ADHIKARI NAIK Vs. SADHU CHARAN BISWAL

JUDGEMENT

(1.) The present opposite party No. 7 had filed T.S. No. 185 of 1996 in the Court of the Civil Judge (Sr. Dvn.), Bhubaneswar, under Order 1, Rule 8, of the Code of Civil Procedure (hereinafter referred to as the 'C.P.C) for and on behalf of Sabara Community of village Gadakana for declaration of their communal right over the disputed land and for injunction prohibiting the State Government from paying any compensation to defendant No. 1 (present opposite party No. 1). Opposite party No. 7 had also filed an application under Order 39, Rules 1 and 3, C.P.C, which had been numbered as Misc. Case No. 196 of 1996 for restraining the present opposite party No. 1 from receiving compensation amount in Land Acquisition Case No. 164 of 1987. On 6.5.1997 the present opposite party No. 7 filed a memo stating that he did not want to proceed with the case. On 7.5.1997 the present petitioner filed an application purporting to be under Order 1, Rule 8(5), C.P.C., to substitute himself in place of the original plaintiff (present opposite party No. 7) in the suit as well as in the Misc. Case under Order 39, Rules 1 and 2, C.P.C., seeking permission to proceed with the case. The Civil Judge dealt with the application under Order 39, Rules 1 and 2, C.P.C., and the application of the present petitioner by a common order and rejected both the petitions. The present Civil Revision is directed against the part of the order rejecting the application of the present petitioner under Order 1, Rule 8(5), C.P.C.

(2.) ORDER 1, Rule 8, C.P.C. provides institution of suit commonly known as suit in representative capacity. Order 1, Rule 8(1), C.P.C. envisages that where there are numerous persons having the same interest in one suit, one or more of such persons may sue on behalf of all persons so interested. Sub -rule (3) of Rule 8 of Order 1, C.P.C, envisages that any person on whose behalf, or for whose benefit, a suit is instituted may apply to the Court to be made a party to such suit. Sub -rule (4) of Rule 8, Order 1, C.P.C. envisages that no part of the claim in any such suit shall be condoned and no such suit shall be withdrawn and no compromise shall be recorded unless appropriate notice is given at the expense of the plaintiff to all persons so interested. Order 1, Rule 8(5), C.P.C, which is relevant for the present Civil Revision provides : '8. One person any sue or defend on behalf of all in same interest - xx xx xx xx(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.' Sub -rule (6) of Rule 8 of Order 1, C.P.C, envisages that a decree passed in such a representative suit is binding on all persons for whose benefit, the suit is instituted. The provisions contained in Order 1, Rule 8, C.P.C, leave no room for doubt that the person files such a suit on behalf of others does not do so in his individual capacity but does so in a representative capacity. The provisions are intended to benefit the numerous persons having the same interest in the suit and safeguards are provided to see that the person suing or defending on behalf of numerous persons does not prejudicially affect the rights of such numerous persons by his negligent action or lack of diligence.

(3.) FOR the aforesaid reasons, the Civil Revision is allowed and the present petitioner is permitted to substitute himself as plaintiff in representative capacity in place of original plaintiff (present opposite party No. 7). It is made clear that the suit itself should be disposed of on its own merit in accordance with law without being prejudiced by any observations made by the Civil Judge in the impugned order or any observations made in the present Civil Revision. The fact that the Civil Revision has been allowed and the petitioner is substituted as plaintiff, should not be considered as expressing any opinion on the merit of the case. There will be no order as to costs.