Judgement

Appeal (No. 62 of 1930) from a decree of the High Court (November 16, 1927) reversing a decree of the Subordinate Judge of Tuticorin (March 17, 1923).

The suit was instituted in 1919 by the appellants, suing as representatives of the Vaniyas (oilmongers) of Tiruchendur for a declaration of their right to worship in the inner shrine of a Hindu temple at Tiruchendur; the defendant-respondents, who were trustees and servants and others connected with the temple, were sued as representatives of all persons similarly interested. The permission of the Court was obtained under Order 1., r. 8, of the Code of Civil Procedure to the representative character of the suit.

The sole question for determination upon the present appeal was that raised by issue 5—namely, whether the decision in a suit instituted in 1877 operated against the plaintiffs as res judicata. The facts as to that earlier suit and the material provisions of the Code appear from the present judgment.

The Subordinate Judge granted the declaration prayed for. He held that the suit was not barred by res judicata. He said that there was nothing to show that the plaintiffs in the earner suit had obtained permission under s. 30 of the Code of 1877 to sue in a representative capacity. In his opinion the scope of the earlier suit was not the same as that in the present case ; moreover it was not litigated bona fide within the meaning of s. 11, explanation 6, of the Code of 1908.

On appeal to the High Court the learned judges (Kumaraswami Sastri and Devadoss JJ.) found in relation to the suit of 1877 (1.) that no permission was applied for orally or in writing, or was granted, expressly or impliedly, under s. 30 to sue on behalf of all the Vaniyas interested ; (2.) that the suit was brought to assert not merely the title of the plaintiffs, but also the right of the Vaniyas to enter the shrine, and the relief asked for was not personal to the plaintiffs but one common to all Vaniyas ; (3.) that the suit was bona fide. The learned judges, being of opinion that in those circumstances there was a serious conflict of authority whether the present suit was barred by res judicata, referred to a Full Bench the question set out in the present judgment.

The opinion of the Full Bench, delivered by Ramesam J., Phillips O.C.J. and Beasley J. concurring, and reported at I. L. R. 51 M. 128, was to the effect that explanation 6 of s. 11 was not controlled by Order i., r. 8.

On the appeal again coming before Kumaraswami Sastri and Devadoss JJ., they considered further the suit of 1877, and concluded as follows " We have no hesitation in holding that the Subordinate Judge who tried the suit not only allowed the suit to proceed in a representative capacity but considered and decided the case with regard to the right of all the Vaniyas represented by the plaintiff. The result of this finding is that the present suit is barred by res judicata." Accordingly the appeal was allowed and the suit dismissed.

1932. Dec. 5, 6. Upjohn K.C. and Narasimham for the appellants. The present suit was not barred by res judicata. The suit of 1877 was instituted without permission of the Court under the Code ; moreover, it was not and did not purport to be on behalf of the whole Vaniya community. It was brought to assert the individual rights of the plaintiffs and to recover damages for an alleged infraction of them. The fact that the plaintiffs claimed the right as Vaniyas did not make the suit one of a representative character. In any case s. 30 of the Code of 1877, now Order I., r. 8, of the Code of 1908, embodied the only procedure by which a suit can be brought as a representative suit so as to bind persons not on the record and their privies ; necessary safeguards as to notices to parties interested are provided thereby. The plaintiffs not having obtained permission the suit was not a bona fide litigation for themselves and others within explanation 6 of s. 11 of the Code, and the decision operated as