(1) This is a defendants' appeal directed against the concurrent judgments and decrees of the two courts below declaring that the plaintiff has become full and complete owner of the land in suit as the impugned mortgage has not be redeemed within the statutory period of 60 years and the defendants' right of redemption has been extinguished. It is alleged that Deva Singh, the original owner, mortgaged the land in question to Kahan Singh for a sum of Rs. 160/- vide a mutation attested on 10-8-1884 and that these mortgagee rights were later transferred to one Sarwan Singh, who, in his turn, transferred them to the plaintiff. Deva Singh is said to have died issueless and his rights were inherited by the owners of the patti. The mortgage having never been redeemed, it has been claimed by the plaintiff that the right of redemption has been lost by the expiry of more than 60 years and that he has thus become the exclusive owner of the suit-land.
The Courts below have held that the mortgage in question is more than 60 years' old and having not been redeemed, the right of redemption has been extinguished and the plaintiff has become the absolute owner of the and in suit. Two points were raised in the Courts below and the same have been re-agitated before me at the Bar. It is contended on behalf of the appellant that the mutations by which the mortgagee rights were transferred amount to an acknowledgment of the mortgage and therefore fresh period of limitation should be deemed to have started from those dates. It is contended that in 1911-1912 there was a variation in the revenue entries and this variation amounted to a novation of the contract of mortgage and therefore the period of 60 years should be counted from this date.
(2) Mr. Durga Das Khanna also raised another point which does not seem to have been agitated in the lower appellate Court. He submits that the plaintiff applied under O. 1, R. 8 of the Code of Civil Procedure praying that some of the owners of the patti as defendants should be permitted to represent all the owners defendants in whom the right of redemption had vested on the death of Deva Singh issueless. The counsel urges that the mandatory provisions of O. I, R. 8, code of Civil Procedure, were not complied with and therefore the whole trial is vitiated. Reliance has been placed in this connection on Kumaravelu Chettiar v. T. P. Ramaswami Ayyar, AIR 1933 PC 183, where their Lordships of the Privy Council observed that the procedure prescribed by O. I, R. 8, Code of Civil Procedure, is mandatory and if all the persons interested are to be bound by the decision in such a case, then the provisions of R. 8 of O. I, must be strictly complied with.
I find from the record that an application under O. I, R. 8 of the Code of Civil Procedure was actually filed by the plaintiff on 21-6-1952 and the Court ordered a notice to be given by proclamation under O. V, R. 20, although, as the list of the proprietors attached to the petition shows, there were only 57 persons who had to be served. In my opinion, the number of persons to be served could by no means be considered to be so large as to render personal service not reasonably practicable. I also find from the record that there was neither any affidavit of the person, who is said to have effected the substituted service, nor has any such person been examined by the Court. If such service is to be deemed to be as effectual as personal service is to be deemed to be as effectual as personal service, then in fairness to the defendants who are not actually made parties, and in the interests of justice, the Courts should always satisfy themselves that such substituted service had actually been properly and lawfully effected.
It is not clear, on the present record, whether even the contents of the plaint were disclosed to the persons to be server, nor is it clear as to when and where and by what means, the substituted service was effected. A decision in a suit, in which defendants have been served under O. I, R. 8, Code of Civil Procedure, operates as res judicata, even as against all those persons for and on whose behalf the actual parties on the record purport to defend the suit. In these circumstances, in my opinion, the trial Court has to be particularly careful and vigilant in satisfying itself that the provisions of law have been strictly complied with. In the present case, I find that the trial of the suit is vitiated by this omission and it would perhaps be open to all the other owners, who are not actually made defendants in the suit, to come forward and challenge the binding nature of the decision in the present case.
Of course, this decision would be binding on those persons, who have actually been impleaded by the plaintiff, and who have been personally served. It was contended on behalf of the respondents that this plea having not been taken in the Courts below should not be allowed to be raised here. But if the non-parties can come forward in a subsequent litigation, and can show that the mandatory provisions of O. I, R. 8, Code of Civil Procedure, having not been complied with, the decision in the present case should not be held to operate as res judicata as against them, it can hardly be contended with any logic or sense of justice, that in the course of the same proceedings, this Court should refuse to take notice of this vital objection.
