T.S. Misra, J.
1. This is a defendant's appeal arising out of a suit for injunction to restrain the defendants from selling or cutting the trees or transferring or otherwise disposing of the crops of the land in suit. The plaintiffs alleged that the Hindu community of Sitapur was the owner of plot No. 134 under an old grant which contains the temple of Mahabir Ji and Thakur Ji. The plaintiffs further alleged that they ware members of the Hindu community of Sitapur and constituted a committee for the management of the said temple and fond. The defendant was acting as Pujari of the temple on behalf of the Hindu community. He, however, threatened to sell or cut down the trees and appropriate the proceeds thereof. The plaintiffs and other members of the Hindu community tried to dissuade him from doing the said acts but he refused to listen to reason, hence the suit was filed for the said reliefs. It was allied in the plaint that the suit was being instituted on behalf of the Hindu community. The defendant contested the suit on the ground, inter alia, that the land in dispute did not belong to the Hindu community but belonged to him and that in any view of the matter the suit without the permission of the Advocate-General was not maintainable. The trial court having found that the property in dispute did not belong to the Hindu community, dismissed the suit. Against the said decision the plaintiffs preferred an appeal. The appellate court below, however, reversed the finding of the trial court and held that the property in dispute was owned bythe Hindu community and that the plaintiffs were entitled to maintain the suit. On these findings the appellate court below allowed the appeal and decreed the suit. Aggrieved the defendant has now come to this court in second appeal.
2. The learned counsel for the appellant pressed only one point before me namely, that the frame of the suit was bad inasmuch as the suit had not been filed in a representative capacity and that the permission of the trial court under Order 1, Rule 8, Civil Procedure Code had not been obtained by the plaintiffs.
3. It appears that on 28-3-1961 the plaintiff filed an application praying that permission to sue under Order 1, Rule 8, Civil Procedure Code be accorded to him. It was alleged by the plaintiffs in that application that the suit had been filed by them in a representative capacity and all the members of Hindu community are interested in the suit and that permission of the court under Order 1, Rule 8, Civil Procedure Code was necessary. On this implication the trial court ordered on 28-3-1961 that a notice be published in 'Krishak' newspaper. It appears from paper No. 130-2 that a sum of Rupees 12/- towards the charges for publication of that notice was paid to 'Krishak'. Thereafter, the notice was published in 'Krishak' on 10-4-1961 vide paper No. 16/1 Ka. 2. In this notice it was mentioned that an application under Order 1, Rule 8, Civil Procedure Code had been moved by the plaintiffs as representatives of the Hindu community and if any one had any objections to the same he might file the objections by 13-4-1961 in the Court.
The learned counsel for the appellant could not point out from the record of the case that any objection was filed by any person against the said application moved under Order 1, Rule 8, Civil Procedure Code. It, however, appears that the trial court thereafter did not make any specific order granting or refusing the permission sought for. The learned counsel for the appellant urged that in the absence of specific permission of the Court under Order 1, Rule 8, Civil Procedure Code the plaintiffs were not entitled to maintain the suit in a representative capacity. The learned counsel for the respondent, however, urged that it was not necessary under the law that permission should be expressly accorded. It was submitted that permission could be inferred from the proceeding in the trial court and that the court must be deemed to have given its permission when it ordered publication of notice.
4. Rule 8 of Order 1 of the Code of Civil Procedure enables a person to file a suit in a representative capacity for and on behalf of the numerous persons where they have the same interest. The only condition is the permission of the court. If the court grants permission to one person to institute such a representative action a notice of the institution of the suit should be given by the court. The provision, which requires that the court shall, in such a case, give, at the plaintiffs' expense, notice of the institution of the suit to all persons having the same interest and the power reserved to the court to entertain an application from any person on whose behalf or for whose benefit the suit is instituted, indicate that no previous sanction or authority of persons interested in the suit is required to be obtained before the institution of the suit. As the other persons who would be represented would be bound by the decree passed in the suit it is imperative that the two conditions provided in Rule 8 of Order 1, should be complied with, namely, (1) the permission of the court should be obtained and (2) the court should, at the expense of the plaintiffs, issue notice of the institution of the suit to all such persons either by personal service or where from 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. Thus, Order 1, Rule 8 requires that when a plaintiff brings a suit in his representative capacity he must first obtain the leave of the court to bring such a suit and when the leave is granted the court shall issue notice that such a suit has been instituted. The provisions of Rule 8 as to the issue of notice are peremptory and the court is bound to issue notice as required by the rule.
