HARIHAR JENA Vs. BHAGABAT JENA

JUDGEMENT

(1.) This appeal is at the instance of the legal representatives of the defendant against a reversing judgement of the learned Subordinate Judge, Puri, decreeing the suit brought by the respondents in a representative capacity to declare the suit land as part of the village road land for removal of the foundation laid by the original defendant encroaching upon the suit land.

(2.) In contesting the suit one of the grounds pleaded in the written statement was that the notice issued by the Court under Order 1, Rule 8 C.P.C. for prosecution of the suit by the respondents in a representative capacity was defective. During pendency of the suit, the original defendant entered into a compromise with respondent Nos. 3 and 4. The compromise deed contained a recital that the villagers never used the suit land. The learned Munsif dismissed the suit on the finding that the obstruction by the defendant on the village road had not been proved and that the respondents could not be said to have been deprived of the amenities of the road, the suit land appertains to plot Nos. 712 and 715 belonging to the appellants and that the respondents were not able to establish right, title, interest or possession over the suit land. The findings of the learned Munsif were reversed by the learned Subordinate Judge holding that the compromise effected between the original defendant and respondent Nos. 3 and 4 could not be utilised against the respondents or the general public since the same was not in accordance with Order 1, Rule 8(4) C.P.C.; the suit land appertains to plot No. 669 and that the original defendant had encroached on the village pathway.

(3.) Mr. P.K. Mishra, the learned counsel appearing for the appellants has urged, without going into the merits of the case, that the judgement of the learned Subordinate Judge was liable to be vacated and that the suit is to be remanded for fresh trial since in giving of the notice under Order 1, Rule 8 C.P.C., the requirements of law were not kept in view for which the notice has become defective inasmuch as the notice did not indicate the names of the plaintiffs and only indicated Bhagabat Jena and others to have been permitted to represent the villagers of Radho. The notice also did not indicate the nature of the suit and the reliefs claimed. The subject matter of the suit was not specified and even the disputed properties had also not been indicated. He placed reliance on (1985) 60 Cut LT 208 (Sukadev Tapaswai v. Sri Sidheswar Mahadev Bija Silod), (1975) 1 Cut WR 11 (Udayanath, Das v. Lingaraj Moharana), (Udayanath Das v. State of Orissa), (1971) 1 Cut WR 699 (Brundabati Thakurani v. Hari Biswal) and an unreported decision of this Court, Second Appeal No. 37 of 1968 disposed of on, 29-7-1971 in support of his contention. It is well settled that the provisions of Order 1, Rule 8 C.P.C. are mandatory and not directory in nature and the notice under Order 1, Rule 8(2) is an essential pre-condition for the trial of the suit. The notice under the provision must disclose the nature of the suit as well as reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or oppose it. The notice must state about why the suit has been filed and what is the relief claimed therein and it must also state as to who are the persons who have been selected to represent the cause. Admittedly, the notice in the case has not been issued in such manner. If is the responsibility of the Court under Order 1, Rule 8 C.P.C. to give proper notice and when it becomes defective, the trial of the suit becomes vitiated. The defect being at the very commencement of the suit, the judgement of the learned Subordinate Judge cannot be allowed to stand. Mr. R.K. Mohapatra the learned counsel appearing for the respondents also fairly concedes the position.