Whether second suit will be barred by O 7 R 11 of CPC if previous pauper application was withdrawn without seeking leave of court?

"13. We are also of the view that the High Court was in error in holding that by an application to sue in forma paupers, the applicant prays for relief personal to himself. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil Procedure is presented and Order 1 Rule 10 of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which court fee had been duly paid......"

(underline supplied)

11. On a reading of Order 23 Rule 1(4) CPC, it will be clear that where a plaintiff (which expression contextually includes an applicant in an indigent original petition as well), abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. It has been declared in a catena of decisions that this bar is absolute and it is founded on public policy that nobody shall be vexed twice in respect of the same subject matter, which takes in cause of action as well. Since I have already found that the original proceedings instituted by an indigent person is a harbinger of a suit, the bar under Order 23 Rule 1(4) CPC directly applies to such proceedings as well. From that angle too, it is clear that the second suit is barred by the provisions of law provided in Order 7 Rule 11(d) CPC.

IN THE HIGH COURT OF KERALA

R.F.A. No. 271 of 2018

Decided On: 21.01.2019

 Revi Vs.  Shiny and Ors.

Hon'ble Judges/Coram:

A. Hariprasad, J.

Citation: AIR 2019(NOC) 404 Ker

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Supreme Court: It is mandatory to obtain leave of court for filing suit U/S 92 of CPC

 A plain reading of Section 92 of the Code indicates that

leave of the court is a precondition

or a condition precedent for

the institution of a suit against a public trust for the reliefs set

out in the said section; unless all the beneficiaries join in

instituting the suit, if such a suit is instituted without leave, it

would not be maintainable a all. Having in mind the objectives

underlying Section 92 and the language thereof, it appears to us

that, as a rule of caution, the court should normally, unless it is

impracticable or inconvenient to do so, give a notice to the

proposed defendants before granting leave under Section 92 to

institute a suit. …”

7. Learned counsel for the appellant urges that in view of

law laid down by this Court, it is imperative that leave must

be granted before the suit is instituted. There is no quarrel

with this proposition and we are not inclined to hold, as the

High Court did, that leave can be presumed to have been

granted. There can be no presumption of this kind in a case

of this nature. We are clearly of the view that in every suit

filed under Section 92, CPC, the grant of leave is necessary

before the suit can be said to be properly instituted.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No(s). 6067/2010

BHUPINDER SINGH Vs  JOGINDER SINGH

Deepak Gupta, J.

Dated:September 18, 2019.

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Whether third party would be entitled to challenge compromise decree passed in representative suit passed in violation of O 23 R 3-B of CPC?

 The decree is contended to be void for two reasons. Firstly, the compromise entered into in the representative suit without the leave of the court and without due notice and publication as required under Order XXIII Rule 3-B and Order I Rule 8(4) of CPC is void; secondly, in view of the violation of Sections 89 and 139 of the Kerala State Housing Board Act, the decree is void.

9. It is not in dispute that the suit was instituted by the plaintiffs in a representative capacity. The suit was decreed, as prayed for. in the compromise entered into pending appeal, the decree was accepted by the defendant and the plaintiffs gave up their right to recover costs, it is also not in dispute that prior to entering into the compromise, the leave of the court under Order XXIII Rule 3-B CPC was not obtained and the publication as required under Order I Rule 8(4) of CPC was not effected.

10. What is the effect of non-compliance of Order XXIII Rule 3-B and Order I Rule 8(4) of the CPC, on the decree in question? It would be appropriate to refer to Order XXIII Rule 3-B and order I Rule 8(4). The said provisions read thus:-

"3-B. No agreement or compromise to be entered in a representative suit without leave of Court.- (1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void."

"8(4) (4) No part of the claim in any such suit shall be abandoned under sub-rule (1). and no such suit shall be withdrawn under sub-rule (3). of rule 1 of Order XXIII. and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiffs expense, notice to all persons so interested in the manner specified in sub-rule (2)."

