1. This action was commenced on a plaint purporting to have bean filed by fifteen persona on behalf of themselves and for all the villagers of Mouza Netra for a declaration of their customary pasture right to the lands in suit and for a declaration of their right to bury their dead in some portion of the same and also for certain consequential reliefs. The learned Munsif dismissed the suit, and the learned Subordinate Judge, on appeal, made a decree in favour of twelve of the plaintiffs; from which the defendants have preferred this appeal.
2. The validity of the decree is challenged upon various grounds of which it is necessary to notice only two. The first ground relates to the competency of the suit in view of provisions of Order 1, Rule 8, Civil Procedure Code. The second one is based on the contention that the Maharaja of Tippera was a necessary party to the suit, and in his absence the suit could not proceed.
3. With regard to the first ground the position is this. The plaint purported to have been filed by fifteen persons and to have been verified by them and an application on their behalf asking for the leave of the Court under Order 1, Rule 8, Civil Procedure Code necessary for the institution of a representative action was also filed. The Court issued a notice stating that the first plaintiff (who was named) and others (whose names were not given) had instituted the suit and they had bean granted the necessary permission and the said notice was duly advertised. It transpired in the course of the suit that three of the said plaintiffs had neither verified nor signed the plaint and, in fact, one of them deposed as a witness on behalf of the defence. The learned Munsif relied upon this, amongst other grounds, for dismissing the suit. The learned Subordinate Judge ordered the names of the said three persons to be struck out from the plaint, and decreed the suit in favour of the remaining twelve persons as I have stated above.
4. The objection of the appellants in the above circumstances of the case is two-fold. It is urged first that the notice of action that was advertised was not a proper or sufficient one, and secondly that when the permission was given to the fifteen persons collectively, twelve of them, without fresh and express permission, were riot competent to go on with the suit.
5. With regard to the objection as to notice the respondents contend that its validity was never challenged in the Court below, that all that was objected to in the written statement was as to the proper service thereof and upon that point the Court of first instance recorded a finding in its judgment in these words: 'There is sufficient evidence of service of notice under Rule 8 of Order 1 and so I find this point in plaintiff's favour,' and this finding was not challenged in the lower Appellate Court;, As to the competency of the twelve parsons to prosecute the action the respondents rely upon the axiom that the greater always includes the less, and want to rely on it both for the proposition that the twelve persons were competent to avail of the permission that was granted in favour of fifteen and also for the proposition that the twelve persons could get the declarations which were sought for on their own behalf and on behalf of the other three and the rest of the villagers, and even if it held that they are not so entitled, the decree may be modified by granting thorn such declarations as they may be entitled to on the basis of their individual rights, Now in matters of this description, three classes of suits may easily be imagined. First of all a person may assert a customary right in himself, and may complain that that right has been infringed, violated or disturbed, and relying on that infringement, violation -or disturbance as the cause of action, seek for a remedy. That would be an action instituted in a purely personal character. Secondly, a person may found his claim upon a customary right belonging to all the villagers, and assert it on his own behalf, and basing his cause of action upon an infringement, violation or disturbance thereof so far as he himself is concerned seek for suitable reliefs. This also would be an action instituted in a personal character, though the foundation of the right lies in the fact that it belongs to all the villagers and, therefore, to him also as a member of that body. Thirdly, a person may institutes suit on behalf of himself and of all the other villagers, the customary right belonging to all the villagers, the cause of action affecting all the villagers as a body, and the remedy sought for being for himself and all the other villagers. Such a suit is instituted in a representative character, the success or defeat in the action being binding upon all the villagers, and the question that the rest of the villagers are not personally parties thereto not affecting their position in any way. The reliefs obtainable in such a suit enure to the benefit of all the villagers, it not being a matter of any consequence that they were not before the Court personally, as they must be deemed to have been parties to the action through their representative, who had instituted the suit and gone on with it in his representative capacity. The general rule is that all persons interested in