JUDGMENT 1. THE petitioners, who are six in number, obtained a Rule from this Court against five orders made under [section 5a of the West Bengal Estates Acquisition Act, namely, (i) Order, dated March, 23, 1960 made in Case No. 43 of 1960, Prafulla Kumar Sarker and others v. Tapas Roy. (ii) Order, dated May 14, 1959, made in Case No. 42 of 1959, Prafulla Kumar Sarker and others v. Manke Das Rava. (iii) Order, dated September 3, 1958, in Case No. 9 of 1958, Prafulla Kumar Sarker and others v. Bidyadhar Ray. (iv) Order, dated Sept. 3, 1958, in the case between Prafulla Kumar Sarker and others v. Ramani Mohan Sarker. (V) Order, dated June 10, 1958, in Case No, 1 of 1958, Manindra Chandra Singha Sarker V. Durga Barman. 2. THE petitioners allege that long before May 5, 1953 they had agreed to lease or agreed to sell some of the disputed plots of land to certain persons or had settled some of the disputed plots of land with Chukanidars or undertenants and had, in part performance of the said agreements, or in performance of the settlements, made over actual or physical possession of the disputed lands to those persons, although in some cases formal deeds of transfer or settlement were executed after May 5, 1953. They challenged the provisions of section 5a of the West Bengal Estates Acquisition Act on diverse grounds and particularly in its application to Coochbehar, where the disputed lands are situate, and obtained Civil Rule No. 407 (W) of 1961. They now apply for leave under Order 1, Rule 8 of the Code of Civil Procedure to convert their petition into a representative petition on behalf of or for the benefit of all tenants, under tenants, raiyats and jotedars, who are being aggrieved or affected by proceedings taken under section 5a of the West Bengal Estates Acquisition Act, 1953. On being questioned whether such a procedure is available to an application for high prerogative Writ under Article 226 of the Constitution, Mr. D. N. Das, learned Advocate for the petitioners relied on the observations contained in the following decisions in support of the application. On being questioned whether such a procedure is available to an application for high prerogative Writ under Article 226 of the Constitution, Mr. D. N. Das, learned Advocate for the petitioners relied on the observations contained in the following decisions in support of the application. (i) Bejoy Ranjan Rakshit v. B. C. Das Gupta, (A. I. R. 1953 Calcutta 289), in which Bose J., (as the Chief Justice then was) observed: "it appears from the Statute relating to this State Medical Faculty, being Clause 2, that the State Medical Faculty consists of (a) Governing Body, (b) Fellow, (c) Members and (d) Licentiates, and it is stated by the learned Advocate for the opposite parties that the total number of the members of the State Medical Faculty is very large. Even assuming that it would be more appropriate to impaled all the members of the Faculty as parties to this application, it is open to the petitioner to have recourse to O. 1, R. 8 Civil P. C. and proceed against only some of the members representing themselves and all other members of the State Medical Faculty. It appears to me that the objection taken by Mr. Banerji is a purely technical one and can be easily cured by a formal amendment. Therefore, the objection cannot be considered as fatal to this application. " (ii) Manindra Nath Pal V. Municipal Commissioners of Baranagore Municipality (2) (A. I. R. 1956 Cal. 291) in which Sinha, J., observed :- "finally, Mr. Pal argues that the petitioners have different causes of action and should not be allowed to join in one application. He also takes the point that even if a joint application is maintainable, there are certain drawbacks in such an application. In such an application, you either give relief to all or to none. If it is found that even one of the applicants is disentitled to relief, the whole application must fail. Reference has been made to American Jurisprudence Vol. 35, page 81 para. 333. In my opinion, such highly technical rules of procedure should not be incorporated in our law. This is a poor country and litigation expenses are high. Multiplication of legal proceedings should be avoided at all costs. Reference has been made to American Jurisprudence Vol. 35, page 81 para. 333. In my opinion, such highly technical rules of procedure should not be incorporated in our law. This is a poor country and litigation expenses are high. Multiplication of legal proceedings should be avoided at all costs. It would be sufficient to follow analogously the provisions of O. 1 Civil P. C. However, this is a point upon which it is unnecessary to say more because it finally appears that only one petitioner has any possible ground to put forward in this application." 3. ON behalf of the respondents the aforesaid observations were sought to be got rid of on the theory that the observations were merely obiter dicta or pious wish and should not be treated as binding. Strong reliance was placed on certain observations by Raja Gopala Ayyangar, J., in the case of S. M. Muhammad Ibrahim v. Deputy Commercial Tax Officer (3) (A. I. R. 1956 Mad. 626) to the following effect:- "I agree with the Office note. Where a petitioner desires to question the validity or legality of an order, he is entitled to apply for an appropriate writ, but this right of his flows from the order affecting him. The fact that similar orders are passed in the case of other individuals also,-be it by the same officer or authority-does not mean that the injury caused is a common or class injury so as to justify a single petition with all the individuals similarly affected joining in it as petitioners. The provision in O. 1, R. 8 C. P. C., seeks to obviate the inconveniences arising out of a multiplicity of parties, but neither the rule nor its principle can be extended to writ petitions. " 4. IT is necessary for me to examine the provision of Order 1, Rule 8 of the Code of Civil Procedure which is set out below:- "(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable by public advertisement, as the Court in each case may direct. (2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may apply to the Court to be made a party to such suit. " The provision of the Rule is an exception to the general rule that all persons interested in suit must be made parties thereto. Reasons of convenience require that in suits where there is a community of interest amongst a large number of persons, a few should be allowed to represent the whole so that