- (1.) THIS is a defendant's appeal arising out of a suit for injunction to restrain the defendants from selling or cutting the trees or transferring or otherwise disposing of the crops of the land in suit. The plaintiffs alleged that the Hindu com munity of Sitapur was the owner of plot No. 134 under an old grant which contains the temple of Mahabir Ji and Thakur Ji. The plaintiffs further alleged that they were members of the Hindu community of Sita pur and constituted a committee for the management of the said temple and land. The defendant was acting as Pujari of the temple on behalf of the Hindu community. He, however, threatened to sell or cut down the trees and appropriate the proceeds thereof. The plaintiffs and other members of the Hindu community tried to dissuade him from doing the said acts but he refused to listen to reason, hence the suit was filed for the said reliefs. It was alleged in the plaint that the suit was being instituted on behalf of the Hindu community. The defendant contested the suit on the ground, inter alia, that the land in dispute did not belonp to the Hindu community but belonged to him and that in any view of the matter the suit Without the permission of the Advocate-General was not maintainable. The trial court having found that the property in dis pute did not belong to the Hindu commu nity, dismissed the suit. Against the said decision the plaintiffs preferred an appepl. The appellate court below, however, revereed the finding of the trial court and held that the property in dispute was owned by the Hindu community and that the plaintiffs were entitled to maintain the suit. On these findings the appellate court below allowed the appeal and decreed the suit. Aggrieved the defendant has now come to this court in second appeal.
(2.) THE learned counsel for the appel lant pressed only one point before me name ly, that the frame of the suit was bad inas much as the suit had not been filed in a representative capacity and that the permis sion of the trial court under Order 1, R. 8, Civil Procedure Code had not been obtained by the plaintiffs. It appears that on 28-3-1961 the plaintiff filed an application praying that per mission to sue under Order I, Rule 8, Civil Procedure Code be accorded to him. It was alleged by the plaintiffs in that application that the suit had been filed by them in a representative capacity and all the members of Hindu community are interested in the suit and that permission of the court under Order 1, Rule 8, Civil Procedure Code was necessary. On this application the trial court ordered on 28-3-1961 that a notice be published in 'Krishak' newspaper. It appears from paper No. 130-2 that a sum of Rupees 12.00 towards the charges for publication of that notice was paid to 'Krishak'. There after, the notice was published in "Krishak' on 10-4-1961 vide paper No. 16/1 Ka. 2. In this notice it was mentioned that an applica tion under Order 1, Rule 8, Civil Procedure Code had been moved by the plaintiffs as representatives of the Hindu community and if any one had any objections to the same he might file the objections by 13-4- 1961 in the Court The learned counsel for the appellant could not point out from the record of the case that any objection was filed by any person against the said application moved under Order 1, Rule 8, Civil Procedure Code. It, however, appears that the trial court thereafter did not make any specific order granting or refusing the permission sought for. The learned counsel for the appellant urged that in the absence of specific permis sion of the Court under Order 1, Rule 8, Civil Procedure Code the plaintiffs were not entitled to maintain the suit in a represen tative capacity. The learned counsel for the respondent, however, urged that it was not necessary under the law that permission should be expressly accorded. It was sub mitted that permission could be inferred from the proceeding in the trial court and that the court must be deemed to have given its permission when it ordered publication of notice.
(3.) RULE 8 of Order 1 of the Code of Civil Procedure enables a person to file a suit in a representative capacity for and on behalf of the numerous persons where they have the same interest. The only condition is the permission of the court. If the court grants permission to one person to institute such a representative action a notice of the institution of the suit should be given by the court. The provision, which requires that the court shall, in such a case, give, at the plaintiffs' expense, notice of the institution of the suit to all persons having the same inte rest and the power reserved to the court to entertain an application from any person on whose behalf or for whose benefit the suit is instituted, indicate that no previous sanction or authority of persons interested in the suit is required to be obtained before the institution of the suit. As the other persons who would be represented would be bound by the decree passed in the suit it is imperative that the two conditions provided in Rule 8 of Order 1, should be complied with, namely, (1) the permission of the court should be obtain ed and (2) the court should, at the expense of the plaintiffs, issue notice of the institu tion of the suit to all such persons either by personal service or where from the numbes of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. Thus, Order 1, Rule 8 requires that when a plaintiff brings a suit in his represen tative capacity he must first obtain the leave of the court to bring such a suit and when the leave is granted the court shall issue notice that such a suit has been instituted. The provisions of Rule 8 as to the issue of notice are peremptory and the court is bound to issue notice as required by the rule.;