the subject-matter of a suit in respect of its object should be made parties, but in cases where there is a large class of individuals having the same interest the Courts for the sake of convenience, allow them to be represented by one or more of the class for himself and the others: Cockburn v. Thompson (1809) 16 Ves. 328, Chudasama Sursangji v. Partapsingh Khengarji (1904) 28 Bom. 209. It is a general rule that all persons interested ought to be made parties to a suit howsoever numerous they may be, so that the Court may be able to do complete justice by deciding upon and settling the right of all persons interested, and that the orders of the Court may be safely executed by those who are competent to obey them, and future litigations may be prevented; also that a person who ought to be, but is not, a party to a proceeding is not ordinarily bound by any decree or order passed therein. The great risk from abatement, and the inconvenience and the expense involved in a great number of persons being parties, led the Courts in Equity to recognize the representative system, as it was not inconsistent with general principles that certain judicial proceedings taken by or against a select number as representing a large class might, if fairly and honestly conducted, bind or benefit the whole class. Jenkins v. Robertson (1866) I.H.C.Sc. 117. To this practice which long prevailed in the Equity Courts in England legislative sanction was given by the enactment of a rule, to which, with certain modifications the present Rule 8 of Order 1 of the Civil Procedure Code corresponds. This provision of the law has been enacted only for the sake of convenience; it is an enabling one and does not debar certain members of a community, who did not represent the community from suing in their own right: Baiju Lal v. Bulahlal (1897) 24 Cal. 385. This last mentioned case was relied upon by the respondents as an authority for the proposition that the decree passed in favour of the twelve plaintiffs was a good decree even if it be held that they had no right to represent the public. It will be seen, however, that the case is no authority for such a proposition. The facts of that case were that a suit had been instituted by seven Gayawals to restrain the defendant from taking certain action in respect of a masonry platform round a sacred tree in the town of Gaya and the plaintiffs came into Court upon the allegation that they formed a punch or committee which represented the entire Gayawal community, and further that even if that should not be found to be the case, they had the right individually to restrain the defendant from the action complained of. The Munsif found that the plaintiffs did not constitute the punch and, therefore, they could not represent the entire Gayawal community, and therefore they could not sue on their behalf except by leave of the Court as provided by Section 30 of the Code of Civil Procedure. But at the same time he held that they had individually the right to restrain the defendant from the acts complained of and accordingly having found for the plaintiffs on the merits he decreed the suit. The District Judge on appeal did not regard the suit and did not deal it in any way as a suit brought by the plaintiffs in their individual capacities although he found that each of the plaintiffs had a valuable pecuniary interest and each of them had a cause of action, and being of opinion that they must obtain the necessary permission under Section 30 held that the plaintiffs must be cast in the suit. That obviously was wrong; and it was held that Section 30 did not forbid the plaintiffs to sue in their own right and it merely said that if they desire to sue on behalf of others, they must obtain the permission of the Court. It was held in that case that Section 30, Civil Procedure Code was an enabling section and it did not debar the plaintiffs in suing in their own right as they did in that case. It will be seen that the suit in that case was one which came under the second class of suits mentioned above; and when it was found that they did not represent the entire Gayawal community there was no reason to refuse them a relief upon the basis of their individual rights which were found in the case. The case of Gulba v. Basanta (1910) 32 All. 284 also upon which reliance has been placed on behalf of the respondents lays down the same principle. In that case the plaintiffs as being two of the members of the Lodh Community, sued for a declaration that the Chaupal with its appurtenant shops were owned and possessed by the plaintiffs and they sued as being owners thereof and sharers therein and for the protection of their own rights. The suit, therefore, came within the second class of suits referred to above. The present suits does not come within that class at all, the plaintiffs have sued not for declaration of their own right but the right of the villagers and they have sued for themselves and the 'other villagers, the two bodies together comprising the entire body of villagers, and have stood not upon their own individual rights but upon those of the villagers, of which they are a part and the reliefs they have claimed are for the benefit of the entire body of villagers. This suit therefore comes within the third class