The failure to obtain leave under Order I Rule 8, CPC does not entail dismissal of the suit itself, especially when the appellants were individually affected by the actions of the respondents.

JUDGMENT

Tushar Rao Gedela, J.

[The proceeding has been conducted through Hybrid mode]

1. The appellants challenge the order and judgment dated 15.12.2018 passed in CS No. 58528/2016 whereby the learned Trial Court had dismissed both, the application under Order I Rule 8 of the Code of Civil Procedure, 1908 (hereinafter as "CPC") and the suit of the appellants/plaintiffs simultaneously, by holding that the suit of the plaintiffs in which the respondent no. 1/defendant no. l society has been sued in a representative capacity is filed without seeking permission/leave of the court under Order I Rule 8, CPC and hence, not maintainable.

2. The following facts, shorn of all unnecessary details and germane to decide the dispute are as under:

2.1. The appellants/plaintiffs filed a suit for Declaration, Permanent and Mandatory Injunction, besides being members of respondent no.1/defendant no.l society, in their representative capacity of the Jain community as a whole so as to reinstate public character and to establish a complete democratic setup in the respondent society and to maintain its all India stature on the basis of its only valid, legal constitution i.e. original Memorandum of Association and Rules & Regulation registered alongwith registration of society in the year of 1974.

2.2. As the suit of the plaintiffs would have affected 165 members of the defendant no.l society and non-members and as it was not practically possible to serve each of them to represent their interest, therefore, the suit was filed in a representative capacity in such a manner that the defendant no.l society will represent the interest of all the members. Therefore, the plaintiffs also filed an application under Order I Rule 8 CPC to allow the defendant no.l society to be sued in representative capacity of members of the society or the Jain Community as a whole.

2.3. Such application filed by the plaintiffs under Order I Rule 8, CPC sought exemption from impleading all the 165 members as defendants in the proceedings and permission for, if required, publishing a public notice in any of the leading national newspapers to the effect of pendency of the proceedings with further necessary directions as per law.

2.4. The learned Trial Court heard the arguments of the parties on the application of the plaintiffs under Order I Rule 8, CPC as none of the defendants chose to file a reply to the said application and passed the impugned order and judgment dated 15.12.2018, thereby dismissing the application of the plaintiffs on the basis that the plaintiffs have not sought any prayer, either in the said application or in the suit, thereby seeking permission of the Court to sue defendants in the representative capacity on behalf of the members of the respondent society or institute the suit representing the Jain community as a whole. Further, the learned Trial Court also dismissed the suit of the appellants/plaintiffs on the ground that the suit was filed in a representative capacity without seeking permission of the court under Order I Rule 8, CPC is not maintainable.

CONTENTIONS OF THE APPELLANTS

3. Mr. Jain, learned Counsel for the appellants submits that the said impugned order and judgment has been passed even before framing of issues and without trial.

4. The learned counsel for the appellants submits that the application under Order I Rule 8, CPC was filed along with the plaint and that it was incumbent on the court to decide the application, firstly by issuing notice and then, by granting exemption from impleadment of all the members of the respondent society as also permission for making such necessary publication of notice in the newspaper as required by the provisions under Order I Rule 8, CPC.

5. He further submits that instead of deciding the application at the first instance, the learned Trial Court proceeded with the suit and issued summons whereafter, all the interested respondents filed their Written Statements.

6. The learned counsel submits