- (1.) THIS appeal arises out of a suit for declaration that the property in dispute is an endowed and charitable property, a Dharamshala since 13-3-1962, the date when respondent No. 6, namely, Smt. Parmeshwari Devi dedicated the property and created a trust and that thereafter she was not competent to execute the deed of 1968 so as to make a gift of the same property in favour of defendant No. 1, the appellant Ram Krishan Mission. The plaintiffs filed the suit in a representative capacity under O. 1, R. 8, Civil Procedure Code and alleged that plaintiffs Nos. 3 to 6 were Hindus by caste and followers of Sanatan Dharam and were interested in the maintenance of the religious and charitable character of the property in suit while plaintiffs Nos. 1 and 2 claimed to be the trustees by virtue of the trust deed dated 13-3-1962. The plaint was presented on 23-2-1970 and paragraph 9 thereof contained an averment that the suit was being filed under O. 1, R. 8, Civil Procedure Code. On 25-4-1970 an application No. 12/c-2 was moved on behalf of the plaintiffs for permission to sue in a representative capacity i. e. on behalf and for the benefit of the entire community interested. On the same date the court passed the order: "Issue notice by publication in weekly Hindu Hardwar fixing May 21, 1970 for disposal. Steps in ten days." It way be noted that the property in suit is situate in the town of Hardwar and the weekly journal 'Hindu' is also published from Hardwar. In pursuance of the orders of the court the necessary expenses were deposited by the plaintiffs and notice was published in the aforesaid local newspaper on 16-5-1970 inviting objections to the application and at the same time calling upon the interested parties to apply for being arrayed as parties in the suit, if they so desired. The matter was eventually taken up on 20-7- 1970 when the application No. 12/c-2 was allowed by the following order: "No objection filed on 12/c which is allowed." Thus, the requisite permission was granted on 20-7-1970, that is, after the publication of the notice. Thereafter the trial of the suit proceeded and it was dismissed by the learned Civil Judge on 4-12-1971. One of the pleas which had been raised by the contesting defendants was that there was no compliance of Order 1, R. 8, Civil Procedure Code but this plea was repelled by the trial Court, which was of the opinion that there was no irregularity in the proceedings under O. 1, R. 8, C. P. C. and the suit had been properly filed. Thereafter the suit proceeded on merits and was dismissed. The plaintiff preferred an appeal which was allowed by the lower appellate court on the ground, though urged by the defendants that the provisions of O. 1, R. 8, C. P. C. had not been complied with. The appellate court accepted this contention and remanded the case with a direction trial necessary steps under O. 1, R. 8, C. P. C. be taken and the suit be then trial in accordance with law.
(2.) THE contesting defendants, namely Ram Krishna Mission and another have filed this appeal challenging the order of remand and have contended that the provisions of O. 1, R. 8, C. P. C. had been fully complied with and the lower appellate Court acted illegally in remanding the case and not proceeding to decide it on merits. In these circumstances the question which has arisen is as to whether on the facts of the case the procedure followed by the trial Court fulfilled the requirements of O. 1, R. 8, C. P. C. or not. The first submission of Sri N. D. Pant, learned counsel for the appellants was that the objection with respect to the non-compliance of O. 1, R. 8, C. P. C. in the instant case was raised at the instance of the defendant-appellants and that objection was now being waived by him, consequently this question need no longer be considered by this Court. In other words, the argument was that it was not open to the plaintiffs to insist on the adjudication of a plea which, if accepted, would entail dismissal of the suit. The argument though ingenious is not sound and overlooks the underlying principles incorporated in the provisions of O. 1, R. 8 C. P. C. It is manifest that accepting the representative character of a suit is fraught with grave results. The general rule is that all persons interested in a suit ought to be joined as parties to it, so that matters involved may be finally adjudicated upon and fresh litigation over the same matters he avoided. Obviously R. 8 of O. 1 of the Code constitutes a glaring exception to this general rule, and, if not strictly complied with, may result in a flagrant departure from the salutary practice of not proceeding with an adjudication in the absence of the parties affected thereby. As has been observed time and again, it is an enabling rule of convenience prescribing conditions upon which persons, even though not made parties to the suit, may still be bound by the proceedings therein. In view of the far reaching