of suits mentioned above, a class of which Prestney v. Mayor of Colchester (1882) 21 Ch.D. 111 is a type. For such a suit, in order that it may be instituted on behalf of the entire body of villagers claiming the right, the necessary leave under Order 1, Rule 8, C. P.C., must be obtained. The respondents urge on the strength of the case of Ahmed Ali v. Abdul Majid (1917) 44 Cal. 258 that want of permission does not affect the jurisdiction of the Court to try the suit. The case is no authority for the proposition in support of which it was cited, to the effect that even if the permission was not obtained the plaintiffs' suit) should not be dismissed and he should get a decree if he has proved all the necessary facts. On a careful review of the earlier authorities it was held in that case that the objection under Section 30 of the old Civil Procedure Code which corresponds with Order 1, Rule 8 of the present Coda is not one affecting the jurisdiction of the Court and that permission can be granted subsequent to filing of the suit. It was held also that there is no doubt that the proper course is to obtain permission under Order 1, Rule 8 before the suit is instituted, but there is nothing in the rule to show that if it is not so done, it cannot be granted afterwards: and that the suit should not be dismissed merely because the permission was not obtained before its institution. These propositions do not really affect the controversy in the present case. They do not profess to lay down that if in a representative suit, the plaintiffs have not been constituted as representatives they may yet get a decree in a representative character or if they fail to get such a decree they can ask the Court to award them a decree in their own personal rights on the basis of a cause of action on which they never sued. Of course the permission need not be express: it is enough if it can be reasonably inferred from the proceedings; Dhunput Singh v. Paresh Nath Singh (1894) 21 cal. 180, Kalu Khabir v. Janmeah (1902) 29 Cal. 100.
6. The principles regulating these representative actions are well-settled. Where one sues he is the sole plaintiff and is dominus litis until judgment; he alone can discontinue, compromise, submit to dismissal, etc., as he pleases but he must do-so with leave of the Court: In Be Calgary and Medicine Hot Land Co. Pigeon v. The Company (1908) 2 Ch. 652. If he dies the suit abates. If he becomes bankrupt the action will be dismissed, unless the trustee in bankruptcy elects to continue: Wolff v. Van Boolen (1906) 94 L.T. 502. But in such events the rights of others of the same class are not affected, they may take proceedings' on their own account: Handfard v. Storie (1825) 2 Sim. & Section 196. Where several sue they have like powers, but they must act together: Leathley v. Mc. Andrew (1876) W.N. 38. After judgment, no further action can be brought by the others: In Be Alpha Co. Ward v. Arpha Co. (1903) 1 Ch. 203. In Re Calgary and: Medicine Hot Land Co. Pigeon v. The Company (1908) 2 Ch. 652, Walker v. Sur (1914) 2 K.B. 930. The class of persons sought to be represented must be defined in the pleadings with sufficient clearness. A claim to represent some of the members of a class without defining which members would not be maintainable: Mark v. Knight-Steam Ships Co. Ltd. (1910) 2 K.B. 1021. If one of the persons on whose behalf the plaintiff purports to sue objects to the plaintiffs so doing he may apply by summons to have himself added as defendant; Wilson v. Church (1878) 9 Ch.D. 552, Watson v. Cave (1881) 17 Ch. D. 19; Fraser v. Cooper Hale & Co. (1882) 21 Ch. D. 718, May v. Newton (1887) 34 Ch. D. 347. If some of the class represented by the plaintiff have also adverse interests or desire to stand aloof, he should except these and may if they are few, make them defendants; or if they are numerous sua one or more on behalf of all. Fraser v. Cooper (1882) 21 Ch. D. 718, Wilson v. Church (1878) 9 Ch.D. 552, Watson v. Gave (1881) 17 Ch. D. 19. From a consideration of these cases these principles follow; that the plaintiffs, where there are more persons than one as plaintiffs collectively, are competent to represent the entire body, that they must act together, that if some of them are dissentient they may apply to be made defendants, that there can be no devolution of their interests as such representatives either on their death or their bankruptcy. It is abundantly clear therefore that when out of the fifteen persons in whose favour permission was granted by the Court three did not join the institution of the suit the remaining twelve were not competent to take upon themselves the capacity with which the fifteen collectively were clothed. The remaining twelve were bound to bring the matter to the notice of the Court and it would have been for the Court to grant them a fresh permission or not, making the dissentient or non-prosecuting plaintiffs defendants to the action or taking such other steps as the Court 'thought just, safe and proper. The suit therefore was not maintainable without a fresh order for representation; and this defect cannot be cured by doing what the learned Subordinate Judge has done, viz., by striking out the names of those three persons and making a decree in favour of the others.
