1. This is a plaintiffs' appeal against a judgment and decree of the learned Senior Subordinate Judge of Garhwal dismissing the suit on the preliminary ground that it was barred by the doctrine of res judicata. The suit was a representative suit brought on behalf of all the members of the Deoprayagi Panda community of Badrinath and an application for permission to sue in a representative capacity was made to the Court below under Order 1. Rule 8, Civil P.C., and was granted. The reliefs as they ultimately stood after amendment are to be found at p. 6 of our paper book. The plaintiffs prayed for a declaration : (1) that they were the Pandas of Badrinath temple and had a right to go into the precincts of the temple at all times and on all occasions without obstruction, when the temple was open with the object of obtaining 'darahan' of the deity; (2) that they had a right freely to go into the precincts of the temple with their jajmans or clients, whenever it was open, for assisting the clients in the matter of darshan' and worship; (3) that they had a right to accept within the precincts of the temple whatever was put into their hands as a gift to them by their clients inside the sacred precincts of the temple at the time of the 'darshan' worship, etc. It was further prayed that a perpetual injunction be issued to the Rawal of the temple restraining him from interfering with these immemorial rights of the plaintiffs. As we have stated above, the only issue which the Court below has tried is that of res judicata and holding in favour of the defendant on that point, it has dismissed the suit.
2. The litigation on which reliance was placed by the defendant for his plea of res judicata was commenced in 1895 by five persons, Dharam Datt, Laxmi Dhar, Balmukand, Ram Prasad and Laxmi Narain who described themselves as Panch Deoprayagi. It was a suit filed on 19th August of that year in the Court of the Deputy Collector of Garhwal and was numbered as Suit No. 345 of 1895. In that plaint the claim was stated to be one for restoration of the old rights of taking pilgrims inside the temple of Badrinath for purposes of 'darshan' and it was stated that the cause of action for the suit had arisen when Maharani Debas and her retinue were taken for purposes of 'darshan' in the temple and the defendants of that suit had prevented the plaintiffs from going inside the temple. That suit had been decreed by the trial Court, but was dismissed by the first Appellate Court and that decision was affirmed by the second Appellate Court. It is pleaded by the defendant in the present suit that the decision in that suit of 1895 operates as res judicata in the present suit. It is admitted that no application under Section 30 of the Code of 1882, which corresponded to what is now Order 1, Rule 8, was ever made and that no notices were issued and no permission to sue in a representative capacity was granted by the Court.
3. As a matter of fact, it is clear that the provisions of Section 30 of the Code of 1882 were not even thought of during the whole course of that litigation which was started on 19th August 1895. It is argued, how ever, on behalf of the defendant respondent that that suit should be taken to have been filed in a representative capacity by the five plaintiffs, even though there was no such allegation in the plaint of that suit, and further that the omission to take the steps enjoined by Section 30 of the Code of 1882 should be regarded as mere inadvertence and should not be held to prevent the decision in that suit from operating as res judicata in the present suit. Learned Counsel for the plaintiff-appellants has placed before us the decision of their Lordships of the Privy Council in Kumaravelu Chettiar v. Ramaswami Ayyar and has contended that in view of that decision of their Lordships it must be held that the decision of the Court below that the present claim is barred by res judicata is erroneous. In our judgment this contention is well founded. In the first place, after going through the plaint and the judgments of the suit of 1895 and certain other documents which, though not printed, have been typed by the defendant respondent, we see no justification for the contention that the Suit No. 345 of 1895 was or purported to be a representative suit. The mere fact that the five persons who filed that suit belonged to the Deoprayagi Community, or that they styled themselves as Panch Deoprayagi, cannot in our opinion make it a representative suit. The claim put forward was one on behalf of the per-sons who were suing as plaintiffs and was based on a personal right which those plaintiffs claimed for themselves. In the second place even if the plaintiffs in that suit had purported to sue in a representative capacity, the omission to follow the provisions of Section 30 of the Code of 1882, as held by their Lordships in the case mentioned above, would deprive the decision in that suit of all binding force so far as people who were not parties to that suit are concerned. Their Lordships of the Privy Council in the course of their judgment, after quoting and commenting upon the English Order 16, Rule 9, and Order 1, Rule 8, Indian Civil P.C. at p. 286 of the report analyse the provisions of the latter and observe:
The direction o all these matters, in striking contrast to the English rule, is placed in the hands of the Court, and the obtaining of the judicial permission and compliance with the succeeding orders as to notice, are, as it seems to their Lordships quite clearly the conditions on which the further proceedings in the suit become binding on persons other than those actually parties thereto and their privies.