consequences of a decree passed in what is described in law as a representative suit, it is necessary that the relevant provisions must be treated as peremptory and mandatory. That is why it has been held that the obtaining of a judicial permission and compliance with the provisions of Order 1, R. 8 C. P. C. are formal conditions on which further proceedings in the suit become binding on persons other than those actually parties thereto. The proposition was succinctly expressed by Ameer Ali, J. in Baiju Lal Parbatia v. Gulak Lal Pathak, (1897) ILR 24 Cal 385 in connection with S. 30 of the old Code which corresponds to O. 1, R. 8 C. P. C. It was observed: "The effect of S. 30 therefore to my mind is that unless such permission is obtained by the person suing or defending the suit, his action has no binding effect upon the person whom he chooses to represent." Thus, the foundation of O. 1, R. 8 C. P. C. is to be found in a principle which transcends the personal or parochial nature of the combatants who are arrayed as parties to the suit. It affects the rights of other persons, not present before the court. Hence, a duty is cast on the court itself to follow meticulously the procedure prescribed by O. 1, R. 8 C. P. C. and it is wholly immaterial as to whether a defendant against whom a decree is sought chooses not to press any such objection against the plaintiff. Hence, I overrule the preliminary submission of the learned counsel for the appellants that the plea of non-observance of O. 1, R. 8 C. P. C. need not be gone into. Order 1, Rule 8 C. P. C. reads: "8 (1) Where there are numerous persons naving 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. But the court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may supply to the Court to be made a party to such suit." The two vital ingredients prescribed by the above rule are that (1) Court's permission under the rule must be obtained and (2) notice must be given to the parties whom it is proposed to represent in the suit. There can possibly be no controversy with regard to the mandatory character of these twin conditions. The dispute, however, is as to the sequence in which these conditions have to be fulfilled. Some Courts are so punctilious as to accord permission at the very outset provided such averment and prayer are contained in the plaint itself and an application to that effect has been made by the plaintiff. Other Courts are not so meticulous as to pass such orders or sometimes the plaintiff himself prefers to make an application later for leave to file the suit in a representative capacity. In such cases it is not uncommon to find that either the court grants a tentative or conditional permission and thereafter issues notice to the other persons interested or it straightway issues notice even without according any tentative permission expressly. In such cases the Court may sometimes not pass any express order or grant permission after notices have been served personally or by public advertisement. It is in these varying circumstances that the question has arisen as to whether this kind of procedure fulfills the requirements of O. 1, R. 8 C. P. C. and amounts to a substantial compliance of the same or whether it involves an omission which vitiates the representative character of the suit. I cannot refrain from pointing out at the very outset that it should always be the endeavour of Courts to insist upon a substantial compliance of the procedure prescribed by law and not insist on mere technicalities which do not tend to cause prejudice to any party. Therefore, I see no real breach of the provisions of O. 1, R. 8 C. P. C. if the court proceeds to issue a notice immediately after presentation of a plaint in which an averment of the representative character of the suit has been made. In such case there is no tentative order granting a permission subject to such objection as may later be raised by the defendant who may turn up in response to the notice yet in my opinion the proceedings are not tainted by illegality. Learned counsel for the appellants advanced a somewhat extreme argument and submitted that even though no permission be expressly granted at all during the proceedings of the suit, it should be legitimately inferred that such permission was granted by necessary implication when the court had proceeded to decide the suit on merits. In my opinion the provisions of Order 1, Rule 8 C. P. C. cannot be stretched to that extent and a clear order of the Court granting permission must be made before it enters on the merits of the case. I am unable to read anything into this provision which dictates the mandatory sequence of the various steps in the procedure. The granting of a permission is an essential condition but there is nothing to warrant the proposition that permission must precede the issue of notice or the publication thereof and the proceedings would be vitiated if the permission follows the notice.
