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High Court Of Madhya Pradesh
H. G. Mishra, J.
SARASWATIBAI - Appellant
Versus
DURGA SAHAI - Respondents
Second Appeal 143 Of 1974
Decided On : 01/01/1980
(2) Consolidation of Proceedings-effect.
In the absence of a specific provision for consolidation in the Code of Civil Procedure, suits are consolidated under the Inherent powers of the Court under section 151, C.P.C. After consolidation, there is only one case and the suit consolidated has no independent existence for trial. AIR 1947 Nag 248, relied on. [Para 15]
(3) Civil P.C., 1908-O.I,R. 10 and S. 96-necessary parties to suit are also necessary parties to appeal.
(4) Appeal-suit, appeal and second appeal-are steps in a series of proceedings conl1ected by intrinsic unity.
When the lis was lifted from the trial Court to the first appellate Court, parties who were necessary to the suit have also to be regarded as parties necessary to the appeal preferred against the judgment and decree rendered therein. The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. AIR 1957 SC 540, followed. [Para 16]
(5) Civil P.C, 1908- S.11 - resjudicata - applicablity of-no decision in former suit-doctrine of resjudicata has no application.
In order that the doctrine of res judicata may come into play, one of the legal requirements is that there must be a suit which has been decided prior to the suit in question. If there is no decision in former suit as envisaged by Explanation 1 to section 11, C.P.C., the doctrine of res judicata cannot come into play. AIR 1947 Nag.248, relied on. AIR 1966 SC 1332 referred to. [Para 17]
(6) Civil P.C., 1908-O.1 R. 10 & O. 41, R. 20-addition of parties in appeal -previous attempts failed-addition of parties cannot be allowed.
Application (I.A. No. 2000/78) has been submitted on behalf of the appellant whereby permission to join the other defendants and/or their legal representatives has been prayed for. This contention too is devoid of substance in view of what has been held by this Court in Civil Revision No. 133 of 1965 decided on 13-2-1966; and in the present appeal vide order dated 2-3-1978. The attempts of the plaintiff-appellant to join the other defendants and/or their legal representative in the first appeal as well as in this appeal having failed at earlier occasions, the appellant has no right to regain what has been lost to him. I.A. No. 2000/78, appears to be another attempt to save the appeal. No case has been made out by the appellant for grant of the requisite permission either in exercise of powers vested in this Court under Order 41, Rule 20, or Order 41, R. 20 read with section 107 and Order 41 Rule 10 C.P.C. [Para 18]
(7) Civil P.C., 1908-O. 1, R. 8- provision is mandatory - objection regarding non-compliance-can be raised at any state.
(8) Civil P.C., 1908-O. 1, R.8-applicability of-it applies to suits known as representative suits only.
It is law well settled that the provisions of Order 1, Rule 8 C.P.C., are of mandatory character. Objection regarding noncompliance of the provisions of Order 1, Rule 8, C.P.C., can also be raised at any stage of the proceedings. However, it is also equally well settled that Order 1, Rule 8, C.P.C., applies only to suits which are known as representative suits. This is clear from the language employed in Rule 8, of Order 1.
This rule is an enabling provision. It entitles, one party to represent many who have a common cause of section; but it does not force anyone to represent many if his action is maintainable without the joinder of the other persons. It presupposes that each one of the numerous persons by himself has a right of suit.
The expression 'may sue' can be regarded as applicable to cases such as where the suit is brought by some person on behalf of himself and as representating others. The expression 'may be sued' can be regarded to apply to such cases where inhabitants of a village claim a right over the plaintiff's land. In such a case, the plaintiff may, with the permission of the Court, sue one or more of them on behalf of all to negative the right in question. So also the expression 'may defend such suit' is referable to a suit which is a representative suit. The use of the words "such suit" in this expression is significant and is indicative of the fact that this expression is referable only to a suit brought as a representative suit. AIR 1957 MB 173, 1958 JLJ 249=AIR 1958 MP 189, 1960 JLJ 625=AIR 1960 MP 288, 1972 MPLJ-SN 90, AIR 1933 Lahore 749, AIR 1977 All. 421, AIR 1933 PC 183 and AIR 1964 SC 107, distinguished. [Paras 19 to 21]
( 1 ) THIS is second appeal by the plaintiff against judgment and decree dated 119-1973, passed by the Second Additional District Judge, Indore, whereby appeal preferred against judgment and decree passed by the trial Court on 224-1963, has been dismissed on the ground that it is not properly constituted.
