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2015 DIGILAW 90 (MAN)

Lainingba Mangi v. Union of India and Ors.

2015-06-02

LAXMI KANTA MOHAPATRA

body2015
JUDGMENT Laxmi Kanta Mohapatra, CJ. 1. Plaintiff is the appellant in this Second Appeal against a reversing judgment and decree. The suit was filed for a declaration that the expert opinion dt. 8.7.1996 in connection with the alphabetical epigraphs are the original/oldest Meetei Mayek. The case of the plaintiff is that he is the Secretary of Apokpa Marup, Saiton Loishang Masha, APOKPA MARUP and is authorised by resolution dt. 1.9.1998 to do anything for the welfare and development of the said Marup and that he filed the suit in representative capacity by virtue of the said resolution. 2. The further case of the plaintiff-appellant is that, Apokpa Marup organization is a non political social organization established in the year, 1930 and the Marup was registered in the year, 1949-50. The aim and object of the organization is for maintenance and discovery of socio culture, religion and customary rights of the Meetei people. The founder of the organization moved from one place to another across the country for collecting archaeological remains of ancient history and customs and religion etc. and in the process collected some archaeological remains like bronze plate, coin and stone inscription etc. The founder discovered that the holly book of the Meetei 'Shakok Thiren" had been re-written in the same script using alphabetic which had been recovered. The founder expired in the year, 1941 leaving behind his followers and family. Presently, the organization has more than few lakhs of Members. The Marup discovered that there was civilised nation in the far east Asia known as Meetei Leipok before 15th Century A.D. The civilization was idealistic civilization and not materialistic one. It extended to the part of China (Khaki) and Myanmar (Burma) and some part of Assam covering North eastern India. The language was called, "Meitei language." The meaning of Meetei covers people living in hills and plain known as Meitei Leipak and such people were living near about Brahamputra in the west and China win River in the East. Even though the people living in the hills speak their own dialect, Meetei language was a national language. Meetei People also used their own scripts for letter writing and for other purposes. Even though the people living in the hills speak their own dialect, Meetei language was a national language. Meetei People also used their own scripts for letter writing and for other purposes. The organization having found the above materials, started opening schools across the country and also approached the Government of Manipur in the Education Department for recognizing their alphabetic chart as the original Meitei scripts which are 36 in number. The Secretary of the Education Department, Govt. of Manipur passed an order on 9.5.1959 which according to the organization is controversial, doubtful and disputed. In the meantime, Manipuri language was recognized as scheduled language from 1991 onwards. After such controversy was raised by the Government with regard to the alphabetic, the organization approached the Chief Epigraphist, Govt. of India, Mysore and the expert accepted the alphabetic epigraph submitted by the organization as the original alphabets. Therefore, the suit was filed for a declaration that the expert opinion dt. 8.7.1996 should be treated as final and the alphabets considered in the expert opinion be declared as the original/oldest Meitei Mayek. 3. Both the Government of Manipur and the Union of India filed a joint written statement. A technical objection was raised with regard to the maintainability of the suit on the ground that the plaintiff had filed the suit in a personal capacity and not in the representative capacity. Jurisdiction of the learned Civil Judge, before whom the suit was filed, was also questioned. All the claims made in the plaint were denied and it was also stated in the written statement that the mandatory requirement of service of notice u/s.80 of the C.P.C. was not complied with. 4. On the basis of the pleading of the parties, the learned Civil Judge, framed the following issues: 1. Is there Saiton Loisang Masa Apokpa Marup having its Head Office at Thongju Part-II Regd. 52/1949-50? 2. Is there the letter No. 3/1/98/WR (L) Vol. 1 dated 18.12.98 issued by the Secretary Edn. Govt. of Manipur or not? 3. Whether the opinion of the Chief Epigraphy bearing No. 49/2/96-1241 dated 8th July, 1996 and No. 5/12/59-S/DE(HC)-1 dated 4.12.96 is genuine or not? 4. Whether the order dated 9.5.1959 passed by the then Secretary Edn. Govt. of Manipur in H/Misc./86/55 is controversial and disputed one or not? 5. Whether the suit is filed within territorial jurisdiction or not? 6. 3. Whether the opinion of the Chief Epigraphy bearing No. 49/2/96-1241 dated 8th July, 1996 and No. 5/12/59-S/DE(HC)-1 dated 4.12.96 is genuine or not? 4. Whether the order dated 9.5.1959 passed by the then Secretary Edn. Govt. of Manipur in H/Misc./86/55 is controversial and disputed one or not? 5. Whether the suit is filed within territorial jurisdiction or not? 6. Whether the suit is suffering from mis-joinder and non-joinder of necessary party? 7. Is there any cause of action of the suit? 8. Whether the plaintiff is entitled to the relief? 