IMPORTANT POINTCriminal Procedure Code -Section 100 - order 1, Rule 8 - Filing of suit in a representative capacity Non-compliance of provisions - In case of non-compliance with the provisions of Order-1, Rule-8 CPC the suit itself cannot be dismissed - At last the suit can be treated to be a suit filed by parties in their individual capacity - It may not be treated as a representative suit, but it cannot be said that the suit itself has to be dismissed. (Para - 11)

Deepak Gupta, J.( Oral)- This Regular Second Appeal is directed against the judgment of the learned District Judge, Chamba in Civil Appeal No.27 of 2004 decided on 1.11.2004 whereby he has dismissed the appeal filed by the appellants (hereinafter referred to as the plaintiffs) against the judgment of the Civil Judge (Junior division), Chamba dismissing the suit of the plaintiffs.

2. Briefly stated the facts of the case are that the plaintiffs who are residents of Mohalla Hardaspura, Chamba Town, Tehsil and District Chamba, H.P. filed a suit in the Court of learned Senior Sub Judge, Chamba. In this suit it was alleged that the land comprising Khasra No.632 min, Khatta No.479 min, Khatauni No.584 min, measuring 42-10 bighas situated in Mohal Mugla, Pargana Panjla, Tehsil and District Chamba is owned by the State of Himachal Pradesh. According to the plaintiffs they and other residents of a number of villages have bartandaran rights in the said land. These include the right of grazing, right to use portion of land for burial of children etc. It is not disputed that this land has now fallen within the Municipal area of Chamba Town.

3. The suit was purportedly filed by the plaintiffs on behalf of the entire body of bartandarans and an application under Order 1 Rule 8 CPC was also filed seeking permission of the Court to file the suit in representative capacity. The plaintiffs allege that the respondents started digging the suit land and laying foundation of the school building without their consent and have thus invaded their rights. The defendants contested the suit on various grounds. It was alleged that notice under Section 80 CPC had not been served upon the proforma defendant State of Himachal Pradesh. It was further prayed that no permission was granted by the Court to prosecute the suit in a representative capacity. Various other grounds were raised including the ground that the construction is not being carried out on the suit land but is being carried out in the land belonging to the defendants.

4. The learned trial court held that the plaintiffs have failed to establish who were the Bartandarans who have the rights, if any, on the land and further went on to hold that the plaintiffs have failed to prove that the defendants had raised construction on the suit land. The trial Court also held that since no notice under Section 80 CPC had been issued, the suit could not have been instituted against the State of Himachal Pradesh. The plaintiffs thereafter filed an appeal which has been dismissed by the impugned judgment. The learned District Judge held that the suit had not been instituted properly since notice under Section 80 had not been given to defendant No.3-State of Himachal Pradesh.

5. He also held that the provisions of Order 1 Rule 8 CPC had not been complied with and as such the suit filed in the representative capacity was not maintainable. Even on merits it was held that the plaintiffs have failed to prove that the defendants in any manner encroached upon the rights of the plaintiffs. Aggrieved by the said judgment the appellants have filed the present appeal which was admitted on the following questions of law: “1.Whether the learned courts below are right in dismissing the suit as not maintainable by holding that notice under Section 80 CPC having not been served upon the State of H.P. more particularly when the appellants had claimed no relief against the State of H.P.?

6. Whether the impugned judgment and decree is the result of complete mis-reading, mis-interpretation as well as misappropriation of the provisions of Order 1 Rule 8 CPC? 3.Whether the learned lower appellate Court being last court of fact was right in not taking into consideration the entire oral as well as documentary evidence as expected of it in view of the law laid down by the Apex court in (2000) 5 SCC 653 State of Rajasthan vs. Harphul Singh?” As far as question No.1 is concerned, the same has to be decided in favour of the a