Susanta Chatterji, J. - (1.) The present revisional application has been filed by the defendant/petitioner Indian Association for Cultivation of Science challenging Order No. 39, dated 22.8.1985 passed by the Learned Munsif, Second Additional Court at Alipore in Title Suit No. 23 of 1982 (since renumbered as Title Suit No. 17 of 1985). The Opposite Party/Plaintiff has filed the aforesaid Title Suit for a declaration that the election of the President and other two ordinary members of the Defendant Society in 1981 is illegal and not binding and for a further declaration that ballots sent by the members of the Defendant Society either by person or through duly authorised messengers are valid votes and in conformity with the customs, usages and conventions of ages and for a decree of declaration that the Annual General Meeting scheduled to be held on 25th January, 1986 is void and against Rules and Regulations of the Defendant Society and for other; consequential reliefs as stated in the plaint. The plaintiff after proceeding with the suit for a number of years has filed an application for leave under Order 1, Rule 8 C.P.C. to sue in a representative capacity. By the impugned Order the Learned Munsif has since allowed the prayer made by the plaintiff by petition, dated 24.7.1985 and the plaintiff has been directed to take steps for publication in daily newspaper.
(2.) Being aggrieved, the petitioner/defendant has came to this Court and obtained the Rule on 19.11.85. There is an ad interim Order of stay of further proceedings of the suit till the disposal of the Rule.
(3.) Mr. D. N. Das, Learned Counsel appearing for the petitioner has submitted that the Learned Munsif has acted with material irregularity in exercise of the jurisdiction by granting leave under Order 1, Rule 8 C.P.C. to the greatest prejudice of the interest of the defendant. He has strongly emphasized that the prayer of the plaintiff to sue in the representative capacity is otherwise unwarranted and the same is hit by Article 57 of the Limitation Act. He has also drawn the attention of the Court by referring to the decision reported in AIR 1964 Cal. P. 57 (Rajendra Nath Tikku vs. The Royal Calcutta Turf Club). It was found by the Hon'ble Mr. Justice A. N. Ray (as His Lordship then was) that a suit against unincorporated and unregistered club, not a case of misdescription -amendment not allowed since it would change the character of the suit. He has also drawn the attention of the Court to Palmer's Company Law, of 21st Edition at Page No. 503. The passage referred to is as to scope of -"to sue and to be sued" in the representative capacity.;