Sunday, 13 October 2019

Whether defendant can raise objection that notice to all persons on whose behalf representative suit is filed is not served?

 Still further, the said objection regarding non-compliance of the mandatory provisions of Order 1 Rule 8 of the Code is available only to a party who was not arrayed in the list attached with the application and had been adversely affected by the decision of the suit. The objection raised at the behest of those defendants who were served notice shall not be maintainable.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Decided On: 16.05.2008

 Rulda Ram  Vs.  Barkat Ali

Hon'ble Judges/Coram:
Ajay Kumar Mittal, J.




1. The plaintiffs being unsuccessful in both the courts below has approached this Court by way of present regular second appeal against the judgment and decree dated 13.12.1983 passed by the lower appellate Court affirming that of the trial Court dated 7.8.1982 vide which the suit of the plain-' tiffs for mandatory injunction, was dismissed.

2. Adumbrated, the facts necessary for the disposal of this appeal are that the plaintiffs are Harijans (Addharmi) and inhabitants of village Sheikhupur, Tehsil and District Nawanshahr. The land in question is in exclusive possession and enjoyment of the plaintiffs for the last 60 years and they have been using the same for their religious functions, community gathering and other common purposes. It was pleaded that the defendants have forcibly constructed their kothas on a part of land of khasra No. 90 shown in red colour in the site plan without any right title or interest, depriving the plaintiffs and the other Harijans of the village from using the land in dispute for the aforesaid purposes. Despite repeated requests of the plaintiffs, the defendants refused to remove their kothas which gave rise to the plaintiff to file a suit for mandatory injunction directing the defendants to remove their kothas constructed by them on part of the suit land, forcibly. Along with the plaint, an application under order 1 rule 8 of the Code of Civil Procedure (for short 'the Code') was also filed seeking permission of the court to file suit in a representative capacity on behalf of 64 other persons.

3. The defendants filed written statement raising various preliminary objections. It was pleaded that their forefathers had constructed the houses on the suit land and they have been in possession of the same for the last more than 40 years. It was denied that either the plaintiffs were in possession of khasra No. 90 or were they using the suit land for common purposes. Denying other averments made in the plaint, the prayer for dismissal of the suit was made by the defendants.

4. From the pleadings of the parties, the following issues were framed by the trial Court:

1. Whether the suit in the present form is maintainable? OPP

2. Whether the site in dispute is a common site of the plaintiffs and other villagers as alleged and as been used as such as alleged in para No. 2 of the plaint? OPP

3. Whether the plaintiffs are entitled to the injunction as prayed for? OPD

4. Whether the suit is not within time? OPD

5. Whether the plaintiffs have no locus standi to file the suit? OPD

6. Whether the suit in representative capacity has not been filed in accordance with law? If so, its effect? OPD

7. Whether the plaintiffs are estopped to sue by their act and conduct? OPD

8. Relief

5. The trial Court while deciding issue No. 2 in favour of the plaintiffs held that the defendants had constructed their kothas about four months prior to the institution of the suit and Khasra No. 90 was a common site of the plaintiffs and the other village Harijans which they had been using for their common purposes. Issues No. 4 and 5 were also decided in favour of the plaintiffs. Further, issue No. 1 and 3 were decided against the plaintiffs holding that neither the suit for mandatory injunction was maintainable nor were the plaintiffs entitled to the injunction as prayed. It was held that Khasra No. 90 was only for the common use of the Harijans and when a non-Harijan encroached upon the said Khasra number, disturbing the Harijans in their possession, the proper remedy available to the plaintiffs was to file a suit either for ejectment or for possession. Issue No. 6 was also decided against the plaintiff holding that the requirements of Order 1 Rule 8 of the Code were not fulfilled. Accordingly, the suit filed by the plaintiffs was dismissed by the trial Court vide judgment and decree dated 7.8.1982. Feeling aggrieved, the plaintiffs took the matter in appeal and the defendants filed cross objections. The lower appellate Court vide judgment and decree dated 13.12.1983 while setting aside the findings of the trial court on issues No. 1 and 3, affirmed the findings recorded by the trial Court on issue No. 6 and dismissed the appeal.

6. I have heard learned Counsel for the parties and perused the record with their able assistance.

7. Learned Counsel for the appellants has submitted that the findings by the lower appellate Court on all the issues except issue No. 6 had been recorded in favour of the plaintiff-appellants and the courts below had erred in dismissing the suit solely on the ground that the provisions of Order 1 Rule 8 of the Code had not been complied with. According to the learned Counsel, this plea is not available to the defendants who had appeared in the suit after service of notice. Secondly, in fact, the compliance of Order 1 Rule 8 of the Code had been done and even if, though not admitted, it had not been done, then again the suit should have proceeded after complying with the said provisions. The learned Counsel referred to the various orders passed by the trial Court which clearly established that the compliance of Order 1 Rule 8 of the Code has been made and the findings of the courts below to the contrary is based on misreading of evidence which gives rise to substantial questions of law. He drew support for his submission from two judgments of this Court reported as Telu and Ors. v. Kurdia and Anr. (1987)92 P.L.R. 13 and Amarjit Singh and Ors. v. Darshan Singh and Ors. (1979)81 P.L.R. 386.

