IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.408 of 2000 Date of decision : June 17, 2010 Bimla Devi …Appellant. Versus The Villagers of village Trilokpur …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Sanjeev Bhushan, Advocate. For the Respondent : Mr. Karan Singh, Advocate. Surjit Singh, J (Oral) This Regular Second Appeal is directed against the judgment and decree dated 8th May, 2000 of learned District Judge, by which appeal of the defendant-appellant against the judgment and decree dated 17th July, 1999 of the trial Court, decreeing the suit of the plaintiff- respondent, has been dismissed. 2. Defendant-appellant Bimla Devi is the wife of one Man Chand. A suit was filed by Narata Ram, in representative capacity, representing the entire body of the residents of village Trilokpur, for declaration that the villagers’ body was owner in possession of 68 bighas 10 biswas land and that the defendant-appellant had no right to remain in occupation of a small portion of that land, over which her husband Man Chand had been permitted to Whether reporters of the local papers may be allowed to see the judgment? …2… raise temporary structure, for his residence, in lieu of his having agreed to do Barber’s job in the village. It was stated that Man Chand, the husband of the defendant- appellant, had left the village and, therefore, the licence, which was created in his favour, stood revoked and the defendant-appellant had no right to remain in occupation. Relief of mandatory injunction, directing the defendant- appellant to remove Malba of the temporary structure and to hand over the vacant land to the villagers, was also claimed. 3. Application, under Order 1 Rule 8 of the Code of Civil Procedure, was also filed. Notice of that application was given to the persons named in a list attached with that application, who were stated to be the residents of village Trilokpur, by means of affixation of notice at the Panchayat Ghar, village Temple and Patwarkhana. As per that notice, objections were required to be filed against the said application, on or before 11th August, 1997, on which date, as per that notice, the mater was to be taken up by the Court. 4. Record of the trial Court shows that the matter was not taken up on 11th August, 1997, but on the next following day, i.e. on 12th August, 1997, and it was ordered that despite notice nobody, named in the list filed with the application, under Order 1 Rule 8 of the Code of …3… Civil Procedure, had put in appearance to raise any objection to the application. So, order allowing the application was passed. 5. Many residents of village Trilokpur sent an application, by post, to the trial Court, which was received, probably, on 21st August, 1997, in which it was stated that the persons named in the proclamation were not residents of Trilokpur, but of different village and that as a matter of fact the residents of Trilokpur, by whom the said application purported to have been sent, by post, had no objection to the defendant-appellant continuing in possession of the structure, as she was a poor, old and destitute lady. Trial Court, without passing any order on that application, proceeded to try the suit on merits and ultimately decreed it. 6. Appeal was filed in the Court of District Judge by the defendant-appellant. In the Court of District Judge, an application was moved by a number of residents of village Trilokpur, in which it was stated that they had never authorized Narata Ram to institute a suit, on their behalf, against the defendant-appellant and that in fact they had sent an application, by post, to the trial Court also, objecting to the suit filed by Narata Ram, purportedly in representative capacity, but the trial Court did not take notice of that application. Learned District Judge …4… dismissed the application simultaneously with the dismissal of the appeal, on the ground that a valid notice, under Order 1 Rule 8 of the Code of Civil Procedure, had been issued to the community of village Trilokpur, and that application, under Order 1 Rule 10 of the Code of Civil Procedure, was not competent. 7. I have heard the learned counsel for the parties and gone through the record. 8. Both the Courts below have fallen in error in deciding the case on merits. As a matter of fact, when notice was given to the residents of village Trilokpur, for 11th August, 1997, and on that date matter was not taken up, for the reasons not available in the record of the trial Court, order allowing the application could not have been passed, without issuing a fresh notice to the residents of the village, of the application, under Order 1 Rule 8 of the Code of Civil Procedure. As per notice displayed in the village, matter was to be taken up by the trial Court on 11th August, 1997. Then how could have the residents appeared before the trial Court on 12th August, 1997. In any case, when there was an application sent, by post, by some persons, who claimed to be residents of village Trilokpur and it was duly received in the trial Court on 21st August, 1997, the trial Court ought to have considered …5… that application before proceeding to try the suit, on merits. 9. In view of the abovestated position, appeal is allowed, judgments and decrees of both the Courts below are set aside and the suit is remanded to the trial Court, with the direction to try and decide the same afresh, after passing appropriate orders on the application, under Order 1 Rule 8 of the Code of Civil Procedure, and such orders will be passed only after issuing fresh notice of that application to the genuine residents of village Trilokpur. 10. Parties are directed to appear before the trial Court on 6th July, 2010. Appeal stands disposed of accordingly. June 17, 2010(sd) ( Surjit Singh ), J