IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 57 of 2002. Date of decision: November 10, 2010. Jumla Jamidaran of village Akpa & Others. …. Appellants. Versus Jumla Jamidaran of village Jangi & Others. …. Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1Yes. For the appellants : Mr. Ajay Kumar, Advocate. For the respondents : Mr. G.D. Verma, Sr. Advocate with Mr. B.C.Verma, Advocate. Surinder Singh, J (oral) : Defendants are in appeal against the judgment and decree passed by the learned District Judge in Civil Suit No.1 of 2000 decided on 24.12.2001. 2. Heard and gone through the record. 3. As a matter of fact, the respondents herein filed a suit in the trial Court for declaration with a consequential relief of permanent injunction in 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - the representative capacity against the proprietors of the revenue estate of village Akpa of Tehsil Moorang. The case of the plaintiff- respondents has been that both the parties to the lis were exercising the customary rights of collecting Chilgoza fruit, timber, grass, firewood and also grazing cattle from C.No.227 and undemarcated protected forest in its vicinity. The respondents contended that at the time of last settlement in the year 1984-85, the area of C.No.227 and the aforesaid undemarcated protected forest was measured for the first time and the residents of village Jangi i.e. the plaintiff- respondents had been exercising the aforesaid customary rights upto ‘Suka Nallah’ which was also known as ‘Kum Dung Nallah’ in between milestone Nos.158 and 159 of both the sides of old Hindustan-Tibet road, right down upto river Sutlej through boundary pillar No.263, whereas, proprietors of the revenue estate of village Akpa had been exercising similar rights in C.No.227 and undemarcated protected forest in the vicinity of village Akpa from different milestones bearing - 3 - No.157 and 158 on both sides of old Hindustan- Tibet road, right down upto river Sutlej through boundary pillar No.263. It is alleged that during the last settlement, the appellants unauthorizedly and illegally started claiming extended area of C. No.227 and undemarcated protected forest in its vicinity from their village Akpa upto Thithridhar. The rights of the proprietors in C. No.227 and in undemarcated protected forests in its vicinity for the first time were determined at the time of first forest settlement of Sutlej Valley ‘Bushahr-State’ in the year 1890-91. It is alleged that during the settlement in the year 1984-85, Niab-Tehsildar, Settlement, Akpa conducted a summary inquiry and based upon its report, the Settlement Collector passed an order dated 7.3.1986 determining the boundaries of the parties qua C. No. 227 and undemarcated protected forest in the vicinity in a different way as contained in the plaint, to the prejudice of the plaintiff- respondents. Thus, sought the declaration to the effect that the proprietors of revenue estate Jangi had been exercising the various customary - 4 - rights over C. No.227 and undemarcated protected forest described in Khasra Nos.702, 703 and 398 measuring 122-88-01 hectares in Up- Mahal Akpa, Tehsil Moorang with consequential relief of permanent prohibitory injunction against the defendants-appellants. 4. Initially the suit was filed before the Senior Sub Judge, Kinnaur at Reckong-Peo. It was returned to be filed in the appropriate Court on the point of pecuniary jurisdiction, as such the suit was instituted before the learned District Judge. 5. The plaintiff-respondents alongwith the suit also filed an application under Order 1 Rule 8 of the Code of Civil Procedure, seeking permission to institute a suit in the representative capacity on behalf of the proprietors of revenue estate Jangi, Tehsil Moorang i.e. the plaintiffs. In the same application they also sought the similar relief against the appellants-defendants i.e. the proprietors of the revenue estate of village Akpa. Lists of the proprietory body of both the villages were also attached alongwith the said application. - 5 - 6. Vide order dated 22.2.2000, the learned District Judge ordered to issue notice of this application to all the proprietors of revenue estate Jangi as per list attached inviting their objections, if any, as to why the present plaintiffs- respondents be not allowed to sue in the representative capacity and the notice to such effect was got published in Hindi daily ‘Divya Himachal’ and also by beat of drum in the locality, returnable for 24th April, 2000. But the record reveals that no such notice was issued to the proprietors of village Akpa. 7. The matter was taken up on 24th April, 2000. The learned trial Court passed the following orders: “24.4.2000 Present: Sh.K.C. Bansal, Advocate, counsel for the plaintiff. Defendants No.1 and 2 in person. S/Shri Sher Singh and Dawa Chhering proprietors of Akpa are also present. These 2 persons and several others were sought to be sued through defendant No.1, Gopal Singh and defendant No.2, Govind. The plaintiffs had - 6 - instituted the suit in representative capacity on behalf of proprietors of revenue estate, Akpa. Notice against the defendants and all the proprietors against whom the suit was sought to be instituted and the proprietors of village Jangi had been published in Hindi daily Divya Himachal of 15.3.2000. None has opposed application under Order 1 Rule 8 C.P.C. of the plaintiffs. As such, the application is allowed. The plaintiffs No.1 to 3 are permitted to institute the suit in representative capacity on behalf of the villagers of village Jangi against all the villagers of village Akpa. Written statement be instituted on 25.5.2000.” (Emphasis supplied) 8. The perusal of the order aforesaid makes it clear that the notice of this application under Order 1 Rule 8 of the Code of Civil Procedure was neither issued nor served upon the proprietors of village Akpa, whose names find mentioned in the list at page-104 of the trial Court file. Even there is no order passed by the learned trial Court whether the defendants-appellants - 7 - Gopal Singh and Gobind were ever permitted to represent the proprietory body of village Akpa. 9. 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. (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 - 8 - 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 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 - 9 - 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.” 10. 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 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 - 11. 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. 12. 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. 13. 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 necessary as decisions in such suits become res judicata 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 - 11 - Civil Procedure. In the instant case, the notices were not given/ issued to the defendants- appellants (the proprietors of village Akpa). 14. Therefore, when the provisions as to notice in Order 1 Rule 8 CPC are not substantially complied with and a decree is passed in favour of the plaintiffs, 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 provisions of Civil Procedure Code. [ See Bishan Singh Kala Singh and others v. Mastan Singh Sarup Singh and another [AIR 1960 Punjab 26]. 15. Thus, against the above stated factual position and the law, the judgment and decree passed by the learned trial Court are unsustainable, as such set-aside. The appeal is allowed and the case is remanded back to the learned District Judge, who shall take up the case himself or may send it to the competent court having pecuniary jurisdiction to try the matter from the earlier stage and determine the same in - 12 - accordance with law after effecting proper service of the application under Order 1 Rule 8 CPC upon the proprietory body of village Akpa in the light of the observations made hereinabove. 16. The parties are hereby directed to be present before the learned District Judge Kinnaur at Rampur Bushehar on 2.12.2010, when the Court will give them another date for further proceedings in the matter in view of the above directions. 17. Status quo granted on 23.7.2002 by this Court shall stand vacated. Cost on parties. Send down the records. November 10, 2010. (Surinder Singh), (Pds) Judge