TMI Blog2014 (12) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... by a decree passed in a representative suit does not find that he is bound by a decree without even having notice of the suit. The entire purpose of serving notice, be it individual notice or public notice, is to make all such persons aware that a representative suit has been filed so that such persons, if they choose can come forward and either support or oppose the cause. A person having actual notice of the suit, even though the plaintiff has not served notice as contemplated under Order 1 Rule 8 (2) of the CPC, is entitled to make an application in the suit praying for reliefs which are within the scope of the suit - time to issue notice of the suit may be extended by the Court and such notice can be issued privately or by public advertisement at any stage of the suit. It is merely that until such notice is issued a non-party who is not before the Court will not be bound by any order or decree passed in the action - the issue is decided in favour of the petitioners. The petitioners prayed that the Joint Administrators should take expeditious steps for the purpose of implementing the Division Bench order dated 11th August, 2006. Angad Merchants contends that the said orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll material times the Loudon Street gate used to be kept locked and both ingress and egress used to be through Moira Street. This was the position till the Louden Street gate was opened sometime around July, 2006. 5. The petitioners' cars are parked in their allotted space on the Louden Street side of the common passage which is over 13 ft. wide while the passage on the Moira Street side is even wider. 6. The petitioner No. 1 along with other persons have made an application in the present suit being GA No. 2100 of 2005 for discharging the Joint Administrators and for handing over charge of the suit premises to a democratically elected committee of flat owners. The said application is still pending. 7. Particularly after filing of the said application the Joint Administrators started harassing the petitioners in various manners as regards the parking of the petitioners' cars. Accordingly, the petitioners were compelled to move an application being GA No. 2182 of 2006 praying for, inter alia, an order of injunction restraining the Joint Administrators from interfering with the parking of the petitioners' three cars on the ground floor inside the said premises. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant made an application in the pending suit wherein an ad-interim order staying the operation of the directions issued by the Joint Administrators was passed which has subsequently not been extended and has as such ceased to be operative. After hearing the Ld. Counsel appearing for the parties, we are of the view that the Joint Administrators should at once take steps for repair and/or remodeling of the basement in consultation with the flat owners and those who are entitled to park their cars therein. The consultation is limited to eliciting their views in order to implement this order. However, the Joint Administrators have to repair and/or remodel the basement on the advice to be obtained from competent engineers. The cost of such repair and/or remodeling shall be borne by the beneficiaries of the basement equally. This work of repair and/or remodeling should be completed within six months from date. The Joint Administrators shall also consider whether necessary apparatus should be purchased in order to bail out water in case of waterlogging. The cost of such apparatus should also be borne by the beneficiaries of the basement equally. So long as the basement is not repa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence the ingress and egress points for the vehicles to and from the basement are the same. This is very dangerous and it is absolutely necessary that the partition wall be demolished so that the cars entering from one gate can exist through the other gate. There are structural defects in the basement which require attention and correction in design and structure of the car parking. 14. On the basis of the aforesaid averments the petitioners pray for the following reliefs:- (a) Order directing the Joint Administrators to ensure that no repair work is carried out at the basement by any person in any manner whatsoever. (b) Order directing the Joint Administrators to take adequate police protection for the purpose of implementation of the order that may be passed herein. (c) Order directing the Officer-In-Charge, Shakespeare Sarani Police Station and the Deputy Commissioner of Police (South Division) to render adequate police protection to the Joint Administrators to implement the order that may be passed herein. (d) Order directing the Joint Administrators to take expeditious steps for the purpose of implementing the order dated 11th August, 2006. (e) Order directin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o prevent further construction till further order of the Court and sealed the padlocks. 16. It further appears from the said report that letters were written by Angad Merchants Pvt. Ltd. to the Joint Administrators claiming to be registered owner/sub lease holder of a portion of the basement of the said building. The Ld. Counsel for the petitioners submitted that the said Angad Merchants had no right title or interest in respect of any portion of the said building and was in the process of converting a portion of the basement to retail stores illegally and in violation of the Calcutta Municipal Corporation Building Rules. 17. Ld. Counsel for the petitioners submitted that an order of injunction passed in a proceeding cannot be modified or altered in a parallel or collateral proceeding. In support of his proposition Ld. Counsel relied on a decision in the case of Farhd K. Wadia-vs.