(3) On the merits reliance has been placed by Mr. Khanna on Exhibit P. 4 which is a copy of mutation whereby the mortgagee rights were transferred by Mst. Bhagi mother of Sarwan Singh in favour of Mastan Singh. In the patwari's report it is stated that Mst. Bhagi had made a statement that the mortgagee rights had been sold in favour of Mastan Singh and that the possession had been given to the vendee. These parties are again said to have appeared before the revenue officer before whom also the transfer of mortgagee rights was admitted, with the result that the transfer was sanctioned on 10-12-1915. Mr. Khanna contends, on the authority of Gul Muhammad v. Akbar, 145 Pun Re 1889, that the patwari in the present case should be deemed to have been authorised by the mortgagees to sign the statement made by them on their behalf. The following observations at page 495 of the report, in the above case, has been particularly relied upon by Mr. Khanna:
'Now, there can be no doubt that the words of the entry itself amount to the fullest acknowledgement of plaintiff's right to redeem, and the only question is whether it is signed by the defendants, or by an agent 'generally' or specially authorised on their behalf. It is not very material whether the actual signatures to the Muntakhib and pedigree-table are defendants' or not; for if they are not, there can be no doubt that they were made by some one else, probably a Settlement official acting for them with their full authority'.
Reliance has next been placed on Jeba v. Chaman, 16 Pun Re 1891, the head note of which reads thus:
'In a suit for redemption of mortgage, it appeared that in a similar suit for redemption brought in 1860, one of the present defendants and the father of the other, made one statement in which they acknowledged that they held the land on mortgage. At the end of this statement was a mark of the pen under the words 'alabd muzhir', and the names of the deponents were written at the head of the statement.
Held, that this was a sufficient acknowledgement in writing signed by the mortgagees within the meaning of S. 19, Limitation Act, 1877.'
For their decision in this case reliance had been placed by the learned Judges on Ram Ditta v. Ibrahim-ud-din, 122 Pun Re 1889 and 145 Pun Re 1889. In Dasaundhi Ram v. Mool Chand, AIR 1933 Lah 12, Tek Chand J. who wrote the main judgment, approvingly referred to 122 Pun Re 1889, and observed that there was ample authority for the proposition that the signature of the debtor need not appear at the foot of the acknowledgment, but his name written, either by himself or at his dictation, at the top of the document, was sufficient as an acknowledgment.
(4) Mr. Sodhi has on the other hand drawn my attention to Bahadur v. Nanka Ram, 53 Pun Re 1905, where it was held, that mere signature of the Settlement Officer of his own name, which does not purport to be the signatures of the mortgagees, could not amount to an acknowledgment within the purview of S. 19 of the Limitation Act. I find myself in respectful agreement with these observations. The rulings quoted on behalf of the appellants do not, in my view, lay down the law differently and those decisions are really confined to their own facts.
(5) Mr. Khanna has also contended on the authority of Shrinivas v,. Raghunath, 4 Bom LR 50, that an oral agreement to extend the time of payment of an amount not already bared, does not contravene the provisions of S. 19 of the Limitation Act or of S. 25 of the Indian Contract Act; but gives a fresh starting point of limitation. It, however, appears to me that those observations were also made on the facts of that particular case and it could not have been intended to lay down that for the purposes of invoking the provisions of S. 19 of the Indian Limitation Act, a party can rely on an acknowledgment which is not signed by the party against whom the right is claimed or by some person through whom he derives the liability. Mr. Sodhi has also drawn my attention to Mst. Sham Devi v. Bhagwat Dayal, AIR 1925 All 353, for the contention that the purchase of mortgagee rights by itself does not amount to acknowledgment of the subsistence of the mortgage.
