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Radhamohan Malia and anr. Vs. Basudeb Khuntia and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 296 of 1976
Judge
Reported inAIR1981Ori16; 50(1980)CLT435
ActsCivil Porcedure Code , 1908 - Order 1, Rule 8
AppellantRadhamohan Malia and anr.
RespondentBasudeb Khuntia and ors.
Appellant AdvocateR.C. Patnaik, ;P.K. Misra and ;S. Biswanath, Advs.
Respondent AdvocateR.K. Mohapatra and ;A. Misra, Advs.
DispositionAppeal allowed
Cases ReferredIn Laxminarayan Behera v. Tahetul Masjid
Excerpt:
.....any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - tahetul masjid, (1973) 45 cut lt 141, this court has also held that notice by public advertisement must disclose the nature of the suit as well as the reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or to defend against it. on the aforesaid analysis, the decrees of both the courts are vitiated..........occurred.7. in laxminarayan behera v. tahetul masjid, (1973) 45 cut lt 141, this court has also held that notice by public advertisement must disclose the nature of the suit as well as the reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or to defend against it. these requirements are mandatory in nature and non-compliance with any one of them vitiates the decree.8. if the present appeal is considered along with the dictum laid down above, it is apparent that the trial court did not apply its mind as to how the notice is to be served and what should be the contents of the notice to be served on the defendants in the suit. on the aforesaid analysis, the decrees of both the courts are.....
Judgment:

N.K. Das, J.

1. Defendants are appellants against a confirming decision in a suit for permanent injunction restraining the defendants who are said to be the Malia Sevaks of Lord Kapileswar Dev from entering into the kitchen and offering cooked food to the deity.

2. The suit has been filed against the defendants representing the Mallia Sevakas of the deity Kapileswar Dev under Order 1, Rule 8, Code of Civil Procedure. Both the courts below have decreed the suit granting the relief in favour of the plaintiffs.

3. Only one question will decide the Second Appeal. Admittedly, the suit is filed under Order 1, Rule 8 Code of Civil Procedure. From the order dated 2-4-1974 of the trial court, it appears that the court passed order directing issue of notice under Order 1, Rule 8 Code of Civil Procedure. Rule 8 (2) of Order 1 C. P. C. provides that the court will pass order for notice of 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 service is not reasonably practicable, by public advertisement, as the court in each case may direct. In the instant case, the court has not passed any orders as to the mode according to which the notice was to be served. The trial court has held that there was a petition asking for leave to prosecute the suit against the defendants, representing the Mallia Sevakas of the deity, and so there was no illegality or irregularity in service of notice. The lower appellate court has held that as the service was by beat of drum the service would be held to be valid.

4. I have already held that the trial court had not passed any orders as to the mode according to which notice was to be served. From the service report, it appears that the peon, on identification of one of the plaintiffs declared the contents of the notice to the persons present and the persons who came there only. From the notice issued there is no mention as to what is the nature of injunction. In the notice it is only mentioned that the plaintiffs have filed the suit for permanent injunction only and damage. There was no mention as to from what the defendants would be restrained. Law requires that in a suit in the representative capacity when notice is to be served on a number of persons, the court according to the circumstances of the case has to pass orders whether the notice should be served personally on the defendants or it should be advertised in a way so as the concerned persons who are deemed to be defendants should have knowledge of the claim. They must have the knowledge about which the suit has been filed and the relief claimed as against them. It has been held by Privy Council in Kumaravelu Chettiar v. T. P. Ramaswami Ayyar, AIR 1933 PC 133, that the procedure prescribed by Order 1, Rule 8 Code of Civil Procedure is mandatory and if all the persons interested are to be bound by the decision in such a case, provision of Order 1, Rule 8 must be strictly complied with. The reason for this is that any decision given in the case operates as res judicata not only against the persons who are actually before the court but also against those whom they were permitted to represent. Therefore, it follows that the issue of a proper notice and its service either personally, or by public advertisement on the person concerned is an indispensable peremptory to the trial of the suit under Order 1, Rule 8 Code of Civil Procedure. Breach of this provision is calculated to affect the decision of the case on merits and may be fought with serious consequences. Relying on the Privy Council decision and another decision of the Allahabad High Court Shyam Lal v. Mat. Lalli, AIR 1922 All 16 (FB) this Court in Brundabati Thakurani V. Hari Biswal, (1971) 1 Cut WR 699, has held that Order 1, Rule 8 Code of Civil Procedure contains an exception to the general rule that all persons interested in a suit ought to be made parties thereto, but to attract its application, it is essential that the conditions laid down therein must be strictly complied with. In paragraph 10 of the judgment, this Court has observed that the provisions of the section as to the issue of notice are undoubtedly peremptory and the court was therefore, bound to issue notice as required by the rule. If the court omitted to issue notice it committed an irregularity and a grave irregularity which might be remedied by the appellate court sending back the case to the court of first instance to comply with the requirements of the law.

5. This Court also in Udayanath Das v. Lingaraj Moharana, (1975) 1 Cut Wit 11, has taken into notice of several decisions and has held that the provision is mandatory and not merely directory and is the essential pre-condition for the trial of the case as a representative suit. In para 6 of the judgment the aforesaid Brundabati Thakurani case (supra) has been taken into consideration along with other cases of Punjab, Lahore and Rajasthan High Courts.

6. Another unreported decision of this Court is dated 20-9-1971 in Second Appeal No. 37/68 wherein it was held that non-compliance of the provision vitiates all proceedings from the stage of want of notice and the case was bound to proceed from that stage where the infirmity occurred.

7. In Laxminarayan Behera v. Tahetul Masjid, (1973) 45 Cut LT 141, this Court has also held that notice by public advertisement must disclose the nature of the suit as well as the reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or to defend against it. These requirements are mandatory in nature and non-compliance with any one of them vitiates the decree.

8. If the present appeal is considered along with the dictum laid down above, it is apparent that the trial court did not apply its mind as to how the notice is to be served and what should be the contents of the notice to be served on the defendants in the suit. On the aforesaid analysis, the decrees of both the courts are vitiated as the trial court failed to follow the mandatory provision of law in a suit of the present nature and it is necessary in the interest of justice that the suit should go back to the trial court for fresh trial from the stage of issuing proper notice to the defendants in representative capacity.

9. In the result, the appeal is allowed. The decrees of the courts below are set aside and the cross-objection is dismissed. The suit is remitted back to the trial court for fresh trial according to law with a direction that the trial court should start afresh the suit from the stage of issuing proper notice under Order 1, Rule 8 Code of Civil Procedure. In the circumstances of the case, where the fault was with the court, there will be no order as to costs.


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