8. Mr. Y.M. Bhagirath, learned Counsel for the respondents, on the other hand, supported the finding of the Courts below on issue No. 6 and by placing reliance upon Sukadev Tapaswai and Ors. v. Sri Sidheswar Mahadev Bija Silod and Ors. MANU/OR/0033/1986 : AIR1986Ori100 submitted that the suit had rightly been dismissed by the courts below. The learned Counsel urged that since the present appeal does not raise any substantial question of law, the same merits dismissal.

9. After considering the rival contentions of the learned Counsel for the parties. I am of the view that the following substantial questions of law arise in this appeal for adjudication by this Court:

1. Whether in the facts and circumstances of the case, the provisions of Order 1 Rule 8 of the Code had been complied with and the finding to the contrary is against the record and, thus, legally unsustainable?

2. Whether in the facts and circumstances of the case, the plea regarding non-compliance of provisions of Order 1 Rule 8 of the Code at the behest of the defendant-respondents who had appeared in the suit and contested the same after notice, was available to them or not and whether the courts below were justified in dismissing the suit of the plaintiff-appellants?

10. In order to correctly appreciate and adjudicate the controversy involved in this case, Order 1 Rule 8 of the Code needs to be quoted and the same reads as follows:

Order 1 Parties to suits:

Rule 1 to 7 xxxx

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 plaintiff's 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) xxxxxx

(5) xxxxxx

(6) xxxxxx

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 persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be

11. A bare reading of the aforesaid provision would spell out that Rule 8 applies to a case in which there are numerous parties having common interest. The suit can proceed after obtaining necessary permission or direction of the Court under Sub-rule (2) and all interested persons are either served by personal notice or by public advertisement as may be directed by the Court. The rule is an exception to the general rule where all interested persons are required to be made parties. The object for enacting Rule 8 is to facilitate the decision where large persons are interested by not taking recourse to the ordinary procedure. The power to grant permission to the parties under the said rule is conferred on the Court to be exercised after being satisfied that the subject matter of the suit relates to the interest of numerous persons or not.

12. It would now be useful to refer to zimni order dated 21.8.1981 passed by the trial Court on the application filed by the plaintiff-appellant under Order 1 Rule 8 of the Code and the same reads thus:

Present: Mr. G.R. Kalsi, Advocate, counsel for plaintiffs-applicants.

ORDER

Plaintiffs have sought permission to file the suit in a representative capacity for themselves and on behalf of 64 other Harijans whose names are mentioned in the list attached with the application. It has been alleged that the site in dispute is meant for common purposes of the Harijans community of the village and that the Harijans of the village have common interest therein. The plaintiffs-applicants have prayed that permission may be allowed to file this suit in representative capacity. I have heard ld. Counsel for the plaintiffs-applicants.

2. Permission is hereby accorded to file the suit in representative capacity. Notice be issued to the 64 persons mentioned in the list attached with the plaint through Munadi for 21.9.1981 with a direction to file objection if any on that date. Notice be issued to the defendants on furnishing PF and RC for the date fixed.

Sd/- Sub Judge, 1st Class, 21.8.1981 Nawanshahr.
12. On 21.9.1981, Shri L.S. Kang, Advocate had appeared for the respondents and the case was adjourned to 30.9.1981 for filing of written statement. However, on 30.9.1981, written statement was filed and the case was adjourned to 12.10.1981 for replication and issues. 64 other persons were proceeded ex parte by the trial Court on 10.6.1982 when the following order was passed:

Present: Counsel for the parties.

Munadi against the 64 persons on whose behalf the case was filed in a representative capacity has been effected. None is present on their behalf. They are proceeded against ex-parte. Now to come up for arguments on 15.6.1982.

Sd/- S.J. 10.6.82.
13. This Court had occasion to consider similar issue in Telu's case (supra), wherein under identical circumstances after analyzing the legal position, the Court had laid down that where a representative suit was filed for declaration that the plaintiffs were entitled to claim partition of the joint land in a Patti on the basis of holding of each proprietor in the village, known as Hasab Rasad Khewat, it was not necessary to give a complete list of all the residents and proprietors of the Patti and the revisions of Order 1 Rule 8 of the Code regarding proclamation were fully complied with.

14. Still further, the said objection regarding non-compliance of the mandatory provisions of Order 1 Rule 8 of the Code is available only to a party who was not arrayed in the list attached with the application and had been adversely affected by the decision of the suit. The objection raised at the behest of those defendants who were served notice shall not be maintainable.

15. Applying the aforesaid legal principle to the facts of the present case, the only conclusion drawn would be that in the present case the provisions of Order 1 Rule 8 of the Code had been fully complied with.

16. In all fairness, reference is made to Sukadev Tapaswai's case (supra) on which reliance has been placed by the learned Counsel for the respondents. The Court in that case after analyzing the scope and purpose of Rule 8 of Order 1 of the Code, in the facts and circumstances of the case had held that the legal requirements of the aforesaid Rule had not been complied with therein. That is not the position in the present case and, therefore, the aforesaid judgment is of no assistance to the respondents.

17. In view of the above, once it is held that the provisions of Order 1 Rule 8 of the Code were followed, the finding on issue No. 6 is legally unsustainable and is accordingly set aside. The substantial questions of law formulated hereinbefore are answered in favour of the plaintiff-appellants and against the defendant-respondents.

Accordingly, the appeal is allowed and the judgment and decree impugned in this appeal are set aside and consequently, the suit filed by the plaintiff-appellants is decreed. There shall, however, be no order as to costs.


Print Page

No comments:

Post a comment