Non-compliance with the mandatory provisions of Order 1, Rule 8 Code of Civil Procedure in a representative suit vitiates the decree.

N. K. DAS, J.

( 1 ) DEFENDANTS are appellants against a confirming decision in a suit for permanent injunction restraining the defendants who are said to be the Malia sevaks of Lord Kapileswar Dev from entering into the kitchen and offering cooked food to the deity.

( 2 ) THE suit has been filed against the defendants representing the Mallia sevakas of the deity Kapileswar Dev under Order 1, Rule 8, Code of Civil procedure. Both the courts below have decreed the suit granting the relief in favour of the plaintiffs.

( 3 ) ONLY one question will decide the Second Appeal. Admittedly, the suit is filed under Order 1, Rule 8 Code of Civil Procedure. From the order dated 2-4-1974 of the trial court, it appears that the court passed order directing issue of notice under Order 1, Rule 8 Code of Civil Procedure. Rule 8 (2) of Order 1 C. P. C. provides that the court will pass order for notice of institution of the suit to all persons, so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct. In the instant case, the court has not passed any orders as to the mode according to which the notice was to be served. The trial court has held that there was a petition asking for leave to prosecute the suit against the defendants, representing the Mallia Sevakas of the deity, and so there was no illegality or irregularity in service of notice. The lower appellate court has held that as the service was by beat of drum the service would be held to be valid.

( 4 ) I have already held that the trial court had not passed any orders as to the mode according to which notice was to be served. From the service report, it appears that the peon, on identification of one of the plaintiffs declared the contents of the notice to the persons present and the persons who came there only. From the notice issued there is no mention as to what is the nature of injunction. In the notice it is only mentioned that the plaintiffs have filed the suit for permanent injunction only and damage. There was no mention as to from what the defendants would be restrained. Law requires that in a suit in the representative capacity when notice is to be served on a number of persons, the court according to the circumstances of the case has to pass orders whether the notice should be served personally on the defendants or it should be advertised in a way so as the concerned persons who are deemed to be defendants should have knowledge of the claim. They must have the knowledge about which the suit has been filed and the relief claimed as against them. It has been held by Privy Council in Kumaravelu Chettiar v. T. P. Ramaswami ayyar, AIR 1933 PC 133, that the procedure prescribed by Order 1, Rule 8 Code of Civil Procedure is mandatory and if all the persons interested are to be bound by the decision in such a case, provision of Order 1, Rule 8 must be strictly complied with. The reason for this is that any decision given in the case operates as res judicata not only against the persons who are actually before the court but also against those whom they were permitted to represent. Therefore, it follows that the issue of a proper notice and its service either personally, or by public advertisement on the person concerned is an indispensable peremptory to the trial of the suit under Order 1, Rule 8 Code of civil Procedure. Breach of this provision is calculated to affect the decision of the case on merits and may be fought with serious consequences. Relying on the Privy Council decision and another decision of the Allahabad High Court shyam Lal v. Mat. Lalli, AIR 1922 All 16 (FB) this Court in Brundabati Thakurani v. Hari Biswal, (1971) 1 Cut WR 699, has held that Order 1, Rule 8 Code of civil Procedure contains an exception to the general rule that all persons interested in a suit ought to be made parties thereto, but to attra