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RAMAKRISHNAN, Advocate

1977 0 AIR(All) 421 ; 1977 0 AllLJ 1025 ; 1977 0 Supreme(All) 33

Allahbad High Court

M.N.SHUKLA
Ram Krishna Mission - Appellant
Versus
Paramanand - Respondent
Decided On : 02/10/1977

Subject: CIVIL PROCEDURE CODE - REPRESENTATIVE SUIT

Act Referred :
CIVIL PROCEDURE CODE : O.1 R.8

N. D. Pant, for Appellants; A.D. Prabhakar and Baldev Raj, for Respondents.

JUDGMENT :- This appeal arises out of a suit for declaration that the property in
dispute is an endowed and charitable property, a Dharamshala since 13-3-1962, the
date when respondent No. 6, namely, Smt. Parmeshwari Devi dedicated the
property and created a trust and that thereafter she was not competent to execute
the deed of 1968 so as to make a gift of the same property in favour of defendant
No. 1, the appellant Ram Krishan Mission. The plaintiffs filed the suit in a
representative capacity under O. 1, R. 8, Civil Procedure Code and alleged that
plaintiffs Nos. 3 to 6 were Hindus by caste and followers of Sanatan Dharam and
were interested in the maintenance of the religious and charitable character of the
property in suit while plaintiffs Nos. 1 and 2 claimed to be the trustees by virtue of
the trust deed dated 13-3-1962. The plaint was presented on 23-2-1970 and
paragraph 9 thereof contained an averment that the suit was being filed under O. 1,
R. 8, Civil Procedure Code. On 25-4-1970 an application No. 12/c-2 was moved on
behalf of the plaintiffs for permission to sue in a representative capacity i. e. on
behalf and for the benefit of the entire community interested. On the same date the
court passed the order:

"Issue notice by publication in weekly Hindu Hardwar fixing May 21, 1970 for
disposal. Steps in ten days."

It way be noted that the property in suit is situate in the town of Hardwar and the
weekly journal Hindu is also published from Hardwar. In pursuance of the orders of
the court the necessary expenses were deposited by the plaintiffs and notice was
published in the aforesaid local newspaper on 16-5-1970 inviting objections to the
application and at the same time calling upon the interested parties to apply for
being arrayed as parties in the suit, if they so desired. The matter was eventually
taken up on 20-7-1970 when the application No. 12/c-2 was allowed by the following
order:

"No objection filed on 12/c which is allowed."

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Thus, the requisite permission was granted on 20-7-1970, that is, after the
publication of the notice. Thereafter the trial of the suit proceeded and it was
dismissed by the learned Civil Judge on 4-12-1971. One of the pleas which had been
raised by the contesting defendants was that there was no compliance of Order 1,
R. 8, Civil Procedure Code but this plea was repelled by the trial Court, which was of
the opinion that there was no irregularity in the proceedings under O. 1, R. 8, C. P.
C. and the suit had been properly filed. Thereafter the suit proceeded on merits and
was dismissed. The plaintiff preferred an appeal which was allowed by the lower
appellate court on the ground, though urged by the defendants that the provisions
of O. 1, R. 8, C. P. C. had not been complied with. The appellate court accepted this
contention and remanded the case with a direction trial necessary steps under O. 1,
R. 8, C. P. C. be taken and the suit be then trial in accordance with law.

2. The contesting defendants, namely Ram Krishna Mission and another have filed
this appeal challenging the order of remand and have contended that the provisions
of O. 1, R. 8, C. P. C. had been fully complied with and the lower appellate Court
acted illegally in remanding the case and not proceeding to decide it on merits. In
these circumstances the question which has arisen is as to whether on the facts of
the case the procedure followed by the trial Court fulfilled the requirements of O. 1,
R. 8, C. P. C. or not.