A plain reading of the provisions indicate that the provisions regarding leave and notice, are mandatory in character. In Mohammed v. Avarankutty Haji [1996 (1) KLT 474], relying on the judgment of the Apex Court in Charan Lai Sabhu v. Union of India (MANU/SC/0285/1990 : AIR 1990 SC 1480), it was held that, violation of Order XXIII Rule 3-B and Order I Rule 8(4) of the CPC makes the order void.

11. Then the question would be, is the defendant who suffered a decree in terms of the plaint, entitled to take shelter under the said provisions and contend that the decree is void? To whom would such a plea be available?

12. It is to be noticed that the defendant was impleaded in the suit in his individual capacity and it was the plaintiff who filed the suit in a representative capacity. Under Order I Rule 8 CPC, one person may sue or be sued on behalf of numerous persons having the same interest. As per Order I Rule 8(6) CPC, a decree passed in such a suit binds all persons on whose behalf the suit is instituted or on whose behalf the suit is defended, as the case may be.

13. The trial court decreed the suit, as prayed. The decree was literally accepted in the compromise, and no prejudice was caused to the plaintiffs or the numerous persons whose interests they purported to represent in the suit.

14. The very purpose of requiring leave of the court to enter into a compromise and also effecting publication in terms of Order I Rule 8(4) CPC is to ensure that the persons who represent the interests of others, does not enter into a compromise defeating, prejudicing or affecting the interests of the third parties whose interests also they represent. As noticed supra, the decree binds them also. So, if a compromise is entered into and decree passed in violation of Order XXIII Rule 3-B and Order I Rule 8(4), the decree shall be void in so far as they are concerned- They will not be bound by the decree. However the eo-nominee parties to the compromise should be held by the same. The plea that the decree passed on compromise is void for violation of Order XXIII Rule 3-B and Order I Rule 8(4) shall be open only for the persons whose interests were represented by the plaintiff or the defendant in the suit, as the case may be. in other words, the decree on compromise without conforming to the provisions of Order XXIII Rule 3-B and Order I Rule 8(4) will be void only as against persons who interests the plaintiff or the defendant, as the case may be, sought to represent. Such a plea would not be available to the persons who entered into the compromise. The provisions are to be so read and understood. Any other interpretation would entail miscarriage of justice.

17. The construction of the procedural provisions, Order XXIII Rule 3-B and Order I Rule 8(4), as I have adopted, would only advance the cause of justice.

18. In the instant case, as noticed supra, no prejudice whatsoever has been caused to the persons whom the plaintiff represented. The decree would at best be void as against the interests of the persons whom the plaintiff represented and not as against the defendant who had contested and lost. Therefore, I hold that the plea that the decree is void for violation of Order XXIII Rule 3-B and Order I Rule 8(4) is not available to the defendant, on the facts of the case.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C) No. 2075 of 2018

Decided On: 16.11.2018

Shibu Vs. Pradeep Kumar and Ors.

Hon'ble Judges/Coram:

Sathish Ninan, J.

Citation: AIR 2019(NOC) 98 Ker

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Whether party can be permitted to file documents which were not filed along with written statement?

Order 8 Rule 1A(3) of the CPC provides that the documents, which have not been produced along with the written statement, cannot be produced to the court later on without the leave of the court. Thus, if a document is to be produced by a defendant, the same is to be produced with the written statement. Subsequent production of document can be done only if the court is satisfied with the grounds explained for non-production of the documents at the time of filing of the written statement.

In the High Court of Patna

(Before Ashwani Kumar Singh, J.)

Dewanti Devi and Others v.  Radheshyam Tiwary 

Civil Miscellaneous Jurisdiction No. 1497 of 2016

Decided on January 4, 2019

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Whether it is necessary to obtain leave for amending plaint in representative suit?