4. Their Lordships approve of the dictum of Amir Ali J. in Baiju Lal Parbati v. Bulak Lal Pathuk (1897) 24 Cal. 385 at p. 390:
The effect of Section 30...is that unless such permission is obtained by the person suing or defending the suit, his action has no binding effect on the persons whom he chooses to represent,
and of the dictum in Srinivasa Chariiar v. Ragava Chariar (1900) 23 Mad. 28:
If the course prescribed by Section 80 is not followed in the first case...the judgment does not bind those whose names are not on the record.
5. Proceeding further, their Lordships at page 291 of the report make these observations:
But even if it be assumed that the original suit was a representative suit governed by Section 30, but one which was prosecuted without leave of the Court and with no notice given of its institution, either as required by the Section or at all, then the very serious question arises whether the decree in such a suit is brought within Section 13, Expln. 5 of the Code of 1877 which deals with the plea of res judicata.
6. Their Lordships then quote and discuss Expln. 6 to Section 11 of the present Code and explain the reasons why the words 'a public right or of' were introduced into that Explanation, and finally overrule the view taken by the Full Bench of the Madras High Court against which the appeal before their Lordships was directed to the effect that:
Explanation 6 is not controlled by Order 1, Rule 8, and if a Court allows a suit to which the rule applies to proceed in a representative capacity for the benefit of numerous parties all these parties will be bound by the decree, if the contest leading to it were bona fide, even although the procedure prescribed by the rule was in no respect followed.
7. In view of this definite and unambiguous pronouncement of their Lordships of the Privy Council, we do not find it possible to uphold the decision of the Court below. This ruling was brought to the notice of the learned Judge below. He however thought that certain observations of their Lordships towards the end of their judgment justified him in coming to the conclusion that the present suit was barred by res judicata although the provisions of Section 30 of the Code of 1882 had not been complied with in the suit of 1895. Now, the passage in the judgment of their Lordships to which the learned Judge refers is to be found at p. 295 of the report and is this:
While however their Lordships are of opinion that the conclusion they have reached on this important question is justified even on the wording of the Explanation, they are by no means unconscious of the difficulties pointed out by the High Court of Madras in Gopalcharyulu v. Subbamma (1920) 7 A.I.R. Mad. 568 and they would not exclude the possibility of a decree being within the benefit of the Explanation where the litigation having been bona fide the omission to comply with the conditions of the rule has been inadvertent, and no injury from the omission has been sustained by the plaintiff in the second suit.
8. Now, in Gopalcharyulu v. Subbamma (1920) 7 A.I.R. Mad. 568 what had happened was this. A suit had been filed in 1901 by two, out of many, agraharamdars against the Receiver and the zamindar of an estate for a declaration that the Receiver was entitled to Kattubadi only at the rate of Rs. 550 per annum on a certain agraharam. The other agraharamdars were also joined as defendants pro forma, one of them being a lady called Rukmaniamma who was defendant 6. The Eeceiver con. tested the suit and contended that the zamindar was entitled to a higher amount of Kattubadi, viz. Rs. 714-14-0 per annum. The trial Court decreed the suit in favour of the plaintiffs. The Receiver appealed to the District Court and there was also a second appeal to the High Court which remanded the appeal to the District Court for fresh disposal. In these proceedings the agraharamdars, who were pro forma defendants in the suit, were also evidently impleaded as respondents, among them being the lady Rukmaniamma. The District Judge on remand, decided in favour of the contesting defendant-appellant before him, and passed a decree on 1st December 1910, declaring that the correct amount of the Kattubadi was Rs. 714-14.0 per annum. The plaintiffs preferred a second appeal to the High Court against this decree, and evidently impleaded not only the contesting defendant but also the pro forma defendants, among whom was Rukmaniamma. This second appeal of the plaintiffs was dismissed and the decision that the correct amount of the Kattubadi payable by the agraharamdars was Rs. 714-14-0 per annum was upheld. At some stage or another of the pendency of the Receiver's appeal in the District Court, the pro forma defendant-respondent, Rukmaniamma died and the Receiver did not bring on her legal representatives, and her name remained on the record. When the plaintiffs filed their second appeal in the High Court against the decree of the District Court of 1st December 1910, they also did not implead the legal representatives of Rukmaniamma but allowed the name of that deceased lady to continue to appear. In 1914, the Receiver of the estate instituted the suit, out of which the second appeal in which the ruling under consideration was given arose, for recovering Kattubadi due for certain years at the rate declared in the previous suit, viz. Rs. 714-14-0 per annum. The suit was brought against the agraharamdars, one of whom Madhabushi Gopalaeharyulu, defendant 10, claimed to be the legal representative of Rukmaniamma, deceased. The plaintiff, the Receiver of the estate, contended