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IN THE HIGH COURT OF ORISSA
B.N. Misra, J.
MADAN SENAPATI ALIAS MADAN MOHAN SENAPATI - APPELLANT
Versus
SURENDRA DEHURY AND OTHERS - RESPONDENT
Second Appeal No. 322 of 1977
Decided On : 30-04-1984
ORDER 1 RULE 8 CPC - REPRESENTATIVE SUIT - NOTICE - MANDATORY PROVISION - COMPLIANCE - PUBLICITY - RELIEF NOTIFIED - MANDATORY INJUNCTION - GRANT - COURT'S DISCRETION - FACTS NOT CONSIDERED - REMAND.
Fact of the Case:
Plaintiffs filed a representative suit under Order 1 Rule 8 CPC, claiming customary right to perform a festival on the suit plot and seeking declaration of their right, recovery of possession, permanent injunction, and mandatory injunction for demolition of a house constructed by Defendant No. 2 on the leased land. The trial court dismissed the suit on the ground of defective notice under Order 1 Rule 8 CPC and non-compliance with Order 1 Rule 8 CPC. The lower appellate court allowed the appeal, holding that the State was not a necessary party and the suit was not bad for defect of notice or non-joinder of parties.
Finding of the Court:
The court held that the provisions of Order 1 Rule 8 CPC are mandatory and essential pre-conditions for the trial of a case as a representative suit. The court found that the trial court had not passed any orders as to the mode of service of notice, and the notice issued did not mention the nature of the injunction sought, which was a significant omission. The court also found that the lower appellate court had not considered the facts of the case before concluding that the provisions of Order 1 Rule 8 CPC had been complied with.
Issues: 1. Whether the provisions of Order 1 Rule 8 CPC were complied with in the present case. 2. Whether the trial court erred in dismissing the suit on the ground of defective notice and non-compliance with Order 1 Rule 8 CPC. 3. Whether the lower appellate court erred in allowing the appeal and granting mandatory injunction against Defendant No. 2 without considering the fact that the relief was not notified in the publication.
Ratio Decidendi: 1. The court held that the provisions of Order 1 Rule 8 CPC are mandatory and essential pre-conditions for the trial of a case as a representative suit. 2. The court held that the trial court erred in dismissing the suit on the ground of defective notice and non-compliance with Order 1 Rule 8 CPC without considering the facts of the case. 3. The court held that the lower appellate court erred in allowing the appeal and granting mandatory injunction against Defendant No. 2 without considering the fact that the relief was not notified in the publication.
Final Decision: The court allowed the appeal, set aside the judgments and decrees of the courts below, and remanded the suit to the trial court for issue of proper notice under Order 1 Rule 8 CPC and to proceed with the suit from that stage in accordance with law.
JUDGMENT :
B.N. Misra, J. - Defendant No. 2 in the suit is the sale Appellant before this Court. Respondents 1 to 5 were Plaintiffs 1 to 5 and Respondents 6 to 11 were Plaintiffs 7 to 12 respectively in the trial court. Respondents 13 and 14 are the legal representatives of Plaintiff No. 6, Khadia Bhoi. The name of Respondent No. 15. widow of the late Khadia Bhoi, has been expunged as per court's order No. 5 dated 2-5-1978. Respondent No. 12, the Collector of Dhenkanal, was Defendant No. 1 in the suit.
2. The Plaintiffs filed Title Suit No. 26 of 1972 in the court of the Munsif. Angul in a representive capacity. Plaintiffs 1 and 2 belong to villages Chhendipada. Plaintiffs 3 to 12 belong to villages Dahibara, Gohirapasi, Bahalasahl, Languli. Golagadia, Mamuriasahi, Sapeinah, Pedapada, Machhakuta and Tentulei respectively. The case of the Plaintiffs may be briefly noted. In Mouza Chbendipada there is a public deity known as 'Hingula Devi'. The Bijesthali, of Hingula Devi is situated at a short distance from the suit plot No. 6079 appertaining to Khata No. 762/103 of Mouza Chhendipada. From time immemorial every year in the month of Chaitra the villagers hold a festival of Hingula Devi over the suit plot and thousands of villagers from nearby villages partake in the festival. Defendant No. 2, who belongs to Chhendipada, was working as a Chowkidar for over thirty years in the Revenue Inspection Bangalow at Chhendipada. Taking advantage of his position, Defendant No. 2 surreptitiously and fraudulently got a lease deed executed by the State in his favour in respect of 20 decimals of land bearing plot No. 6079/6368 from out of suit plot No. 6079 appertaining to Khata No. 762/103. Defendant No. 2 has got his name recorded in respect of the said 20 decimals of land. The villagers were completely ignorant of any lease over the suit plot in favour of Defendant No. 2 and they came to know about the fraudulent lease only when about six months prior to the filing of the suit Defendant No. 2 began making arrangements for constructing a building on the said land. The villagers including some of the Plaintiffs filed protest petitions before the Subdivisional Officer and had also served a pleader's notice on Defendant No, 2. However, as there was no response, a notice u/s 80, CPC was served on Defendant No. 1 and thereafter the present suit was filed. The Plaintiffs have also alleged that on account of the encroachment and construction of the budding by Defendant No. 2 the villagers now find it difficult and inconvenient to hold any festival of the public deity. Hingula Devi. Accordingly, they have prayed for declaration of their right and recovery of possession of the 20 decimals of land leased to Defendant No. 2, for permanent injunction against the Defendants and for mandatory injunction against Defendant No. 2 for demolition of the house constructed on the said land.
3. The State of Orissa represented by the Collector of Dhenkanal, Defendant No. 1 filed its written statement denying the plaint allegations. It is stated that the notice u/s 80, CPC is defective and illegal. The suit is barred by uncertainty of the area over which customary right is claimed by the Plaintiffs. The suit is barred by limitation. Hingula Devi is located in Mouza Chhendipada, but the said deity is not a public institution, nor is it installed on the suit plot. Hingula Thakurani Mandap is situated an a portion of plot No. 6084 which belongs to the State Government and is recorded in its name. A festival of the deity is held but it is neither a big festival nor is it held in the month of Chaitra. It is denied that the festival is held on the entire suit plot since time immemorial. The claim of customary right over the entire suit plot is false and fabricated. The suit plot is recorded in the name of the State, but the allegation that it is utilised for public purposes since time immemorial is false. It is denied that Defendant No. 2 fraudulently got a lease deed execut
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