( 2 ) FACTS essential for decision of this appeal are as under: That Smt. Saraswatibai, the plaintiff-appellant, instituted a civil suit in the Court of Civil Judge (Class II), Indore, on 7-7-1954 against Durga Sahai and his son Matadin for recovery of possession and mesne profits in respect of two rooms forming part of a house Municipal No. 27 (old No. 311 situate at Sanyogita Ganj, Indore. This house is popularly known as "gopal Mandir". The suit was based on title and was brought on the allegation that defendant Durga Sahai was inducted in as a tenant by the plaintiff on payment of Rs. 5 as monthly rent. After some time, Durga Sahai began to render service in the aforesaid temple as a Pujari in lieu of rent, but, now, he has begun to deny title of the plaintiff. Hence the suit. This suit was originally numbered as 700 of 1954. It was renumbered as 222 of 1957.
( 3 ) THEREAFTER, the plaintiff-appellant instituted another suit in the same Court on 4-9-1954 against Durga Sahai and his son Matadin and also against 13 other persons. This suit was brought for issuance of permanent injunction restraining the defendant from interfering with the possession of the plaintiff over the suit house. In this suit also, the relief was claimed on the basis of title. This suit was registered as Civil Suit No. 918 of 1954 and was renumbered as 223 of 1957.
( 4 ) DURGA Sahai and his son Matadin resisted the claim of the plaintiff-appellant in both the suits on identical grounds. It was contended by them, inter alia, that Durga Sahai is not a tenant of the plaintiff but is her adopted son. The adoption had taken place about 40 years prior to institution of the suit in accordance with a custom prevailing in their community (Vaishnav Agrawal Community) authorising a widow to take a son in adoption without express authority from her husband for the purpose. Accordingly, Durga Sahai is in occupation of the suit house as owner thereof. In the alternative, it was also contended that Durga Sahai has acquired title to the suit house by adverse possession and that the title of the plaintiff, if any, stood extinguished.
( 5 ) OTHER defendants in Civil Suit No. 223 of 1957 resisted the suit by filing separate written statements wherein they supported the case set out by Durga Sahai and Matadin-- defendants Nos. 1 and 2 --and also took the plea that Gopal Mandir is a public religious endowment belonging to Vaishnava Agrawal Community.
( 6 ) ISSUES were framed in both the suits separately. It was thereafter that the defendants submitted an application for consolidation of both the suits. By order dated 13-11-1956, passed in Civil Suit No. 223 of 1957, the trial Court ordered consolidation of both the suits. Thus, Civil Suit No. 223 of 1957 stood consolidated with Civil Suit No. 222 of 1957. Thereafter, both the suits were tried together and parties led evidence in support of their rival contentions. After completion of the trial, the trial Court dismissed the case by one judgment and decree dated 22-4-1963 on the findings that (a) the said house does not belong to the plaintiff, but it belongs to the deity of Shri Gopal Krishna and that the temple is a public temple --the plaintiff being only a Pujari thereof; (b) Durga Sahai--defendant No. 1 -- is duly adopted son of Bhuralal -- husband of Saraswatibai -- the plaintiff-appellant --he having been taken in adoption by Saraswatibai in accordance with the aforesaid custom prevalent in their community; and (c) Durga Sahai is not a tenant of the plaintiff.
( 7 ) THE plaintiff preferred an appeal against this judgment and decree. In this appeal, only Durga Sahai and Mafadin were impleaded as resp
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