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2010 DIGILAW 113 (JK)

Ab. Rashid v. Stanzan Dorjay Manager

2010-03-04

GH.HASNAIN MASSODI

body2010
1. This civil first appeal is directed against exparte judgment and decree passed by learned District Jude Kargil on 29 November 1985 in civil suit titled Lama Konchok, manager Rangdum Gonpa and another v. Abdul Rashid and others whereby learned trial judge has granted a permanent injunction/decree restraining the appellants and "other Bakarwals" from interfering with peaceful possession of the plaintiffs-respondents herein. However, neither the judgment nor the decree called in question} describe the immovable property in respect of which the judgment/decree is passed. The brief facts are as under: 2. The respondents filed a suit for permanent injunction against the appellants and "other Bakarwals" restraining the appellants and "other Bakarwals" from wrongfully entering in the entire area of Rangdum from Spentsela Pass and Knjula Pass to the mountain of O-Sgam and all other big and small villages and gorges, from glaciers to the other side of the river and entire uninhabited area with its pastures, water and herb and wood and from disturbing the peaceful possession of the respondents. The respondents case before the trial court was that Rangdum Gonpa, situated at village Rangdum tehsil and district Kargil, is the seat of his holiness Ngri Rinpocha, who is the supreme religious incarnate head and other Lamas are his monks and villagers are the attendants of Gonpa. The respondent no. 1 claimed to be the manager of the Gonpa and the respondent no. 2 a responsible functionary of Gonpa and both having the right to protect the properties of the Gonpa. It was averred that the ruler of Ladakh through a written edict/order transferred entire area of Rangdum from Spentsela Pass and Knjula Pass to the mountain of O-Sgam and all other big and small villages and gorges, from glaciers to the other side of the river and entire uninhabited area with its pastures, water and herb and wood to the Gonpa, and thus the entire area was under the ownership and possession of his holiness Ngri Ringpocha. It was insisted that the order of the ruler of Ladakh, king Tsewang Namgyal, came to be reaffirmed by the kings who succeeded him. It was insisted that the order of the ruler of Ladakh, king Tsewang Namgyal, came to be reaffirmed by the kings who succeeded him. The respondents pleaded that the defendants and "other bakerwals" from Anantnag and other areas without any right and justification had been attempting to interfere in the possession and ownership of the subject matter of suit and that the collector Kargil in exercise of his powers under section 133 Land Revenue Act on 22nd. November 1979 directed the appellants to vacate the suit property and that the defendants despite this direction continued with their illegal designs; that on 7th July 1981 an agreement was executed between the parties and registered before the sub-registrar Kargil whereby the appellants agreed not to directly or indirectly encroach upon or let loose their livestock on suit property. The respondents complained that the defendants notwithstanding their commitment continued to cause interference by entering the area of Rangdum with their livestock, thus leaving no option for the respondents but to institute the suit. The respondents in the factual background set out in the plaint asked for a permanent decree restraining the defendants from causing interference in the area detailed in the plaint. 3. The suit was filed and registered on 25th August 1985 and the appellants/defendants directed to be summoned. The appellants/defendants were set exparte on 29th November 1985. The plaintiffs/respondents examined witnesses in exparte and the trial court on 29-11-1985 passed exparte judgment decree. 4. The exparte judgment and decree are assailed on the following grounds: 1. That the trial court has not followed the procedure prescribed under Order 1 Rule 8 Civil Procedure Code in as much as permission to sue the appellants in representative character was neither sought nor granted by the trial court. 2. That the appellants were not served in accordance with Order 5 CPC and that the exparte judgment and decree are liable to be set aside on this ground alone. 5. I have gone through the memorandum of the appeal and the record and have heard learned counsel for the parties. 6. Learned counsel for the respondents has taken a threshold objection to the very maintainability of the appeal. It is argued that as the memorandum of appeal was not accompanied with certified copy of the decree assailed in the appeal, the appeal was not maintainable and ought not to have been entertained. 6. Learned counsel for the respondents has taken a threshold objection to the very maintainability of the appeal. It is argued that as the memorandum of appeal was not accompanied with certified copy of the decree assailed in the appeal, the appeal was not maintainable and ought not to have been entertained. The learned counsel for the respondents making a pointed reference to Order 41 Rule 1 submits that copy of the decree appealed from, must mandatorily accompany the memorandum of appeal and that though the appellate court may dispense with the requirements of appending a copy of judgment with the appeal, it lacks power to dispense with the requirement of appending a copy of decree appealed from, with memorandum of appeal. It is submitted that in the instant case the copy of the decree admittedly was not enclosed with the memorandum of appeal, thus the appeal was not maintainable. 7. It appears that the appellants in the memorandum of appeal made specific averment that the appellants were not being allowed to enter Kargil and were thus not in a position to obtain copy of the judgment and decree from the trial court. The appellants sought exemption from the requirement to append copies of decree and judgment appealed from, with the memorandum of appeal. The appellants even filed a separate application on 29 July 1986 for such exemption. The appellants thereafter on 22 September 1986 filed copies of decree and judgment as is reflected in the registry note as well as the interim order dated September 22, 1986. This court did not only permit the appellants to file the copy of the decree sheet but later condoned the delay in filing the appeal. In the circumstances the defect pointed out at the time of filing of appeal was removed when the requisite copies were filed and vide order dated August 28, 1986 allowed to be brought on record. The appeal is thus to be taken to have been validly filed if not on July 30, 1986, at least on August 28, 1986. The conclusion so drawn, is reinforced by law laid down in SLJ 1987 J&K 165. The preliminary objection raised by the learned counsel for the respondents to the maintainability of the appeal is thus bereft of any merit. Having dealt with the preliminary objection let us proceed to focus on the grounds urged in the appeal. 