C.R. No.4899 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.4899 of 2009 Date of Decision: 16.8.2010 Balkar Singh and others ……Petitioners VERSUS Ram Sarup and others ……Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Harish Nain, Advocate for the petitioners. Mr. R.N. Lohan, Advocate for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) 1. Present petition is filed challenging the judgment dated 1.6.2009 passed by learned District Judge, Jind, whereby the learned Appellate Court dismissed the application moved by the appellants/petitioners to recall the order dated 17.12.2008, whereby the appeal was withdrawn by the appellants. C.R. No.4899 of 2009 -2- 2. Brief facts of the present case are that civil suit, Suit No.48 of 12.2.2004, was filed by the plaintiffs/appellants/present peti- tioners against the defendants/present respondents for declaration declaring that rapat was illegally sanctioned, adversely affecting rights of the plaintiffs as residents of the Village and rights of the de- fendant No.1- Gram Panchayat and land in dispute was earmarked for common use of the residents of the village; suit was permitted to be filed under Order 1 Rule 8 C.P.C.; suit was dismissed vide judg- ment dated 7.8.2008; judgment dated 7.8.2008 was challenged in appeal before the learned District Judge, Jind; learned Counsel ap- pearing for the appellants made a statement on 17.12.2008 before the learned Appellate Court to the effect that appellants did not wish to continue the appeal and same be dismissed as withdrawn; on the statement made by learned Counsel for the appellants, appeal was dismissed as withdrawn; thereafter, application under Section 151 C.P.C. was moved by the appellants to the effect that the then learned Counsel appearing for the appellants had wrongly withdrawn the appeal, hence, so called withdrawal by the earlier Counsel on 17.12.2008 be permitted to be withdrawn and appeal be heard on merits; the application moved by the appellants/petitioners was also dismissed vide impugned order dated 1.6.2009; hence, the present revision petition. C.R. No.4899 of 2009 -3- 3. In the present petition, the very important question of law arises for consideration is as to whether a suit or appeal filed under Order 1 Rule 8 C.P.C. in representative capacity can be withdrawn without following the procedure given under Sub-rule (4) of Rule 8 of Order 1 C.P.C. 4. Order 1 Rule 8 C.P.C. is reproduced herein as under:- “8. One person may sue or defend on be- half of all in same interest – (1) Where there are numerous persons having the same interest in one suit,: (a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. (2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably C.R. No.4899 of 2009 -4- practicable, by public advertisement, as the Court in each case may direct. (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule(1), may apply to the Court to be made a party to such suit. (4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn un- der sub-rule (3) of rule 1 of Order XXIII, and no agreement, compromise or sat- isfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff’s expense, notice to all persons so inter- ested in the manner specified in sub- rule (2). (5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. Explanation:- For the purpose of determin- ing whether the persons who sue or are sued, C.R. No.4899 of 2009 -5- or defend, have the same interest in one suit, it is not necessary to establish that such per- sons have the same cause of action as the persons on whose behalf, or for whose bene- fit, they sue or are sued, or defend the suit, as the case may be.” 5. In the opinion of this Court, as per Sub-rule (4) of Rule 8 of Order 1 C.P.C., no part of the suit can be abandoned or can be withdrawn under sub-rule (3) of rule 1 of Order 23 or settled or com- promised unless the Court has given notice to all the persons inter- ested in the manner specified in sub-rule (2). Sub-rule (5) of Rule 8 of Order 1 C.P.C. also provides that suit filed under Order 1 Rule 8 C.P.C. shall not be dismissed in default or shall not be decreed ex- parte and in the event of absence of plaintiff or defendant, as the case may be, Court shall substitute such persons as the Court deems fit in place of plaintiff or defendant, who is absent, as the case may be. 6. Perusal of the record does not show that any notice was ever issued to the residents of the village in whose interest the suit and appeal was filed, as required by Sub-rule(4) read with sub-rule(2) of Rule 8 of Order 1 C.P.C. 7. In view of the above legal position, order impugned can not be sustained. Learned Appellate Court should have recalled the C.R. No.4899 of 2009 -6- order dated 17.12.2008 and should have restored the appeal for de- cision on merits. 8. Hence, the present petition is allowed. Order impugned dated 1.6.2009 as well as order dated 17.12.2008 dismissing the ap- peal as withdrawn are quashed. Appeal is restored to its original number. 9. Parties are directed to appear before the learned District Judge on 13.9.2010. Learned District Judge is directed to decide the appeal on merit in accordance with law. No order as to costs. ( ALOK SINGH ) 16th August, 2010 JUDGE ashish