5. In the instant case the plaint was filed on 28th March, 1961. On the same day the plaintiffs filed an application for permission to sue under Order 1, Rule 8, Civil Procedure Code and the trial court passed an order on that application for publication of the notice in 'Krishak'. Thereafter a notice was published in the issue of 'Krishak' dated 10th April, 1961. It was mentioned in that notice that the plaintiffs had filed an application under Order 1, Rule 8, Civil Procedure Code as representative of Hindu community and if any person had any objection against the same he could file his objections by 13th April, 1961. In view of this statement contained in the notice it was quite evident that by passing an order for publication of the notice the trial court did not grant the permission under Order 1, Rule 8. On the contrary, the court gave an opportunity to all concerned to file objections against that application by 13th April, 1961. It was also mentioned in that notice that the case was filed for hearing on 13th April, 1961. Obviously, therefore, the court did not allow the application of the plaintiffs and grant the permission sought for by merely passing the order of publication of the notice. In fact the trial court wanted to dispose of that application on 13th April, 1961.It appears from the order sheet of the trial Court that on 13th April, 1961 the Presiding Officer was on casual leave and, therefore, no order was passed on that date on that application. Thereafter the application seeking permission to sue in a representative capacity was never placed before the trial court and no specific order was passed thereon. The trial court, obviously, improperly permitted itself to take up the case and record the evidence etc. It was the duty of the trial court to dispose of that application. Even before the appellate court it was not pointed out that the application of the plaintiffs dated 28th March, 1961, had not been disposed of and the permission of the court was wanting in the case. The plaintiffs had done what was expected of them. They filed the application 1101 seeking permission of the court under Order 1, Rule 8, Civil Procedure Code. They also complied with the order of the court for having the notice published in the Krishak and deposited the requisite publication charges. No final orders were, however, passed thereon but it appears that the parties proceeded with the case under the impression that the requisite permission under Order 1, Rule 8, Civil Procedure Code had been granted to the plaintiffs. Obviously, it is a case of negligence on the part of the trial court and no party to the suit should suffer on account of that negligence. The plaintiffs did make a statement in the plaint that they were filing the suit in a representative capacity. They also filed an application for obtaining the requisite permission of the court. Since no specific order was passed by the court on that application further action of giving notice of the institution of the suit was not taken.
It is well settled that omission to comply with the provisions of Order 1, Rule 8 is not a mere irregularity but goes to the root of the matter and if compliance of those provisions has not been made the decree would not be deemed to have been passed in a representative capacity. In the instant case the trial court before whom the application was made passed no order granting or refusing permission to the plaintiffs to sue in a representative capacity. The notice which was published in the 'Krishak' newspaper was not a notice of the institution of the suit but was a notice of the filing of an application under Order 1, Rule 8. Even after the date mentioned in the notice no order granting or refusing permission to the plaintiffs was passed. It would, thus, appear that compliance of the provisions of Order 1, Rule 8 had not. been mode in the case. The trial court dismissed the suit on the around that the property in dispute did not belong to the Hindu community. The appellate court however, reversed that finding and held that the property did belong to the Hindu community and the plaintiffs were competent to bring a suit on behalf of the Hindu community. However, the mandatory provision of Rule 8 of Order 1, as pointed out above, had not been complied with inasmuch as no notice of the institution of the suit was given in the manner contemplated by that rule. The object of the notice required by Order 1, Rule 8 is to give an opportunity to the persons interested in the suit of knowing the names of the persons who have been selected to represent them. Such a notice must, therefore, mention the fact that the plaintiffs have been accorded permission to represent the Hindu community in the suit. The notice already published in the 'Krishak' did not mention this fact and was therefore, not in compliance with the provisions of Rule 8 of Order 1, Civil Procedure Code. I have, therefore, no option but to allow the appeal, set aside the judgment and decree passed by the appellate court below and to remand the case to the trial court through the appellate court. The trial Court on remand should re-admit the suit, dispose of the plaintiff's application 1101, comply with the provisions of Order 1, Rule 8. Civil Procedure Code and then proceed with and re-try the suit.
6. I, therefore, order that the case will go back to the appellate court so that it may remand the case in the terms and for the purpose I have explained above and thereafter the case will be proceeded with according to law. In the circumstances of the case the parties arc directed to bear the costs of this appeal.