The Court held that if leave under S. 91 CPC is not granted, a suit cannot proceed, and damages awarded without a proper trial are improper.

1. The plaintiffs / appellants along with the suit made an application under O. 1, R. 8 of the Code of Civil Procedure and also made a prayer that their suit be treated to be a representative suit or in the alternative their suit be treated to be instituted under S.91 of the Code of Civil Procedure . The respondents / defendants contested the applications and inter alia pleaded that the suit was filed with ulterior motive, the plaintiffs have no civil right in their favour and in a case like present a suit in the representative capacity could not be filed nor it could be deemed to be a suit under S.91 of the Code of Civil Procedure . Though the matter was registered as civil suit but the questions were kept open. The learned trial Court heard the matter mainly on the question whether leave under O. 1, R. 8 of the Code of Civil Procedure could be granted or in the alternative the suit could be deemed to be one under S.91 of the Code of Civil Procedure . After hearing, the learned counsel for the parties the trial Court held that the suit, in fact, was not maintainable, it could not be treated to be one in the representative capacity and the leave to institute the suit in the public interest could not be granted. At the same time in paragraph 30 of the judgment the Court below granted a decree in favour of the respondents. It directed the plaintiffs to pay Rs. 650/- per month for the period between June, 1992 to May, 1995, an amount with further addition of 15% from June, 1995 to May, 1998 and with a further addition of 15% for the period between June, 1998 till the date of the final order and to pay further damages at the same rate. It also directed the plaintiffs to pay Rs. 5,000/- each as damages to the defendant No. 2. It also awarded compensatory cost / damages at Rs. 2,000/- in favour of the each of the defendant from each of the plaintiff. It is to be noted that while disposing of the application / suit the Court did not direct that a decree in terms of the said judgment be framed probably because the suit was not tried on merits but the application filed under O. 1, R. 8 was dismissed. Being aggrieved by the said order dated 8-12-1999 the plaintiffs have come to this Court. The matter was originally registered as civil revision but was later on re - registered as first appeal.

2. Shri. H. B. Agrawal, learned counsel for the appellants, submits that he is not challenging the finding recorded by the trial Court regarding dismissal of his application filed under O. 1, R. 8, CPC or refusal of the trial Court to treat the suit in the public interest but the appellants are challenging the directions contained in paragraph 30 of the judgment. According to him such directions are uncalled for.

3. Shri Prashant Mishra and Shri Manindra Shrivastava, learned counsel for the respondent have supported the order. According to them as each of the respondent had suffered losses because of this malicious and frivolous suit the Court below was absolutely justified in awarding the damages / compensation to them.

4. I have heard the parties at length and have perused the records.

5. It is not in dispute before me that in the present matter the written statement was not filed by the defendants. It is also not in dispute before me that the matter was lingering in the Court below for consideration of the different applications. It is also not in dispute before me that final orders on plaintiffs' - application submitted under O. 1, R. 8, CPC were not earlier passed and by the impugned order the said application was rejected. It is also not in dispute before me that application for gra