanation VI to Section 11 CPC, which reads thus:—

“Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”

  1. The decision in a representative suit on any issue will, if the question is raised in any subsequent proceedings, be binding not only on the parties but also on all the persons who are interested in such right and who were constructively represented in the previous stage. Such a result would depend not only on the requirements of Section 11 CPC, but it must be shown that the persons who represented the others conducted the litigation ‘bona fide’.
  1. Further the learned counsel placed reliance on the judgment of the Division Bench of this Court in the case of The Corporation of Madras vs. S.A.Khan & Ors reported in 1948 AIR (Madras) 447, this Court held as follows:-
  2. Plaintiff 10 is an association which is registered under the Societies Registration Act, 1860. That registration substantially creates it into a legal entity. The members of this association are all stall-holders. The interests of each stallholder can well be said to be the same, save of course their interests are in respect of different stalls. The association has in no way the same interests in the Moore Market and the stalls there as its members. The association may have as its object the furtherance of the interests of the stall-holders, but that does not give the association any interest in the stalls themselves. It seems to me that, at the most, the association, if it conducted any business on behalf of its members or for ‘ one or other of them, would do so only as an agent for the stall-holder or stallholders. The association is a party to the suit, purporting to represent the interests of all stall-holders, the object being that a judgment in its favour would in effect be a judgment in favour of all the stallholders. Order 1, Rule 8 of the Code provides that where there are numerous persons having the same interest in one suit, one or more of such persons, may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. A person or entity can only sue or be sued in a representative capacity provided that the person or entity has the same interest as those on whose behalf he or it seeks to make the representation. That is not so in the present instance. An association of persons who are all interested in the same matter does not make the association similarly interested. When a representative suit is sought to be prosecuted, firstly the circumstances must fall under the requirements of Order 1, Rule 8 of the Code. Secondly under Order 3, Rule 2 of the Original Sides Rules of this Court an application must be made by a Master’s summons to obtain an order in that respect. No such procedure was followed in the present instance. In my view the tenth plaintiff does not represent all the stall-holders so as to enable a decree to be passed in favour of all of them. It must follow that the suit is only one as between plaintiffs Nos. 1 to 9 and the Corporation. It is not one as between the Corporation and all other stall-holders.
  3. In support of his contentions, the learned counsel for the respondents placed reliance on the unreported judgment of this Court in the case of

Colonel Dr.Edwin Jesudoss & Ors., vs. Madras Gymkhana Club in A.No.6496 of 2016 etc in C.S.No.718 of 2016 dated 12.09.2017.

  1. All the learned counsels appearing for the respondents would vehemently contend that the applicants are not the members of the political party even as per their affidavit filed and the procedure under Order 1 Rule 8 read with Order 3 Rule 2 of the Original Side Rules are not followed. Further, the learned counsel would submit that the membership cards produced by the applicants/plaintiffs are concocted and created documents and the applicants/plaintiffs have not come with clean hands and they have suppressed the material facts. Further the learned counsel would submit that the applicants/plaintiffs have approached this Court with unclean hands and therefore, they are not entitled to get the relief sought for and the same is liable to be dismissed.
  2. Heard the learned counsels appearing for the parties and perused the materials placed on record.
  3. Admittedly the applicants have filed the Suit for declaration that the resolution Nos.7,10,11 and 12 passed by the General Council on 12.09.2017 and Special resolution passed on 01.12.2021 and subsequent amendments made in the Original constitution of the first respondent/defendant party is null and void and also sought for permanent and mandatory injunction. Therefore, the applicants/plaintiffs have filed the application under Order 1 Rule 8 CPC to grant leave to sue against the respondents/defendants in a representative capacity.
  4. It is not in dispute that the first respondent/first defendant is the political party and as on date, the second respondent is the Coordinator and third respondent is the Joint Coordinator of the political party. The respondents/defendants have also not denied that initially the

applicants/plaintiffs are the members of the first respondent/first defendant political party and they obtained the membership card.  After completion of five years period, membership cards have been expired.  According to the applicants/plaintiffs, subsequently they got renewed the same and the first applicant/first plaintiff has produced the original card before this Court, which was signed by the Coordinator and the Joint coordinator.  Likewise the second applicant/second plaintiff has also produced the optional petition fee receipt, which was signed by the Coordinator and Joint Coordinator for the nomination to the Legislative Assembly Election 2021 and therefore, it clearly shows that they are the primary members of the political party, even though the respondents have stated that they are not the members of the political party.

