1. The appellants-plaintiffs brought a suit in the representative capacity on behalf of all the members of the Christian community owing allegiance to the Organisation called the 'United Basel Mission Church in India' (U. B. M. C. I) for a declaration that the resolution of the District Church Council of the U. B. M. C. I. passed in May 1958 that the churches in Bombay-Karnataka area should join in the Church of South India (C. S. I.) was void and ultra vires of the Constitution and powers of the District Church Council of U. B. M. C. I and not binding on the plaintiffs. The suit was also for a consequential relief of permanent injunction restraining the defendants 1 and 2 from convening the meetings of the District Church Council or the North Karnataka Pradeshik Council and also restraining them from operating the accounts of the District Church funds, etc. The trial Court accepted the contentions of the plaintiffs and decreed the suit,
2. Defendants 1 and 2 being the President and Treasurer of the District Church Council of U. B. M. C. I. preferred Regular Appeal No. 99 of 1963 in the Court of the Civil Judge, Bijapur. In the appeal counsel on both sides argued only two preliminary points, both related to the maintainability of the suit without going into the merits of the matter. The learned Judge accepted both the consortiums and allowed the appeal dismissing the suit.
Hence, the plaintiffs appeal to this Court.
3. The first question relates to want of territorial jurisdiction of the trial Court to entertain the suit. The learned Judge has stated thus:
The suit was filed in the Court of the Additional Munsiff, Bijapur. The cause of action for the suit as stated in the plaint was the passing of the resolution dated 22-5-1958 by the District Church Council of U. B. M. C. I. at Hubli. But defendants 1 and 2 were then residing at Hubli which remained outside the jurisdiction of the Munsiff Court, Bijapur. That there were the no averments in the plaint that the said resolution was enforced at Bijapur and therefore, the plaintiffs at Bijapur had no cause of action and the Munsiff Court at Bijapur had no jurisdiction to entertain the suit.
4. It seems to me that the learned Judge has taken a too narrow view of the matter. The cause of action as it is well accepted, is a bundle of essential facts and refers entirely to the media upon which the plaintiffs ask the Court to arrive at the conclusion in their favour. If one peruses the entire averments in the plaint, it is evident that the plaintiffs were aggrieved by the impugned resolution dated 22-5-1958 passed at Hubli. The effect of the resolution was that the Churches in Bombay-Karnataka area were compulsorily affiliated to 'Church of South India' which had absolutely no connection with the U. B. M. C. I. and the faith and order of the members of the two organisations were quite different from each other. The plaintiffs could not be compelled to change their faith even by the District Church Council of U. B. M. C. I. and therefore any action of the District Church Council of joining a new organisation in the entire Bombay-Karnataka area, would be void and ultra vires of the Constitution and powers. The substance of these allegations was that the plaintiffs must join the C. Section 1 whether they like it or not. Having regard to these averments in the pleadings, it cannot be said that the plaintiffs have no cause of action at Bijapur to sue defendants 1 and 2 although the defendants were residing outside the territorial jurisdiction of the trial Court.
5. Even otherwise, objection as to territorial jurisdiction cannot be allowed by the appellate Court unless such objection has been raised in the trial Court before the issues were settled and unless it was shown that there has been a consequent failure of justice. That is the requirement of Section 21 of the Civil P. C. The defendants' objection as to jurisdiction was rejected by the trial Court. They have adduced evidence on all the issues. They have not shown in the appellate Court how they have been prejudiced in the trial Court. In the absence of such prejudice which must result in failure of justice, the appellate Court cannot interfere with the decision of the trial Court on the ground of want of jurisdiction.
6. The second point formulated by the appellate Court was whether the suit was barred under Section 11, Order 23 (3) and Order 9 Rule9 of the Civil P. C. in view of the order passed in Order Section No. 144/59. Order Section No. 144/1959 was also a suit filed in the Court of the Civil Judge, Senior Division Hubli, in a representative capacity for a declaration that the impugned resolution dated 22-5-1958 was void and not binding on them. That suit was dismissed on 10-7-1971 as per the joint memo filed by the Advocates for the parties therein. The joint memo provided thus:
'The plaintiffs and defendants in this case request the Court to dismiss the suit without order as to costs as the parties have amicably settled the dispute between them out of Court.'
The Court, accordingly, dismissed the suit. The Court had not recorded the compromise said to have been arrived at by the parties. The compromise, as I understand, was only to get the suit dismissed without anything further. On these facts, the lower appellate Court has stated that the dismissal of that suit was a bar to file another suit.
I am unable to agree with that view. It is doubtful whether such an order would fall under Order XXIII Rule 3 of the Civil P. C. as the Court bad not recorded any such compromise. Assuming for a moment that such order also would fall within the scope of Order 23 Rule 3, as the suit was in the representative capacity, the said compromise wag not recorded in accordance with the procedure provided under Order XXIII Rule 3 of the Civil P. C. as amended by Karnataka State. The amended sub-rule provides that the Court in a representative suit shall not proceed with the consideration of a compromise or to pass a decree in accordance therewith without first giving notice of the application for recording such compromise in the manner prescribed in Sub-rule (3) of Rule 8 of Order 1 for giving notice of the institution of such suit. This is in accordance with the declaration of law made by Bombay High Court in Asian Assurance Co. v. Madholal : AIR1950Bom378 . Chagla, C.J. speaking for the Court observed at page 380:
'It is perfectly true that the Court can give its consent to the compromise or withdrawal of a representative suit. But normally the Court does not do so without directing that the plaintiff should advertise in the papers that he proposed to take a particular course of action, and if no objection is forthcoming then the Court ordinarily passes the order.'
It is not shown in the instant case that O. S. No. 144 of 1959 was withdrawn or got dismissed after following the aforesaid procedure. Therefore, the dismissal of that suit is no bar to institute the present suit.
The appellate Court has also stated that the present suit has been barred by Order IX Rule 9 of the Civil P. C. I fail to understand how that rule is applicable to the facts of the present case. Order IX Rule 9 is attracted when a suit is dismissed under Order IX Rule 8, that is, where the defendant appears and the plaintiff does not appear when the suit is called on for hearing. It is nobody's case that O. S. No. 144 of 1959 was dismissed under Order IX Rule 8. Therefore the decision of the appellate Court cannot be upheld.
7. In the result, the appeal is allowed. The Judgment and decree of the appellate Court are set aside, with a direction to rehear the appeal and dispose of the same on merits, and in accordance with law.
8. Appeal allowed.