1. This appeal has arisen out of a suit for the opening up of a pathway on the establishment of the right of the plaintiff and his men as well as the public; to pass along the disputed way. There was a compromise decree in Title Suit No. 617 of 1914 between the same parties and in execution of that decree a civil Court commissioner was appointed who gave delivery of possession of the pathway according to that decree. The present dispute is with regard to the same pathway. The plaintiff's case is that since then he used the pathway but towards the end of Agrahayan 1934, the defendants obstructed and stopped the pathway to the public as well as to the plaintiff by putting several bamboos across this pathway at the north-wes-tern corner of the defendants' tank as well as by extracting the bamboo pegs inserted by the side of the pathway by the civil Court commissioner. Hence this suit. The suit was decreed by the trial Court against defendants 1 to 4 but dismissed against defendant 5 on the ground that there was no cause of action against him. On appeal by defendants 1 to 4, the plaintiff filed a cross-objection as against defendant 5 who was made a co-defendant and who was also a respondent in the appeal. The appeal was dismissed in the lower appellate Court but the cross-objection was allowed and the suit was decreed on contest against defendant 5 also. The present appeal is by the defendants.
2. In this appeal the points raised are in the first place that the cross-objection was incompetent as the circumstances did not justify the plaintiff in filing a cross-objection against a co-respondent against whom his suit was originally dismissed; it is also urged that the cross-objection was incompetent because no notice of the cross-objection was served on defendant 5 as required Under Order 41, Rule 22, Clause. 3 and that the cross-objection was incompetent because the decree was passed in the absence of defendant 5. As regards the last point it is not correct, because we find that the suit was dismissed on contest against defendant 5 and also the appeal was decreed on contest against him.
3. As regards the question whether the Court was justified in admitting the cross-objection against defendant 5, on behalf of the appellants we have been referred to the cases of Bishun Churn Roy v. Jogendra Nath Roy (1899) 26 Cal 114; Jadu-nandan Prosad v. Kallyan Singh (1912) 13 I C 653 and Shib Chandra Kar v. A. C. Dulc. ken AIR 1918 Cal 13. The first case was decided before the alteration of Order 41, Rule 22 by which the word 'appellant;' in the old section was changed to 'party who may be affected by such objection' in para. 3, Rule 22. In the third case, viz., the case of Shib Chandra Kar v. A. G. Dulcken AIR 1918 Cal 13, it has been laid down that
a cross-objection by a respondent as against fats co-respondent should not be entertained Under Order 41, Rule 22, Civil P.C., where the question raised thereby is entirely distinct from and in way related to the question in controversy in the appeal,
and that case was decided against the cross-objector on the ground, as the learned Sanderson, C. J., stated, that in his judgment the matters which were sought to be raised by the cross-objection had no relation to or connexion with the question which was raised by the appeal, and could not be said to be within the test which was laid down in the case of Jadunandan Prosad v. Kallyan Singh (1912) 13 IC 653 viz.,
so connected that one of the parties ought not to be allowed to re-open matters so far as he is concerned without opportunity allowed, in the interest of justice to another to protect himself by urging his objections, even though they be directed, not against the appellant, but against a co-respondent.
4. In the present case the finding of the lower appellate Court is:
It is evident from the deposition of defendant 5 that he played a role in the obstruction o the passage and was interested in obliterating the passage. He was rightly made a party to the suit and the suit should have been decreed against him as well.
5. In the cross-objection it was stated that the suit should have been decreed against the added defendant 5 who is a tenant of the other defendants and was privy to their designs in obstructing the pathway. On this finding it appears that defendant 5 was equally interested with the other defendants in obstructing and that there was a common ground against him along with the other defendants and therefore this is a case in which it is clear that the cross-objec-tion ought to be allowed. On behalf of the respondent we have been referred in this connexion, to the case of Mathura Mohan v. Ram Kumar AIR 1917 Cal 525, and it is clear that on the findings of fact and in the interest of justice the cross-objection was rightly allowed. As regards notice it is true that Under Clause (3), Order 41, Rule 22, the respondent should file with the cross-objection, a written acknowledgment of notice from the party who may be affected by such an objection. The record does not show that any written acknowledgment was filed by the plaintiff in this case. But since the appeal was contested by defendant 5 it does not appear that there is any force in this objection. It was an irregularity and we should not disallow the cross-objection merely because this rule had not been observed. The next point raised on behalf of the appellants is that the suit was not brought Under Order 1, Rule 8, although it was on behalf of the public. This point has been dealt with by both the Courts below. From the plaint it is clear that the suit was brought in the first place on behalf of the plaintiff and his own men who are particularly affected inasmuch as by the original compromise the plaintiff gave up a portion of his land and it was he who secured this passage in the first place, for his own people through the land and incidentally for the public also. The latest authority in this connexion is a decision of the Privy Council in the case of Kumaravelu Chettiar v. T. P. Ramaswami Ayyar 278:56 Mad 657 (P C).. In this case their Lordships of the Privy Council laid down that,
Section 30 of the old Code corresponding to Order 1, Rule 8, is an enabling enactment. It in no way debara a member of a community from maintaining a suit in his own right, although the act complained of may also be injurious to the whole community.
6. That case is authority for holding that where the rights of the plaintiff are particularly affected it is not necessary to come Under Order 1, Rule 8, merely because he also claims the right on behalf of the public. Such is the case here. The plaintiff had taken the trouble to have this way opened over a portion of his land as well as over the land of the defendants mainly for his own benefit, but it was agreed that the way could be used by the public. It is true that in some cases it has been laid down that a suit of this nature is not maintainable if brought outside the provisions of Order 1, Rule 8, but it depends on the circumstances of the case. Where the case is brought merely on behalf of the public, and the plaintiff has no special interest in the suit as distinct from the public, no doubt the suit would not be maintainable without the permission of the Court, Under Order 1, Rule 8. In the present case had either of the Courts below thought that such remission was necessary it could easily have been given during the course of the litigation. For the respondent in this connection, the case of Baiju Lal v. Bulak Lal (1897) 24 Cal 385, has been referred to, in which it has been laid down by Ameer Ali, J., that:
Section 30 (corresponding to Order 1, Rule 8) in fact embodies a rule of convenience based on reason and good policy, but in my opinion it was not intended to take away, nor does it take away, any right.
7. The section does not forbid the plaintiff from suing for enforcement of his own right but merely says that if the plaintiff desires to sue on behalf of others he must obtain permission of the Court. We think therefore that the suit is not barred by the provisions of Order 1, Rule 8. The only other point raised was that there was ambiguity as to the exact location of the pathway described by the plaintiff. The suit was however decreed in accordance with the original solenama. This objection was also made in the trial Court and there it was found that in title Suit No. 617 of 1914 this pathway was demarcated and a commissioner measured the passage and the adjoining lands and the case map and the field-book which were prepared were made parts of the compromise decree. As the present suit relates to the same pathway all we need say in this connection is that the commissioner's map report and the book which were made parts of the compromise decree in Suit No. 617 of 1914 be also treated as parts of the decree of the trial Court in the present suit as modified by the lower appellate Court. This appeal is accordingly dismissed with costs.
8. I agree.