The formalities of Order 1 Rule 8 CPC must be completed before the hearing of the case, and failure to do so renders the trial court's judgment legally erroneous.

Pramod Kumar Srivastava,J.

Heard learned counsel for the appellant on admission of second appeal and perused the records.

Several plaintiffs have filed suit for permanent injunction restraining defendants from occupying or raising construction over disputed public property and in raising obstruction over its user by plaintiffs and other person of public.

2. Trial court had accepted written statement, framed issues, admitted evidences of the parties and then passed judgment dated 5.9.2014, by which original suit was dismissed. In this judgment, Additional Civil Judge (Junior Division), Jalaun at Orai had given finding that since plaintiffs had filed suit for public way, therefore, they had to complete the formalities mentioned in provisions of Rule 8 of Order 1 CPC. Trial court had held that since permission of court under Order 1 Rule 8 CPC had not been obtained and this provision has not been fulfilled, therefore, suit is not maintainable. Only on this basis, original suit was dismissed.

3. Against the judgment of trial court, plaintiffs of original suit had preferred Civil Appeal No. 100/2014, which was heard and allowed by 4th Additional District Judge, Jalaun at Orai by its judgment dated 25.1.2016. In this judgment, first appellate court had set aside the judgment dated 5.9.2014 of trial court and remanded the matter to trial court with direction that parties be afforded fresh opportunity of hearing on point of Order 1 Rule 8 CPC and Section 91 CPC, and thereafter fresh judgment be passed in the matter.

4. Aggrieved by the judgment of first appellate court, present second appeal has been preferred by defendant no. 1 of the original suit.

5. Learned counsel for the appellant contended that admittedly formalities of Order 1 Rule 8 CPC was not completed by plaintiffs, so there was no error in judgment of trial court, so judgment of first appellate court is erroneous and appeal should be admitted for being allowed.

6. A perusal of record reveals that at the time of dismissal of original suit, learned Civil Judge had considered some portion of CPC relating to Order 1 Rule 8, but had failed to go through its own duties, which are incumbent on it under Order 20 Rule 5 CPC. This Rule 5 reads as under: -

" 5. Court to state its decision on each issues.-

In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless finding upon any one or more of the issue is sufficient for the decision of the suit"

7. A perusal of judgment of trial court makes it clear that these mandatory directions of Rule 5 were not followed by learned Civil Judge at the time of passing of its judgment. The issue no. 1 was framed by trial court about real dispute between the parties but neither facts and evidences regarding it were discussed in the judgment nor any finding was given. Thus, judgment of trial court was legally erroneous and unacceptable.

8. So far matter regarding Order 1 Rule 8 CPC is concerned, the provisions regarding it are explicitly clear. Formalities of said Rule 8 of Order 1 has to be completed but without completion of its formalities, trial court had permitted parties to adduce evidences and then passed its judgment without considering those evidences. In matter relating to such public property, permission of court under Order 1 Rule 8 is necessary, but these formalities should be completed before starting of hearing of the case unless plaintiff himself refuses to comply such formality. Therefore, it was proper in this matter that plaintiff-respondent should have been afforded opportunity to place their stand on point of Order 1 Rule 8 CPC, as has been directed by lower appellate court. This is a simple question of law and not substantial question of law.

9. There appears no illegality or error in the judgment of lower appellate court when it had remanded the matter for affording opportunity of hearing and pass fresh judgment, as has been don