RADHA KISHAN Vs. RAJA RAM AND ANOTHER

JUDGEMENT

(1.) THE suit out of which this second appeal by the Defendant has arisen was instituted by two persons named Raja Ram and Nirbhe Ram on their own behalf and on behalf of other residents of Mohalla Dedraj of Jind town claiming rendition of accounts from the Defendant. The suit was resisted on various pleas, one of which was that the provisions of Rule 8 of Order I of the Code of Civil Procedure had not been complied with and that the suit was, therefore, not maintainable. On this plea the issue struck was:

(2.) THE Defendant went up in appeal to the District Court at Jind. Amongst the contentions raised on his behalf in that Court was one to the effect that issue No. S -B had been erroneously decided. The lower appellate court, however, upheld the finding arrived at by the trial, court on that issue thus:

(3.) KUTHUKUTTY Kunholi's son Kunhalavi Musallar and Ors. v. Pakkath Enu's son Abaulla, : AIR 1965 Ker 200. which has been relied upon by the lower courts is of no help to the case of the Plaintiffs. In that case what happened was that the Plaintiffs filed two applications for allowing them to institute the suit in a representative capacity and also for suing the Defendants in such capacity. The court ordered the publication of the notice in a local paper soon after the suit was instituted and such notice was actually published in that paper further, on the date on which judgment was pronounced, trial court actually passed an order permitting the Plaintiffs to sue in a representative capacity and allowing the Defendants to defend the suit on behalf of themselves and others. In these circumstances a contention was raised that the permission granted at the fanged of the case was really no permission, but the contention was repelled it being held that the trial court must be deemed to have granted the permission when it ordered the publication of the notice in the paper. Such permission could be inferred in the present case also if the other residents of Mohalla Dedraj had notice of the institution of the suit by means of a proclamation. But such a proclamation, as already stated, was never made.