NARHARI SHASTRI Vs. PTBASUDEO NAMBURI

JUDGEMENT

(1.) This is a plaintiffs appeal against a judgment and decree of the learned Senior Subordinate Judge of Garhwal dismissing the suit on the preliminary ground that it was barred by the doctrine of res judicata. The suit was a representative suit brought on behalf of all the members of the Deoprayagi Panda community of Badrinath and an application for permission to sue in a representative capacity was made to the Court below under Order 1. Rule 8, Civil P.C., and was granted. The reliefs as they ultimately stood after amendment are to be found at p. 6 of our paper book. The plaintiffs prayed for a declaration : (1) that they were the Pandas of Badrinath temple and had a right to go into the precincts of the temple at all times and on all occasions without obstruction, when the temple was open with the object of obtaining darahan of the deity; (2) that they had a right freely to go into the precincts of the temple with their jajmans or clients, whenever it was open, for assisting the clients in the matter of darshan and worship; (3) that they had a right to accept within the precincts of the temple whatever was put into their hands as a gift to them by their clients inside the sacred precincts of the temple at the time of the darshan worship, etc. It was further prayed that a perpetual injunction be issued to the Rawal of the temple restraining him from interfering with these immemorial rights of the plaintiffs. As we have stated above, the only issue which the Court below has tried is that of res judicata and holding in favour of the defendant on that point, it has dismissed the suit.

(2.) The litigation on which reliance was placed by the defendant for his plea of res judicata was commenced in 1895 by five persons, Dharam Datt, Laxmi Dhar, Balmukand, Ram Prasad and Laxmi Narain who described themselves as Panch Deoprayagi. It was a suit filed on 19 August of that year in the Court of the Deputy Collector of Garhwal and was numbered as Suit No. 345 of 1895. In that plaint the claim was stated to be one for restoration of the old rights of taking pilgrims inside the temple of Badrinath for purposes of darshan and it was stated that the cause of action for the suit had arisen when Maharani Debas and her retinue were taken for purposes of darshan in the temple and the defendants of that suit had prevented the plaintiffs from going inside the temple. That suit had been decreed by the trial Court, but was dismissed by the first Appellate Court and that decision was affirmed by the second Appellate Court. It is pleaded by the defendant in the present suit that the decision in that suit of 1895 operates as res judicata in the present suit. It is admitted that no application under Section 30 of the Code of 1882, which corresponded to what is now Order 1, Rule 8, was ever made and that no notices were issued and no permission to sue in a representative capacity was granted by the Court.

(3.) As a matter of fact, it is clear that the provisions of Section 30 of the Code of 1882 were not even thought of during the whole course of that litigation which was started on 19 August 1895. It is argued, how ever, on behalf of the defendant respondent that that suit should be taken to have been filed in a representative capacity by the five plaintiffs, even though there was no such allegation in the plaint of that suit, and further that the omission to take the steps enjoined by Section 30 of the Code of 1882 should be regarded as mere inadvertence and should not be held to prevent the decision in that suit from operating as res judicata in the present suit. Learned Counsel for the plaintiff- appellants has placed before us the decision of their Lordships of the Privy Council in Kumaravelu Chettiar V/s. Ramaswami Ayyar and has contended that in view of that decision of their Lordships it must be held that the decision of the Court below that the present claim is barred by res judicata is erroneous. In our judgment this contention is well founded. In the first place, after going through the plaint and the judgments of the suit of 1895 and certain other documents which, though not printed, have been typed by the defendant respondent, we see no justification for the contention that the Suit No. 345 of 1895 was or purported to be a representative suit. The mere fact that the five persons who filed that suit belonged to the Deoprayagi Community, or that they styled themselves as Panch Deoprayagi, cannot in our opinion make it a representative suit. The claim put forward was one on behalf of the per-sons who were suing as plaintiffs and was based on a personal right which those plaintiffs claimed for themselves. In the second place even if the plaintiffs in that suit had purported to sue in a representative capacity, the omission to follow the provisions of Section 30 of the Code of 1882, as held by their Lordships in the case mentioned above, would deprive the decision in that suit of all binding force so far as people who were not parties to that suit are concerned. Their Lordships of the Privy Council in the course of their judgment, after quoting and commenting upon the English Order 16, Rule 9, and Order 1, Rule 8, Indian Civil P.C. at p. 286 of the report analyse the provisions of the latter and observe: The direction o? all these matters, in striking contrast to the English rule, is placed in the hands of the Court, and the obtaining of the judicial permission and compliance with the succeeding orders as to notice, are, as it seems to their Lordships quite clearly the conditions on which the further proceedings in the suit become binding on persons other than those actually parties thereto and their privies.