Jadu Singh and Others vs Sant Singh and Others

Kulwant Sahay, J.—The petitioners'' as plaintiffs instituted a suit in the Court of the Munsif at Arrah for a declaration that the Survey Plot No. 323 was a Karha or water passage and that the plaintiffs and certain other tenants of the village had a right to irrigate-their lands from water through Plot No. 323 and that the defendants who had amalgamated the land in Plot No. 323 with their fields had no right to do so. In Paras. 8 and 9 of the plaint there were indications to the effect that the suit was instituted as a representative suit not only on behalf of the plaintiffs themselves but also on behalf of other tenants who were entitled to have their lands irrigated through Plot No. 323 There was a prayer for issue of notices under Order 1, Rule 8 of the Code of Civil Procedure. The Defendants 1 to 7 who were also tenants in the village claimed the Plot No. 323 as part of their holdings and denied that it was a Karha and that the plaintiffs or any other tenant had a right to irrigate their lands through Plot 323. They also asserted that no notice under Order 1, Rule 8 was necessary.

The learned Munsif raised various issues. The first two issues ran thus: "(1) Has the plaintiff any locus standi to maintain the suit? (2) Is the suit as framed tenable?" After considering the other issues relating to the merits of the case and deciding them in favour of the plaintiffs, the learned Munsif took up the Issues Nos. 1 and 2 and he held that the plaintiffs had a right to maintain the suit since they had suffered special loss by the action of the Defendants 1 to 6 who had changed the survey Plot No. 323 from a Karha into a kasht plot in 1923, on which there was a criminal case between the parties.

It was argued before him by the defendants that the suit should have proceeded under Order 1, Rule 8 of the Code as it was first contemplated by the plaintiffs. It appears that, although the necessary costs had been paid by the plaintiffs, the notices under Order 1, Rule 8 had not been issued and the suit proceeded as an ordinary suit and not as a representative suit and the parties appear to have raised no objection. It appears, however, that in the Course of argument an objection was taken on behalf of the defendants that the suit should have proceeded as a representative suit.

The learned Munsif observed that although the proper course would have been to proceed with the suit as a representative suit, yet the suit had been tried as if it was not one under Order 1, Rule 8, of the Code of Civil Procedure, and as no objection appears to have been taken to this procedure until the time of the argument, the learned Munsif disallowed the defendants'' objection and he made a decree in favour of the plaintiffs.

The defendants preferred an appeal before the Subordinate Judge. The learned Subordinate Judge on the merits found that the plaintiffs were entitled to succeed. He found that Plot No. 323 was a Karha and not a part of the holding of Defendants 1 to 7. He also found that the suit was not barred by limitation; but he felt certain difficulties in disposing of the suit on account of the provisions of Order 1, Rule 8 not being complied with. He referred to the statement contained in Para. 9 of the plaint and he was of opinion that it was the duty of the Court to issue the notice under Order 1, Rule 8 of the Code, and as the Court had failed to do this, he set aside the decree of the Munsif and sent the case back to him in order to issue the notices under Order 1, Rule 8 and to hold a de novo trial of the suit.

Against this order of remand the plaintiffs have come up in revision to this Court. In my opinion the learned Subordinate Judge has acted illegally in the exercise of his jurisdiction in ordering a remand in the present case, Both the Courts have found on the merits that the plaintiffs are entitled to irrigate their lands which are Plots Nos. 117 to 122 through the Karha in Plot No. 323. It has also been found that the rights of the plaintiffs have been infringed by the action of the Defendants 1 to 7.

On these findings it is clear that a decree could have been made in favour of the plaintiffs themselves without a decree being made in general terms in favour of all the tenants who were interested in having their lands irrigated through Plot No. 323. Order 1, Rule 8 is only an enabling rule. It does not debar a person from maintaining a suit in his own right although the act complained of injures not only the plaintiffs but also other persons. If it can be shown that the rights of the plaintiffs have been in fringed, the plaintiffs cannot be forced is bring a suit in a representative capacity in. order to represent all the persons whose rights have been infringed.

It is true that in the plaint the plaintiffs did assert that they as well as other persons whose lands were situated to the north of the Karha were entitled to have their lands irrigated from the water passing through the Karha Plot No. 323, and they did ask for a notice under Order 1, Rule 8; but they took no further steps to have the notices issued and the defendants did not object to the suit proceeding without the issue of notices. As was observed by the Munsif both parties treated the suit as an ordinary suit and not a suit of a representative character.

Under the circumstances the suit could not be defeated in so far as the rights of the plaintiffs were concerned and there is nothing in law to prevent the Court from giving such reliefs to the plaintiffs as they may be found to be entitled to upon the facts found or proved. In the present case upon the findings it seems that the plaintiffs are entitled to a declaration that they have the right to irrigate their lands from the water passing through the Karha No. 323, and it was not necessary to order a de novo trial in the presence of all the persons interested after issuing notice under Order 1, Rule 8 of the Code. The order of remand is, therefore, bad in law.

The order must, therefore, be set aside and the case remanded to the learned Subordinate Judge to dispose of the appeal according to law. The petitioners are entitled to their costs; hearing fee two gold mohurs.