9. Whether the suit is filed under a representative capacity or not? 10. Whether the present suit is maintainable or not? In course of hearing, it was submitted by the learned counsel for both the parties that many unrelated issues have been framed and prayed for modifying the issues. Therefore, the Court again modified the issues on 7.3.2005 and following are the modified issues: 1. Whether some alphabets of the script described in the schedule of the plaint bear resemblance to Nagari and Proto-Bengali script or not? 2. Whether the order bearing No. 5/12/8V-S/DE(HC) I dt. 4.12.1996 of the Govt. of Manipur is against the interest of the members of the plaintiff's organization or not? 3. Whether the present suit is within the territorial jurisdiction of this Court or not? 4. Whether the suit suffers from mis-joinder and non-joinder of necessary party? 5. Whether the present suit is under a representative capacity or not? 6. Is there any cause of action of the suit? 7. Is the plaintiff entitled to the relief claimed? 5. The plaintiff examined 5 witnesses and relied upon large number of documents whereas the defendants examined 7 witnesses and also placed reliance on certain documents. The learned civil Judge allowed the suit and declared that the scripts described in the plaint schedule bear resemblance with Nagari and proto-Bengali script. While allowing the suit, the learned Civil Judge came to the following conclusions: 1. In the expert opinion it is reflected that the scripts of Phullo school is a script which has got Sematic value and it is proto-Bengali which prevailed before the script of Bengali and Sanskrit. 2. The 36 number of alphabets recovered by the founder of the organization had been examined by the expert, i.e. Chief Epigraphist, Archaeological Survey of India and the language/scripts bear resemblance to Nagari and proto-Bengali. 3. 2. The 36 number of alphabets recovered by the founder of the organization had been examined by the expert, i.e. Chief Epigraphist, Archaeological Survey of India and the language/scripts bear resemblance to Nagari and proto-Bengali. 3. The plaintiff has been able to prove that some of the scripts described in the schedule of the plaint bear resemblance with Nagari and proto-Bengali. 4. The expert committee which was constituted by virtue of a court order submitted report recommending existing 27 scripts as the correct Meitei Mayek to the Govt. of Manipur, was not scientifically done whereas the expert opinion given by the Chief Epigraphist, Archaeological Survey of India, is based on scientific research. 5. The plaintiff has been able to prove the order dated 4.12.1996 of the Govt. of Manipur reaffirming the existing 27 scripts as suggested by the expert committee constituted by order of the Court is against the interest of the Members of the plaintiff organization. 6. Challenging the said judgment and decree of the learned Civil Judge, both the defendants preferred Civil Appeal No. 8/05 before the learned District Judge, Manipur West. In the said Civil Appeal, the learned District Judge set aside the judgment and decree of the trial court and allowed the appeal after arriving at the following conclusions: (i) No notice of institution of the suit in representative capacity had been issued to all the interested parties either by personal service or by public advertisement. Therefore, the suit suffers from non-joinder of necessary parties; (ii) no notice was given by the plaintiff u/s. 80 of the C.P.C. before filing the suit; (iii) the expert committee constituted by the State Govt. under orders of the Court had been formed under the Chairmanship of the then Chief Minister apart from 12 other members and the said Expert Committee recommended 27 scripts as the correct Meitei Mayek and accordingly the State Govt. has duly notified the same. The Members of the plaintiff organization did not produce any documentary evidence to prove their alleged propounded scripts. 7. While admitting this Second Appeal, the learned Single Judge had framed the following substantial questions of law: "(1) Whether the impugned appellate order dated 20.1.2006 passed in Civil Appeal No. 8 of 2005 by the learned district Judge, Manipur West, is perverse for having reserved the declaratory decree in violation of settled legal position. 7. While admitting this Second Appeal, the learned Single Judge had framed the following substantial questions of law: "(1) Whether the impugned appellate order dated 20.1.2006 passed in Civil Appeal No. 8 of 2005 by the learned district Judge, Manipur West, is perverse for having reserved the declaratory decree in violation of settled legal position. (2) Any other substantial question of law which may arise at the time of hearing of this case." 8. Though the above substantial question of law was formulated at the time of admission of the second appeal, Mr. N. Mahendra, learned counsel appearing for the appellant also raised certain other issues such as jurisdiction of the Court in appeal in interfering with a discretion exercised by the Trial Court in a suit for declaration, whether the suit suffers from non-joinder of necessary party, due to non service of notice under Order 1 rule 8 and as to whether notice u/s. 80 of C.P.C. was in accordance with the requirements of Section 80 or not. Therefore, this Court is required to re-formulate the substantial questions of law which are as follows:- (i) Whether the requirement of order 1 Rule 8 of the CPC were complied by the plaintiff-appellant or not. If the requirements of the said provision are not complied with, what shall be the effect? (ii) Whether the notice u/s. 80 of C.P.C. served on the state respondents prior to institution of the suit satisfies all the requirements of such notice. (iii) Whether the appellate Court has any jurisdiction to interfere with the discretion exercised by the Trial Court in granting the declaration as prayed for in the suit. 9. So far as the first