-Union of India reported in 2009 2 SCC 442 in paragraphs 13 and 14. In that case the Supreme Court observed that in an earlier public interest litigation the High Court had admittedly passed an order of injunction. If the same was required to be modified or clarified or relaxation was to be prayed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit was instituted after obtaining leave under Order 1 Rule 8 of the Code of Civil Procedure, no advertisement has been published as yet and as such the suit has not assumed a representative character. Therefore, the Court will not have jurisdiction over a dispute between two parties who are not parties to the suit. 22. Mr. Mitra then submitted that Angad Merchants is the registered sublessee in favour of a portion of the basement and the Administrators never took possession of such portion. Angad Merchants is in possession of its portion of the basement and the same cannot be interfered with. 23. Mr. Mitra then submitted that the deeds of assignment in favour of the petitioners being unstamped and unregistered documents, the same could have been looked into had the present application been an interlocutory application in aid of the suit. But this is not so. Hence, the petitioner's locus standi to maintain the application is not established. In any event, the petitioners' car parking space is not in the portion of the basement in respect of which Angad Merchants is the registered sub-lessee and, therefore, the petitioners have no locus standi to complain of anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33(1) to impound a document or not to do so. The word shall does not mean may but means shall. It is mandatory to impound such an unstamped document. Mr. Mitra also referred to a decision of the Apex Court in the case of Avinash Kumar Chauhan-vs.-Vijay Krishna Mishra reported in AIR 2009 SC 1489. In paragraph 17 of the judgment the Supreme Court observed that Section 33 of the Stamp Act casts a statutory obligation on all the authorities to impound a document and the Court being an authority to receive a document in evidence is bound to give effect thereto. 27. The third decision referred to in this connection was in the case of SMS Tea Estates Pvt. Ltd.-vs.-Chandmari Tea Company Pvt. Ltd. reported in 2011 14 SCC 66. In paragraph 20 of the judgment the Apex Court observed that Section 33 of the Stamp Act casts a duty upon a person having by law authority to receive evidence before whom an unregistered instrument chargeable with duty is produced, to examine the instrument in order to ascertain whether it is duly stamped. If it is found that the instrument is not duly stamped, it has to be impounded and dealt with as per Section 38 of the Stamp Act. 28. Mr. Mitra then contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, Mr. Banerjee submitted that stamping of the documents at this stage is irrelevant since the petitioners are not tendering any unstamped document at this stage. All the petitioners are seeking to do is to implement the Division Bench order dated 11th August, 2006. Court's View:- 32. I have considered the rival contentions of the parties. The first issue that arises for consideration is whether the petitioners, who are not parties to the suit, can maintain the instant application. While it is not disputed that the suit was instituted with leave under Order 1 Rule 8 of the Code of Civil Procedure, it is contended on behalf of Angad Merchants that no notice of the suit having been published as contemplated under Order 1 Rule 8 (2) of the CPC, the suit has not assumed representative character and, as such, a non-party to the suit cannot maintain any application therein. Order 1 Rule 8 of the CPC is reproduced hereunder:- 8. One person may sue or defend on behalf of all in same interest.- (1) Where there are numerous persons having the same interest in one suit,- (a) One or more of such persons, may with the permission of the Court, sue or be sued, or may defend s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there so that a party who would be bound by a decree passed in a representative suit does not find that he is bound by a decree without even having notice of the suit. The entire purpose of serving notice, be it individual notice or public notice, is to make all such persons aware that a representative suit has been filed so that such persons, if they choose can come forward and either support or oppose the cause. I am of the view that a person having actual notice of the suit, even though the plaintiff has not served notice as contemplated under Order 1 Rule 8 (2) of the CPC, is entitled to make an application in the suit praying for reliefs which are within the scope of the suit. It has been held by a Division Bench of this Court in the case of The Calcutta Swimming Club-vs.-Deokinandan Bubna reported in 1993 (1) CLJ 279 that even though the proper course is to obtain leave under Order 1 Rule 8 of the CPC before the institution of the suit, but if that is not done the Rule does not forbid leave being granted afterwards. Leave under the said Rule may be granted even after the institution of the suit and even at the appellate stage by allowing an amendment if such amendment does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in six months from the date of the order. The Joint Administrators were also directed to consider whether necessary apparatus should be purchased to drain out water in case of waterlogging. 38. The petitioners prayed that the Joint Administrators should take expeditious steps for the purpose of implementing the Division Bench order dated 11th August, 2006. Angad Merchants contends that the said order was obtained by suppressing their presence in the disputed portion of the basement and behind its back. 39. I am not a little surprised that the Joint Administrators have not taken steps till date to implement the Division Bench order dated 11th August, 2006. No appeal was preferred from that order and it has attained finality. It is not stated by Angad Merchants as to when they became aware of the said order. The fact remains that Angad Merchants has not taken any steps till date to assail the said order. The said order having reached finality, the same ought to be implemented immediately. Until such implementation, no repair work or any other work should be carried out in the basement of the subject building by any other person. 40. Accordingly this application is partly all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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