Khomdram Ningol Ningthemcha Ongbi Thambalnambi Devi v. Laishram Ningol Leinambi Devi — 1995 DIGILAW 189 (GAU)

N. G. Das, J.: This Letter Patent Appeal is directed against the judgment and order passed by this Court on 3.3.1987 in the First Appeal No.20 of 1972 at Imphal Bench. 2. We have heard Mr. A. Nilamani Singh, the learned senior counsel appearing on behalf of the appellant and Mr. L. Nandakumar Singh, the learned counsel appearing on behalf of the respondents. 3. Mr. L. Nandakumar Singh, the learned counsel for the respondents has taken a preliminary objection as to the maintainability of this Letter Patent Appeal and to appreciate the contention that have been canvassed before us the facts relevant for the purpose may be narrated as under : One Smti Kh. Ningol Ningthemcha Ongbi Thambal Nambi Devi filed a suit in the Court of the learned Sub Judge, Imphal sometime in the years 1964 for declaration of her title in respect of land measuring 17 hectares and also made a prayer recovery of possession as a consequential relief. There were as many as 37 defendants. Out of these 37 defendants, the defendant Nos.7 to 10 filed a joint written statement resisting the suit. Similarly, defendant Nos.3 and 4 filed a separate written statement denying the plaintiffs case. The defendant Nos. 15, 16. 18,22. 23,24,25,27,29,32 and 33 who filed a joint written statement did not admit the case of the plaintiff. Defendant Nos.34, 35, 36 and 37 also filed a separate written statement. The trial Court framed necessary issues and thereafter recorded the evidence of the parties. The suit was however, dismissed by the learned trial Court. Thereafter the present appellant preferred the aforesaid first appeal which was also dismissed by this Court as stated above. 4. Soon after filing of this Letters Patent Appeal the appellant also filed an application being Civil. Misc Petition No.254 of 1987 under the provisions of Order 1 Rule 8 CPC. In that application the appellant made a prayer to permit her to sue the contesting defendants, namely, the defendant Nos.7 to 10 who are principal respondents in the appeal in their representative capacity for or as representing their privies and transferees of the suit lands who were the defendant Nos.11 to 37 in the original suit. 5. In that application the appellant made a prayer to permit her to sue the contesting defendants, namely, the defendant Nos.7 to 10 who are principal respondents in the appeal in their representative capacity for or as representing their privies and transferees of the suit lands who were the defendant Nos.11 to 37 in the original suit. 5. The Letters Patent Appeal was admitted by this Court on 12.8.89 when after hearing the learned counsel for the appellant this Court also allowed the prayer of the appellant to issue the notice only on the main respondents. The misc application numbered as Civil Misc Petition No.254 of 1987 was posted at first on 27.7.89 when a Division Bench of this Court passed an order to post this misc case after service of notices on the respondents in the said appeal. Thereafter, this misc petition was listed on 21.11.90. On this date the learned counsel for the appellant-petitioner appeared before the Court and submitted that this misc petition was already disposed of by this Court by its order dated 12.9.89. So. In view of this submission this misc petition was closed. 6. Now Mr. L. Nandakumar Singh. the learned counsel appearing on behalf of the respondents has submitted that this Letters Patent Appeal is not maintainable only because necessary parties were not made parties in this Letters Patent Appeal. But Mr. A. Nilamani Singh the learned senior counsel appearing on behalf of the appellant has contended 'that such a point at this belated stage is not entertainable as on perusal of the order passed in the main appeal, viz. Letters Patent Appeal will show that the appellant was allowed to cause service of notice only upon the main respondents. In other words. what Mr. Nilamani Singh has submitted that his application under Order 1 Rule 8 CPC being allowed by order dated 12.9.89 Mr. Nandakumar is not entitled to raise this question that notices were not served upon all the necessary parties. We have, therefore, quite carefully gone through the orders that were passed by this Court. The order dated 12.9.89 reads as under: "Heard Mr. A. Nilamani Singh. learned counsel for the appellant. The appeal will be heard. Let the records be called for. The prayer of the appellant to issue notice only on the main respondents is allowed." 7. Mr. We have, therefore, quite carefully gone through the orders that were passed by this Court. The order dated 12.9.89 reads as under: "Heard Mr. A. Nilamani Singh. learned counsel for the appellant. The appeal will be heard. Let the records be called for. The prayer of the appellant to issue notice only on the main respondents is allowed." 7. Mr. Nilamani's contention is that by this order this Court disposed of the Civil Misc Petition No 254 of 1987 wherein the appellant made a prayer lot permitting him to cause service of notice only on the contesting defendants numbered as 7, 8, 9 and 10. The order dated 21.11.90 which disposed of this Civil Misc Petition No.254 of 1987 reads as follows : "It is stated by the learned counsel for the appellant/petitioner Mr. A. Nilamani Singh that this misc petition was already disposed of by this Court by order dated 12.9.89 passed in the main Letters Patent Appeal No.1 of 1987. In that view of the matter this case is closed." 