substantial question of law is concerned, it appears from the lower court records that the suit was filed on 3.12.1998. The plaintiff-appellant in para 2 of the plaint stated that he is the secretary of "Apokpa Marup" and had been authorised by the executive members by resolution dated 1.8.1998 to file the suit. There is no averment in the plaint that the plaintiff-appellant had filed the suit in representative capacity on behalf of the organisation called "Apokpa Marup". However, it appears that even though the suit was filed in the year 1998, an application was filed under Order 1 Rule 8 of CPC for grant of leave to sue in representative capacity on 7.3.2005. However, it appears that even though the suit was filed in the year 1998, an application was filed under Order 1 Rule 8 of CPC for grant of leave to sue in representative capacity on 7.3.2005. The said application was allowed by the Trial Court by order dated 15.3.2005. Though Shri H. Raghumani, learned G.A. appearing for the state respondents contended that such an application should not have been allowed at such belated stage. I am not able to accept such contention considering the fact that such an application could be filed at any stage and even at the appellate stage. In this connection reference may be made to a decision of the Apex Court in the case of Krishnan Vasudevan and Ors. vs. Shareef and Ors. reported in (2005) 12 SCC 180. In the said case, the Supreme Court held that Order 1 Rule 8 of C.P.C. does not prescribe any stage at which an application under the said provision can be filed and the said application could be entertained without regard to the stage at which it was filed. Madras High Court in the case of Mookha Pillai alias Sudalaimuthu Pillai vs. Valavanda Pillai and Ors. reported in AIR 1947 (34) Madras 205 held that the appellate Court can allow amendment by permitting persons suing in individual capacity to sue in representative capacity when such amendment does not materially changes the nature of suit. Similar view was also expressed by Jammu and Kashmir High Court in the case of Shri Sanatan Dharam Sabha, Poonch vs. Abdullah and Ors. reported in AIR 1987 J. & K. 79 as well as Bombay High Court in the case of Mukaremdas Mannudas and Ors. vs. Chhagan Kisan Bhawasar & Ors. reported in AIR 1959 Bombay 491. The Madhya Pradesh High Court in the case of Shantilal Bardichand Majahan vs. Champalal Radhaji & Ors. reported in AIR 1962 Madhya Pradesh 363 found that notices under Order 1 Rule 8 of CPC were not issued and everybody concerned including Court forget about it. This point was raised for the first time in appeal. The Court held that such omission could not be condoned u/s. 99 of the CPC at the appellate stage, but could be remedied by granting permission to the plaintiffs and by issuing notice to the creditors if nature of the suit is not changed. This point was raised for the first time in appeal. The Court held that such omission could not be condoned u/s. 99 of the CPC at the appellate stage, but could be remedied by granting permission to the plaintiffs and by issuing notice to the creditors if nature of the suit is not changed. It is therefore, clear that an application could be filed under Order 1 Rule 8 at any stage of the suit and even at the appellate stage. The lower appellate Court has earlier found that the requirements of order 1 Rule 8 CPC have not been met even after allowing such an application filed by the plaintiff-appellant. It is therefore, necessary to refer to order 1 Rule 8 of the CPC. The said provision is quoted below for convenience :- "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 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 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 expenses, 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) 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." 10. It is provided that where there are numerous persons having the same interest in one suit, one or more 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. Once the permission is granted by the Court, notice is to be given at the plaintiff's expense of the institution of the suit to all persons so interest either by personal service and where personal service is not reasonably practicable, by public advertisement. The purpose of service of notice is that any person on whose behalf or for whose benefit, a suit is instituted, or defended, may apply to the Court to be made a party to such suit. Admittedly, in the present case, the court after granting permission to sue in representative capacity did not serve notice of institution of the suit as provided in sub-rule 2 of Rule 8 of order 1 CPC. The provision is mandatory, the word "shall" having been used at the beginning of the provision. This is precisely the reason for which the lower appellate court came to the conclusion that no notice having been served as required under Order 1 Rule 8(2), the suit is bad for non joinder of necessary party. Mr. The provision is mandatory, the word "shall" having been used at the beginning of the provision. This is precisely the reason for which the lower appellate court came to the conclusion that no notice having been served as required under Order 1 Rule 8(2), the suit is bad for non joinder of necessary party. Mr. A. Mohendro, learned counsel appearing for the plaintiff-appellant submitted that since none of the members of the "Apokpa Marup" has any complain with regard to filing of the suit in representative capacity, there was no requirement of serving notice. I am not able to accept such contention as notice is served under the said sub-rule for the purpose of knowledge of all persons interested so that they could submit application to be made party in the said suit either in support of the relief claimed or to oppose the same. Sub-rule 3 of the Order 1 Rule8 of CPC, therefore provides that any person on whose behalf or 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 above mandatory provision having not been complied with, the suit could not be allowed to proceed at the instance of the plaintiff-appellant in representative capacity. Directing service of notice after almost eighteen years after filing of the suit is not desirable. Moreover neither in the trial court nor in the first appellate court or in this appeal, any step was taken by the appellant to comply with such mandatory provision. 