IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 177 of 2001. Date of decision: December 28, 2010. Kaka Ram & Others. …. Appellants. Versus Dharam Singh & Others. …. Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1No. For the appellants : Ms. Shweta Julka, Advocate. For the respondents : Mr. K.D. Sood, Advocate, for respondents No 1 to 3 & 8 ( a) to 8 (e.) : Mr. A.K.Bansal, Addl.A.G., for respondent No.9. Respondents No.4, 5, 6 ex parte. Respondent No.7 deleted. Surinder Singh, J (oral) : 1. The appellants herein had filed a suit initially in the High Court, which was later transferred to the District Judge, seeking following reliefs:- 2. “i) That a decree for declaration to the effect that plaintiffs-appellants herein alongwith other residents of village Dhobetta are entitled to 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - exercise their customary rights of grazing the cattle, using the wood, grass etc., in the lands comprising in Khata No.79-min/7-min, Khatauni No.141, Khasra No.316, measuring 866 Bighas 7 Biswas, situated at village Samtehan, Habast No.371, Pargana Kotkehloor, Sub-Tehsil Nainadevi, District Bilaspur, Himachal Pradesh and also for an injunction restraining defendants (respondents) from interfering with their right in the lands in dispute. i-a) A decree for `2,10,000/- for damages and compensation for preventing the plaintiffs for exercising their rights in the land in dispute and also for future and pendente lite damages and compensation at the rate of `70,000/- per year be passed. Ii) Any other or further relief as this Hon’ble Court in view of the facts and circumstances of the case may deem fit may also kindly be granted in favour of the plaintiff, and iii) Cost of the suit may also be awarded in favour of plaintiffs and against defendants.” - 3 - 2. Suit was filed by the appellants alongwith two applications (OMP No.179 of 1994and OMP No.180 of 1994) under Order 1 Rule 8 of the Code of Civil Procedure, seeking permission to file the present suit in the representative capacity on behalf of the plaintiffs and later to sue defendants in the same capacity. Third application (OMP No.181 of 1994) under Order 1 Rule 8 (2) of the Code of Civil Procedure was also filed for dispensing with the personal service. 3. The matter was placed before the Single Bench of this Court on 26.5.1994, on which date, the plaintiffs were ordered to file list of the residents of the villagers to which the parties belong alongwith pleadings of the plaintiffs within three weeks. A perusal of the order dated 28.6.1994 passed in OMP No.179 of 1994, shows that the plaintiffs had filed the list of the names of the villagers belonging to village Dhobbeta, Tehsil Anandpur Sahib, District Ropar, Punjab, which did not show whether it belongs to the plaintiffs or the opposite party, hence necessary correct was ordered to be made, whereas in - 4 - OMP No.190 of 1994, the plaintiffs undertook to file the list of defendants and application OMP No.181 of 1994 was ordered to be listed alongwith applications aforesaid. But when the matter was pending service of the defendant, an application (OMP No.374 of 1994) seeking amendment of the plaint, under Order 6 Rule 17 of the Code of Civil Procedure was also moved by the plaintiffs- appellants through their counsel, before the aforesaid applications could be disposed of, the matter was taken up on 11.8.1994, on which date, all the above applications i.e. OMP Nos.179 of 1994 and 180 of 1994 and OMP No.181 of 1994 were allowed and the following order was passed:- “11.8.1994 : Present: Shri Chhabil Dass, Advocate, for the plaintiffs. Shri K.D. Sood, Advocate, for defendant No.2. OMP No.179 of 1994. Keeping in view the nature of the suit and also the number of plaintiffs and the relief sought for by them, permission in terms of Order 1 Rule 8(1) C.P.C. is accorded to the plaintiffs to file the instant suit as prayed for, for the - 5 - benefits of all the persons so interested. The application stands disposed of. OMP No.180 of 1994. Keeping in view the nature of the suit and the relief sought for by the plaintiffs against numerous defendants pertaining to the same community and nature of disputed rights inter-se the parties, defendants1 to 3 are allowed to be sued in representative capacity of the Rajput community of village Dhabeta and other persons, who are interested in denying the rights of the plaintiffs in the suit. The application stands disposed of. OMP No.181 of 1994. Heard. Application allowed. The plaintiffs as also the defendants on whose behalf the suit has been filed or against whom the suit has been filed in representative capacity are ordered to be served through beat of drum, proclamation and by affixing the hand-bills and notices as also the copies of the amended plaint on a conspicuous part of the village like Panchayat Ghar, Patwar Khana, Schools, Post Office and other public places. As the permission to file the suit and to defend the same by the defendants through defendants No.1 to 3 has already been given, notices to defendants 1 to 3 be again sent indicating the said fact thereupon in addition to the mode of service to be adhered to, for the summoning of the parties involved in the instant suit for - 6 - their appearance on the date to be fixed by the Registry. No doubt, summons have already been issued to defendants 1 to 3 for August 26, 1994, but they are not in accordance with law. As such summons be again sent to them indicating their capacity as that of representative one for suit being defended on behalf of all other Rajputs of their community in the instant case. The plaintiffs shall take proper steps for compliance of this order and deposit the necessary fee etc. within two weeks. Application stands disposed of. OMP No.347 of 1994. Allowed subject to all legal exceptions. Sd/- August 11, 1994. (D.P.Sood),J.” [Emphasis mine] 4. In the meantime, the pecuniary jurisdiction of the District Judges was enhanced, thus vide order dated 20th March, 1995, in view of the Notification No.HHC/Admn.6(24)/74-II dated 21st February, 1995, the suit was transferred from the files of this Court to the files of District Judge, Bilaspur, for disposal in accordance with law and parties were directed to appear before the transferee court on May 26, 1995. - 7 - 5. On the date aforesaid, the parties put in appearance before the transferee