3. The first submission of Sri N. D. Pant, learned counsel for the appellants was that
the objection with respect to the non-compliance of O. 1, R. 8, C. P. C. in the instant
case was raised at the instance of the defendant-appellants and that objection was
now being waived by him, consequently this question need no longer be considered
by this Court. In other words, the argument was that it was not open to the plaintiffs
to insist on the adjudication of a plea which, if accepted, would entail dismissal of
the suit. The argument though ingenious is not sound and overlooks the underlying
principles incorporated in the provisions of O. 1, R. 8 C. P. C. It is manifest that
accepting the representative character of a suit is fraught with grave results. The
general rule is that all persons interested in a suit ought to be joined as parties to it,
so that matters involved may be finally adjudicated upon and fresh litigation over
the same matters he avoided. Obviously R. 8 of O. 1 of the Code constitutes a
glaring exception to this general rule, and, if not strictly complied with, may result in
a flagrant departure from the salutary practice of not proceeding with an
adjudication in the absence of the parties affected thereby. As has been observed
time and again, it is an enabling rule of convenience prescribing conditions upon
which persons, even though not made parties to the suit, may still be bound by the
proceedings therein. In view of the far reaching consequences of a decree passed in
what is described in law as a representative suit, it is necessary that the relevant
provisions must be treated as peremptory and mandatory. That is why it has been
held that the obtaining of a judicial permission and compliance with the provisions of
Order 1, R. 8 C. P. C. are formal conditions on which further proceedings in the suit
become binding on persons other than those actually parties thereto. The
proposition was succinctly expressed by Ameer Ali, J. in Baiju Lal Parbatia v. Gulak
Lal Pathak, (1897) ILR 24 Cal 385 in connection with S. 30 of the old Code which
corresponds to O. 1, R. 8 C. P. C. It was observed:

"The effect of S. 30 therefore to my mind is that unless such permission is obtained

by the person suing or defending the suit, his action has no binding effect upon the
person whom he chooses to represent." Thus, the foundation of O. 1, R. 8 C. P. C. is

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to be found in a principle which transcends the personal or parochial nature of the
combatants who are arrayed as parties to the suit. It affects the rights of other
persons, not present before the court. Hence, a duty is cast on the court itself to
follow meticulously the procedure prescribed by O. 1, R. 8 C. P. C. and it is wholly
immaterial as to whether a defendant against whom a decree is sought chooses not
to press any such objection against the plaintiff. Hence, I overrule the preliminary
submission of the learned counsel for the appellants that the plea of non-observance
of O. 1, R. 8 C. P. C. need not be gone into.

4. Order 1, Rule 8 C. P. C. reads:

"8 (1) Where there are numerous persons naving the same interest in one suit, one
or more of such persons may, with the permission of the Court, sue or be sued, or
may defend, in such suit, on behalf of or for the benefit of all persons so interested.
But the court shall in such case give, at the plaintiffs expense, notice of the
institution of the suit to all such persons either by personal service or, where from
the number of persons or any other cause such service is not reasonably
practicable, by public advertisement, as the Court in each case may direct.

(2) Any person on whose behalf or for whose benefit a suit is instituted or defended
under sub-rule (1) may supply to the Court to be made a party to such suit."

