GOVIND RAM Vs. GOKUL

JUDGEMENT

(1.) This appeal raises an interesting point. Govind, Dallu and Kallu, all by caste Kalwars, were aggrieved by certain Hindus and Muhammadans, refusing to allow them to draw water from five wells and thereupon Govind, Dallu and Kallu purporting to act on behalf of all the members of their brotherhood filed a plaint what was, as we shall show most clearly, intended to be a representative and not a personal suit against some 18 defendants. The plaintiffs omitted to obtain the permission which is required by O.1, Rule 8. That fact did not appear to be noticed by the defendants. It was undoubtedly a matter of discussion before the Munsif, who, however, in our opinion, did not approach the matter properly when he had found that the plaintiffs were themselves alleging that the suit was one under Order 1, Rule 8. It was his duty to study the provisions of Order 1, Rule 8, and he would then have seen that before he was entitled to hear the suit at all permission had to be granted by a competent Court declaring that the plaintiffs were entitled to present a representative suit.

(2.) Order 1, Rule 8 has two intentions. The first is to see that the suit which is proposed to be lodged is prima facie a proper suit brought by people who can clearly claim to be representing the community. The second intention is that the plaintiffs shall furnish funds which will permit of a sufficient advertisement of the suit, so that the whole of the members of the community may be fully apprised of the suit. The Munsif quite improperly permitted himself to take up this case and to record evidence. It was, in our opinion, his plain duty to require the plaintiffs to obtain permission as a condition precedent to his entering on the case and then his duty of notification would follow. In the same way the lower appellate Court entertained and heard the appeal and so did the single Judge of this Court. We are of opinion that none of the Courts should have gone into the merits of the case once it was satisfied that this was a representative action, and the imperative provisions of Order 1, Rule 8, had not been complied with. Argument has been addressed to us in which it was endeavoured to show that this was a dual species of action by the plaintiffs, namely an action in which they personally were suing as individuals and that they also were suing on behalf of others, the members of the community in a representative an action. The short answer to this is what the plaintiffs themselves say. In.para. 7 they say: On account of the nature of the suit other persons and the members of the plaintiffs brotherhood could not join in the suit. Therefore the plaintiffs file this suit on their own behalf and on behalf of the members of the brotherhood under Order 1, Rule 8, for the benefit of all the members.

(3.) The phrase "on their own behalf and on behalf of the brotherhood" is a recognized phrase used in a matter of this kind, in the same way as in the representative suit by a shareholder against a company the phrase is "on behalf of himself and all others, the members of the company." It has been said that although there was a failure to obtain permission, nevertheless the learned Munsif should have amended the plaint and cut out all the portion that related to a representative action and have allowed the plaintiffs to continue a personal action. But all sorts of difficulties would at once have arisen. The defendants were brought on the record not because all of them had personally obstructed each and every one of the plaintiffs but because they were representatives of the two opposing communities. In our opinion, no amendment could possibly have turned this point into an effective one. Again the other answer is that nobody asked for any amendment. We have been referred to two cases, one of them is: Baiju Lal v. Bulak Lal [1897] 24Cal. 385 and the other in Shiamlal V/s. Mt. Lalli A.I.R. 1922 All. 16. These decisions are, in our opinion, exactly right in every way on the points which the learned Judges were called on to decide, and we approve the passage in Walsh, J s., judgment where he pointedly refers to the peremptory nature of Order 1, Rule 8. This case is an illustration of a very simple truth which is that rules must be obeyed. O.1, Rule 8 contains a clear provision that no representative action can be brought without the permission of the Court having been given and the learned Munsif should have been aware of this fact. We, therefore, dismiss this appeal on the ground that there was no suit which came up in legal form before the Munsif. Some apprehension of res judicata has been suggested. There can be no question of res judicata because there never was before the Court a proper res upon which any judgment could be pronounced. The only order the Munsif should have made would have been to have rejected the plaint on the ground of the failure to obtain permission. We therefore set aside the decree of the learned single Judge of this Court, and repeating that this was a suit which should never have been entertained by the Munsif, we dismiss the suit ordering the plaintiffs to pay the costs throughout in all Courts.