H.G. Mishra, J.
1. This is second appeal by the plaintiff against judgment and decree dated 11-9-1973, passed by the Second Additional District Judge, Indore, whereby appeal preferred against judgment and decree passed by the trial Court on 22-4-1963, has been dismissed on the ground that it is not properly constituted.
2. Facts essential for decision of this appeal are as under: That Smt. Saraswatibai, the plaintiff-appellant, instituted a civil suit in the Court of Civil Judge (Class II), Indore, on 7-7-1954 against Durga Sahai and his son Matadin for recovery of possession and mesne profits in respect of two rooms forming part of a house Municipal No. 27 (old No. 311 situate at Sanyogita Ganj, Indore. This house is popularly known as 'Gopal Mandir'. The suit was based on title and was brought on the allegation that defendant Durga Sahai was inducted in as a tenant by the plaintiff on payment of Rs. 5 as monthly rent. After some time, Durga Sahai began to render service in the aforesaid temple as a Pujari in lieu of rent, but, now, he has begun to deny title of the plaintiff. Hence the suit. This suit was originally numbered as 700 of 1954. It was re-numbered as 222 of 1957.
3. Thereafter, the plaintiff-appellant instituted another suit in the same Court on 4-9-1954 against Durga Sahai and his son Matadin and also against 13 other persons. This suit was brought for issuance of permanent injunction restraining the defendant from interfering with the possession of the plaintiff over the suit house. In this suit also, the relief was claimed on the basis of title. This suit was registered as Civil Suit No. 918 of 1954 and was renumbered as 223 of 1957.
4. Durga Sahai and his son Matadin resisted the claim of the plaintiff-appellant in both the suits on identical grounds. It was contended by them, inter alia, that Durga Sahai is not a tenant of the plaintiff but is her adopted son. The adoption had taken place about 40 years prior to institution of the suit in accordance with a custom prevailing in their community (Vaishnav Agrawal Community) authorising a widow to take a son in adoption without express authority from her husband for the purpose. Accordingly, Durga Sahai is in occupation of the suit house as owner thereof. In the alternative, it was also contended that Durga Sahai has acquired title to the suit house by adverse possession and that the title of the plaintiff, if any, stood extinguished.
5. Other defendants in Civil Suit No. 223 of 1957 resisted the suit by filing separate written statements wherein they supported the case set out by Durga Sahai and Matadin-- defendants Nos. 1 and 2 -- and also took the plea that Gopal Mandir is a public religious endowment belonging to Vaishnava Agrawal Community.
6. Issues were framed in both the suits separately. It was thereafter that the defendants submitted an application for consolidation of both the suits. By order dated 13-11-1956, passed in Civil Suit No. 223 of 1957, the trial Court ordered consolidation of both the suits. Thus, Civil Suit No. 223 of 1957 stood consolidated with Civil Suit No. 222 of 1957. Thereafter, both the suits were tried together and parties led evidence in support of their rival contentions. After completion of the trial, the trial Court dismissed the case by one judgment and decree dated 22-4-1963 on the findings that (a) the said house does not belong to the plaintiff, but it belongs to the deity of Shri Gopal Krishna and that the temple is a public temple -- the plaintiff being only a Pujari thereof; (b) Durga Sahai--defendant No. 1 -- is duly adopted son of Bhuralal -- husband of Saraswatibai -- the plaintiff-appellant -- he having been taken in adoption by Saraswatibai in accordance with the aforesaid custom prevalent in their community; and (c) Durga Sahai is not a tenant of the plaintiff.
7. The plaintiff preferred an appeal against this judgment and decree. In this appeal, only Durga Sahai and Mafadin were impleaded as respondents and other defendants Nos. 3 to 15 were not impleaded as respondents.
