JUDGMENT :- This appeal arises out of a suit for declaration that the property in dispute is an endowed and charitable property, a Dharamshala since 13-3-1962, the date when respondent No. 6, namely, Smt. Parmeshwari Devi dedicated the property and created a trust and that thereafter she was not competent to execute the deed of 1968 so as to make a gift of the same property in favour of defendant No. 1, the appellant Ram Krishan Mission. The plaintiffs filed the suit in a representative capacity under O. 1, R. 8, Civil Procedure Code and alleged that plaintiffs Nos. 3 to 6 were Hindus by caste and followers of Sanatan Dharam and were interested in the maintenance of the religious and charitable character of the property in suit while plaintiffs Nos. 1 and 2 claimed to be the trustees by virtue of the trust deed dated 13-3-1962. The plaint was presented on 23-2-1970 and paragraph 9 thereof contained an averment that the suit was being filed under O. 1, R. 8, Civil Procedure Code. On 25-4-1970 an application No. 12/c-2 was moved on behalf of the plaintiffs for permission to sue in a representative capacity i. e. on behalf and for the benefit of the entire community interested. On the same date the court passed the order:

"Issue notice by publication in weekly Hindu Hardwar fixing May 21, 1970 for disposal. Steps in ten days."

It way be noted that the property in suit is situate in the town of Hardwar and the weekly journal Hindu is also published from Hardwar. In pursuance of the orders of the court the necessary expenses were deposited by the plaintiffs and notice was published in the aforesaid local newspaper on 16-5-1970 inviting objections to the application and at the same time calling upon the interested parties to apply for being arrayed as parties in the suit, if they so desired. The matter was eventually taken up on 20-7-1970 when the application No. 12/c-2 was allowed by the following order:

"No objection filed on 12/c which is allowed."

Thus, the requisite permission was granted on 20-7-1970, that is, after the publication of the notice. Thereafter the trial of the suit proceeded and it was dismissed by the learned Civil Judge on 4-12-1971. One of the pleas which had been raised by the contesting defendants was that there was no compliance of Order 1, R. 8, Civil Procedure Code but this plea was repelled by the trial Court, which was of the opinion that there was no irregularity in the proceedings under O. 1, R. 8, C. P. C. and the suit had been properly filed. Thereafter the suit proceeded on merits and was dismissed. The plaintiff preferred an appeal which was allowed by the lower appellate court on the ground, though urged by the defendants that the provisions of O. 1, R. 8, C. P. C. had not been complied with. The appellate court accepted this contention and remanded the case with a direction trial necessary steps under O. 1, R. 8, C. P. C. be taken and the suit be then trial in accordance with law.

2. The contesting defendants, namely Ram Krishna Mission and another have filed this appeal challenging the order of remand and have contended that the provisions of O. 1, R. 8, C. P. C. had been fully complied with and the lower appellate Court acted illegally in remanding the case and not proceeding to decide it on merits. In these circumstances the question which has arisen is as to whether on the facts of the case the procedure followed by the trial Court fulfilled the requirements of O. 1, R. 8, C. P. C. or not.

3. The first submission of Sri N. D. Pant, learned counsel for the appellants was that the objection with respect to the non-compliance of O. 1, R. 8, C. P. C. in the instant case was raised at the instance of the defendant-appellants and that objection was now being waived by him, consequently this question need no longer be considered by this Court. In other words, the argument was that it was not open to the plaintiffs to insist on the adjudication of a plea which, if accepted, would entail dismissal of the

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