8. In view of the aforesaid order what is needed now to be scrutinised, in view of the submission of Mr. L. Nandaktimar. is whether this misc petition was actually heard and disposed of by this Court by its order dated 12.9.89. On perusal of the order sheet we do not find that notice in respect of this misc petition was served upon the respondents. Mr. Nilamani has however, drawn our attention to office note dated 31.7.87 and submitted that this note very much indicates that notice was served upon the respondent Nos.1 to 4 and the order disposing of the prayer under Order 1 Rule 8 CPC being passed on 12.9.89 it has to be said that notice in respect of the Misc Application No.254 of 198.7 was also served. We are. however, unable to persuade ourselves to agree with the submission of Mr. Nilamani. the learned senior counsel for the appellant as order dated 27.7.89 passed in Civil Misc Petition No.254 of 19&7 shows that notice in respect of this misc petition were not served till then. 9. Apart from this, the main question which poses for consideration is whether such a prayer as made by the appellant-petitioner in his Misc. Petition No.254 of 1987 can be allowed. 9. Apart from this, the main question which poses for consideration is whether such a prayer as made by the appellant-petitioner in his Misc. Petition No.254 of 1987 can be allowed. We are of the view that the prayer made by the appellant-petitioner was an absurd one and such a prayer does not come within the scope of Order 1 Rule 8 CPC. It would be quite apparent from the facts we have described above that 4 sets of written statements were filed by the defendants. On perusal of the copy of the plaint as available in the paper book we find that all the defendants are the principal defendants. The plaint does not show that any of those 37 defendants was shown as proforma defendant. Leaving apart this question the written statement submitted by defendant Nos.3 and 4 as available at pages 76-78 of the paper book we find that these defendants quite categorically stated under para 3 of the written statement that defendant No.2 persuaded them to put their thumb impressions on the deeds which were represented by defendant No. 1 to be deed of sale of the share of defendant No. 1 and defendant No'.2. It was stated that they put their thumb impressions in good' faith. The statements therefore shows that they virtually contested the suit. The defendant Nos.34 to 37 also contested the suit denying the case of the plaintiff. Similarly, the other defendants also resisted the suit by filing written statement. In view of the written statements we are unable to agree with the submission of Mr. A. Nilamani Singh, the learned senior counsel for the appellant that such a prayer is entertainable under Order 1 Rule 8 of CPC. 10. For invoking the Rule 8 two conditions must be satisfied namely, that the parties must be numerous and secondly, they must have the same interest. In the instant case, four sets of written statements filed by the defendants show that they resisted the suit in different capacities and it does not appear that they had community of interest or common interest in the suit In our opinion. In the instant case, four sets of written statements filed by the defendants show that they resisted the suit in different capacities and it does not appear that they had community of interest or common interest in the suit In our opinion. Rule 8 will apply to a case where there are numerous persons having the same interest in one suit Order 1 Rule 8 of CPC requires that the Court should exercise a judicial discretion in permitting some definite person or persons to sue or to be sued on behalf of all the persons interested and it further requires the Court to give persons interested notice of the institution of the suit which must include a notice of the names of all the persons who have been permitted to represent others so that the persons interested max have an opportunity of knowing who have been selected to represent them. But in the present case on going through the records and the order sheets we do not find that such notice were at all served upon the respondents. Moreover, although Mr.A. Nalamani Singh repeatedly submitted that barring defendant Nos.7 to 10 all were proforma defendants, we do not find that any of the 37 defendants was shown as proforma defendant. This does not appear from the copy of the plaint available in the paper book. 11. Mr. Nilamani Singh has however repeatedly submitted that the petition which the appellant filed under Order 1 Rule 8 CPC (Misc Case No.254 of 1987) was disposed of by order dated 12.9.89. The order dated 12.9.89 as quoted above also shows that the appellant was allowed to issue notice only on the main respondents. In this context it may be noted that prayer for deletion of the names of some of the defendants as no relief is sought for against them is not same as that of a prayer to allow some selected defendants to represent all the defendants. 12. Hence, in view of the discussions made above we are of the view that such a prayer disposing of an application under Order 1 Rule 8 is not tenable in law particularly in view of the Facts and circumstances of the present case. Therefore, we refer the matter of his Lordship the Hon'ble Chief Justice. 12. Hence, in view of the discussions made above we are of the view that such a prayer disposing of an application under Order 1 Rule 8 is not tenable in law particularly in view of the Facts and circumstances of the present case. Therefore, we refer the matter of his Lordship the Hon'ble Chief Justice. Gauhati High Court for constitution of an appropriate Bench for disposal of the following question viz : (1) Whether during pendency of a Letters Patent Appeal an application filed by an appellant under Order 1 Rule 8 of CPC to grant him permission to sue the contesting defendants only for themselves and on behalf of the other defendants in their representative capacity is tenable in law ? 13. The Registrar, Imphal Bench of Gauhati High Court is directed to place the matter before his Lordship the Hon'ble Chief Justice, Gauhati High Court immediately for appropriate order in respect of constitution of a Bench.