(6) But as discussed above, the decision in the present case is not going to bind the other proprietors to whom proper notice according to the provisions of O. 1, R. 8, Code of Civil Procedure, has not been served, and it is open to them to re-agitate this question, though so far as the present appellants are concerned, they would certainly be bound by this decision. It is unfortunate that the learned trial Court should not have paid proper and due attention to this important aspect of the matter. As laid down by the Judicial Committee in Kumaravelu Chettiar's case, AIR 1933 PC 183, the procedure prescribed by O.1, R.8, Code of Civil Procedure, is mandatory and must be strictly complied with.
To quote the weighty observations by Tek Chand J. in Punjab Co-operative Bank Ltd. Lahore v. Hari Singh, AIR 1933 Lah 749, 'this provision is mandatory and not merely directory, and is an essential condition for the trial of the case as a representative suit.' The reason for this obviously is that any decision given in the case operates as res judicata not only against the persons who were actually before the Court but also against those whom they were permitted to represent. It follows therefore that the issue of a proper notice ad its service either personally, or by public advertisement, on the persons concerned is an indispensable preliminary to the trial of the suit under O.1, R.8, Now, as stated already, the sabha consisted of at least 70 members, but admittedly no notice was issued to them or to the members of the sabha generally.
On the other hand, it was issued to eight named persons only, of which three are not mentioned in the proceedings-book. Further the notice does not state that the plaintiff's had asked for, or had been granted, permission to sue as representatives of the District Zamindar Sabha, Lahore. It merely stated that the three plaintiff's had instituted a suit against the defendants, and called upon the eight persons above-mentioned, to appear in person in the Court on 20-8-1927. There can be no doubt that this notice does not fulfil the requirements of R. 8, either in letter or spirit, and counsel for the plaintiff-respondents has not attempted to defend it.
It is also clear that in the circumstances, the insertion of the notice in a newspaper published in English and having little or no circulation among the class of persons to which the members of the Sabha belonged, cannot be said to be effective service in accordance with the provisions of O. 1, R. 8. I am therefore constrained to hold that in this case neither was a proper notice issued under O.1, R. 8 nor was it duly served on the persons concerned. An irregularity of this kind vitiates the entire proceedings in the lower Court and cannot be condoned under S. 99, Civil Procedure Code; Mukh Lal Singh v. Jagdeo Tewari, ILR 35 Cal 1021, Shiam Lal. Mt. Lalli, AIR 1922 All 16 (FB), and Abdul Hakim v. Abdul Gani, AIR 1925 Cal 547'. In Bhiya v. Mangala, ILR (1955) 5 Raj 910, this matter was discussed in great detail and the case law was reviewed. The head-note of the reported case reads as follows:
'The Provisions as to notice contained in O. 1, R. 8, Civil Procedure code, are mandatory and not directory and must be substantially fulfilled before a decree can be allowed to stand as passed under it. A breach of these provisions is calculated to affect the decision of the case on merits and may be fraught with serious consequences. The general rule is that all persons interested in a suit should be joined as parties but O. 1, R. 8, makes an exception to that rule in the interests of public convenience.
It is thus provided that where the number of persons suing or to be sued is large and they have a common interest in the subject matter of the suit then one or more of such persons may obtain the permission of the Court to sue or defend such suit on behalf of all persons interested therein. It is possible that in certain cases although express permission may not have been given, an implied permission may be held to have been given from the manner of the conduct of the case.
The rule, however, further provides that after such permission is obtained the Court shall give notice of the institution of the suit to all the persons concerned and this can be done either by effecting personal service where the number of persons in treated is not very large or where such service is not easily practicable it may do so by public advertisement. A failure to perform this duty, which is laid upon the Court by law, is sufficient to vitiate the decree passed by it. Such an error is not one of mere technicality and is not curable by S. 99, Civil Procedure Code. The reason is that when notices are issued to the persons concerned, a large number of persons may come forward and ask to be joined as parties to the suit and the pleadings put in by them may have a shattering effect on the plaintiff's' case as disclosed in the plaint.
