1. This is a revision against the judgment and decree passed by the learned Additional District Judge of Rohtak dismissing the appeal and affirming the decree of the trial Court which was passed after recording a compromise.
2. On 19-7-1948, Des Raj and others brought a suit for partition of the land in dispute situate in village kiloi in Pana Maidan. As there were numerous defendants in the suit they applied under Order 1, Rule 8, Civil P. C., and got four persons, Dharama, Suba, Charidar Bhan and Molar, made representatives for the defendants. On 24-8-1948, an application for compromise was made in the Court of the trial Judge and on behalf of the defendants Dharama, Suba and Molar thumb marked the compromise. On the same. day statements of the parties were recorded and again on behalf of the defendants, Dharama, Suba and Molar put down their thumb marks. The learned Senior Subordinate Judge thereupon passed an order recording the compromise and passed a preliminary decree for partition in terms of the compromise. He also appointed a local commissioner for the purpose. Chander Bhan, the fourth representative of the defendants, was served on 24-7-1948. but he did not appear, and from the record it does not appear that he took any interest in the suit.
3. Chander Bhan on behalf of himself and on behalf of the other co-sharers of the Panna took an appeal to the Court of the District Judge on 19-11-1948. Along with the Memorandum of appeal an application which is dated 8-13-1948, was filed by Chandar Bhan asking to be allowed to file and pursue the appeal on his own behalf and on behalf of other persons under Order 1, Rule 8, Civil P. C. This application was opposed by the plaintiffs and was on one occasion dismissed in default. Evidently anapplication was filed for its restoration and on 26-7-1950, the learned Additional District Judge dismi&sed; the appeal as being frivolous, on the ground that the object of the appeal was to delay the partition proceedings, and I take it that impliedly the leave to appeal was also dismissed. Chandar Bhan then came up in revision to this Cqurt and asked for leave to file a revision. Rule was issued by me on 30-11-1950. Counsel for the petitioner submits that the learned Additional District Judge acted without jurisdiction in not giving a proper decision and in not considering the matter which was raised before him. The points for determination in this case really are many and before I come to the order of the Additional District Judge I must consider, whether the order passed by the Senior Subordinate Judge was in accordance with law or not.
4. Four persons had been appointed representative on behalf of the defendants. Of them only three were acting. It appears to me that it was not brought to the notice of the learned Judge that of the four persons, who had been appointed under Order 1, Rule 8, Civil P. C., to defend the suit, only three had agreed to the compromise. Even if these four persons were to act In their individual capacity three of them could not compromise the suit for partition on behalf of the four, much more in the case of a representative suit where they were representing such a large body of persons.
5. Mr. Shamair Chand submits that in a suit under Order 1, Rule 3, Civil P. C., no compromise can be entered into without the leave of the Court, and in support he relies on 'In re Calgary and Medicine Hat Land Co. Ltd., Pigeon' v. The Company', (1908) 2 Ch 652 at p. 659, where Cozens Hardy M. R. said :
'This is a representative action jn which a judicial decision on any question of construction or other matter arising in the action will bind all the members of the class represented by the plaintiff. Rules of Court provide for this. But if the plaintiff cannot compromise without the sanction of the Court (Order 16, Rule 9A), still less can he voluntarily give any of the rights to which the persons whom he represents. are admittedly entitled. He cannot elect on their behalf to take less than they are admittedly entitled to.'
At p. 662, Farwell, L. J. said :
'Such a plaintiff is entitled to enforce the rights which all enjoy in common lor the common benefit of all, but not to give up or alter any such rights, at any rate without the leave of the Court under Order 16, Rule 9A.'
6. In 'Sundarambal Ammal v. Yogavana-gurukkal', 23 Ind Cas 72 at p. 80 (Mad), Sada-siva Aiyar said :
'As held in 'Jenkais v. Robertson', (1867) LR 1 HL Sc 117) the decree by consent between a plaintiff (who is allowed to represent the public) and the defendants, would not bind the public at large and it is only the result of a contested obligation which would bind the public. A judgment by consent will not bind the public even if the consent was not purchased and.....'
These are authorities of a very high order andI respectfully follow them.
7. Mr. Chona in reply has submitted, firstly, that as the application for compromise was made and given effect to by the learned Senior Subordinate Judge, it must be taken that he had considered the matter and his ordering thecompromise to be receded amounts to an order giving permission to compromise by necessary implication. At any rate, there is nothing to show that this question was not brought to the notice of the learned Judge and that he did not apply his mind to it. I am unable to agree with this submission. In this case it is the right of a large number of parties which is being decided by compromise and unless it is clear from the proceedings that the matter was brought to the notice of the Court and that the Court considered this question, permission cannot be inferred. In cases such as this and because of the rule laid down in English and Indian cases, a compromise cannot be allowed to be recorded unless the Court considers the matter and after consideration gives sanction to the compromise.
8. It was then submitted by Mr. Chona that in this particular case Chandar Bhan was served, but he never took the trouble of appearing in Court and therefore the three must be taken to be representatives for all, and he relies on a judgment of Tek Chand, J. in 'Girdhari v. Ram Kala', AIR (24) 1937 Lah 601. But, in my opinion, this judgment does not apply to the facts of this case. The correct rule seems to be that when one of the representatives refuses or neglects to act, it can allow the remaining representatives to continue or can appoint another in place of the one refusing to act as was laid down in 'Venkatakrishna Reddi v. Sri-nivasachariar', 54 Mad 527, and approved of by the Lahore High Court in 'Fazal Rahim v. Hus-saina', ILR (1940) Lah 199 at p. 208. But in this case the Court did neither of the two things and as I have said before the question does not seem to have been brought to the notice of the Court and therefore it cannot be said that the three in place of four were in-ferentially allowed to continue the proceedings. In my opinion, therefore, the learned trial Judge did not consider the questions which arose in this case and did not adjudicate upon them.
9. It was finally, submitted by Mr. Chona that only one representative could not appeal, and he relied on a judgment of Abdul Rashid J. in 'Abdulla v. Parshotam', AIR (22) 1935 Lah 33. But that was a case in which an appeal was sought to be brought by a person other than the representatives.
10. When the matter came up in appeal the learned Additional District Judge contented himself by saying that the appeal was frivolous. It appears that his attention was not drawn to the various questions that arose in this case. He was therefore in error in not going into these points and deciding the case on the merits. As the questions are of some importance, J have gone into them at the revi-sional stage.
11. I therefore set aside the proceedingsas well as the order recording the compromiseand direct that the suit should proceed as fromthe issues which arose from tjie pleadings ofthe parties. The parties will bear their owncosts throughout. The parties are directed toappear before the learned trial Court on 11-6-1951.