8. On behalf of Durga Sahai and Mata-din, an objection was raised to the effect that on account of non-joinder of defendants Nos. 3 to 15 as respondents, the appeal is not properly constituted and deserves to be dismissed. This led the plaintiff-appellant to submit an application to join defendants Nos. 3 to 15 as respondents. This application was opposed by Durga Sahai and Matadin and was rejected by the Additional District Judge vide order dated 16-2-1965. Aggrieved by this order, the plaintiff preferred Civil Revision No. 139 of 1965. This revision was dismissed by this Court by order dated 3-11-1965. Thus, the order passed by the learned Additional District Judge rejecting application for leave to join defendants Nos. 3 to 15 as respondents attains finality.
9. Ultimately, the appeal was dismissed by the impugned judgment and decree on the ground that non-joinder of defendants Nos. 3 to 15 as respondents in the appeal is fatal to its maintainability.
10. Aggrieved by this judgment and decree, the plaintiff preferred this appeal on 21-2-1974. In this appeal, the appellant, without permission of the Court, impleaded defendants Nos. 3 to 15 as respondents. Durga Sahai and Matadin raised an objection about the impleadment of defendants Nos. 3 to 15. During pendency of the appeal, some of the respondents, viz., Ramniwas, Laxminarayan, Saduram and Ghisalal died. Accordingly, the plaintiff-appellant submitted an application for bringing their legal representatives on record along with an application for setting aside abatement and for condonation of delay in submitting an application for bringing their legal representatives on record. The defendants -- respondents Nos. 1 and 2 opposed these applications also. After hearing arguments on the aforesaid applications, this Court, by order dated 2-3-1978, directed as under:--
'Shri Mathur does not dispute this position and concedes that the names of respondents Nos. 3 to 15 deserve to be struck out from the array of parties. Their names are accordingly directed to be struck out. The memorandum of appeal shall be amended within ten days. The aforesaid applications are accordingly not pressed and hence rejected.'
In accordance with this order, the namesof respondents Nos. 3 to 15 were struckout.
11. The respondents Durga Sahai and Matadin filed an application (I. A. No.1777/78) dated 4-7-1978 praying for dismissal of the appeal on the ground that it is not properly constituted and suffers from the defect of non-joinder of original defendants Nos. 3 to 15 and/or their legal representatives who were necessary parties to the suit and for the same reason, necessary parties to the appeal. The plaintiff-appellant also submitted an application (I. A. No. 2000/78) dated 26-7-1978 for permission to implead the original defendants Nos. 3 to 15 and/or their legal representatives as respondents in the appeal. The decision on these applications was postponed. Accordingly, arguments on the aforesaid applications as well as on merits of the appeal were heard. Shri A. M. Mathur, learned counsel for the plaintiff-appellant, contended that (i) the order of consolidation of the suits was illegal. Accordingly, entire proceedings thereafter should be quashed and fresh separate trial of each suit should be ordered; (ii) in case, the order of consolidation is regarded to be valid, non-joinder of defendants Nos. 3 to 15 and/or their legal representatives in the appeal is not fatal to its maintainability; (iii) permission to join original defendants Nos. 3 to 15 and/or their legal representatives deserves to be granted; and (iv) in any event, on account of non-compliance of Order 1, Rule 8, C.P.C., the trial of the case on merits was without jurisdiction. As such, entire proceedings deserve to be set aside and the trial Court should be directed to secure compliance with the provisions of Order 1, Rule 8, C.P.C. and, thereafter, proceed with the trial of the case. Shri I. L. Barjatia, learned counsel for the defendants-respondents Nos. 1 and 2, argued in support of the impugned judgment and submitted that none of the contentions raised by Shri Mathur has any force.
12. Having heard the learned counsel for the parties, I have come to the conclusion that the appeal deserves to be dismissed.
