Civil suit Plaint
Querist :
Anonymous
(Querist) 19 December 2010
This query is : Resolved
Learned Experts,
Six persons are legal heir of a land, out of them four lives outside. Only two lives, son with his father who is unable to move, in the home town where the land situates. Now a civil suit has to be filed for removal of encroachment of the land. The one son has been made plaintiff.
This para has been written in the plaint like below,
“After the death of “X” the six legal heirs including the plaintiffs came into possession over the entire purchased land.
Since out of six legal heirs, five lives outside the town, and the plaintiff named above is taking care of the above mentioned land.”
Is the above mentioned para is correct?
Can I attach the complete plaint, for correction?
Plz. Guide .
Thanks and great regards.
s.subramanian
(Expert) 19 December 2010
One co onwer can file the suit for himself and on behalf of all the co owners. What you have mentioned is right. If you further require any help,you may post the plaint for correction.
Y V Vishweshwar Rao
(Expert) 19 December 2010
I agree with Mr Subramanyan
It may further mentioned in the plaint that the Plaintiff filed the suit for and on behalf of all the Co- Sharers ./ share Holders and for benefit of All .
Parveen Kr. Aggarwal
(Expert) 19 December 2010
Mr. Anonymous,
Impleadment of all the legal heirs of X is necessary and the suit may fail on the ground of non-joinder of necessary parties. In case the other heirs cannot sign the plaint, you can implead them as proforma defendants. But their impleadment is necessary.
Advocate. Arunagiri
(Expert) 19 December 2010
I agree with Mr.subramanian.
I differ with Mr.Rao. Plaintiff can not state that he is filing the plaint on behalf of the other share holders, there must be a written consent.
Uma parameswaran
(Expert) 19 December 2010
Suit is for removal of encroachment.I am also supporting Expert Subramanian
s.subramanian
(Expert) 19 December 2010
The other co owners need not sign any vakalat or other papers. Necessary pleadings in the plaint in this regard will suffice. I agree with Mr.Rao. You can make use of the following decisions of the Madras High Court on this point of law.
1.1999 (3) Madras Law Journal Page 633.
or 1999 (3) Law Weekly Page 775.
2.1991(1) Madras Law Journal Page 396
or 1990 (2) Law Weekly page 378.
niranjan
(Expert) 19 December 2010
I go with with S.sir and Mr.Rao sir.
Querist :
Anonymous
(Querist) 19 December 2010
Thanks and regards a lot for the kind advice/guidance and suggestions, If necessary I will take power of attorney from other legal heirs, and they do not have any kind of objection.
Actually I am living in a very backward town, and there is scarcity of advocates and are not proficient in English language,so I am helping my advocate to prepare the plaint in English.
With best Regards.
Parveen Kr. Aggarwal
(Expert) 19 December 2010
Order 1, Rule 1 of the Code of Civil Procedure, 1908:
"1. Who may be joined as plaintiffs:- ALL PERSONS may be joined in one suit as plaintiffs where-
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law or fact would arise."
Order 1, Rule 8 of the Code of Civil Procedure, 1908:
"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 such suit, on behalf of, or for the benefit of, all persons so interested;
(b) 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 Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiffs expense, give notice of the institution of the suit to all persons so interested either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.
(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).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation.-For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the person on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be."
Pritam Saini, Advocate
(Expert) 22 December 2010
i agree with Mr. parveen .if defendant will take plea he is tenant under other co sharer then in the absence of other who denied this fact um.Even a co sharer have right to gave his property on a rent