The two vital ingredients prescribed by the above rule are that (1) Courts permission
under the rule must be obtained and (2) notice must be given to the parties whom it
is proposed to represent in the suit. There can possibly be no controversy with
regard to the mandatory character of these twin conditions. The dispute, however, is
as to the sequence in which these conditions have to be fulfilled. Some Courts are
so punctilious as to accord permission at the very outset provided such averment
and prayer are contained in the plaint itself and an application to that effect has
been made by the plaintiff. Other Courts are not so meticulous as to pass such
orders or sometimes the plaintiff himself prefers to make an application later for
leave to file the suit in a representative capacity. In such cases it is not uncommon
to find that either the court grants a tentative or conditional permission and
thereafter issues notice to the other persons interested or it straightway issues
notice even without according any tentative permission expressly. In such cases the
Court may sometimes not pass any express order or grant permission after notices
have been served personally or by public advertisement. It is in these varying
circumstances that the question has arisen as to whether this kind of procedure
fulfills the requirements of O. 1, R. 8 C. P. C. and amounts to a substantial
compliance of the same or whether it involves an omission which vitiates the
representative character of the suit. I cannot refrain from pointing out at the very
outset that it should always be the endeavour of Courts to insist upon a substantial
compliance of the procedure prescribed by law and not insist on mere technicalities
which do not tend to cause prejudice to any party. Therefore, I see no real breach of
the provisions of O. 1, R. 8 C. P. C. if the court proceeds to issue a notice
immediately after presentation of a plaint in which an averment of the
representative character of the suit has been made. In such case there is no
tentative order granting a permission subject to such objection as may later be
raised by the defendant who may turn up in response to the notice yet in my opinion
the proceedings are not tainted by illegality. Learned counsel for the appellants
advanced a somewhat extreme argument and submitted that even though no

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permission be expressly granted at all during the proceedings of the suit, it should
be legitimately inferred that such permission was granted by necessary implication
when the court had proceeded to decide the suit on merits. In my opinion the
provisions of Order 1, Rule 8 C. P. C. cannot be stretched to that extent and a clear
order of the Court granting permission must be made before it enters on the merits
of the case. I am unable to read anything into this provision which dictates the
mandatory sequence of the various steps in the procedure. The granting of a
permission is an essential condition but there is nothing to warrant the proposition
that permission must precede the issue of notice or the publication thereof and the
proceedings would be vitiated if the permission follows the notice.

5. Sri Baldev Raj, appearing for the respondents placed reliance on the words may
with the permission of the court sue" and submitted that that is in the eye of law
actually no suit before the court unless the permission has been obtained. He also
referred to the latter words of cl. (1) which are: "the Court shall in such case give, at
the plaintiffs expense, notice of the institution of the suit". It was sought to be
argued on the basis of this phraseology that the court acquired jurisdiction to issue
notice only on the institution of the suit and not before that. In short, the contention
was that on grant of a permission alone the suit could be deemed to have been
instituted and it was only thereafter that the court was competent to issue notice.
Reversing this procedure would be a violation of the provisions of Order 1, Rule 8. I
am unable to endorse such literal construction of the provisions of the said Rule.
Unlike O. 33, R. 8, C. P. C. which provides that where the application for permission
to sue as a pauper has been granted it shall be numbered and registered and shall
be deemed the plaint in the suit, O. 1, R. 8 C. P. C. contemplates a suit from the very
inception. It is true that a representative character is imparted to the suit only after
the requisite procedure has been complied with, but it would be erroneous to hold
that no suit has been instituted until permission has been granted by the court. I am
also not inclined to accept the other submission made on behalf of the appellants in
this regard. I think that when a court issues notice on an application for leave under
O. 1. R. 8 made after the presentation of the suit, it should be inferred that the court
has by implication granted a conditional permission. The main object of issuing such
notice is to enable an objector or defendant to appear before the court and file
objections or ask for being impleaded. That object would be fully achieved if such
procedure is adopted. After all, even if a permission is first granted and then notice
is issued, the intention of law is not to attach finality to a permission granted behind
the back of a party or parties who may eventually appear before the Court in
response to the notice. That would be contrary to all principles of equity. No final
permission to lend representative character to suit should be granted until the
parties to whom notices have been issued have been afforded an opportunity of
objecting to such prayer. From that point of view also it would be reasonable and
just that an order granting permission to the issue of notice should be merely
conditional or tentative, subject to such final orders as are passed after hearing the
parties if they enter appearance and if any objections are filed or any one has
applied for being impleaded. Thus, taking a pragmatic view of the situation the
procedure which the court should on an application being made under Order 1, R. 8
C. P. C. adopt may be summarised in this manner. When a plaint contains an
averment that the plaintiffs are filing the suit in a representative capacity and later
an application under O. 1, R. 8 is made, the court may either grant a conditional
permission subject to objections being raised by the parties to whom notice is issued