8. The conclusion so drawn, is reinforced by law laid down in SLJ 1987 J&K 165. The preliminary objection raised by the learned counsel for the respondents to the maintainability of the appeal is thus bereft of any merit. Having dealt with the preliminary objection let us proceed to focus on the grounds urged in the appeal. 8. The appeal, as already pointed out, is edificed on only two grounds. The first ground taken up in the appeal is that though the respondents instituted the suit against whole Bakarwal community, yet no permission was sought from the court on the date suit was filed to file the suit against the respondents in representative capacity. A closer look at the plaint becomes necessary in view of the first ground of attack spelt out in the appeal. Para 8 of the plaint deserves attention and may be reproduced hereunder: "(8) That the defendants and the other bakarwals belong to the same clans and group and they have the same interest. The defendants on record are the leaders of the said group, so the suit is instituted through the defendants on record only." 9. A bare reading of aforesaid para of the plaint makes it abundantly clear that the defendants were sued in a representative capacity as representatives of the "Bakarwal community." Order 1 of CPC deals with parties to suits. Order 1 Rule 8 makes scope for a suit by one or more persons on behalf of numerous persons where all the persons have the same interest in one suit and also a suit against one or more persons on behalf of numerous persons where such persons are so interested. In order words where a large number of persons have the same interest in the suit either as plaintiffs or defendants, it is not necessary for all persons to join hands to file the suit. Only one or more such persons may file the suit on behalf of such large number of persons. Conversely, when right is sought to be enforced against large number of persons, it is not necessary to join each and every person as defendant(s) in the suit. The plaintiff may very well sue one or more persons on behalf of such large number of persons who may defend the suit. The plaintiff(s), however, are required to comply with the conditions laid down in Order 1 Rule 8 CPC. The plaintiff may very well sue one or more persons on behalf of such large number of persons who may defend the suit. The plaintiff(s), however, are required to comply with the conditions laid down in Order 1 Rule 8 CPC. The first and foremost condition is that the person(s) instituting a suit in a representative capacity claiming to represent numerous people having same interest in the suit or instituting a suit against one or more persons having same interest in the suit has/have to obtain permission from the court to file the suit in the representative capacity to array one or more defendants as representing numerous persons having same interest in the suit, as the arrayed defendants have. It is only after such permission is granted that the suit is entertained and proceeded with. Once the permission is granted, Order 1 Rule 8 sub-Rule 2 casts a duty on the court to give notice of the institution of the suit to all persons so interested, either by personal service or where by reasons of the number of persons or any other cause such service is not reasonably practicable by advertisement/publication. Thereafter, any person on whose behalf or for whose benefit a suit is instituted, or defended, has a right to apply to the court to be made a party to the suit. The emphasis obviously is on the effort to make everyone on whose behalf or for whose benefit the suit is instituted or defended, aware of the institution of the suit so that a person interested in the suit may come forward, dispute the right of the plaintiff to represent such person or the competence of the defendant to defend the suit on his behalf and ask for being arrayed a party to the suit. The mandate of law embodied in Order 1 Rule 8 is in tune with the principle of natural justice and any violation is to impinge upon the proceedings. 10. In the present case as is evident from the minutes of the proceedings, no permission was sought to file the suit in representative capacity as required under Order 1 Rule 8 CPC nor was such permission obviously granted when the suit was filed. 10. In the present case as is evident from the minutes of the proceedings, no permission was sought to file the suit in representative capacity as required under Order 1 Rule 8 CPC nor was such permission obviously granted when the suit was filed. The court did not at the outset, issue a proclamation or otherwise give notice of the institution of the suit to all persons interested in the suit so as to enable them to come forward, if advised, with an application for being arrayed as party to the suit. The proclamation issued a month before final disposal of the suit, in a daily newspaper having no circulation in the area, not followed by an order granting permission cannot be said to be compliance with Order 1 Rule 8 CPC. The conclusions arrived at by the learned trial court thus were without having inputs from all those who might have been interested to defend the suit. Needless to emphasize that Order 1 Rule 8 CPC applies not only to the case of numerous plaintiffs having the same interest but also to the case of numerous defendants having the same interest. It is pertinent to point out that learned trial court while passing the impugned judgment and decree did not restrict relief to the defendants before the trial court but granted an injunction decree against all "Bakarwals" who were claimed to be represented by the appellants. The argument advanced by the learned counsel for the respondents that the judgment and decree impugned herein must at least be allowed to be valid and enforceable against the appellants arrayed as defendants is specious and better to be ignored. It hardly needs to be emphasized that the court has to arrive at a just conclusion after affording an opportunity to all those interested in the suit to project and substantiate their stand The judgment or decree cannot be said to be valid against the defendants before the court in a representative suit when the trial court while adjudicating upon the matter had no such inputs available from all those interested to defend the suit nor was the trial court aware whether the defendant -- appellants herein, had a representative character and were competent to defend the suit. It is to be realized that Order 1 Rule 8 CPC is an exception to the general rule that all persons interested in a suit ought to be made parties thereto and ideally all those against whom a relief is sought must be arrayed as defendants to the suit. It is only as a matter of convenience that suits where there is community of interest amongst a large number of persons, a few should be allowed to represent such number of persons so that huge litigation costs and other inconvenience inherent in a large number of people contesting a claim before the court, are avoided. 