11. So far as the second substantial question of law is concerned, it relates to notice u/s. 80 of the CPC. The lower appellate court came to the conclusion that proper notice u/s. 80 of the CPC has not been served on the respondents prior to institution of the suit. Section 80 of the CPC prescribes that no suit shall be instituted against the Government or against public officer in respect of any act purportedly done by such officer in his official capacity until expiration of two months next after notice in writing has been delivered. From the judgment and order of the lower appellate Court, it appears that plaintiff claims that notice u/s. 80 of CPC had been sent by him on 14th September, 1998 and 24th September, 1998 respectively. From the judgment and order of the lower appellate Court, it appears that plaintiff claims that notice u/s. 80 of CPC had been sent by him on 14th September, 1998 and 24th September, 1998 respectively. It was contended by the counsel for the respondents before the lower appellate Court that there is a difference in the name of the person who sent the notice u/s. 80 of CPC and it was specifically stated by the state respondents that such notice had been sent by one Hourangbam Sanatomba Meetei. In the said notice also, there was no mention of any cause of action or relief claimed. The lower appellate Court on perusal of the document came to a conclusion that notice u/s. 80 of CPC was sent by the above H. Sanatomba Meetei and not by the plaintiff-appellant. The Court further observed that contents of the said notice did not disclose any cause of action for filing of the suit or relief sought for in the suit. In this connection, reference may be made to a decision of the Apex Court. In the case of State of Andhra Pradesh vs. Gundugola Venkata Suryanarayana Garu reported in AIR 1965 SC 11 , it was held by the Supreme Court that object of the notice under section 80 of the CPC is to give the government or public servant concerned an opportunity to reconsider its or his legal position and if that course is justified to make amends or settle the claim out of Court. The section is imperative and must be strictly considered. Failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit. The court further held that if no a reasonable but not so as to make undue assumptions, the plaintiff is shown to have given the information which the statute requires him to give, any incidental defects or errors may be ignored. Failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit. The court further held that if no a reasonable but not so as to make undue assumptions, the plaintiff is shown to have given the information which the statute requires him to give, any incidental defects or errors may be ignored. The court must see whether the following requirements are present or not (1) whether the name, description and residence of the plaintiff are given so as to enable the authority to identify the person serving the notice; (2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity; (3) whether the notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section; and (4) whether the suit is instituted after the expiration of two months next after notice has been served. Similar views have been expressed by the Apex Court in the cases of S.N. Dutt vs. Union of India and Ghanshyam Dass and Ors. vs. Dominion of India Ors. reported in AIR 1961 SC 1449 and AIR 1984 3 SCC 46 respectively. As stated earlier, in the present case notice u/s. 80 of CPC was not given by the plaintiff-appellant but by one H. Sanatomba Meetei and therefore, identify of person likely to file the suit was not disclosed. The contents of the notice also did not disclose cause of action and the relief sought for. These requirements being mandatory as decided by the Apex Court, such defects in the notice u/s. 80 of CPC shall entail in dismissal of the suit as held by the Apex Court in the case of Andhra Pradesh vs. Gundugola Venkata Suryanarayana Garu reported in AIR 1965 SC 11 (supra). 12. So far as the third substantial question of law is concerned, the learned counsel appearing for the plaintiff-appellant placed reliance in the cases reported in AIR 1932 All 661, AIR 1941 Cal 153, AIR 1950 PC 70 , AIR 2003 SC 1319. These cases relate to question as to whether the appellate court should interfere with a discretion exercised by the Trial Court in granting a declaratory relief. These cases relate to question as to whether the appellate court should interfere with a discretion exercised by the Trial Court in granting a declaratory relief. Having held that mandatory provision contained in Order 1 Rule 8 sub-rule 2 has not been complied with and that notice u/s. 80 of CPC suffers from such defects that it would entail in dismissal of the suit, there is no necessity of going into this substantial question of law any further. 13. Consequently, I find no merit in this second appeal and dismiss the same.