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or may immediately issue notice even without expressly granting any such
conditional permission. After the service of notice either by personal delivery or
public advertisement, when either objections have been filed and an application for
impleadment is made or no objections are filed and no application for being
impleaded is made, the court must after disposing of such objections, if any, pass
the final order granting or refusing permission. Thereafter the court shall have
jurisdiction to enter into the merits of the case and proceed with the trial. If,
however, no express order granting permission is made at any stage whatsoever,
the suit would not acquire a representative character.

6. Learned counsel for the respondents in support of his submission referred to the
following passage in Kumaravelu v. Ramaswami, AIR 1933 PC 183 (at p. 186):

"On such permission being given it becomes the imperative duty of the court to
direct notice to be given to the absent parties in such of the ways prescribed as the
Court in each case may require while liberty is reserved to any represented person
to apply to be made a party to the suit."

Emphasis was laid on the words "imperative duty". Divorced from its context the
passage may give support to the respondents but if the judgment is perused as a
whole, it would be quite clear that the Judicial Committee did not intend to lay down
the rule that issuing notice prior to the grant of a permission would vitiate the
proceedings or that a technical non-compliance with the wordings of the rule was
fatal to the case. It must be borne in mind that the Privy Council was dealing with a
suit which was being prosecuted without leave of the Court and with no notice given
of its institution. It was in these circumstances that the representative character of
the suit was not accepted.

7. The Full Bench decision of the Allahabad High Court in Hira Lal v. Bhairon, (1883)
ILR 5 All 602 also does not lend support to the respondents. The learned counsel
relied on the following observations of Stuart, C. J.

"No doubt the permission of the first Court may be inferred from the fact of the suit
having been allowed to proceed before it, issues prepared, and the suit determined
on such issues. But however distinctly such procedure may show the Courts
permission or sanction, it is, I fear, express, and not constructive permission, that
the sanction require such express permission duly appearing on the record."

That case is clearly distinguishable on facts. That was a suit in which neither
permission to sue in a representative capacity had been granted by the court at any
stage nor was notice issued in accordance with S. 30 of the old Code. I have already
held that the final permission must be express and categorical and not merely
constructive or implied. Their Lordships in the full Bench case had no occasion to
deal with a suit in which a permission as required by O. 1, R. 8 corresponding to S.
30 of the old Code was eventually given expressly before issuing notice. Reliance
was placed on another Full Bench decision of this Court in Shyam Lal v. Musammat
Lalli, AIR 1922 All 16 (FB). My attention was drawn to the following observations at
p. 17:

"Order 1, Rule 8 requires that when a plaintiff brings a suit in his representative
capacity he must first obtain the leave of the court to bring such a suit and when the
leave is granted the Court shall issue notice that suit has been instituted."

Page No. 5 of 7
In that case what had happened was that as a matter of fact no notice was issued
and no advertisement was made as directed by the court. In such circumstances the
conclusion became irresistible that there was non-compliance of O. 1, R. 8 and that
vitiated the proceedings.

Nevertheless their Lordships held that an omission to follow the procedure would not
necessarily result in the dismissal of the suit and the proper order of the court was
to remand the case for retrial from the stage at which notice ought to have been
issued. The respondents also sought to derive some support from a division Bench
decision of this Court in Govind Ram v. Gokul AIR 1929 All 806 in which while
dealing with a plaint filed in a representative capacity it was laid down:

"It was, in out opinion, his plain duty to require the plaintiffs to obtain permission as
a condition precedent to his entering on the case and then his duty of notification
would follow."

