We also find ourselves unable to agree with the
contention of the appellants that the violations of Order XXIII
Rule 3B, CPC while passing the compromise decree dated
16.02.1981 in O.S. No. 10/1974 are merely procedural and do
not vitiate the decree, and that the decree should therefore be
regarded as proof of breach of custom.
Under Order I Rule 8, CPC, which pertains to
representative suits, a person may sue or defend on behalf of
others and for the benefit of others having the same interest, with
the permission of the Court. The object of Order I Rule 8 is to
facilitate the decision of questions in which a large number of
persons are interested without recourse to ordinary procedure.
Per Order XXIII Rule 3B, in order to compromise in a
representative suit, it is necessary to obtain the leave of the
Court. Before grant of leave to compromise, the Court needs to
give notice in such a manner as it may think fit, to such persons
as may appear to it to be interested in the suit.
It is pertinent to note that it is not clear whether the suit
in O.S. No. 10/1974 was filed under Order I Rule 8 or not. Even
assuming that we accept the respondents’ contention that the
said suit was not strictly filed under Order I Rule 8, it would be
regarded in the nature of a representative suit for the purposes of
Explanation (c) to Order XXIII Rule 3B. Explanation (c) provides
that the term ‘representative suit’ includes suits where the
compromise decree passed therein becomes binding on persons
not named as parties to the suit. In O.S. No. 10/1974, Pattakal
Koyammakoya was representing the respondent family’s interests
in his capacity as Karanavan of the family. Hence the compromise
decree, if upheld, would prejudice the family’s customary right to
the office of mutawalli and the terms thereof would become final
and binding by virtue of Section 96(3), CPC. Thus, it is clear that
the two conditions mentioned supra in relation to representative
suits have to be complied with if the compromise decree passed in
O.S. No. 10/1974 is to be held valid.
The Tribunal as well as the High Court, on considering
the compromise decree passed and the records thereof, have on
facts concluded that the parties to the decree did not obtain leave
of the court and did not give notice to other persons who were
interested in the suit, i.e., members of the Pattakal family, as
required under Order XXIII Rule 3B. The appellants before this
court have also not disputed that the compromise decree was
without leave of the court and without notice to interested family
members. As is evident from the foregoing discussion, such
violations of Order XXII Rule 3B
cannot be said to be merely
procedural, and go to the root of the matter since they deprive the
affected parties of the chance to question the terms of the
compromise that they are going to be bound by. Since both the
conditions required under Order XXIII Rule 3B were not complied
with, the compromise decree was void.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9586 OF 2010
ALIYATHAMMUDA BEETHATHEBIYYAPPURA
POOKOYA Vs PATTAKAL CHERIYAKOYA
Dated:August 1, 2019.
MOHAN M. SHANTANAGOUDAR, J.
Print Page
contention of the appellants that the violations of Order XXIII
Rule 3B, CPC while passing the compromise decree dated
16.02.1981 in O.S. No. 10/1974 are merely procedural and do
not vitiate the decree, and that the decree should therefore be
regarded as proof of breach of custom.
Under Order I Rule 8, CPC, which pertains to
representative suits, a person may sue or defend on behalf of
others and for the benefit of others having the same interest, with
the permission of the Court. The object of Order I Rule 8 is to
facilitate the decision of questions in which a large number of
persons are interested without recourse to ordinary procedure.
Per Order XXIII Rule 3B, in order to compromise in a
representative suit, it is necessary to obtain the leave of the
Court. Before grant of leave to compromise, the Court needs to
give notice in such a manner as it may think fit, to such persons
as may appear to it to be interested in the suit.
It is pertinent to note that it is not clear whether the suit
in O.S. No. 10/1974 was filed under Order I Rule 8 or not. Even
assuming that we accept the respondents’ contention that the
said suit was not strictly filed under Order I Rule 8, it would be
regarded in the nature of a representative suit for the purposes of
Explanation (c) to Order XXIII Rule 3B. Explanation (c) provides
that the term ‘representative suit’ includes suits where the
compromise decree passed therein becomes binding on persons
not named as parties to the suit. In O.S. No. 10/1974, Pattakal
Koyammakoya was representing the respondent family’s interests
in his capacity as Karanavan of the family. Hence the compromise
decree, if upheld, would prejudice the family’s customary right to
the office of mutawalli and the terms thereof would become final
and binding by virtue of Section 96(3), CPC. Thus, it is clear that
the two conditions mentioned supra in relation to representative
suits have to be complied with if the compromise decree passed in
O.S. No. 10/1974 is to be held valid.
The Tribunal as well as the High Court, on considering
the compromise decree passed and the records thereof, have on
facts concluded that the parties to the decree did not obtain leave
of the court and did not give notice to other persons who were
interested in the suit, i.e., members of the Pattakal family, as
required under Order XXIII Rule 3B. The appellants before this
court have also not disputed that the compromise decree was
without leave of the court and without notice to interested family
members. As is evident from the foregoing discussion, such
violations of Order XXII Rule 3B
cannot be said to be merely
procedural, and go to the root of the matter since they deprive the
affected parties of the chance to question the terms of the
compromise that they are going to be bound by. Since both the
conditions required under Order XXIII Rule 3B were not complied
with, the compromise decree was void.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9586 OF 2010
ALIYATHAMMUDA BEETHATHEBIYYAPPURA
POOKOYA Vs PATTAKAL CHERIYAKOYA
Dated:August 1, 2019.
MOHAN M. SHANTANAGOUDAR, J.