11. The minutes of the proceedings before the trial court reveal that the trial court after making a half-hearted attempt to summon the defendants has rushed to resort to substituted service. A proclamation was directed to be issued on October 19, 1985 and the same appears to have been issued in a local daily on 29-10-1985, having least circulation in the area where the appellants and other members of their community reside. This apart, resort to substituted service was also not in accordance with the rules. Order 5 Rule 20 CPC empowering the court to go for substituted service needs to be noticed. It reads: "20. Substituted service: (1) Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court things fit. {1-A. Where the court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain}. (2) Effect of substituted service. -- Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. (2) Effect of substituted service. -- Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. (3) Where service substituted, time for appearance to be fixed. -- Where service is substituted by order of the court, the court shall fix such time for the appearance of the defendant as the case may require." 12. It follows that the substituted service like issuance of advertisement/proclamation is an option to go for only after the court is satisfied that there is reason to believe that the defendant(s) is/are keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. It is thus only after the court records its satisfaction that the defendants keep out of the way to avoid service or that summons cannot be served in the ordinary way that under Order 5 Rule 20 the substituted service can be resorted to. No such satisfaction appears to have been recorded by the learned trial court in the present case before directing issuance of advertisement/proclamation. The learned trial judge has not stated while making the order of substituted service that there was a reason to believe that the defendants were keeping out of the way for the purpose of avoiding the service, or that for any other reason the summons could not be served in the ordinary way. There was no material in the shape of reports from the process serving agency that the defendants were avoiding service, before the trial court. The only report of the process servicing agency available to the trial court was that the particulars of appellants/defendants were incorrect and required to be verified/corrected. The report in this regard was duly attested by village guard/chowkidar of the village. The right course for the trial court thus was to ask for correct particulars from the respondents and not to resort to substituted service with insufficient/incorrect particulars. The learned trial court also appears to have given little thought to the mandate of Order 5 Rule 19-A. It requires the trial court to direct the summons to be served by registered post acknowledgment due, addressed to the defendants or their agents, in addition to and simultaneously with the issue of summons, for service in the manner provided in Order 5 Rule 9-19. The minutes of the proceedings do not indicate that the requirements of Order 5 Rule 19-A were fulfilled. Non-compliance with Order 5 Rule 19-A, as laid down in 2006(1) SLJ 300, casts a cloud upon the order to set the defendant(s) exparte. The appellants not having been served in accordance with the law, the exparte judgment/decree passed against the appellants is liable to be set aside. 13. The other grounds that ought to have been pleaded in the memorandum of appeal but for some reason have not been pleaded relate to description of suit property and maintainability of the suit under Section 139 Land Revenue Act. The subject matter of the suit is an area comprising of thousands of acres of land defined by reference to peaks, mountains, glaciers, gorges and mountain passes. The respondents want to exercise their ownership and possessory rights in respect of an area comprising over few square kilometers. Order 7 Rule 3 requires such description of the immovable property forming subject matter of the suit as is sufficient to identify it and in case such property can be identified by boundaries or numbers in record of settlement of survey the boundaries or numbers. A civil suit is instituted to enforce right in respect of subject matter of the suit and not for mere academic purpose. In the present case it is highly improbable if the rights pleaded can be adjudicated upon in absence of sufficient particulars of the subject matter of the suit. Again, the subject matter of the dispute projected in the suit, earlier admittedly attracted the Orders under Section 133 Land Revenue Act. Section 139 Clause XXIV bars a civil suit in respect of the matters that fall within the ambit of Section 133 Land Revenue Act. This aspect of the matter has also not been gone into by the learned trial court while passing the impugned exparte judgment/decree. Both the questions are, however, left open for consideration of the trial court. 14. For the reasons discussed above the appeal succeeds and is accordingly allowed. The exparte judgment and decree dated November 29, 1985 of learned District Judge, Kargil, are set aside and the case remanded to learned trial court for its fresh disposal in accordance with the law. Decree sheet be drawn up. Send down record. Parties to appear in the trial court on 4.4.2010. Disposed of. The exparte judgment and decree dated November 29, 1985 of learned District Judge, Kargil, are set aside and the case remanded to learned trial court for its fresh disposal in accordance with the law. Decree sheet be drawn up. Send down record. Parties to appear in the trial court on 4.4.2010. Disposed of. The appeal record to go to records after due completion.