SRI RAM KRISHNA MISSION Vs. PARAMANAND

JUDGEMENT

(1.) THIS appeal arises out of a suit for declaration that the property in dispute is an endowed and charitable property, a Dharamshala since 13-3-1962, the date when respondent No. 6, namely, Smt. Parmeshwari Devi dedicated the property and created a trust and that thereafter she was not competent to execute the deed of 1968 so as to make a gift of the same property in favour of defendant No. 1, the appellant Ram Krishan Mission. The plaintiffs filed the suit in a representative capacity under O. 1, R. 8, Civil Procedure Code and alleged that plaintiffs Nos. 3 to 6 were Hindus by caste and followers of Sanatan Dharam and were interested in the maintenance of the religious and charitable character of the property in suit while plaintiffs Nos. 1 and 2 claimed to be the trustees by virtue of the trust deed dated 13-3-1962. The plaint was presented on 23-2-1970 and paragraph 9 thereof contained an averment that the suit was being filed under O. 1, R. 8, Civil Procedure Code. On 25-4-1970 an application No. 12/c-2 was moved on behalf of the plaintiffs for permission to sue in a representative capacity i. e. on behalf and for the benefit of the entire community interested. On the same date the court passed the order: "Issue notice by publication in weekly Hindu Hardwar fixing May 21, 1970 for disposal. Steps in ten days." It way be noted that the property in suit is situate in the town of Hardwar and the weekly journal 'Hindu' is also published from Hardwar. In pursuance of the orders of the court the necessary expenses were deposited by the plaintiffs and notice was published in the aforesaid local newspaper on 16-5-1970 inviting objections to the application and at the same time calling upon the interested parties to apply for being arrayed as parties in the suit, if they so desired. The matter was eventually taken up on 20-7- 1970 when the application No. 12/c-2 was allowed by the following order: "No objection filed on 12/c which is allowed." Thus, the requisite permission was granted on 20-7-1970, that is, after the publication of the notice. Thereafter the trial of the suit proceeded and it was dismissed by the learned Civil Judge on 4-12-1971. One of the pleas which had been raised by the contesting defendants was that there was no compliance of Order 1, R. 8, Civil Procedure Code but this plea was repelled by the trial Court, which was of the opinion that there was no irregularity in the proceedings under O. 1, R. 8, C. P. C. and the suit had been properly filed. Thereafter the suit proceeded on merits and was dismissed. The plaintiff preferred an appeal which was allowed by the lower appellate court on the ground, though urged by the defendants that the provisions of O. 1, R. 8, C. P. C. had not been complied with. The appellate court accepted this contention and remanded the case with a direction trial necessary steps under O. 1, R. 8, C. P. C. be taken and the suit be then trial in accordance with law.

(2.) THE contesting defendants, namely Ram Krishna Mission and another have filed this appeal challenging the order of remand and have contended that the provisions of O. 1, R. 8, C. P. C. had been fully complied with and the lower appellate Court acted illegally in remanding the case and not proceeding to decide it on merits. In these circumstances the question which has arisen is as to whether on the facts of the case the procedure followed by the trial Court fulfilled the requirements of O. 1, R. 8, C. P. C. or not.

(3.) SRI Baldev Raj, appearing for the respondents placed reliance on the words ''may with the permission of the court sue" and submitted that that is in the eye of law actually no suit before the court unless the permission has been obtained. He also referred to the latter words of cl. (1) which are: "the Court shall in such case give, at the plaintiffs expense, notice of the institution of the suit". It was sought to be argued on the basis of this phraseology that the court acquired jurisdiction to issue notice only on the institution of the suit and not before that. In short, the contention was that on grant of a permission alone the suit could be deemed to have been instituted and it was only thereafter that the court was competent to issue notice. Reversing this procedure would be a violation of the provisions of Order 1, Rule 8. I am unable to endorse such literal construction of the provisions of the said Rule. Unlike O. 33, R. 8, C. P. C. which provides that where the application for permission to sue as a pauper has been granted it shall be numbered and registered and shall be deemed the plaint in the suit, O. 1, R. 8 C. P. C. contemplates a suit from the very inception. It is true that a representative character is imparted to the suit only after the requisite procedure has been complied with, but it would be erroneous to hold that no suit has been instituted until permission has been granted by the court. I am also not inclined to accept the other submission made on behalf of the appellants in this regard. I think that when a court issues notice on an application for leave under O. 1. R. 8 made after the presentation of the suit, it should be inferred that the court has by implication granted a conditional permission. The main object of issuing such notice is to enable an objector or defendant to appear before the court and file objections or ask for being impleaded. That object would be fully achieved if such procedure is adopted. After all, even if a permission is first granted and then notice is issued, the intention of law is not to attach finality to a permission granted behind the back of a party or parties who may eventually appear before the Court in response to the notice. That would be contrary to all principles of equity. No final permission to lend representative character to suit should be granted until the parties to whom notices have been issued have been afforded an opportunity of objecting to such prayer. From that point of view also it would be reasonable and just that an order granting permission to the issue of notice should be merely conditional or tentative, subject to such final orders as are passed after hearing the parties if they enter appearance and if any objections are filed or any one has applied for being impleaded. Thus, taking a pragmatic view of the situation the procedure which the court should on an application being made under Order 1, R. 8 C. P. C. adopt may be summarised in this manner. When a plaint contains an averment that the plaintiffs are filing the suit in a representative capacity and later an application under O. 1, R. 8 is made, the court may either grant a conditional permission subject to objections being raised by the parties to whom notice is issued or may immediately issue notice even without expressly granting any such conditional permission. After the service of notice either by personal delivery or public advertisement, when either objections have been filed and an application for impleadment is made or no objections are filed and no application for being impleaded is made, the court must after disposing of such objections, if any, pass the final order granting or refusing permission. Thereafter the court shall have jurisdiction to enter into the merits of the case and proceed with the trial. If, however, no express order granting permission is made at any stage whatsoever, the suit would not acquire a representative character.