Judgment Alok Singh, J. Present second appeal is preferred assailing the judgment and decree dated 11.10.2012, passed by the 1st Addl. Civil Judge (Junior Division) as well as judgment and decree dated 09.04.2014, passed by the 1st Addl. District Judge, Udham Singh Nagar whereby O.S. No. 10 of 2013, Gurdeep Singh and others Vs Madan Mohan and others was dismissed and appeal arising therefrom was also dismissed by the 1st Appellate Court. 2. Brief facts of the present case, inter alia, are that plaintiff filed O.S. No. 10 of 2003 with the allegation that public pathway is going through the Khasra No. 67 of Village Hempur Ismile & khasra Nos. 50 and 51 of village Hempur Ismile, Tehsil Kashipur whereupon defendants have absolutely no right to make any encroachment. Defendants are intending and extending threats to encroach upon the public pathway by making constructions. If defendants are successful in making encroachment over the public pathway, it wound amount to nuisance, therefore, defendants be restrained in making encroachment by any means over the public pathway. 3. Defendants appeared before the learned Trial Court and filed their written statement and stated that they have absolutely no right and concern over the public pathway going through khasra No. 67 as well as 50 and 51 nor are intending to raise any constructions thereon. 4. Perusal of the ordersheet of the trial court would reveal that learned Trial Court, vide order dated 10.03.2003, was pleased to grant permission to the plaintiffs to file suit under Section 91 of the C.P.C. in the representative capacity. 5. When present appeal was taken up for preliminary hearing on 08.05.2014, following order was passed:- “Mr. Lok Pal Singh, Advocate for the appellants. Mr. S.K. Chaudhary, Advocate for the respondents. Present second appeal is preferred against the judgment and decree dated 11.10.2012 passed by the Ist Additional Civil Judge (Jr. Div.), Kashipur as well as judgment and decree dated 9.4.2014 passed by the Ist Additional District Judge, Udham Singh Nagar, whereby O.S. No. 10 of 2003, on the file of learned Trial Court, was dismissed and appeal arising therefrom was also dismissed by the First Appellate Court. Div.), Kashipur as well as judgment and decree dated 9.4.2014 passed by the Ist Additional District Judge, Udham Singh Nagar, whereby O.S. No. 10 of 2003, on the file of learned Trial Court, was dismissed and appeal arising therefrom was also dismissed by the First Appellate Court. Plaintiffs/appellants filed O.S. No. 10 of 2003, Gurdeep Singh and others v. Madan Mohan and others, seeking permanent prohibitory injunction restraining the defendants/respondents, herein, in making any encroachment by any means over the public pathway situated in Khasra No. 67 of Village Hempur Ismail and adjacent Khasra Nos. 50 & 51 of Village Kundeshwara, Tehsil Kashipur, District Udham Singh Nagar. It is stated in the plaint that the land of Khasra No. 67 of Village Hempur Ismail and adjacent land of Khasra No. 50 & 51 of Village Kundeshwara is a part of public pathway, whereupon defendants have absolutely no right either to encroach upon by way of raising construction or to create any obstruction in the public pathway. Defendants/respondents, herein, filed their written statement before the learned Trial Court stating therein that defendants have absolutely no concern, right or possession over the disputed public pathway situated in Khasra No. 67 of Village Hempur Ismail and adjacent Khasra Nos. 50 & 51 of Village Kundeshwara. Learned Trial Court was pleased to dismiss the suit having observed that plaintiffs could not prove that defendants ever intended to encroach upon the disputed public pathway situated in Khasra No. 67 of Village Hempur Ismail and adjacent Khasra Nos. 50 & 51 of Village Kundeshwara, and appeal arising therefrom was also dismissed by the first Appellate Court. Mr. Lok Pal Singh, learned counsel appearing for the appellants submits that in view of the admission made by the defendants/respondents in the written statement that they have absolutely no concern, right or possession over the land of public pathway situated in Khasra No. 67 of Village Hempur Ismail and adjacent Khasra Nos. 50 & 51 of Village Kundeshwara, suit ought to have been decreed under Order 12 Rule 6 of CPC read with Order 15 Rule 1 of CPC. Mr. S.K. Chaudhary, learned counsel appearing for the respondents submits that suit was rightly dismissed since plaintiffs/appellants could not prove the cause of action allegedly arisen in favour of the plaintiffs/appellants. 50 & 51 of Village Kundeshwara, suit ought to have been decreed under Order 12 Rule 6 of CPC read with Order 15 Rule 1 of CPC. Mr. S.K. Chaudhary, learned counsel appearing for the respondents submits that suit was rightly dismissed since plaintiffs/appellants could not prove the cause of action allegedly arisen in favour of the plaintiffs/appellants. Having heard learned counsel for the parties and having perused the judgments impugned in the present appeal, present appeal is admitted on the substantial question of law : “As to whether suit filed by the plaintiffs/appellants ought to have been decreed under Order 12 Rule 6 of CPC read with Order 15 Rule 1 of CPC in view of the admission made by the defendants/respondents to the effect that they have absolutely no concern, right and possession over the property in question? Let LCR be summoned through special messenger. List in the next week. Meanwhile, parties shall maintain status quo.” 6. I have heard Mr. Lok Pal Singh, learned counsel for the appellant and Mr. A.S. Rawat, learned Senior Counsel assisted by Mr. S.K. Chaudhary, Advocate for the respondents and have carefully perused the record. 