1. This second appeal under section 100 of the Civil Procedure Code, 1908 (for short “the CPC”) is at the instance of the original plaintiffs and is directed against the judgment and order passed by the 7th Addl. District Judge, Bhavnagar dated 05.03.2016 in the Regular Civil Appeal No.6 of 2016, by which, the 7th Addl. District Judge, Bhavnagar, dismissed the appeal preferred by the plaintiffs, thereby affirming the judgment and decree passed by the 2nd Addl. Civil Judge, Bhavnagar dated 04.01.2016 below Exh.11 in the Regular Civil Suit No.704 of 2015.

2. For the sake of convenience, the appellants herein shall be referred to as the original plaintiffs and the respondents herein shall be referred to as the original defendants.

3. It appears from the materials on record that the plaintiffs instituted the Regular Civil Suit No.704 of 2015 in the court of the Principal Civil Judge, Bhavnagar for a declaration and injunction. The defendant No.1 is a private party, whereas the defendant No.2 is the Bhavnagar Municipal Corporation through its Commissioner. The suit came to be instituted by the plaintiffs stating that the subject matter touches the public interest and the suit has the ingredients of Order 1 Rule 8 of the CPC. The defendant No.1 preferred an application, Exh.11, under the provisions of Order 7 Rule 11 (d) of the CPC and prayed for rejection of the plaint on the ground that as the suit had been instituted under the provisions of Order 1 Rule 8, the permission of the Court before filing such suit is mandatory, and as no such permission had been obtained, the plaint was liable to be rejected. The 2nd Addl. Civil Judge, Bhavnagar adjudicated the application, Exh.11, and allowed the same. The Civil Judge rejected the plaint on the ground that the suit was barred by law, i.e., the provisions of Order 1 Rule 8 of the CPC.

4. The plaintiffs, being aggrieved and dissatisfied with the order passed by the Civil Judge, rejecting the plaint, preferred the Regular Civil Appeal No.6 of 2016 in the court of the District Judge at Bhavnagar. It appears that in the course of the hearing of the appeal preferred by the plaintiffs, one additional point was raised on behalf of the Bhavnagar Municipal Corporation. Over an above the issue with regard to Order 1 Rule 8 of the CPC, the Bhavnagar Municipal Corporation raised an issue that the suit was otherwise also not maintainable in the absence of any prior notice issued by the plaintiffs under the provision of section 487 of the Bombay Provincial Municipal Corporation Act, 1949 ( for short “the Act, 1949). The Lower Appellate Court considered both the issues and on both the counts, took the view that the suit instituted by the plaintiffs is not maintainable and, accordingly, dismissed the appeal preferred by the plaintiffs.

5. In such circumstances, referred to above, the plaintiffs, being dissatisfied with the judgment and order passed by the Lower Appellate Court, has come up with this second appeal under section100 of the CPC.

6. The following substantial questions of law have been framed in the memorandum of the second appeal:

“(I) Whether the learned lower appellate court as well as the learned Trial Court erred in coming to the conclusion that the civil suit instituted by the appellants is liable to be rejected under the provisions of Order 7 Rule 11 of the Code of Civil Procedure?

(II) Whether the learned lower appellate court as well as the learned Trial Court erred in coming to the conclusion that the civil suit instituted by the appellants is a representative suit and is liable to be rejected for non-compliance of Order 1 Rule 8 of the Code of Civil Procedure?

(III) Whether the learned lower appellate court erred in deciding the issue of cause of action when such issue was not point for determination in Regular Civil Appeal No.6 of 2016?”

7. A Coordinate Bench of this Court, while admitting the second appeal, passed the following order:

“1. After hearing the learned Senior Advocat