13. The first contention advanced by Shri Mathur is that the order of consolidation of both the suits (i.e., Civil Suits Nos. 222 of 1957 and 223 of 1957) was illegal. This contention does not appear to have been raised and pressed before the Additional District Judge. Accordingly, it shall be presumed that it was waived and/or abandoned at the first appellate stage. There is no affidavit of the counsel who argued the first appeal to the effect that the point was raised but has not been decided by the learned Additional District Judge. Accordingly, the contention cannot be permitted to be raised at second appellate stage. Even otherwise, the contention is devoid of substance- The consolidation of the suits was initially opposed by the plaintiff, but at the stage of argument, the learned counsel for the plaintiff-appellant gave his (tacit) consent to consolidation. This is what has been staled by the trial Court in the order of consolidation passed on 13-11-1956 in Civil Suit No. 222 of 1957. Thus, the order of consolidation was passed with consent of the plaintiff. After consolidation, the proceedings became one and the parties led evidence which they chose to lead in support of their cases. Ultimately, the case was decided by one judgment and decree and the plaintiff was non-suited. After having gone through the trial and having led entire evidence, the plaintiff cannot be permitted to turn round and contend that the order of consolidation should be set aside and the suit should he tried de novo. No prejudice of any kind whatsoever has been shown to have been occasioned by the consolidation. Accordingly, the contention simply appears to have been advanced with the object of securing a re-trial of the case. As such, the first contention advanced by Shri Mathur does not merit acceptance and is hereby rejected.
14. This brings me to the second contention advanced on behalf of the plaintiff-appellant, viz., that non-joinder of original defendants Nos. 3 to 15 and/or their legal representatives is not fatal to the maintainability of the appeal. As stated above, by order dated 13-11-1956, the trial Court had passed an order of consolidation directing that Civil Suit No. 223 of 1957 stands consolidated with Civil Suit No. 222 of 1957. In view of this order of consolidation, Shri Mathur contended that it was not necessary for the plaintiff-appellant to have filed separate appeals and one appeal was good enough for challenging the judgment and decree ultimately in the case after consolidation. For the same reason, impleadment of defendants Nos. 3 to 15 as respondents in the appeal was not necessary. Consequently, when counsel for the appellant stated before the Additional District Judge that he does not want to press appeal so far as it pertains to Civil Suit No. 223 of 1957, the appeal did not cease to be maintainable. This argument though attractive on the face of it is also devoid of substance.
15. In the absence of a specific provision for consolidation in the Code of CivilProcedure, suits are consolidated under the inherent powers of the Court under Section 151, C.P.C After consolidation, there is only one case and the suit consolidated has no independent existence for trial, as held in Manohar Vinayak v. Laxman Anandrao Deshmukh (AIR 1947 Nag 248). Accordingly, after its consolidation with Civil Suit No. 222 of 1957, Civil Suit 223 of 1957 had no independent existence for trial. Both the suits were in fact tried in one trial and were disposed of by one judgment and decree.
16. As a logical corollary of the position of law enunciated in Manohar Vinayak's case (AIR 1947 Nag 248) (supra), after consolidation, one case came into being with 15 persons as defendants. Accordingly, when the lis was lifted from the trial Court to the first Appellate Court, parties who were necessary to the suit have also to be regarded as parties necessary to the appeal preferred against the judgment and decree rendered therein. The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding as held in Garikapati Veeraya v. N. Subbiah Choudhry (AIR 1957 SC 540). Accordingly, it was necessary for the plaintiff-appellant to have impleaded original defendants Nos. 3 to 15 and/or their legal representatives in the appeal.
