1. The order before us is one granting leave to plaintiff to sue as representing those of his fellow Mirasidars, who have not opposed his application, and il was passed under Order I, Rule 8 of the Code of Civil Procedure.
2. The proposed suit is brought by plaintiff as a leading Mirasidar and as trustee in management of certain forest land on behalf of the other Mirasidars, alleging that defendants, some of the Mirasidars, have trespassed on it and removed a quantity of forest produce. The reliefs claimed are declarations, an injunction, damages measur ed by the value of the produce removed and, if necessary, a scheme for future management.
3. The main objections to the lower Court's order are that Order I, Rule 8, deals only with representative suits, and that (1) as the plaint refers to the forest as the common property of the Mirasidars, their interest in it should be protected by a suit framed in accordance with Order I, Rule 1, with all the individuals concerned as parties, not by a representative suit under Order I, Rule 8, and (2) that a representative suit cannot be brought for damages. Both these contentions have been supported by reference to Markt v. Knight Steamships Co. (1910) 2 K.B. 1021 in which one of several shippers sued, as representing all, for compensation for the losses, which each of the shippers had incurred by the loss of the ship. But the main relief claimed in the present case resembles rather that in question in Duke of Bedford v. Ellis (1901) A.C. 1 a declaration regarding the rights of the six plaintiffs and other interested persons, whom they were allowed to represent under the English Order XVI, Rule 9, corresponding with Order I, Rule 8 in the Indian Code; and following the latter case we hold that as regards the reliefs claimed other than damages, the suit is properly constituted.
4. As regards damages there is no doubt the dictum of Moulton, L.J. in Markt v. Knight Steamsling Co. (1910) 2 K.B. 1021 that a representative suit cannot be brought for damages. But it is clear that the objection is only to the representative suit, as such, being for that relief. In fact in Duke of Bedford v. Ellis (1901) A.C. 1 the plaintiffs were allowed to claim damages, not in their representative capacity but on account of the acts by which they were individually aggrieved, the Court sanctioning the combination in one plaint of the claim by them as representatives under Order XVI, Rule 9, and of their individual claims raising common questions of fact and law under Order XVI, Rule 1, corresponding with the Indian Order I, Rule 1. Similarly in the present case two claims are made in the plaint. But the combination is no more open to objection than that which the House of Lords permitted, since it is of the claim already referred to as made by plaintiff under Order I, Rule 8, and of that which he makes alone as trustee or manager of the forest for damages for the loss of its produce and in respect of which there is no question of combination at all. These objections to the lower Court's order, therefore, fail.
5. It is said next that the lower Court's discretion was wrongly exercised. But only nineteen persons actually objected to its order and they merely referred generally to some others not specified as showing their objection. The total number of Mirasidars is, we are told, about two hundred. The lower Court's discretion was, therefore, exercised properly. Then it is argued that under Order I, Rule 8, plaintiff must sue as representative of all the persons interested, and that he should not have been allowed to sue if any of them, even only one repudiated his representation. This does not, in our opinion, follow from the wording of the Order and it takes no account of the provision in it, enabling any person desiring to be a party to be made one. But in this connection, we observe that the lower Court ought not to have limited plaintiff's representation to those who did not oppose the grant of leave to him before it. It should have permitted him to sue as representing all, who have not been made or do not apply to be made parties to the suit.
6. Lastly it is said that the prayer for a scheme of management involves or will probably result in a partition of the property among the Mirasidars, and that permission for a representative suit with that object should not have been given. It is not clear that the suit has that object; in fact the scheme asked for is merely one for the management of the property. But in any case it will be for defendants to object to the scheme, when one is proposed, on the ground that it is not of a kind which can be sanctioned in the suit as brought. It is not for them to object to the frame of the suit, because an inadmissible scheme may be proposed at a later stage.
7. The lower Court's order is modified to the extent stated above, but is confirmed in other respects. Petitioners will pay 1st respondent's costs in this Court.