Har Kishan and Others vs Durga and Others

N.K. Kapoor, J.—This judgment shall dispose of Regular Second Appeal Nos. 314, 508, 634, 1303, 1213 and 1214 of 1985 as identical question of law and facts are involved in these appeals. Facts are being taken from regular second appeal No. 314 of 1985.

This is defendant''s appeal against the judgment and decree of the Additional District Judge affirming in appeal the judgment and decree of the trial Court whereby the suit filed by the plaintiffs was decreed thereby setting aside the earlier judgment and decree dated 19.2.1979.

The plaintiffs challenged the validity of the judgment and decree dated 19.2.1979 on the ground that the proprietors of the village were not properly served; that defendants No.4 and 5 had no right to represent the whole body of proprietors of the village; that they did not keep in view the interest of the proprietors of the village that defendants No.1 to 3 or their fathers were never in possession of the suit land that the co-sharers in possession of the suit could not claim hostile title against themselves; and that any agreement or compromise in the shape of admission of claim of defendants No. 1 to 3 in the previous suit was without the leave of the Court etc.

Defendants No. 1 to 3 filed a joint reply controverting the various material allegations of the plaintiffs. They pleaded that the plaintiffs have no locus standi to file the suit; that the suit is not maintainable in the present form; that the suit has not been properly valued for the purposes of court fee and jurisdiction and that the impugned judgment and decree are valid.

On the pleadings of the parties, following issues were framed :-

1) Whether the plaintiffs are proprietors in the village? OPP

2) Whether the suit land is shamlat deh of the village and vests in the entire proprietory body of the village including the plaintiffs? OPP

3) Whether the judgment and decree passed by Mr. M.P. Mehndiratta are liable to be set aside as alleged in the plaint? OPP

4) Whether the plaintiffs have no locus standi to file the suit? OPD

5) Whether the suit is not maintainable? OPD

6) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD

ADDL. ISSUES

1) Whether the previous suit was bad for want of permission of the court under Order 23 Rule 3(b) of C.P.C.? OPP

2) Whether the plaintiffs are entitled to joint possession of the suit land as co-sharers? OPP

3) Whether the plaintiffs have no specific share in the suit land, if so, to what effect? OPD.

The trial Court examined issues No. 1, 2 and 3 together. After threadbare discussing the documentary as well as oral evidence adduced by the parties, the Court finally came to the conclusion that the plaintiffs were proprietors in the village and that the land in suit is shamlat deh of the village and vests in the entire proprietory body of the village including the plaintiffs and so issues No. 1, 2 and 3 were decided in favour of the plaintiffs. The Court further held that in view of its findings in respect of issues No. 1. and 2, judgment and decree dated 19.2.1979 is null and void and hence liable to be set aside. Issue No. 3 was also decided in favour of the plaintiffs. Issue No. 4 was decided against the defendants holding that the plaintiffs have locus standi to file the present suit. Issue No. 5 and additional issues No. 2 and 3 were taken up together and these were decided against the plaintiffs. Consequently, the judgment and decree dated 19.2.1979 was set aside and a decree was passed in favour of the plaintiffs and against the defendants for joint possession of the land in dispute along with other co-sharers in the said land.

Defendants No. 1 to 3 (the present appellants) filed appeal against the judgment and decree of the trial Court. The Court once again examined as to where any permission in terms of Order 1 Rule 8 of the CPC (sic) short ''the Code'') was granted by the Court. On perusal of the documents, the Court came to the conclusion that there is no proof on record that any such permission was granted by the Court in terms of Order 1 Rule 8 of the Code and the relevant provision being mandatory, the decree suffered by defendants No. 4 and 5 does not bind the plaintiffs in any manner. Accordingly the appeal was dismissed.

At the motion hearing, it was contended by the learned counsel for the appellants that vide Exhibit D-5 dated 13.2.1979 orders under Order 1 Rule 8 of the Code were passed and so the record of the trial Court was summoned for the, next date of hearing. Counsel for the appellants once again submitted that order Exhibit D-5 dated 13.2.1979 and the report Exhibit D-4 were not considered by the Court below. After noticing these contentions, the appeal was admitted. Thus, the present dispute lies within a narrow compass i.e. whether there is any order of the Court in respect of the application filed by the present appellants under Order 1 Rule 8 of the Code and whether any valid report with regard of effecting service by the process server agency and its effect. The facts leading to the filing to the present suit and the controversy with regard to the status of the parties has already been briefly noticed. Hari Kishan and Ors (the present appellants) filed a suit for declaration against Chhatar S/o Shadi and Ram Pal S/o Hardeva themselves and on behalf of all the proprietors and Biswedars of village Sanoli Kalan, Tehsil Panipat, District Karnal, on the allegation that they had reclaimed the suit land situate in the revenue estate of village Sanoli Kalan some 20 years back and in possession of it since then. They further averred that their possession over the land was hostile and adverse to the knowledge of all the proprietors of the village which has now ripened into ownership. The above named defendants put in appearance and filed admission written statement and so the claim of the defendants was decreed.