17. This brings me to the question as to whether the effect of the statement of plaintiff's counsel in not having pressed appeal so far as it pertains to Civil Suit No. 223 of 1957, brings into play the doctrine of res judicata or not. In order that the doctrine of res judicata may come into play, one of the legal requirements is that there must be a suit which has been decided prior to the suit in question. If there is no decision in former suit as envisaged by Explanation I to Section 11, C.P.C., the doctrine of res judicata cannot come into play. In the case of Manohar Vinayak (AIR 1947 Nag 248) (supra), it has been held that--
'In order that a decision should operate as res judicata it should be quite independent of the proceedings to which it is pleaded as a bar. The principle of res judicata cannot apply in the same proceeding in which the decision is given and by parity of reasoning it cannot apply to the consolidated proceedings. When by consent of parties or by an order of the Court the two suits are consolidated they have no independent existence andnothing decided in one of the two consolidated suits can operate as res judicata if that decision was appealed against. This is because there are no two independent decisions. '
A reference to Manohar Vinayak's case (supra) was made in paragraph 19 in Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332), but their Lordships of the Supreme Court did not consider it necessary to express any opinion on the correctness of the view expressed therein. Accordingly, the view expressed by Hon'ble Division Bench deciding Manohar Vinayak's case (supra) holds water still and being a Bench decision, is kindling on me aS such, the contention advanced by Shri Barjatia, learned counsel for the defendants-respondents to the effect that as a consequence of non-pressing the first appeal so far as it relates to decision in Civil Suit No. 223 of 1957, the doctrine of res judicata comes into play, deserves to he rejected. In case it be held that the appeal so far as it pertained to judgment and decree in Civil Suit No. 222 of 1957 was maintainable in that event the judgment and decree in Civil Suit No. 223 of 1957 will begin to operate as res judicata precluding the Court from going into the question of title of the plaintiff to the suit property, because the decision in that suit in absence of any appeal, will be regarded to have attained finality and because title of the plaintiff to the suit house also stands negative thereby.
18. This brings me to the third contention, viz., that the appellant should now be permitted to join original defendants. Nos. 3 to 15 and/or their legal representatives. Application (I. A. No. 2000/78) has been submitted on behalf of the appellant whereby permission to join the other defendants and/or their legal representatives has been prayed for. This Contention too is devoid of substance in view of what has been held by this Court in Civil Revision No. 133 of 1965 decided on 13-2-1966; and in the present appeal vide order dated 2-3-1978. The attempts of the plaintiff-appellant to join the other defendants and/or their legal representatives in the first appeal as well as in this appeal having failed at earlier occasions the appellant has no right to regain what has been lost to him. I. A. No. 2000/78 appears to be another attempt to save the appeal. No case has been made out by the appellant for grant of the requisite permission either in exercise of powers vested in this Court under Order 41. Rule 20 orOrder 41, Rule 20 read with Section 107 and Order 1, Rule 10, C.P.C. Accordingly, I.A. No. 2000/ 78 deserves to be rejected and is hereby rejected.
19. It is law well settled that the provisions of Order 1, Rule 8, C.P.C. are of mandatory character. Objection regarding non-compliance of the provisions of Order 1, Rule S, C.P.C, can also be raised at any stage of the proceedings. However, it is also equally well settled that Order 1, Rule 8, C.P.C. applies only to suits which are known as representative suits This is clear from the language employed in Rule 8 of Order 1, which is as under:--
'(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiffs expense, 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.
(2) Any person on whose behalf or for whose benefit a suit is instituted or de-fended under Sub-rule (1) may apply to the Court to be made a party to such suit.'
This rule is an enabling provision. It entitles one party to represent many who have a common cause of action; but it does not force any one to represent many if his action is maintainable without the joinder of the other persons. It presupposes that each one of the numerous persons by himself has a right of suit
20. Shri Mathur, relying on the expressions 'sue or be sued, or may defend' occurring in Order 1, Rule 8, contended that in order to earn a right to defend the suit on the ground that the suit-house is a public religious endowment, it was necessary for the defendants and also for the Court to have secured compliance of Order 1, Rule 8, C.P.C. This argument does not merit acceptance. The connotation of the expression 'sue or be sued or defend' has been explained by a Division Bench of this Court in Saraf and Swarnakar Samiti, Morar v. Munnalal (AIR 1973 MP 216) as under (at p. 217):--
'If we carefully analyse the provisions of Order 1, Rule 8 of the Code of Civil Procedure, it would appear from the words 'sue or be sued or defend' occurring therein that it gives option to the plain-tiff on the one hand to sue some of the defendants in their representative capacity as representing the interest of the whole body. On the other hand if the plaintiff chooses to implead large number of persons having the same interest, in the suit, it gives option to some of the defendants to seek permission to defend on behalf of or for the benefit of all.'
