Gulzar Main and others vs Sarjug Mahto

H.L. Agrawal, J.—This is the second appeal by the defendants, who were sued by the plaintiff in a representative capacity under the provisions of Order Rule 8 of the Code of Civil Procedure. The plaintiff respondent instituted a suit for declaration that survey plot no. 5007 under khata no. 639 of village Sripur Tola Gopalpur under Sugiuli P.S. in the district of Champaran, measuring 1 katha 19 dhu(sic) was his kast find under his cultivating possession and the Muslim community had no right to use the same as a grave-yard. The plaintiff had impleaded 12 persons as defendants including one Ramjan Dewan who was defendant no. 10. By order dated 26-12-1963, the trial court granted permission to the plaintiff to sue the aforesaid defendants in a representative capacity for the benefit of all the parsons interested.

Both the courts below have decreed the plaintiff''s suit. In the lower appellate court the Said defendant was appellant no. 10. In this Court, however, he was left out altogether On the objection of the Stamp Reporter, time was taken on behalf of the appellants for filing an Application for making the said Ramjan Dewan as an appellant in this appeal as well but no step was taken in this regard, although it was observed by this Court that failing to take such steps, "legal consequence will follow". The result is that the present appeal is by eleven persons only. 2. The question that arises for consideration is, whether the present appeal as such is still competent and maintainable or in any way it has become incompetent. Learned Counsel for the appellants vehement contended that in as much as the interest of the non-appealing defendant was fully represented by the other appellants on the record and in as much as the principle of abatement did not apply to a case where a body of persons was impleaded in a representative capacity, this appeal must be held to be fully competent.

I am afraid, the contention of the Learned Counsel cannot be accepted. Under the provisions of Rule 8 of Order 1 of the Code of Civil Procedure, permission of the court is accorded to a definite number of persons either to sue or to be sued in a representative capacity to represent numerous persons having the same interest in the result of the suit and once that is so, the representative so permitted, cannot be changed. It is not open to the representatives either to choose to refuse or give up the litigation. In a situation where some of the representatives neglect or refuse to prosecute a case or dies during the pendency of the same, permission of the Court has to be obtained in this regard and the Court may either permit the remaining representatives to continue the proceeding or may chose to add new person instead, if it so thinks desirable. This view finds full support from the observations of a Bench decision of this Court in (1) Rani Harsamukhi Dasi Vs. Agadhu Mohapatra and Others, . The learned Judge, who delivered the judgment for the Court, considered the decision in (2) Venkatakrishna Reddi and Others Vs. Srinivasachariar and Others, , and the view of the Madras High Court was approved. In the Madras case it was held that "where sanction is given by the Court to a certain number of persons so nomine to prosecute or defend a suit and one of them dies, the proper procedure is or the remaining persons to apply to the Court for directions; and it is for the Court to decide whether it will permit the remaining persons to continue to prosecute or defend the suit, or whether it will insist upon the original number being maintained by adding some of the respondents." The aforesaid Madras case was also considered in (3) Chandar Bhan Vs. Des Raj and Others, where Kapur, J. (as he then was) held that "where one of the representatives refuses or neglects to act, the Court, can allow the remaining representatives to continue or appoint another in his place." From the orders passed by this Court, referred to earlier, it is apparent that this Court never granted any such permission to the remaining appellants to continue this appeal on behalf of the left out appellant, Ramjan Dewan, Rather, this Court very much insisted for making the said Ramjan Dewan as appellant in this appeal. In view of the principles laid down in Rule 8 of Order 1 of the CPC I feel constrained to hold that this appeal in the circumstances is not maintainable and the appellants are not entitled in law to prosecute the same. The appeal, therefore, must fail as being incompetent and, is accordingly, dismissed. In the circumstances, I shall make no order as to costs.