Mange and Another vs Lalji Harnam and Others

Shamsher Bahadur, J.—The surviving question for determination in this appeal is whether the representative suit of the plaintiff-respondents could have been maintained under the provisions of Order 1, Rule 8 of the Code of Civil Procedure? Both the trial Court and the learned District Judge having found in, favour of the plaintiffs, the defendants have come in appeal to this Court.

The suit was instituted by four persons against Mange and Dhan Pal, who are now the appellants before me, and the relief sought was for injunction to restrain the defendants from interfering with the right of the plaintiffs in respect of 15 kanals of land or in the alternative for possession and mesne profits of Rs. 200/-. At a very early stage, a prayer was made that the plaintiffs who belonged to Panna Dahliz in the village of Sunari Kalan may be allowed to sue the defendants in a representative capacity, the other biswedars of the village having identical interest in the suit land.

It is unfortunate that though the plaintiffs mentioned the identity of interest of the persons of Panna Dahliz, the formal order of the Court in the handwriting of the Reader accorded permission to them to prosecute the suit on behalf of the biswedars of Sunari Kalan. In the application of 23rd of July, 1955, it was stated at the end that "for this reason the proprietors of Panna Dahliz of village Sunari Kalan pray that they may be permitted to prosecute the suit on behalf of all the biswedars of Panna Dahliz whom they may be allowed to represent". In the order which was passed on 1st of August, 1955, permission was given on behalf of the proprietors of village Sunari Kalan. It is not disputed that Panna Dahliz is a part of village Sunari Kalan.

The issues on merits having been decided a favour of the plaintiffs a decree was accordingly granted in their favour. In appeal before this Court, Mr. M. L. Sethi has not challenged the finding on issue No. 1 that the plaintiffs are owners of the suit land. He has. however, urged that proper permission under Order 1, Rule 8, CPC not having been granted, the suit was liable to dismissal. Mr. Sethi has also contended that the defendants, who are the residents of village Sunari Kalan, have been adversely affected inasmuch as the property claimed by the plaintiffs consists of land which is meant for village school.

It is worthy of note that on the application of the plaintiffs made on 23rd of July 1955, the proprietors of village Sunari Kalan were served with notices and nobody appeared to oppose the application. On behalf of Mr. Sethi, reliance has been placed on a Privy Council decision in AIR 1933 183 (Privy Council) At page 185 Lord Blanesburgh observed thus :

"First it has been deemed essential that in a representative action the class of persons on behalf of whom relief is sought should be clearly defined. In the interests of precision it is expected that the class shall be so defined in the writ : see e.g. Markt and Co. Ltd. v. Knight Steamship Co. Ltd., (1910) 2 KB 1021, but the gist of the requirement is that as the judgment in such an action is binding on all the members of the class represented, it is of the essence that the range of the estoppel be defined somewhere on the face of the proceedings."

The parties, who are brought on record as representatives under Order 1, Rule 8, are governed by the decree and it is reasonable to expect, as observed by Lord Blanesburgh, that the range of such estoppel should be well defined. Can it be said that in the present case the class of persons who have been brought on record is left undefined or vague? I think the answer to this question must be in the negative. The entire body of the biswedars of village Sunari Kalan were served with notices and then impleaded.

It may be that only the residents of Panna Dahliz are affected but it cannot be said that any prejudice has been suffered so far as the present appellants are concerned. Mr, Sethi urges that his clients must know to whom the suit land is to be entrusted. I do not think that this is a matter which has been left in any doubt by the Court which issued notices and has decided the question of maintainability of suit under Order 1, Rule 8, in favour of the plaintiffs.

As observed by the learned District Judge, the order passed by the Court on 1st of August, 1955 appeared to be wholly mechanical and ran counter to the prayer which was made in the application made by the plaintiffs on 23rd of July, 1955. In any event, notices having been sent to all the biswedars of village Sunari Kalan. including the persons interested in Panna Dahliz, the present appellants cannot at least be heard to say that proper plaintiffs have not been impleaded in the suit.

It would be piling injustice upon technicality to insist that notices should issue afresh to the residents of village Panna Dahliz or that the entire proceedings should be set aside. Adequate opportunity has been afforded to every person concerned and the purpose underlying the provisions of Order 1, Rule 8, has been amply met. u/s 99 of the Code of Civil Procedure, "no decree shall be reversed! or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court."

No prejudice of any kind has been caused to the defendants-appellants and! what appears to be a mere irregularity has not adversely affected any one so far as I can see. As observed bv a Division Bench of this Court in Mahadev Parshad Vs. Mst. Mungi and Another, "technical objections not affecting the merits of the case should not be allowed to defeat justice when the provisions of law have been substantially complied with."

Holding, as I do, that no injustice or prejudice has been caused to any party by an apparent lapse in the order of the Court dated 1st of August, 1955, I would dismiss this appeal. In the circumstances, however, I would make no order as to costs.