trouble and expense may be saved. The provision of this Rule applies only (1) if the parties are numerous (2) they have the same interest, and (3) necessary permission is obtained from the Court and notice is given. The term 'numerous' is not a term of art and is not synonymous with the word, 'innumerable' and the Rule does not fix any limit to the number. The words 'same interest' in the Rule do not mean the same beneficial proprietary right in the subject matter of the suit. Such a restricted meaning of the words 'same interest' was condemned by Lord Macnaghten in interpreting the corresponding English Rule in the case of Duke of Bedford v. Ellis (4) (1901) A. C. 1 (8 ). His Lordship observed :- "given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent. To limit the rule to persons having a beneficial proprietary interest would be opposed to precedent, and not, I think, in accordance with common sense. " 5. THE expression "same interest" must be distinguished from the expression ''same transaction". What is required under this Rule is that the parties should have the same interest; it is not necessary that their interest must arise from the same transaction. 6. ORDER 1, Rule 8 applies of its own force to suits. " 5. THE expression "same interest" must be distinguished from the expression ''same transaction". What is required under this Rule is that the parties should have the same interest; it is not necessary that their interest must arise from the same transaction. 6. ORDER 1, Rule 8 applies of its own force to suits. The question is whether its provision applies to an application under Article 226 of the Constitution if it otherwise satisfies the conditions of a representative action, by reason of section 141 of the Code of Civil Procedure, which reads as follows:-- "the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction. " Dealing with section 647 (the corresponding section under the Code of 1882) the Privy Council observed as follows in the case of Thakur Prosad v. Sheikh Faldrulla (5) (L. R. 22 I. A. 44) :- "it is not suggested that section 373 (now Order 23, rule 1 C. P. C.) would of its own force apply to execution proceedings. The suggestion is that it is applied by force of section 647. But whole of Chapter XIX of the Code, consisting of 121 sections, is devoted to the procedure in executions, and it would be surprising if the trainers of the Code had intended to apply another procedure mostly unsuitable, by saying in general terms that the procedure for suits should be followed as far as applicable. Their Lordships think that the proceedings spoken of on section 647 include original matters in the nature of suit such as proceedings in Probates, Guardianships, and so forth, and do not include executions. " 7. NOW, an application under Article 226 of the Constitution is in the nature of an original proceeding to be made before the Constitutional Writ Jurisdiction of this Court, except an application for a Writ in the nature of Habeas Corpus, which is to be made in the Extra-ordinary Original Criminal Jurisdiction of this Court. They are governed by procedural rules framed by this Court and Rule 1 of the Rules relating to the applications under Article 226 of the Constitution reads as follows:- "except as otherwise provided, all applications made under Article 228 (1) of the Constitution shall be governed by these rules. They are governed by procedural rules framed by this Court and Rule 1 of the Rules relating to the applications under Article 226 of the Constitution reads as follows:- "except as otherwise provided, all applications made under Article 228 (1) of the Constitution shall be governed by these rules. " Rule 11 of the said Rules provides: "the prayer to the petitioner shall distinctly state the particular Writ or Writs which the petitioner requires to be issued and the particular direction or directions which are prayed for. Where leave is asked for making an application in a representative capacity there must be a distinct prayer to that effect. " Rule 30 of the said Rules reads as follows :- "except as otherwise specified in these rules,-In respect of 'original Side' applications the rules of the Original Side relating to interlocutory applications, and in respect of 'appellate side' applications, the rules of the Appellate Side relating to Civil Revisions shall apply mutatis mutandis is respect of the following matters:- (1) The drawing up of all interlocutory orders and the rule-nisi. (2) The service of all orders and the rule-nisi upon the respondent or respondents. Provided however that in applications marked 'appellate Side', the cost of serving interlocutory orders by post upon the respondent or respondents shall be borne by the petitioner. (3) The appointment of next friend for a petitioner or a guardian-ad-litem of the respondent, where the petitioner or the respondent, as the case may be, is a minor or a person under disability. (4) The entering of appearance of the respondent or respondents, including the filing of Vakalatnamas and Power of Attorney. (5) The making of interlocutory applications. (6) Affirmation of affidavits. (7) Filing of petitions and affidavits. (8) Payments of Court-fees. (9) Payment of process-fees. (10) The drawing up of orders generally. (11) Assessment or Taxation of cost. (12) Any matter, not expressly covered by these rules. Reading Rule 11 and Rule 30 (12) together, it appears that an application in a representative capacity is not wholly un-contemplated under the Rules. " 8. BUT although that is so, the persons whom the petitioners want to represent do not appear to have the same interest in this Rule. They may be interested in a particular interpretation of a particular provision of the West Bengal Estates Acquisition Act, namely section 5a, in their favour. " 8. BUT although that is so, the persons whom the petitioners want to represent do not appear to have the same interest in this Rule. They may be interested in a particular interpretation of a particular provision of the West Bengal Estates Acquisition Act, namely section 5a, in their favour. The applicants seek to represent also those against whom order under 5a of the West Bengal Estates Acquisition Act have been made or proceedings started in respect of other properties, on the theory that they may have a common grievance as to the applicability of section 5a. That is not the scope for a joint action far less for a representative action. For the reasons aforesaid, I dismiss this application but make no order as to costs.