Court. Thereafter application was moved and the matter also remained pending to bring on record the LRs of deceased defendant No.2 Mehar Singh. The legal representatives of deceased defendants were also brought on record. In the meantime, Paramjit Singh, legal representative of Mehar Singh had also expired and his legal representatives were also brought on record. The written statements were filed by the defendants and the replication to that effect was also filed by the appellants. The issues were struck on 5.11.1999 by the learned trial Court, ultimately, after recording the statements of the witnesses by both the parties, suit of the plaintiffs was dismissed, but the order dated 11.8.1994 passed by this Court when the suit was pending lost sight of. 6. Against the judgment and decree of dismissal, passed by the learned trial Court, the instant appeal has been filed by the plaintiffs in the representative capacity. - 8 - 7. Perusal of the entire record reveals that notice of the application Under Order 1 Rule 8(2) CPC was neither issued nor served upon both the parties, whose names find mentioned in the list filed by the plaintiffs on record as per order dated 11.8.1994 as ordered by this Court on the application in OMP No.181 of 1994 was not complied with. 8. Order 1 Rule 8 of the Civil Procedure Code deals with the situation where one person may sue or defend on behalf of all having the same interest. It reads as under:- “8. One person may sue or defend on behalf 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. - 9 - (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 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 sub0rule (1), and no such suit shall be withdrawn under sub-rule (3), of Rule 1 of Order 23, and no agreement, compromise or satisfaction 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 interested 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 - 10 - 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 determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.” 9. This rule has been enacted with an avowed object of saving time and expenses and also the multiplicity of the proceedings in cases, where one suit could determine the rights of several persons. The rule of convenience is based upon the reason and good public policy, which is intended to save trouble and avoidable unnecessary expenses. In other words the underlying object of Rule 8 is really to facilitate the decision of questions in which a large number - 11 - of persons are interested without recourse to the ordinary procedure. It ensures a single comprehensive trial and seeks to avoid harassment to parties by multiplicity of suits. 10. Under the rule aforesaid, where there are numerous persons having the same interest in one suit or one or more of them may with the permission of the Court, sue or be sued or defend on behalf of all of them. 11. Sub-rule (2) of Rule 8 of Order 1 aforesaid provides for issuance of notice of the institution of the suit, which is not merely empty formality but peremptory, sine qua non and an essential prerequisite. 12. It is the duty of the Court which take proceedings under Order 1 Rule 8 CPC, to see carefully that proper notices are issued which would give proper information to the persons, interested in the suit so that they might apply for becoming parties. It is also the duty of the Court to see that notices where they are published are printed in such a Paper that the persons interested are likely to read it. This is very - 12 - necessary as decisions in such suits become resjudicata even against persons who were not on the record but who get bound by virtue of proceedings under Order 1 Rule 8 of the Code of Civil Procedure. In the instant case, the provisions of Order 1 Rule 8 (2) C.P.C. were not complied with. 13. Therefore, when the provisions as to notice in Order 1 Rule 8 CPC are not substantially complied with and a decree is passed, the proper order to be passed on appeal would be to set aside the decree and remand the case to be proceeded with according to law after effecting proper service on the defendants in conformity with the said provisions of Civil Procedure Code. [ See Bishan Singh Kala Singh and others v. Mastan Singh Sarup Singh and another [AIR 1960 Punjab 26]. 14. Thus, against the above stated factual position and the law, the judgment and decree passed by the learned trial Court are unsustainable, therefore, set-aside. The appeal filed by the plaintiffs- appellants is allowed and - 13 - the case is remanded back to the learned District Judge, Bilaspur, who shall take up the case himself or may send it to the competent court having pecuniary jurisdiction to try the matter from the stage the order dated 11.8.1994 on OMP No.181 of 1994 was passed. The appellants- plaintiffs shall furnish the list of the proprietors of village Dhobetta, for whose benefit the suit has been filed and also the list of the proprietors of the community against whom the relief is sought to serve them through beat of drum, proclamation and by affixing the hand-bills and notices as also the copies of the amended plaint on a conspicuous part of the village like Panchayat Ghar, Patwar Khana, Schools, Post Office and other public places. As the permission to file the suit and to defend the same by the defendants through defendants No.1 to 3 has already been accorded vide order dated 11.8.1994 aforesaid and notices to defendants 1 and 3 be also again sent including the legal representatives of defendant No.2 indicating the mode of service to be adhered to, for the - 14 - summoning of the parties involved in the instant suit for their appearance on the date to be fixed by the learned District Judge. 15. It is clarified that if any of the parties whether plaintiffs or defendants to whom the permission to sue or be sued stood granted, are either not available or have died, the learned Court shall be at liberty to permit / implead any of the person, who comes forward as plaintiffs or defendants as the case may be 16. The plaintiffs-appellants shall take appropriate steps for the compliance of this order within the time to be fixed by the learned District Judge. 17. The parties are hereby directed to be present before the learned District Judge, Bilaspur on 21.2.2011. 18. Cost on parties. Send down the records. December 28, 2010. (Surinder Singh), (Pds) Judge