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1973 Supreme(All) 5
Allahbad High Court
T.S.MISRA
Munni Devi - Appellant
Versus
Satgur Dayal Tandon - Respondent
Decided On : 01/03/1973
S.C. Das and H.N. Tilhari, for Appellants; Umesh Chandra Srivastava, for Respondents.
Compliance with the mandatory provisions of Order 1, Rule 8 of the Civil Procedure Code is essential for maintaining a representative suit. Failure to obtain the necessary permission and issue the required notice renders the suit not maintainable.
Headnote:
CIVIL PROCEDURE CODE - ORDER 1 RULE 8 - REPRESENTATIVE SUIT - PERMISSION OF COURT - NOTICE OF INSTITUTION OF SUIT - MANDATORY PROVISION - NON-COMPLIANCE - EFFECT.
Fact of the Case:
Plaintiffs, claiming to represent the Hindu community of Sitapur, filed a suit for injunction to restrain the defendant from selling or cutting trees or transferring crops on the land in dispute, alleging that the land belonged to the Hindu community and the defendant was acting as Pujari of the temple on their behalf. The defendant contested the suit, denying ownership of the land by the Hindu community and asserting that the suit was not maintainable without the permission of the Advocate-General.
Finding of the Court:
The trial court dismissed the suit, finding that the land did not belong to the Hindu community. The appellate court reversed the finding and held that the land belonged to the Hindu community and the plaintiffs were entitled to maintain the suit. The defendant appealed to the High Court.
Issues: 1. Whether the suit was maintainable without the permission of the Advocate-General. 2. Whether the plaintiffs had obtained the necessary permission under Order 1, Rule 8 of the Civil Procedure Code to file the suit in a representative capacity.
Ratio Decidendi: 1. The court held that the suit was maintainable without the permission of the Advocate-General, as the plaintiffs were not seeking to enforce a public right or duty. 2. The court found that the plaintiffs had filed an application for permission to sue under Order 1, Rule 8, and had published a notice in a newspaper inviting objections. However, the trial court had not passed a specific order granting or refusing permission. The court held that this was a mandatory requirement and that the suit could not proceed without it.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the appellate court, and remanded the case to the trial court for disposal in accordance with law.
2. The learned counsel for the appellant pressed only one point before me namely, that the frame of the suit was bad inasmuch as the suit had not been filed in a representative capacity and that the permission of the trial court under Order 1, R. 8, Civil Procedure Code had not been obtained by the plaintiffs.
3. It appears that on 28-3-1961 the plaintiff filed an application praying that permission to sue under Order I, Rule 8, Civil Procedure Code be accorded to him. It was alleged by the plaintiffs in that application that the suit had been filed by them in a representative capacity and all the members of Hindu community are interested in the suit and that permission of the court under Order 1, Rule 8, Civil Procedure Code was necessary. On this application the trial court ordered on 28-3-1961 that a notice be published in 'Krishak' newspaper. It appears from paper No. 130-2 that a sum of Rupees 12/- towards the charges for publication of that notice was paid to 'Krishak'. Thereafter, the notice was published in 'Krishak' on 10-4-1961 vide paper No. 16/1 Ka. 2. In this notice it was mentioned that an application under Order 1, Rule 8, Civil Procedure Code had been moved by the plaintiffs as representatives of the Hindu community and if any one had any objections to the same he might file the objections by 13-4-1961 in the Court.
The learned counsel for the appellant could not point out from the record of the case that any objection was filed by any person against the said application moved under Order 1, Rule 8, Civil Procedure Code. It, however, appears that the trial court thereafter did not make any specific order granting or refusing the permission sought for. The learned counsel for the appellant urged that in the absence of specific permission of the Court under Order 1, Rule 8, Civil Procedure Code the plaintiffs were not entitled to maintain the suit in a representative capacity. The learned counsel for the respondent, however, urged that it was not necessary under the law that permission should be expressly accorded. It was submitted that permission could be inferred from the proceeding in the trial court and that the court must be deemed to have given its
