Ramjanam Singh and Others vs Rambaran Singh and Others

Kulwant Sahay, J.—This is an application in revision against an order of the Munsif of Sasaram refusing the petitioners leave to prosecute a suit in a representative capacity on behalf of the public. The suit was originally instituted by three persons for a declaration that khasra plot No. 2107 of Mouza Derhgaon was from time immemorial used as a village path both by the plaintiffs and by the other inhabitants of the village and that the plaintiffs and other inhabitants had got a right of easement to pass over this plot of land and it was necessary to pass over it in order to come to a place of worship.

They allege that the defendants had encroached upon this plot of land and the plaintiffs and the other villagers were put to very great inconvenience. They therefore instituted the suit and asked for permission to proceed in a representative capacity as representing the public of that village.

The learned Munsif refused permission under Order 1, Rule 8, Civil P.C., and the only reason given by him in his order of 25th August 1931, was that only three persons had joined as plaintiffs in the suit and that there was nothing to show that the suit had really been brought on behalf of the public or that the said three persons were representatives of the public. Thereafter five more persons filed an application to be made plaintiffs and asked that they along with the three original plaintiffs may be allowed to prosecute the suit in a representative capacity on behalf of the public under Order 1, Rule 8, of the Code.

The learned Munsif rejected this application also by his order of 17th September 1931, but gave no reason whatever for the refusal. Therefore the only reason which appears to have been given in the first order mentioned above was that only three persons had joined as plaintiffs and that there was nothing to show that they were acting as representing the public. Order 1, Rule 8, provides 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, in such suit, on behalf of or for the benefit of all persons so interested.

There was a clear allegation in the plaint as well as in the two petitions filed, one on behalf of the original three plaintiffs and the other on behalf of the five additional plaintiffs, stating that they wanted to prosecute the suit as representing the public. There was nothing on the record to show that this statement was incorrect. Under Order 1, Rule 8 the Court was bound to give notice at the plaintiffs'' expense of the institution of the suit to all such persons whom the plaintiffs purported to represent either by personal service or by public advertisement as the Court in each case may direct.

The Court in the present case did not think fit to issue any notice and was not in a position to say that the plaintiffs were not representatives of the public, specially when there was a clear statement made by the plaintiffs and there was nothing to show that that statement was not correct. It is hardly necessary to say that there can be no hard and fast rule as to how many persons should represent the public or the rest of the class of the persons of the same interest. It cannot be said that three persons or eight persons are not enough to act in a representative capacity.

It is contended on behalf of the opposite-party in the present rule that this Court has no jurisdiction to interfere inasmuch as the order may be erroneous but was passed with jurisdiction by the Court below. It is enough to say that the Court below has refused to exercise its jurisdiction by refusing to entertain the application without proceeding in accordance with law, and the case clearly comes within Section 115, Civil P.C. It is next contended that the suit is not maintainable unless the plaintiffs showed special damage and reliance was placed upon the decision of this Court in Muhmmad Din Mian and Others Vs. Mt. Atirajo Kuer and Others, .

That was a case of a public; highway and it was held that no action can be maintained by a member of the public: for the obstruction of a highway without proof of special damage. That case has no application to the facts of the present case. But even if it was necessary to show special damage, there is a distinct allegation in para. 10 of the plaint stating that the plaintiffs had sustained special damage.

The order of the Munsif is therefore set aside, and he must proceed to give notice to the persons interested under Order 1, Rule 8, Civil P.C., to allow the plaintiffs to prosecute the suit in a representative capacity if there is no objection on behalf of the persons on whose behalf the suit purports to have been instituted, or if there is any such objection to decide the point after hearing the parties. The petitioners are entitled to their costs; hearing fee one gold mohur.