7. Learned counsel for the defendants respondents submitted that in the present appeal question of law formulated by this Court on 08.05.2014 does not arise and in the present appeal, the only question of law arises as to whether in a suit filed under Section 91 of the C.P.C., compliance of Order 1 Rule 8 of the C.P.C. is mandatory before proceeding further with the suit ? 8. Section 100 of the C.P.C. reads as under :- “100. Second Appeal.-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question.” 9. As per the mandate of Section 100 C.P.C., High Court may entertain second appeal if High Court is satisfied that case involves substantial question of law. As per sub-section 5 of Section 100 of the C.P.C., it is always open to the respondent to argue before this Court that the case does not involve such question of law which was formulated by the Court while admitting the appeal. However, as per the proviso of Sub-section 5 of Section 100 of the C.P.C., this Court, at any subsequent stage, may hear the appeal on such additional substantial question of law, which in the opinion of this Court, arises in the appeal. 10. Having heard learned counsel for the parties and in view of the facts as narrated hereinbefore, I am satisfied that in the present appeal, following substantial question of law arises for adjudication and question of law formulated by this Court vide order dated 08.05.2014 does not arise at all. As to whether in a suit filed under Section 91 of the C.P.C., compliance of Order 1 Rule 8 of the C.P.C. is must before proceeding further with the case ? 11. Section 91 and Order 1 Rule 8 of the C.P.C. read as under:- “[Public nuisances and other wrongful acts affecting the public. As to whether in a suit filed under Section 91 of the C.P.C., compliance of Order 1 Rule 8 of the C.P.C. is must before proceeding further with the case ? 11. Section 91 and Order 1 Rule 8 of the C.P.C. read as under:- “[Public nuisances and other wrongful acts affecting the public. - [(1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,- (a) by the Advocate General, or (b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.] (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.” 12. Order 1 Rule 8 of the C.P.C. reads as under:- “[8. One person may sue or defend on behalf of all in same interest (1) Where there are numerous persons having the same interest in one suit,-- (a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. (2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of 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. (3) 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. (3) 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. (4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2). (5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. Explanation.-For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.]” 13. Perusal of Section 91 of the C.P.C. demonstrate that in the case of public nuisance or other wrongful acts affecting, or likely to affect, the public, a suit for declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted by the Advocate General or with the leave of the Court by two or more persons even though no special damage has been caused to such persons by reason of such pubic nuisance or other wrongful act. 14. The language of Section 91 of the C.P.C. suggests that persons permitted to institute the suit are always permitted in the representative capacity. Perusal of Order 1 Rule 8 of the C.P.C. would go to suggest if any suit is filed in a representative capacity, then compliance of Order 1 Rule 8 C.P.C. is must. Therefore, substantial question of law formulated stands answered in affirmative. 15. Perusal of Order 1 Rule 8 of the C.P.C. would go to suggest if any suit is filed in a representative capacity, then compliance of Order 1 Rule 8 C.P.C. is must. Therefore, substantial question of law formulated stands answered in affirmative. 15. In the instant case, suit was decided by the Trial Court without making compliance of Order 1 Rule 8 C.P.C., therefore, entire trial stands vitiated. Consequently, appeal is liable to be allowed and impugned judgments are liable to be set aside. Suit deserves to be remanded to the trial court for de novo trial after making compliance of Order 1 Rule 8 C.P.C. 16. In view of the above, appeal succeeds. Impugned judgment and decree are hereby set aside. Suit stands remanded to the learned Trial Court to decide it de novo after following procedure of Order 1 Rule 8 C.P.C. 17. Parties shall appear before the learned Trial Court for further orders on 30th May, 2014.