PURNA CHANDRA PANIGRAHI Vs. BAIDYA JANI

JUDGEMENT

(1.) Differing from the view expressed in some decisions of this Court relating to the scope and ambit of Order 1, Rule -8 of the Code of Civil Procedure, 1908 (in short, the 'CPC'), this reference has been made by a learned Single Judge.

(2.) BACKGROUND facts necessary 1or disposal of the reference are delineated as follows: The dispute relates to the deity Dhabaleswar Mahadev installed in village Sapseiate in the district of Kalahandi. According to Puma Chandra Panigrahi, the appellant, he is the hereditary trustee of the deity, which is a temple. Since the Commissioner had directed constitution of non -hereditary Trust Board Under Section {[0 -9]}7 of the Orissa Hindu Religious Endowments Act, 1951 (in short, the 'Act'), the appellant had sought for ralief Under Section 41 of the Act. Respondents 1 to 6 filed an application Under Section 41 of the Act claiming that the temple was without hereditary trustee. Appellant's application was registered as O. A. No. 19 of 1986, whereas respondents 1 to 6's application was registered as 0. A. No. ?. of 1986 before the Addl. Asst. Commissioner of Endowments, Berhampur. The said authority decided that the institution Dhabaleswar Mahadev alias Pataleswar Mahadev is a public religious institution having no hereditary trustee. The appellant filed an appeal before the Deputy Comissioner of Endowments who upheld the view. Thereafter, the present Misc. Appeal was filed.

(3.) DURING course of hearing of the appeal, it was urged before the learned Single Judge that mandatory provisions of Order 1, Rule 8 CPC having not been complied with, the matter ought to be remanded to the original forum. It was urged that notice under Orderi, Rule 8 CPC , issued did not indicate as to who represented the Hindu public, and the provisions being mandatory, the entire proceeding was vitiated from the stags of issuance of notice. Reliance was placed on various decisions of this Court. Stand of respondents 1 to 6 however, was that the notice is in accordance with law, and even if there was defect in the notice, no prejudice has been caused to the appellant, and he having himself filed the defective notice, the matter should not be remanded to the trial Court to fill up the lacuna. Since the respondents 1 to 6 were appointed as non -hereditary trustees Under Section 21 of the Act, they substantially represented the Hindu public and once they were parties there was no necessity for the general public to be noticed. Learned Single Judge noticed that an application was filed by the appellant no. 27 -3 -1987 to take out notice under Order 1, Rule 8 CPC making the averment therein that he had sued the respondents 1 to 6 in the representative capacity. This application was allowed by the Addl. Asst. Commissioner on 27 -3 -1987 who permitted issuance of notice. Learned Single Judge was of the view that permission granted was defective, because the appellant had sued the respondents 1 to 5 in the personal capacity, and not in their representative capacity. Therefore, permission to issue notice under Order 1, Rule, 8 CPC was illegal exercise of jurisdiction. However, it was accepted that the notice was defective. Learned Single Judge was. of the view that though the notice was defective, yet in view of the fact that the appellant had not sued the respondents 1 to 6 in their representative capacity, permission should not have been granted, and in any event the applicant could not have bettered has case even if the notice would have been proper and legal. Learned Single Judge differed from the view taken by this Court in Udayanath Das v. Lingaraj Maharana and 5 others etc. 1975 (1) CWR 11 and Bauri Sahu and Ors. v. Hanu Behera and Ors. , S. A. No. 37 of 1968 disposed of on 20 -9 -1971, where it was held that whether the plaintiff has a good case on merit or not is not a relevant consideration while deciding the question of validity of a notice under Order 1, Rule a CPC In Udayanath Das's case (supra),an earlier decision of this Court in Brundabati Thakurani and Ors. v. Hari Biswal and Ors. . 1997 (1) CWR 699 was relied on. Learned Single Judge felt that the aforesaid decisions of this Court did not expose the correct position in law and therefore, needed a fresh look. Stands urged before learned Single Judge were reitereted before us by learned counsel for parties.