None of the suits giving rise to the present appeal are shown to have been brought in representative capacity by the plaintiff. The plaintiff-appellant brought each one of the suits for enforcement of her personal rights. The suits were brought in her individual capacity. The defendants have also been impleaded in personal capacity. None of the defendants is shown to have acted in a way to represent the other defendants. Accordingly, it is not shown by Shri Mathur that it was necessary for the defendants to seek permission to raise the aforesaid defence on behalf of or for the benefit of the defendants and/or members of Vaishnav Agrawal Community. The expression 'may sue' can be regarded as applicable to cases such as where the suit is brought by some person on behalf of himself and as representating others. The expression 'may be sued' can be regarded to apply to such cases where inhabitants of a village claim a right over the plaintiff's land. In such a case, the plaintiff may, with the permission of the Court, sue one or more of them on behalf of all to negative the right in question. So also the expression 'may defend such suit' is referable to a suit which is a representative suit. The use of the words 'such suit' in this expression is significant and is indicative of the fact that this expression is referable only to a suit brought as a representative suit. Acceptance of Shri Mathur's contention that the words 'such suit' occurring in the expression 'may defend such suit' can apply to the case of the present character where the defendants have been impleaded in their personal capacity and where they do not purport to represent either other defendants or the community to which they belong, will render the use of the words 'such suit' in the aforesaid expression wholly redundant. Such a construction is not shown to be permissible on any established principles of construction of statutes.
21. Shri Mathur, learned counsel for the plaintiff-appellant, during the course of his arguments, placed reliance on ratio of (i) Ganga Vishnu v. Nathulal (AIR 1957 Madh B 173); (ii) Manrakhan v. Amir Khan (AIR 1956 Madh Pra 189); (iii) RamKumar v. Jeevanlal (AIR 1960 Madh Pra 288); (iv) Nagar Palika Parishad, Mandsaur v. Anjuman Islam, Mandsaur (1972 MPLJ SN 90); (v) Punjab Co-operative Bank Ltd., Lahore v. Hari Singh (AIR 1933 Lah 749); (vi) Sri Ram Krishna Mission v. Parmanand (AIR 1977 All 421) (vii) Kumaravelu Chettiar v. T. P. Ramaswami Ayyar (AIR 1933 PC 183); and (viii) Ahmad Adam v. M. E. Makhri (AIR 1964 SC 107), but the ratio of these cases has different field to operate. In the case of Ganga Vishnu (supra), the suit was brought by Ganga Vishnu in his capacity as Secretary of the Cloth Dealers Association, which was an unregistered body, and the suit was to enforce against defendants on money claim in which all the members of the Association had common interest. In Manrakhan's case (supra), the suit was brought by the plaintiff describing himself as Vice-President of Anjuman Islam of the locality and Manager of the Idgah. The invasion complained in that suit was with regard to the exclusive right of a numerous class. Accordingly, it was held that the suit was ostensibly a representative suit and that it could not proceed without the permission of the Court in accordance with Order 1, Rule 8, C.P.C.
22. Ram Kumar's case (AIR 1960 Madh Pra 288) (supra) was a case where as per plaint averments, the defendants prevented the plaintiff from removing trees from his land saying that they had planted them on behalf of local inhabitants. Thus, the persons who could really be interested in resisting the suit were defendants in particular and all other inhabitants of the vicinity in general. Accordingly, it was held by Shiv Dayal, J. (as he then was) in Ram Kumar's case (supra) that to such a case, Order 1, Rule 8. C. P. C. is well attracted. In Nagar Palika Parishad, Mandsaur's case (1972 MPLJ (SN) 90) (supra), the suit was brought by one Bashiruddin describing himself as Secretary of Anjuman Islam, claiming a declaration against the Nagar Palika, Mandsaur, to the effect that the suit land was a 'Kabrasthan' and that Nagar Palika, Mandsaur, had no right to alienate or deal with it. The reliefs claimed in the plaint were for the benefit of the entire Muslim community, which, by their very nature, could not be granted to numerous persons and were not those which could be enjoyed by the plaintiff in his capacity as a member of the class, Accordingly, the suit could not proceed without permission of the Court under Order 1, Rule 8, C. P. C.