It is significant that this was a case in which the plaintiffs had completely omitted to
obtain permission which was required by O. 1, R. 8 and consequently no occasion
arose for the court to pronounce on the exact consequence, if any, intended by law
to flow where permission was granted after issuing notice under O. 1, R. 8. The last
case of this court relied upon by the plaintiffs was Munni Devi v. Satgur Dayal, AIR
1973 All 281 which is also clearly distinguishable on facts inasmuch as in that case
also no order was passed by the court at any stage granting permission to the
plaintiffs to sue in a representative capacity.

8. On the other hand, the view that I have been persuaded to take in the instant
case is supported by ample authority. A division Bench of the Calcutta High Court in
Dhunpat Sigh v. Paresh Nath Singh, (1894) ILR 21 Cal 180 held:

"Section 30 of the Civil Procedure Code does not require an "express" permission to
be recorded by the Court, but if such permission can be well gathered from the
proceedings of the Court in which the suit was instituted, an Appellate Court may
(where an objection that no permission was given is taken on appeal) infer from
such proceedings that permission was really granted."

The dictum of Stuart C. J. in Hira Lals case (1883) ILR 5 All 602 (supra) which I have
attempted to explain in my judgment was dissented from. A later division Bench
decision of the Calcutta High Court in Mukh Lal Singh v. Jagdo Tewari (1908) ILR 35
Cal 1021 also expressed the view that where the plaintiffs had asked for permission
in the plaint, though there was no express order granting it, it should be presumed
that it had been granted, because the plaint had been admitted and registered. I am
fortified by the dictum of the Madras High Court in Muthukaruppa v. Appavoo, AIR
1943 Mad 161 which appears to be on all fours with the present case. There also the
court gave to the plaintiffs as representatives of the village permission to sue the
defendants as representatives of another village after it had notified by public
advertisement the institution of the suit. It was held that although strictly speaking
the court should have passed an order granting permission before issuing public
notice that the suit had been instituted, yet the procedure followed by the court
could not be said to have prejudiced anyone as opportunity was eventually given to
any such person by giving notice to apply to be made as defendant but no one had
chosen to do so. In these circumstances it was ruled that O. 1, R. 8 had been
sufficiently complied with. I am of the opinion that, as already observed by me, it is

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substantial and not literal compliance of the provisions of the Order 1, R. 8 which
must be the decisive factor. The object of that rule is

merely to permit a person to apply to court to be made a defendant and so long as

that object is achieved, mere technical omission should not vitiate the suit. In
Chatrabhoj Keshavji v. Ghanshyamlalji, AIR 1952 Kutch 92 it was ruled that if a
representative suit was brought but for one reason or another, the requisite
permission was not obtained or granted, it could be granted by the appellate court.
Similar opinion was expressed in Mukaramdas v. Chhagan Kisan, AIR 1959 Bom 491
which laid down that there need not be a formal order on the record

for permission to sue in a representative capacity under Order 1, Rule 8 that the
permission could be inferred where the plaintiff prayer that they should be allowed
to sue in a representative capacity under O. 1, R. 8 was granted by the court. It was
also held that permission under O. 1, R.

8 could be granted even at the appellate stage. In Kunhalavi Musahar v. Abdulla, AIR
1965 Ker 200 the court repelled the argument that the provisions of O. 1, R. 8 had
not been complied with because the order of permission had been passed
subsequent to the publication of the notice in the paper. The ratio of the Madras and
Kutch rulings (supra) was fully adopted.

9. Thus, on the facts of the instant case I am satisfied that there was sufficient
compliance of the provisions of O. 1, R. 8 C. P. C. In fact, the procedure which I have
summed up in the earlier part of my judgment and which is the most feasible in
actual practice and is not tainted by any infirmity in law, is one which is more
rigorous than the procedure approved in a number of rulings to which I have
adverted and which are relied upon on behalf of the respondents.

10. I, therefore, set aside the order of the appellate court, allow the appeal with
costs and remand the case to the lower appellate court with a direction that it
should decide the appeal on merits in accordance with law. The record of the case
shall be sent down to the court below at an early date.

Appeal allowed.

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