The provisions of Order 1, rule 8, Civil Procedure Code, are not applicable to writ proceedings.

( 1 ) THE question that arises for consideration in this reference is whether the provisions of Order 1, rule 8, Civil procedure Code, are applicable to writ proceedings.

( 2 ) THE present writ petition for issue of a mandamus is filed by three petitioners questioning the validity of notices issued to them by the Revenue Inspector, peddapalli Circle for recovery of certain amounts. It appearing that similar notices have been issued to a large number of landowners of that village, the petitioners, therefore, seek leave to file the writ petition in a representative capacity on behalf of the villagers of Kothapalli. An application under Order i, rule 8, Civil Procedure Code (S. R. No. 44030/1970) has also been filed for such permission. The office has objected saying that writ petitions cannot be filed in a representative capacity. The learned counsel for the petitioners, however, maintained that Order 1, rule 8, Civil procedure Code, does apply to writ proceedings. The questions has been, therefore, referred to the Court.

( 3 ) ARTICLE 225 of the Constitution preserves the authority of the High Court to make rules of Court. In exercise of that power the High Court of Andhra Pradesh made new rules to regulate proceedings under Article 226 and they came into force from 21st May, 1970. There is no rule in them making the provisions of order 1, rule 8 applicable to writ proceedings. However, only one provision of the Civil Procedure Code, viz. , Order 6, rule 14, is made applicable in the matter of signing and verification of pleadings by virtue of rule 3-a. Rule 12 is analgous to Order 1, rule 10, Civil Procedure Code. It is significant to note that instead of making the later provision applicable to writ proceedings, the Rules have made their own provision in regard to addition of parties. It is, therefore, reasonable to infer that only these provisions of the civil Procedure Code, which are applicable to the writ proceedings are engrafted into the Rules. Rule 20 must also be borne in mind in this context. It provides that all other rules relating to causes and matters coming before the appellate side of the High Court will apply to the writ petitions and the Writ Appeals in so far as they are not inconsistent with these Rules. If it were the intention of the High Court to engraft all the Rules of the Civil Procedure Code, into these rules, there was nothing which prevented it from making a provision to that effect similar to the one made in Rule 20, making applicable the appellate side rules to writ petitions. It is, therefore, logical to assume that the High Court has not intended to make the provisions of Order 1, rule 8, Civil Procedure Code, applicable to writ proceedings.

( 4 ) LEARNED Counsel for the petitioners urged that in the absence of any specific prohibition in the Rules barring the application of Order 1, rule 8 to writ proceedings, it should be deemed that that provision applies to such proceedings. This is an argument which is wholly untenable. If this argument were to be accepted, then the entire Code of Civil procedure, should be incorporated into the Rules. Learned Counsel relied upon an observation of Hidayatullah, J. , (as he then was) in Mohammed Ikram Hussain v. State of U. P. , that "all procedure is always open to a Court which is not expressly prohibited. " I am afraid the learned counsel was reading this observation of the learned Judge out of its context. The learned Judge was expressing the view that rule nisi in the habeas corpus petition, petition for the production of a person should have been preceded by some more enquiry and it was wrong to think that in such proceedings the Court was prohibited from ordering an enquiry into the fact. It was in that context the observation that all procedure was always open to a Court which is not expressly prohibited was made. It was further observed that no rule of the Court had laid down that evidence shall not be received if the court required it. The powe

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