JUDGMENT :

A.K. Rath, J.

By this application under Article 227 of the Constitution, challenge is made to the order dated 21.8.2015 passed by the learned Civil Judge (Junior Division), Puri in T.S No.88 of 2000, whereby and where under the learned trial court directed the plaintiffs to file draft notice under Order 1 Rule 8 CPC in correct format so as to make paper publication.

2. The petitioners as plaintiffs instituted T.S No.88 of 2000 in the court of the learned Civil Judge (Junior Division), Puri seeking following reliefs;

“(a) let a decree be passed declaring the communal land of the plaintiffs villagers and their right of pasteurizing the land be confirmed and let it further be declared that the so-called order passed in W.L. Case No.83/93 is illegal invalid, fraudulent, collusive and acts of without jurisdiction which is not binding against the plaintiffs villagers in the suit property.

(b) Let a decree of permanent injunction be passed prohibiting the defendants from making the permanent construction or changing the nature and character in any manner.

xxx xxx xxx”

The plaintiffs filed an application under Order 1 Rule 8 CPC for publication of the notice. In the draft notice, the defendant no.1 has been described as Purna Behera son of Ganesh Behera. The same has been approved by the court. Accordingly, notice was published in the daily ‘Sambad’ on 5.7.2015. Pursuant to the publication of notice, fourty three persons entered appearance and filed a petition to be impleaded as defendants. The defendants 1 and 2 have also filed written statement. While the matter stood thus, defendants filed an objection stating therein that the name of the father of defendant no.1 has been wrongly described in the notice and, as such, the notice is defective one. It is stated that defendant no.1 is the son of Banchha Behera but in the notice, his father’s name has been wrongly mentioned as Ganesh Behera. Learned trial court came to hold that the plaintiffs have mentioned the name of defendant no.1 Purna Behera as son of Ganesh Behera though in the plaint he has been described as Purna Behera son of Banchha Behera. The defect has not been pointed out by the office while preparing the draft notice. The defect in the description of the defendant hits the root of the matter with regard to identity of the party. The notice is defective. Accordingly, the plaintiffs have been directed to file draft notice under Order 1 Rule 8 CPC in correct format.

3. Heard Mr. A.P. Bose, learned counsel for the petitioners and Miss. Pratyusha Naidu, learned counsel for the opposite parties 3 and 4.

4. Mr. Bose, learned counsel for the petitioners, submitted that the plaintiffs have instituted the suit in a representative capacity. The draft notice was duly approved and the same was published. Pursuant to the same, fourty-three persons have entered appearance and filed an application for impleadment. Defendants 1 and 2 have also filed a written statement in the meanwhile. In view of the same, learned trial court has committed illegality in directing the plaintiffs to file a draft notice so as to publish the same in the daily newspaper.

5. Per contra, Miss. Naidu, learned counsel for the opposite parties 3 and 4, submitted that the draft notice was defective one. Purna Behera, defendant no.1 is the son of Banchha Behera. But then in the draft notice, he has been wrongly described as son of Ganesh Behera. The defect in the description of the defendant no.1 in the notice goes to the root of the matter and, as such, the learned trial court has rightly allowed the application. She further submitted that the notice as contemplated in Order 1 Rule 8 CPC is mandatory. The same is a sine qua non for maintaining the suit. To buttress her submission, she relied on the decisions of this Court in the case of Harihar Jena and others v. Bhagabat Jena and others, AIR 1987 Orissa 270 and Jogiram Mohapatra and others v. Sibaram Pradhan and others, 2005 (I) OLR 612.

6. Order 1 Rule 8 CPC pro