that the decision as to the amount of Kattubadi in the previous litigation was res judicata in this suit. Defendant 10 mentioned above however pleaded that it was not res judicata as the legal representatives of Rukmaniamma, under whom he claimed, had not been brought on the record. Both the lower Courts held that the decision in the former suit was res judicata and decreed the Receiver's suit for recovery of Kattubadi at the rate claimed, viz. the rate declared in the previous litigation, Rs. 714-14-0 per annum. The High Court affirmed that decision. The learned Chief Justice, with whom the other learned Judge, Spencer J. agreed in dismissing the second appeal, after discussing the provisions of Expl. 6 to Section 11 and those of Order 1, Rule 8 of the Code and certain rulings, observed at p. 495 of the report that it could not be said that the plaintiff's litigation in the earlier suit was otherwise than bona fide within the meaning of Section 11. The learned Chief Justice proceeded:
He impleaded all the other agraharamdars as defendants, including Rukmaniamma through whom the present defendant 10 claims, and they remained ex parte. When she died after being impleaded as a respondent in defendant 1's appeal to the District Court and before the hearing of the appeal, the failure to bring on record her legal representatives was due to the default of the other side. When the plaintiff appealed to this Court from the decree of the District Court, the fact that he did not implead the representatives of the deceased defendant 6 who had been ex parte in the first Court and whose legal representatives had not been brought on by the other side in the District Court, cannot in my opinion be said to constitute such a want of bona fides as to render the Explanation inapplicable. On this ground therefore I would support the Subordinate Judge's finding that defendant 10 in this suit who claims through defendant 6 in the previous suit, is bound by res judicata....
9. It is clear that the facts and circumstances of that case were peculiar and on those facts it was decided that the decision in the previous suit operated as res judicata. It will also be noticed from the observations of the learned Chief Justice at pp. 490 and 491 of the report that the Court took the view that the two agraharamdars who had brought the previous suit were litigating on behalf of themselves and the other agraharamdars, that the decree which they had obtained in the trial Court had been obtained by them on behalf of the other agraharamdars, including Rukmaniamma, as well as their own, and that the relief which those plaintiffs had claimed had been claimed on behalf of the other agraharamdars including Rukmaniamma. As we have explained above, that is not the position here. The suit of 1895, which is relied upon by the defendant, respondent, was on behalf of the five plaintiffs named, in their individual capacity and for their own benefit, and was not on behalf of or for the benefit of, anybody else. In our judgment the learned Judge below has erred in appreciating the true import of the observations of their Lordships of the Privy Council on which he purports to rely and which we have quoted above. All that their Lordships meant to say was that it was possible to conceive of cases in which the facts were of a peculiar nature and that therefore
they would not exclude the possibility of a decree being within the benefit of the Explanation where the litigation having been bona fide the omission to comply with the conditions of the rule had been inadvertent, and no injury from the omission has been sustained by the plaintiff in the second suit.
10. The learned Subordinate Judge evidently failed to notice the sentences immediately following the passage on which he places reliance. Those sentences are these:
But it is, their Lordships think, imperative to have it recognized that the burden upon a defendant seeking a ruling to that effect is heavy indeed. No encouragement should, they think, be offered to litigants, if they would obtain the full benefit of Order 1, Rule 8, to be careless in securing full compliance with the conditions of the rule, both in the letter and in the spirit.
11. The learned Subordinate Judge has remarked that the part of the country where this case has arisen is mountainous, that the condition of the people there is backward and that in those parts there were few legal practitioners before 1910. These circumstances in our opinion cannot furnish any ground for ignoring the imperative directions contained in Order 1, Rule 8 of the Code. We may again refer to the judgment of their Lordships in Kumaravelu Chettiar v. Ramaswami Ayyar where also the point had evidently been urged that the former suit having been filed in 1877, which was the year when the Legislature for the first time dealt with the subject of representative suits in the Civil Procedure Code of that year, the provisions on the subject were 'only dimly appreciated by the pleaders.' Their Lord-ships did not attach any importance to that contention. In the case before us the former suit had been filed long after 1877 and long after 1882 when the Civil Procedure Code was again consolidated and amended. We are therefore of opinion that the view taken by the Court below is incorrect. For the reasons given above, we allow this appeal, set aside the decree of the Court below and remit the case to that Court for trial of the other issues arising in the case. The appellants will have their costs of this appeal. The costs in the Court below will abide the result.