7. As to the notice, the respondents, are right in their contention that the objection was not taken in the Court below and therefore, I should not have felt disposed to interfere with the decree on that ground if that ground had stood alone. I may however point out that the issuing of a notice under this section is not such a mere matter of formality as it is sometimes thought. The persons whose interests are to be represented by the plaintiffs have a right to know who are the persons who are to represent them and they have a right to judge of their competency in order to enable themselves to take such other or further steps as they desire so that their interest-may be safeguarded. Where a person-sues or is sued on behalf of himself and others, any decree that may be passed is binding upon all unless that decree has been obtained by fraud or collusion (Section 44 of the Evidence Act, and Section 11, Civil Procedure Code, Explanation VI). It is therefore necessary that notice of the suit should be given to all the parties who would be so bound. It is open to a party to apply to be made a party to a representative suit provided he can satisfy the Court that his interest will be prejudiced if he is not allowed to be joined as a party: Vasonji Tricaneji and Co. v. Ismaibhai Shivji (1909) 34 Bom. 420. The wording of Order 1, Rule 8 shows that it is the duty of the Court to cause the service of the notice or the publication of the advertisement, on being moved for the purpose. The suit may not be dismissed on account of the failure of the Court to perform its own duty. Mukhlal Singh v. Jagdeo Tewari (1908) 35 Cal. 1021. The Court, in my opinion, is not relieved of the necessity of doing its duty or to treat the matter as a mere matter of formality, the reason of the rule being based on cardinal principles of immense importance. I would follow the dictum of Banerji, J. in the case of Kali Kanta Sarma v. Gouri Prasad Sarma (1890) 17 Cal. 906 where the learned Judge observes as follows:-'It was argued on behalf of the plaintiffs-respondents that the parties being numerous, the first Court followed the course laid down in Section 30 of the Code of Civil Procedure, and permitted some of each group of persons interested and who ought to have been made parties, to represent the rest, We have heard the order of the first Court read out to us, and though that order purports to have been passed under Section 30, it is clear that the provisions of that section have not at all been properly carried out. Section 30, as we understand it, requires that the Court should exercise a judicial discretion in permitting some definite person or persons to sue or be sued on behalf of all the persons interested, and it further requires the Court to give to the persons interested notice of the institution of the suit which must include a notice of the names of the persons who have bean permitted to represent others, so that the persons interested may have an opportunity of knowing who have been selected to represent them. Now in the present case no such thing was done. In the first place the Court did not give permission to any definitely named persons among those interested to represent the rest; and in the second place the notice issued by the Court did not show who the parsons were that had been selected to represent the remaining persons interested.'
8. In my opinion, therefore, this ground taken by the appellants in this appeal is well founded. I therefore set aside the decrees of the Courts below and send the case back to the Court of first instance, So that the Court may make a fresh proper representative order in accordance with the provisions of O.1, Rule 8, C. P.C., and in the light of the observations made above.
9. Before parting with the case I think I must also make a few observations on the second ground taken by the appellant as noticed above. The learned Munsiff held that 'there was not the least doubt that the Maharaja of Tipperah was a necessary party.' He however gave no reasons for this opinion of his. The learned Subordinate Judge observed that he failed to see how the Maharaja was a necessary party in the sense that the suit was not maintainable in his absence, though in his opinion it would have been better if the suit had been decided in the presence of the Maharaja. The pleadings of the parties have been read out to me and my attention has been drawn to the cases of Durga Charan Sarkar v. Jotindra Mohun Tagore (1900) 27 Cal. 493 and Jogendra Nath Singh v. Secretary of State (1912) 16 C.L.J. 385 and I have been invited to decide as to whether the Maharajah of Tipperah is a necessary party to the action and to make suitable orders in accordance with the view that I take of the question. I advisedly refrain from going into the question, as I am not sure what features the pleadings will assume when the suit will be taken up on remand, having regard to the arguments that have been addressed to me on the nature of the rights on which the plaintiffs mean to take their stand.
10. The costs of this litigation will be borne by the respective parties for themselves, up till now, and all orders as to costs passed heretofore are set aside.