MAINTAINABILITY OF MANNATHUR CHURCH SUIT:

180. It was also submitted by Shri Mohan Parasaran, learned senior Counsel that the Mannathur Church matter suit was not maintainable. It was not of a representative character and in view of Order 1 Rule 8 Code of Civil Procedure, fresh leave was not sought when the reliefs were amended and enlarged. We are not satisfied with the submissions raised. The suit was clearly representative in character and has been contested in that manner. It was not necessary to adopt the procedure as suggested after amendment as the amended relief was traceable from the main relief. It was not at all necessary to obtain fresh leave.

 It was not necessary, after amendment of the plaint in Mannathur Church matter, to adopt the procedure once again of representative suit Under Order 1 Rule 8 Code of Civil Procedure. It remained a representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3674, 3681, 3682, 3683, 8790, 8789 of 2015, 

Decided On: 03.07.2017

 K.S. Varghese and Ors. Vs. ST. Peter's and Paul's Syrian Orth. and Ors.

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When a person who is not party to suit can file appeal?

 Presently, it is apt to note that Sections 96 and 100
of the Code make provisions for preferring an appeal
from any original appeal or from a decree in an
appeal respectively. The aforesaid provisions do not

enumerate the categories of persons who can file an
appeal. If a judgment and decree prejudicially
affects a person, needless to emphasize, he can
prefer an appeal. In this context, a passage from
Smt. Jatan Kanwar Golcha v. M/s. Golcha
Properties Private Ltd. AIR 1971 SC 374
 is worth noting: -
“It is well settled that a person who is not a
party to the suit may prefer an appeal with
the leave of the appellate Court and such
leave should be granted if he would be
prejudicially affected by the judgment.”
14. In State of Punjab v. Amar Singh and another
 AIR 1974 SC 994,Sarkaria, J., while dealing with the maintainability of
an appeal by a person who is not a party to a decree
or order, has stated thus: -
“84. Firstly there is a catena of authorities
which, following the doctrine of Lindley,
L.J., in re Securities Insurance Co., (1894) 2
Ch 410 have laid down the rule that a
person who is not a party to a decree or
order may with the leave of the Court,
prefer an appeal from such decree or order
if he is either bound by the order or is
aggrieved by it or is prejudicially affected
by it. As a rule, leave to appeal will not be
refused to a person who might have been
made ex nominee a party – see Province of
Bombay v. W.I. Automobile Association,
AIR 1949 Bom 141,

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 102 OF 2013
(Arising out of S.L.P. (C) No. 35271 of 2011)

Hardevinder Singh Vs  Paramjit Singh.

Dated;January 07, 2013
Citation; 2013(1)ALLMR(SC)946, 2014(2)MhLj126, , (2013)9SCC261,

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Bombay HC: Victim is not required to apply for or obtain leave of the Court to file any of the appeals

In our case, the right to bring before the Appeal Court the merits of the matter would be denuded and diluted by the various road blocks that leave would necessitate when the legislature specifically refrained from putting the victim on par with the State or the private complainant in the Section relating to appeals - Section 378 of the Cr.P.C. - and put them in the head section excepting them from the rigours of the procedure relating to appeals. There is, therefore, no need or requirement to read into the proviso any procedural act which would denude it if its effectiveness or the read down the express statutory right.

70. In the result, I hold that the victim is not required to apply for or obtain leave of the Court to file any of the appeals under the proviso to section 372.

Bombay High Court

Balasaheb Rangnath Khade vs The State Of Maharashtra & Ors on 27 April, 2012

Bench: R. S. Dalvi

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Whether litigant can discharge his advocate without leave of court?

A party who wishes to discharge the Advocate engaged by him may apply to the Court for an order of discharge by following a similar procedure and the Court if it is satisfied may pass order discharging the Advocate and while doing so impose such terms and conditions as it may deem proper. It is thus clear that an Advocate who has filed appearance in the Court cannot be discharged and his appearance is in force until determined with the leave of the Court. Thus, a client and his Advocate cannot themselves decide to stop the Advocate from appearing.

Bombay High Court

Kishore Kamlakar Patil vs The State Of Maharashtra on 9 November, 2011

Bench: R. C. Chavan

CRIMINAL APPEAL NO.9 OF 1997

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