To challenge the decree dated 13.2.1979 the plaintiffs termed it to be wholly illegal and void on the ground that there has been non compliance or Order 1 Rule 8 of the Code etc. The trial Court on evaluating evidence led by the parties has come to the conclusion that no permission was granted by the Court in terms of Order 1 Rule 8 of. the Code. It being mandatory the decree was consequently held to be nonest which finding has also been affirmed by the lower appellate Court. At the motion hearing, reliance was placed upon document Exhibit D-4, copy of summons issued to the defendants, and Exhibit D-5, Order dated 13.2.1979, vide which the defendants in the previous suit were summoned. Exhibit D-4 is the copy of summons issued to the defendants, namely, Chhatar S/o Shadi and Ram Pat S/o Hardeva. There is no indication in this document that the Sub-Judge granted the permission sought in terms of Order 1 Rule 8 of the Code. To the similar effect is the document Exhibit D-5. It is after carefully considering these and other documents coupled with the statements of witnesses examined by the plaintiffs that the Court came to the conclusion that there is no specific order passed by Sub Judge IInd Class, Panipat, vide which permission was granted to defendants No. 1 to 3 (the present appellants) for filing the suit in a representative capacity under Order 1 Rule 8 of the Code. To the similar effect is the conclusion of the lower appellate Court. Learned counsel for the appellants has not been able to persuade me that the findings of fact recorded by the Courts below are wrong and otherwise vitiated in any manner. The counsel, however, argued that even if it be taken that no permission was granted by the Court in terms of Order 1 Rule 8 of the Code, yet at best the parties ought to have been relegated to a position which existed before the impugned order was passed i.e. to say if it is held that the impugned decree, does not bind the present plaintiffs, the parties need be relegated to the original position i.e. permitting them to prosecute the earlier suit from the start. Such a recourse is not likely to prejudice the claim of one or the other party.

I have heard learned counsel for the appellants as well as perused the judgments of the Court below as well as other documents and the evidence referred to by the respective counsel. Both the Court on appraisal of evidence have come to the conclusion that no permission was granted to the present appellants in terms of Order 1 Rule 8 of the Code to sue the defendants in a representative capacity. Order 1 Rule 8 of the Code envisages that where there are numerous persons having the same interest in one suit, 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. The Court in such case is to 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. Thus, before such a suit can be said to be properly constituted, permission of the Court is necessary to invoke the provisions of Order 1 Rule 8 of the Code. The provisions of this Rule was mandatory as any such decision operates as res judicata even against all those person for or on whose behalf the actual parties on record purpose to defend the suit. Thus, the Court is to be very careful and vigilant in satisfying itself that the provisions of law have been strictly complied with. Where neither a proper notice is issued under Order 1 Rule 8 of the Code nor is duly served on the persons concerned, the procedure amounts to an irregularity which vitiates the entire proceedings in the Court and cannot even be condoned u/s 99 of the Code. The view of this Court is consistent that the provisions of Order 1 Rule 8 of the Code and mandatory: Bishan Singh Kala Singh and Others Vs. Mastan Singh Sarup Singh and Another, Radha Kishan v. Raja Ram and another (1976)78 P.L.R. 271 and Jai Narain and Ors v. Chandgi Ram and Ors 1977 P.L.J. 527 (DB). Thus, no fault can be found with the well considered judgments of the Courts below.

Whether the appellants can be relegated to their original position i.e. reviving of the suit filed by them from its inception needs some close scrutiny. Admittedly, the present appellants filed a suit against only two persons for themselves and on behalf of all the proprietors and Bishwedars of the village. Such a suit could be held to be properly constituted in case permission sought in terms of Order 1 Rule 8 of the Code had been granted by the Court. As noticed above, no such permission was granted by the Court and hence such a suit cannot be said to be properly constituted. This being so, there is no reason for ordering reviving of the suit in the context of the facts on record. The decree passed in favour of the present appellants has already been declared to be null and void. Such a decision nowhere precludes the appellants or persons like him from laying their claim afresh in a properly constituted suit. Thus, finding no merit in these appeals, the same are dismissed.