  1. Further it has been raised that the membership card has not been issued by the authorized person of the political party. Answering this question, the learned counsel for the applicants/plaintiffs has produced the recent membership card before this Court which would clearly show that the Coordinator and the Joint Coordinator have signed and issued the card.

Further this Court finds that the signatures of the Coordinator and the Joint Coordinator in the membership card, the optional petition receipt and the counter affidavit are one and the same and therefore, the contention raised by the learned counsels for the respondents that membership card has not been issued by the authorized person, does not merit acceptance.

  1. The next contention is that the applicants/plaintiffs have not followed the procedure under Order 1 Rule 8 CPC.
  2. To apply the provisions of Order I, Rule 8 CPC the following conditions have to be satisfied:-
  • the parties are numerous;
  • they have the same interest in the suit;
  • the necessary permission of the court is obtained or direction under clause (b) of sub-rule (1) is given, and (iv) notice under sub-rule (2) is given.
  1. A perusal of the Order 1, Rule 8 CPC would reveal that where there are numerous persons having same interest in one suit, 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. It would also reveal that 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.
  2. The power to grant permission to the parties either to sue or be sued in a representative capacity is conferred on the court and the said power is required to be exercised after being satisfied as to whether the subject matter of the suit concerns the interest of numerous persons or not. The court will have to apply its mind and grant permission. It is not an empty formality. A suit cannot become a representative suit merely because some positive averments are made in the plaint stating that it is filed on a representative capacity. Permission of the court under Rule 8 is mandatory.
  3. This Court by order dated 18.03.2022, directed the

applicants/plaintiffs to effect paper publication in both daily in Tamil and English dailies viz., Dina Malar and The Hindu respectively and Private notice was also permitted.

  1. As per order of this Court, the applicants/plaintiffs have made thepaper publication to invite objections from the other members of the first respondent political party in order to maintain the Suit. None of the members of the first respondent political party and general public have raised any objections till date.  Therefore, it is evidently clear that the applicants/plaintiffs have filed the Suit for themselves and on behalf of the members of the common interest.
  2. This Court finds that the other defence taken by the

respondents/defendants in their counter affidavits that all can be decided only in the Suit after recording evidence and not at this stage.  Rest of the grounds raised by the respondents/defendants such as whether the documents produced by the applicants/plaintiffs have been created and concocted; whether the signatures of the Coordinator and Joint Coordinator in the membership card are genuine or not; whether the applicants/plaintiffs are the members of the first respondent political party or not; whether the applicants/plaintiffs having common interest with their members of the first respondent political party; and whether they are entitled to file the suit under the representative capacity all can be decided only after full fledged trial, not at this stage.

  1. A careful reading the judgments relied on by the learned counselsappearing for the respondents, there is no quarrel with the proposition of law laid down by this Court and other High Courts regarding the Suit filed in a representative capacity under Order 1 Rule 8 CPC and hence, those judgments are not applicable to the present case on hand. Considering the facts and circumstances of the case, this Court finds that the applicants/plaintiffs have got a common interest and the parties are numerous in nature and they have made out a prima facie case and therefore, the applicants/plaintiffs are entitled to get leave for filing the suit.  Accordingly, the application is allowed.
  2. Registry is directed to take the suit on file if it is otherwise in order.

26.04.2022

pbn

Index  : Yes/No

Internet:Yes/No

Note : Issue Today

P.VELMURUGAN,J.

pbn A.No.1204 of 2022 in C.S.DR.No.119663 of 2021

26.04.2022

You may also like...