When the provisions as to notice in O.1, R.8, are not substantially complied with and a decree is passed in favour of the plaintiff's, the proper order to be passed on appeal is not to dismiss the suit but to set aside the decree and remand the case to be proceeded with according to law from the stage at which notice under O.I, R.8, should have gone forth.'
In the reported case the learned Judge repelled the contention that decree against the persons who were personally represented should be allowed to stand. While repelling this contention it was observed:
'Under these circumstances it appears to me that if I were to allow the decree passed by the lower appellate Court to stand as between a few individuals on the one side and a few individuals on the other, I would in effect be changing the real character of the suit which I do not fell at all called upon to do'.
In Jethmal Singh v. Ranjeet Singh, ILR 1952-2 Raj 900, Wanchoo C. J. (as he then was) who wrote the main judgment observed as follows:
'It is the duty of Courts which take proceedings under O. 1, R. 8 to see carefully that proper notices are issued which would give proper information to the persons interested in the suit so that they might apply for becoming parties. It is also the duty of the Court to see that notices where they are published, are printed in such a paper that the persons interested are likely to read it. This is very necessary as decisions in such suits become res judicata even against persons who were not on the record but who get bound by virtue of proceedings under O. I, R.8.
On considering, therefore, the notice that was issued in this case, we are satisfied that there was no proper notice even by public advertisement under O. I, R. 8, and, therefore, if any other person had to be joined as defendants in the suit and had not been joined, the defect is not cured by the rather slipshod and perfunctory proceedings under O. I, R. 8, which were taken by the Court below in this case.'
In this judgment at page 906 reference is made to Bir Singh v. Pirthi Singh, AIR 1928 Lah 693, where personal notices were served on 79 defendants and the learned Chief Justice considered this to be the right method in such suits. In the present case also as noticed above, there are only 57 persons to be served and, in my opinion, the desirable and right course, would have been to serve these parties personally. In the case before me service appears to have been effected under the provisions of O. V, R. 20, Code of Civil Procedure. This provision does not dispense with or do away with the provision of law which lays down that the defendant is entitled to receive a copy of the plaint or, in certain circumstances, a concise statement.
In Pesu Mal Harbhagwan Das v. Bishen Das Mewa Ram, AIR 1927 Lah 376, Jai Lal J. observed that where the summons is affixed on the door of the defendant's house, but is not accompanied by a copy of the plaint, the affixation of such summons is not a sufficient compliance with the law and the service of summons in this manner is not a proper service. In Narendra Kishore Das v. Banamali Sahu Dibakar Sahu Firm, AIR 1951 Orissa 312, a Division Bench of the Orissa High Court considered the question whether service under the provisions of O. V. R. 20, Code of Civil Procedure, would be good service without complying with the provisions of O. V, R.20, Code of Civil Procedure, would be good service without complying with the provisions of O. V. R, 1(3) of the Code of Civil Procedure and they even went to the length of holding that without complying with the provisions of O. V, R.1(3), there would be no valid service of summons.
On the record of the present case, there is nothing to show, as to what was the kind of publication resorted to for the purpose of complying with the provisions of O. V. R. 20, Code of Civil Procedure, and it is not possible to come to a safe conclusion that all the defendants could have come to know of the present suit, so that they may nominate some, out of them, to defend the suit in a representative capacity. It is true that in one or two decided cases decrees as between the actual parties have been upheld but as observed in Bhiya's case, ILR 1955-5 Raj 910, with which I am in agreement to adopt such a course would in fact amount to changing the real character of the suit which is bound to lead to further complications and multiplicity of proceedings.
In these circumstances, I have no option but to allow the appeal, set aside the judgments and decrees of the Courts below and to send the case back for trial in accordance with law, after effecting proper service on the defendants in accordance with the provisions of Civil Procedure Code and in the light of the observations made above. Since the appellants are also, in part, responsible for not properly raising this point in the earlier stages of this litigation, the parties will bear their own costs throughout.
(7) The parties are directed to appear in the trial Court on 23-3-1959, when the Court will give them another date for further proceedings in the case.
(8) Retrial ordered.