9911796707
TMI Blog1996 (2) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... f representative suit without leave of the Court under Order 1 Rule 8 of the Code of Civil Procedure,1908 (Code) is sustainable. The decree of the Court is in nullity and non est.Therefore, Explanation VI to Section 11 is not attracted to the facts in this case.Accordingly, the execution is not maintainable. Calling in question the finding and decision of the High Court, this appeal by special leave has been filed. 4. The facts are fairly not in dispute. The appellant laid Civil Suit No. 1A/87 in thecourt of District Judge, Panna in Madhya Pradesh for eviction of Rashtriya Swayam Sewak Sangh through its Manager, Shri Gorelal Soni, its President, Shri Shiv Behari Srivastava, Advocate and the Head Master of Saraswati Shishu Mandir, Panna b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions contending that Sangh was not a registered body but composed of several members.The appellant had not followed Order 1 Rule 8, procedure. Therefore, the decree was a nullity and Section 11 is not a bar. The executing Court had upheld the objection and dismissed the petition. On revision, The High Court confirmed the same. 5. Shri Shiv Dayal Srivastava, learned senior counsel appearing for the appellant hascontended that in view of the stand taken by the Management, the President of the Sangh and the Member and having diligently prosecuted the proceedings, by no stretch of imagination it could be construed to be a collusive suit. Unless there is afinding that the decree is obtained by collusion or negligence, every member of the Sang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relal Soni, the President, Shiv Behari Srivastav, a practising advocate and also a member who is no other than a Head Master of a school, three of them had jointly filed the written statement with the defence available to them. The trial Court had proceeded on the basis. After framing the appropriate issues, the trial Court had accepted the plea of the defendants and dismissed the suit. On appeal, when the correctness thereof was canvassed, the respondents defended the action. The High Court on consideration of the evidence,did not accept the plea of the Sangh and accordingly, granted a decree. The matterdid not rest there. They came in appeal by way of special leave which was argued by one of the most eminent members of the Bar on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder whom they or any of them, claim, litigating under the same title, in a suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation VI to Section 11 is relevant in this behalf and reads thus : Where persons litigate bona fide in respect of a public right or a private right claimed for themselves and others, all persons, interested in such right shall,for the purposes of this section, be deemed to claim under the persons solitigating. 10. Therefore, the respondents now claim under the same title in the previous suit and thereby they are bound by the decree. The doctrine of res judicata evolved the public policy to prevent trial of an issue twice over. It clearly applies t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the essential condition that the interest of a person concerned has really been represented by the others; in other words, his interest has been looked after in a bona fide manner. If there by any clash of interests between the person concerned and has assumed representative or if the latter due to collusion or for any other reason malafide neglects to defend the case, he cannot be considered to be a representative. The issue, when it becomes relevant, has therefore, to be answered with reference to the facts and circumstances of the individual case. There may be instances in which the position is absolutely clear beyondany reasonable doubt one way or the other and the question can be settled without any difficulty; but in other cases t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
