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DELHI HIGH COURT
P.K. Bhasin, J.
Anang Pal —Appellant
versus
UOI & Ors. —Respondents
RFA No. 283 of 2008
Decided on 6.10.2009
Counsel for the Parties
For the Appellant:Mr. S.S. Panwar & Mr. Sunil Dutt Baloni, Advocate.
For the UOI:Mr. Baldev Malik, Advocate.
For the Respondent Nos 8, 10 & 12:Mr. J.K. Jain, Advocate.
For the Respondent No. 3:Mr. Jayant Bhushan, Sr. Advocate with Mr. Vipin K. Singh, Advocate.
IMPORTANT POINT
Suit cannot be adjudicated without notice to all concerned parties.
Headnote:Civil Procedure Code, 1908—Order 1, Rule 8—Suit in representative capacity—Suit adjudicated and dismissed without notice—Decision of Trial Court giving permission to appellant to sue in a representative capacity attained finality—Next step after grant of permission is to give notice of institution of suit to all persons who may be interested in subject matter of suit—That is mandatory requirement of Rule 8(2) which in present case has not been complied with—Issue of a notice is not a mere empty formality but a sine qua for applicability of rule—Trial Court was not justified in proceeding to frame the issues arising out of pleadings of parties who had been impleaded by plaintiff without first issuing notice of suit to public at large and without that having been done no decision on merits of case could have been passed—Impugned judgment and decree set aside—Appeal allowed. Paras 13, 14, 15, 16, 19, 20 and 21)
Result: Appeal allowed.
P.K. Bhasin, J.—The appellant’s suit for declaration, injunction and damages has been dismissed being not maintainable in the ‘present form’ as well as being time barred by the Additional District Judge vide order dated 10th April, 2008. The appellant has questioned the correctness of the trial Court’s decision by filing this appeal.
2. The factual matrix leading to the filing of this appeal may first be noticed. On 16.12.2003 the appellant and one Kartar Singh had sought permission of the Court to file a suit for declaration, mandatory injunction, permanent injunction and damages in a representative capacity for and on behalf of the villagers of village Khirki where they themselves were also living and also for the public at large. For seeking the permission of the Court to sue in a representative capacity an application under Section 91 read with Order I Rule 8 of the Code of Civil Procedure, 1908 (in short ‘CPC’) was moved. The relevant facts which necessitated the initiation of this litigation in a representative capacity as pleaded by the applicants have been noticed by the trial Judge in the impugned judgment and the same are being re-produced below:—
“The plaintiffs are permanent residents of village Khirki, New Delhi-110017, since the time of their forefathers, being the proprietors of village Khirki, New Delhi. The said village is an urbanized village and therefore, falls under the limits/jurisdiction of M.C.D/ DDA. The land of Khasra No. 88(0-9), village Khirki, New Delhi is a land of common utility and has been earmarked as Gair Mumkin KUAN (WELL) and is surrounded by open space, which is reserved and has been used for public purposes, namely festive occasions, marriages parties, functions, meetings places and parking etc.(hereinafter referred to as Common Land). The land of Khasra No. 89(0-5), village Khirki, New Delhi is a public passage and has been entered in the Revenue Record as Gair-Mumkin- Rasta………………in the month of March, 1993, the defendants No. 8 to 13 illegally encroached upon the land of Public Passage of Khasra No. 89(0-5),Village Khirki, Malviya Nagar, New Delhi-17 and started raising illegal construction thereon, which was brought to the notice of police and concerned authorities by the plaintiff vide a written complaint dated 25.10.1993…………….but no action was taken………………..The plaintiffs have been illegally deprived of their right and use of public passage which has caused special damages, mental torture and harassment to them as well as to general public…………………….Defendants No. 8 to 13 have illegally and forcibly created the passage through land of Khasra No.88, which is also a land of public utility……………….The plaintiffs served a Legal Notice dated 26.03.2002 upon the defendant No.1 to 7 by registered A/D post as well as under certificate of posting and dasti, which was duly served upon them but the same has not been replied yet. After the receipt of the notice dated 26.03.2002, the respondent No. 5 (SDM), suo-moto initiated proceedings uls.133 Cr .P .C. and issued show cause notice to the defendants No.8 to 13 with information to the plaintiffs.
However, the said proceedings have been dropped by the Ld. SDM vide order dated 11.07.2003, after replies and rejoinders to show cause were filed by the parties. After the dismissal of the proceedings u/s.133 Cr.P.C., the defendants No.8 to 13 have become more bold and are intending to raise further constructions and/or addition/ alteration in public passage and encroachment in land of common utility of Khasra No. 88 and have threatened as such inasmuch as they have collected the building material on the spot on 09. 12.2003 and are adamant to achieve their illegal designs despite objections on the plaintiffs. Hence, the plaintiffs are entitled to decree of Permanent Injunction against the said defendants. The plaintiffs have no personal interest in the public passage, however they are fighting for a good and general cause for and on behalf of all t