23. In Punjab Co-operative Bank's case (AIR 1933 Lah 749) (supra), the suit was instituted by the plaintiffs for themselves and on behalf of Zamindar Sabha. The Sabha consisted of at least 70 members. The suit having been brought on behalf of numerous persons, compliance of mandatory provisions of Order 1, Rule 8, C. P. C. was held to be an indispensable preliminary to the trial of the suit. In the case of Shri Ram Krishna Mission (AIR 1977 All 421) (supra), the plaint contained an averment to the effect that the plaintiffs were filing the suit in a representative capacity. In order that such a suit could acquire representative character, compliance with Order 1, Rule 8, C. P. C. was held to be necessary. It was also held that the Court may either grant a conditional permission subject to objections being raised by the parties to whom notice is issued or may immediately issue notice even without expressly granting any such conditional permission. Thus, the reliance on ratio of none of the aforesaid cases is available to the plaintiff-appellant in the facts and circumstances of the present case.
24. So far as reliance on the ratio of Kumaravelu's case (AIR 1933 PC 183) (supra) is concerned, it is also not available here in view of the fact that the case giving rise to the appeal was a representative action. Adjudicating upon the effect of a decision in a suit started under Order 1, Rule 8, C. P. C., it was held that --
'If such a suit is to have benefit of Expt. 6, Section 11, the conditions of Rule 8 must have been complied with fully.'
X X X X
'Explanation 6, Section 11 is 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 not be bound by the decree, even if the contest leading to it were bona fide, but the procedure prescribed by the rule is in no respect followed.'
Since neither Civil Suit No. 222 of 1957 nor Civil Suit No. 223 of 1957 was a representative suit, the dictum of the Privy Council Case cannot have any play.
25. The last case relied on by Shri Mathur is that of Ahmad Adam (AIR 1964 SC 107) (supra), wherein inter alia, it has been held that (at p. 114) --
'Where a representative suit is brought under Section 92 and a decree is passed insuch a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are constructively barred by res judicata from reagitating the matters directly and substantially in issue in the said suit.
A similar result follows if a suit is either brought or defended under Order 1, Rule 8. In that case, persons either suing or defending an action are doing so in a representative character, and so, the decree passed in such a suit binds all those whose interests were represented either by the plaintiffs or by the defendants. Thus, it is clear that in determining the question about the effect of a decree passed in representative suit, it is essential to enquire which interests were represented by the plaintiffs or the defendants. If the decree was passed in a suit under Section 92, it will become necessary to examine the plaint in order to decide in what character the plaintiffs had sued and what interests they had claimed. If a suit is brough under Order 1, Rule 8, the same process will have to be adopted and if a suit is defended under Order 1, Rule 8, the plea taken by the defendants will have to be examined with a view to decide which interests the defendants purported to defend in common with others.'
The aforesaid observations were made in entirely different context. In the present case, we are not concerned with the effect of any decree passed in a representative suit. Accordingly, the ratio of Ahmad Adam's case (supra) cannot be usefully employed in service of the plaintiff-appellant.
26. In the light of the aforesaid discussion, it is clear that none of the suits instituted by the plaintiff-appellant can be regarded to be a representative suit. Accordingly, compliance with provisions of Order 1, Rule 8, C. P. C. was not necessary.
27. In view of the aforesaid discussion, no challenge to the impugned judgment and decree survives. Accordingly, the appeal fails and is hereby dismissed. In view of the facts and circumstances of the case, I deem it fit to direct the parties to bear their own costs throughout.