(3.) SRI Baldev Raj, appearing for the respondents placed reliance on the words ''may with the permission of the court sue" and submitted that that is in the eye of law actually no suit before the court unless the permission has been obtained. He also referred to the latter words of cl. (1) which are: "the Court shall in such case give, at the plaintiffs expense, notice of the institution of the suit". It was sought to be argued on the basis of this phraseology that the court acquired jurisdiction to issue notice only on the institution of the suit and not before that. In short, the contention was that on grant of a permission alone the suit could be deemed to have been instituted and it was only thereafter that the court was competent to issue notice. Reversing this procedure would be a violation of the provisions of Order 1, Rule 8. I am unable to endorse such literal construction of the provisions of the said Rule. Unlike O. 33, R. 8, C. P. C. which provides that where the application for permission to sue as a pauper has been granted it shall be numbered and registered and shall be deemed the plaint in the suit, O. 1, R. 8 C. P. C. contemplates a suit from the very inception. It is true that a representative character is imparted to the suit only after the requisite procedure has been complied with, but it would be erroneous to hold that no suit has been instituted until permission has been granted by the court. I am also not inclined to accept the other submission made on behalf of the appellants in this regard. I think that when a court issues notice on an application for leave under O. 1. R. 8 made after the presentation of the suit, it should be inferred that the court has by implication granted a conditional permission. The main object of issuing such notice is to enable an objector or defendant to appear before the court and file objections or ask for being impleaded. That object would be fully achieved if such procedure is adopted. After all, even if a permission is first granted and then notice is issued, the intention of law is not to attach finality to a permission granted behind the back of a party or parties who may eventually appear before the Court in response to the notice. That would be contrary to all principles of equity. No final permission to lend representative character to suit should be granted until the parties to whom notices have been issued have been afforded an opportunity of objecting to such prayer. From that point of view also it would be reasonable and just that an order granting permission to the issue of notice should be merely conditional or tentative, subject to such final orders as are passed after hearing the parties if they enter appearance and if any objections are filed or any one has applied for being impleaded. Thus, taking a pragmatic view of the situation the procedure which the court should on an application being made under Order 1, R. 8 C. P. C. adopt may be summarised in this manner. When a plaint contains an averment that the plaintiffs are filing the suit in a representative capacity and later an application under O. 1, R. 8 is made, the court may either grant a conditional permission subject to objections being raised by the parties to whom notice is issued or may immediately issue notice even without expressly granting any such conditional permission. After the service of notice either by personal delivery or public advertisement, when either objections have been filed and an application for impleadment is made or no objections are filed and no application for being impleaded is made, the court must after disposing of such objections, if any, pass the final order granting or refusing permission. Thereafter the court shall have jurisdiction to enter into the merits of the case and proceed with the trial. If, however, no express order granting permission is made at any stage whatsoever, the suit would not acquire a representative character. Learned counsel for the respondents in support of his submission referred to the following passage in Kumaravelu v. Ramaswami, AIR 1933 PC 183 (at p. 186): "On such permission being given it becomes the imperative duty of the court to direct notice to be given to the absent parties in such of the ways prescribed as the Court in each case may require while liberty is reserved to any represented person to apply to be made a party to the suit." Emphasis was laid on the words "imperative duty"'. Divorced from its context the passage may give support to the respondents but if the judgment is perused as a whole, it would be quite clear that the Judicial Committee did not intend to lay down the rule that issuing notice prior to the grant of a permission would vitiate the proceedings or that a technical non-compliance with the wordings of the rule was fatal to the case. It must be borne in mind that the Privy Council was dealing with a suit which was being prosecuted without leave of the Court and with no notice given of its institution. It was in these circumstances that the representative character of the suit was not accepted.;