A.D.Koshal, J. - (1.) THE suit out of which this second appeal by the Defendant has arisen was instituted by two persons named Raja Ram and Nirbhe Ram on their own behalf and on behalf of other residents of Mohalla Dedraj of Jind town claiming rendition of accounts from the Defendant. The suit was resisted on various pleas, one of which was that the provisions of Rule 8 of Order I of the Code of Civil Procedure had not been complied with and that the suit was, therefore, not maintainable. On this plea the issue struck was: 5 -B Whether the provisions of Order I, Rule 8 of the Code of Civil Procedure have not been complied with ? If so, its effect ? O.P.D. The issue was tried along with those on the merits and was decided in favour of the Plaintiffs with the following observations: The main contention of the Learned Counsel for the Defendant Is that the approval from the court is not obtained under O.I.R. 8 of the Code of Civil Procedure. But I think that the notice was issued by the court under Order I, Rule 8, C. P.C. and the Plaintiffs also placed upon the file a list of inhabitants of Mohalla Dedraj. So, it was sufficient to comply of the Order I, Rule 8, Code of Civil Procedure although the formal order was not written on the file in this behalf which is not in any respect a defect or adversely affects the present suit of the Plaintiffs as such order is always a formal one which is not very essential to have been brought on the file. As it has been held by their Lordships in A.I.R. 1975 Ker (c) that permission given after publication of notice, court must be deemed to have given its permission when it ordered publication of notice and in the absence of any formal order, proceedings are not vitiated. So, in these circumstances when the publication through a notice has been done by the court, it is sufficient proof of the compliance of order I, Rule 8, of the Code of Civil Procedure. So this issue is also decided in favour of the Plaintiffs and against the Defendant. The other issues were also decided in favour of the Plaintiffs who were granted a preliminary decree for rendition of accounts.
(2.) THE Defendant went up in appeal to the District Court at Jind. Amongst the contentions raised on his behalf in that Court was one to the effect that issue No. S -B had been erroneously decided. The lower appellate court, however, upheld the finding arrived at by the trial, court on that issue thus: A perusal of the file further shows that on the application for permission to file the suit under Order I, Rule 8, Code of Civil Procedure which, is dated 30th May, 1968, an order dated 5th June, 1968 is recorded that notice of application be given to the Respondents' by means of a proclamation. It appears that the learned, Senior Subordinate Judge has meant by wing the expression 'Respondents' that notice be sent to those persons whose names were entered in a list of those who were residents of the Mohalla. It appears that no such proclamation was actually made by drum beating. The Learned Counsel for the Plaintiffs has argued that a formal permission can be given even by the appellate court: It has been further argued that a formal permission would be deemed to have been sanctioned by the lower Court in the circumstances of the present case. I hold that this contention has force. The Plaintiffs cannot be non -suited on the ground that no formal order was passed on the application under Order I, Rule 8, Code of Civil Procedure and no public notice was issued. Since the trial Court proceeded with the suit, it would be deemed that the necessary permission was given It, is, therefore, held that Raja Ram and Nirbhe Ram could have brought the suit under Order, I, Rule 8 Code of Civil Procedure as it is not disputed that the said two persons are residents of Mohalla Dedraj and are interested in the management of the disputed property and in rendition of accounts by the Defendant. The lower court has relied upon the ruling reported as A.I.R. 1965 Kerala (page not mentioned) in support of its view that the permission would be deemed to have been granted. The finding of the lower court on issue No. 2 is affirmed. On other issues also the findings of the trial court were upheld and the appeal was dismissed. That is why the Defendant has come up in second appeal to this Court After hearing Learned Counsel for the parties I am clearly of the opinion that the finding on issue No 5 -B cannot be sustained. The provisions of Rule 8 of Order I of the Code may be reproduced here with advantage: 8(1). Where there are numerous persons having the same interest in the 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 Plaintiffs 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 apply to the court to be made a party to such suit. It is common ground between the parties that an application for permission to sue on behalf of other residents of the Mohalla was made to the court by the Plaintiffs. It is also conceded on behalf of the Defendant Appellant that on that application an order was passed by the trial court to the effect that notice of the application be given to the "Respondents" by means of a proclamation. However, no further proceedings in connection with the application were held. Notably no notice thereof was given to any of the other residents of the Mohalla. That part of the rule which casts upon the court the duty to give a notice of the institution of the suit to all persons having the same interest therein must be held to be mandatory, if the rule is to have any real meaning. In the absence of such a notice, the provisions of Sub -rule (2) would become redundant and grave injustice may result there from in the form of a decree against persons who were never told that a case is pending against them. The issuance of a notice is thus not a mere empty formality but a sine qua non for the applicability of the rule.
(3.) KUTHUKUTTY Kunholi's son Kunhalavi Musallar and Ors. v. Pakkath Enu's son Abaulla, : AIR 1965 Ker 200. which has been relied upon by the lower courts is of no help to the case of the Plaintiffs. In that case what happened was that the Plaintiffs filed two applications for allowing them to institute the suit in a representative capacity and also for suing the Defendants in such capacity. The court ordered the publication of the notice in a local paper soon after the suit was instituted and such notice was actually published in that paper further, on the date on which judgment was pronounced, trial court actually passed an order permitting the Plaintiffs to sue in a representative capacity and allowing the Defendants to defend the suit on behalf of themselves and others. In these circumstances a contention was raised that the permission granted at the fanged of the case was really no permission, but the contention was repelled it being held that the trial court must be deemed to have granted the permission when it ordered the publication of the notice in the paper. Such permission could be inferred in the present case also if the other residents of Mohalla Dedraj had notice of the institution of the suit by means of a proclamation. But such a proclamation, as already stated, was never made. Even in it be inferred that the court had granted permission to the Plaintiffs to sue in a representative capacity on behalf of themselves and the other residents of Mohalla Dedraj, the subsequent proceedings would still stand vitiated by reason of the non -issuance of the notice of the institution of the suit to all such residents other man the Plaintiffs for the reasons already stated by me.;