G. Sasidharan, J.

This appeal is filed by defendants 9 and 10 in O.S. No. 196 of 1977 on the file of the 1st Additional District (Special) Court, Ernakulam. The suit was originally filed as O.S. No. 203 of 1973 in the Sub Court, Kottayam. Subsequently the suit was transferred to the Special Court, Ernakulam, which tries the church cases where it was renumbered as O.S. No. 196 of 1977. On 9.1.1998, the learned counsel appearing for the plaintiffs in that suit made an endorsement in the plaint that the suit had become infructuous in view of the Supreme Court judgment and on the basis of that endorsement the learned District Judge dismissed the suit. The judgment of the learned District Judge dated 9.1.1998 against which this appeal is filed reads as follows:

"The plaintiff's counsel submitted that O.S.196/ 77 is infructuous and the counsel prays to dispose of the case as infructuous. In this circumstances, the case is suo mote advanced to this day and the counsel also made an endorsement on that back of the plaint. In view of this the suit is dismissed".

2. It is seen from the judgment that the counsel appearing for the plaintiffs in the suit submitted that the suit had become infructuous and hence the suit may be disposed of. There was no posting of the suit to that day and the Court suo mote advanced the posting of the case and on getting an endorsement on the plaint that the suit had become infructuous the suit was dismissed.

3. It is not disputed that the suit was filed in a representative capacity and that the defendants in the suit were sought to be served for and on behalf of those who were having the same interest in the suit. At the time of the institution of the suit, there was two plaintiffs and 7 defendants in the suit. The appellants in this appeal who are defendants 9 and 10 in the suit got themselves impleaded after publication made under 0. 1, R.8 Code of Civil Procedure. Now the appellants challenge the correctness of the judgment and decree in the suit by saying that the dismissal of the suit on the basis of the endorsement made by the learned counsel appearing for the plaintiffs that the suit had become infructuous without making publication under 0.1 R.8(4) of the Code of Civil Procedure was illegal.

4. Sub-r.(4) of 0.1 R.8 reads as follows:

"No part of the claim in any such suit shall be abandoned under sub-r.(1), and no such suit shall be withdrawn under sub-r.(3), of R.1 of O. XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under R.3 of that Order unless the Court has given at the plaintiffs expense, notice to all persons so interfered in the manner specified in sub-r.(2)".

No notice as envisaged in the above provisions in the Code of Civil Procedure was given before dismissing the suit on the basis of the endorsement made by the plaintiffs. Even though the submission made by the learned counsel appearing for the plaintiffs was that the suit had become infructuous, such a statement was made before Court and an endorsement to that effect was made by the counsel as a reason for not prosecuting the suit. The Court when dismissing the suit did not go into the correctness of the submission made by the learned counsel appearing for the plaintiffs that the suit had become infructuous. The Court dismissed the suit for the reason that the plaintiffs did not want to prosecute the suit. When it is said that the plaintiffs did not want to prosecute the suit that means that the plaintiffs did not want the reliefs prayed for in the suit. The question whether notice as envisaged in 0.1 R.8(4) of the Code of Civil Procedure ought to have been given by the Court before dismissing the suit has to be considered in the light of the above facts.

5. The argument advanced by the learned counsel appearing for the appellants is that this is a suit in which the plaintiffs abandoned the claim for relief and hence as mentioned in the above sub-rule of 0.1 R.8 notice would have been given by