JUDGMENT S.B. Shukre, J. - Heard. Rule. Heard finally by consent of parties in terms of order dated 20th April 2018. 2. Both these petitions challenge legality and correctness of the order dated 8.2.2018 rejecting application of the petitioner plaintiff seeking leave to treat the suit as representative suit in view of Order 1, Rule 8 of the Code of Civil Procedure. The applications were filed after the evidence of both the sides was over and the suits were pending for arguments. The trial Court observed that it was too late in the day to file such applications and, therefore, leave was refused. 3. It is submitted by learned counsel for the petitioner that law is now well settled after a view has been taken by this Court in the case of Hiraman Nathuji Vaidya v. Dewakripa Sahakari Griha Nirman , (2007) 5 BCR 463, that leave can be granted any time and at any stage of the proceeding subsequent to the filing of the suit and during the pendency of suit. Reliance is also placed on Radhaswami Satsang Sabha, Dayalbagh, Agra v. Smt Puttan & ors , (1984) AIR Allahabad 198, wherein it has been held that leave to file suit under Order 1, Rule 8 CPC can be granted at any time during the pendency of suit and even at the appellate stage, because no time limit has been prescribed for seeking such relief. 4. Shri Wahane, learned counsel for respondent no. 1 is, however, in disagreement with the arguments advanced on behalf of the petitioner. According to him, leave to institute suit is required to be obtained before hand and it cannot be granted after the suit is instituted. He submits that in order to initiate a representative suit, the plaintiff must take due care to see that he has the capacity to institute the suit and such capacity can be conferred only when the leave is obtained from the Court to institute a suit of the representative capacity. If this condition is not fulfilled, learned counsel further submits, it would be a suit instituted by improper party and, therefore, not maintainable at all. He places reliance upon the view taken by the learned single Judge of this Court in Gorakh Hilal Patil & anr v. Parit Samaj Seva Mandal & anr , (2012) 1 AllMR 812 . 5. If this condition is not fulfilled, learned counsel further submits, it would be a suit instituted by improper party and, therefore, not maintainable at all. He places reliance upon the view taken by the learned single Judge of this Court in Gorakh Hilal Patil & anr v. Parit Samaj Seva Mandal & anr , (2012) 1 AllMR 812 . 5. I have gone through the impugned order in both the petitions and also documents placed on record. I have considered the case law cited on behalf of both the sides. 6. On perusal of the judgment of this Court in Hiraman , I find that the judgment has been rendered in the facts peculiar to that case. In paragraph 6, although a reference has been made to the view taken by the Allahabad High Court in the case of Radhaswami Satsang Sabha that an application with a prayer for grant of leave to institute suit under Order 1, Rule 8 CPC can be filed at any stage of the suit or even at the appeal stage, this Court expressed no opinion on as to whether that view is acceptable to it or not, rather, it quashed the order of trial Court granting leave under Order 1, Rule 8 CPC and gave liberty to the plaintiff to file a fresh application under Order 1, Rule 8 CPC supported by necessary particulars so that the trial Court could properly apply its mind and pass a fresh order as per law. It is clear that this judgment does not help the petitioner in any manner. 7. In the instant case, the facts would show that now it is too late for the petitioner to even make any attempt to seek leave under Order 1, Rule 8 CPC. In the Written Statement, an objection as to the maintainability of the representative suit was taken and the issues were also framed. The first issue which has been framed in the instant suit is that of maintainability of the suit in the absence of leave taken from the Court for instituting a suit. The parties led evidence on this issue and also on the remaining issues and now, the suit has reached the stage of final arguments. 8. The first issue which has been framed in the instant suit is that of maintainability of the suit in the absence of leave taken from the Court for instituting a suit. The parties led evidence on this issue and also on the remaining issues and now, the suit has reached the stage of final arguments. 8. Learned counsel for the petitioner submits that no such application was filed immediately, because the application filed by the respondent for rejection of the plaint under Order VII, Rule 11 CPC was rejected and, therefore, petitioner was under the impression that the suit was maintainable though he realized it later on that it was better to obtain leave of the Court and only out of abundant precaution, he filed an application under Order 1, Rule 8 CPC. 9. If the petitioner was so sure about the maintainability of the suit, especially when the application for rejection of the plaint was earlier dismissed by the Court, there was no reason for the petitioner to be apprehensive even in a small measure of the correctness of its action in bringing suit without leave of the Court. But, the petitioner did file such an application and it shows that some where at the back of its mind, fear was existing and, therefore, application was filed. The moment application under Order 1, Rule 8 CPC came to be filed, what had followed was an inference about the admission of the petitioner that there was possibility of the suit being held as not tenable in absence of leave having been taken under Order 1, Rule 8 CPC.The moment a possibility arises, the party facing the possibility, an adverse possibility, must take care to rule out the possibility at right time, and in the present case, it was the time when suit was being filed. In such cases, the talk of abundant precaution is nothing but double spark, blowing hot and cold in same breath. If there was need to exercise abundant caution, time to do so was at the inception of suit and not later when much water had flown from under the bridge. So, the explanation submitted by learned counsel for the petitioners cannot be accepted and is rejected. 10. Provision of Order 1, Rule 8 CPC requires on its plain reading, that for instituting a representative suit, leave of the Court must be obtained. So, the explanation submitted by learned counsel for the petitioners cannot be accepted and is rejected. 10. Provision of Order 1, Rule 8 CPC requires on its plain reading, that for instituting a representative suit, leave of the Court must be obtained. As this provision speaks of leave to file or defend a suit, it is obvious that suit cannot be filed in the absence of leave of the Court, and if filed without leave, it would be a suit filed by an improper party and all acts done in such a suit would be the acts performed by an improper party, having no validity in the eye of law and no relevance for any purpose. This is because of the fact that filing of the suit or defending the suit is directly related to the capacity of the parties to file or defend the suit. The capacity of a party is infused by the locus or the right of the party which is infringed or by authority of law, as for example, the leave granted under Order 1, Rule 8 CPC. Therefore, any defect arising out of capacity of the party is a defect of fundamental nature and it goes to the root of the matter and does not create any point from which a start can be made by a party. Such being the nature of the provision of Order 1, Rule 8 CPC, one has to say that without leave being obtained before hand, as rightly submitted by learned counsel for the respondent, no suit in a representative capacity can be filed or defended. 11. In the present case, admittedly, the suit has been instituted in a representative capacity without obtaining leave of the Court before institution of the suit and the application under Order 1, Rule 8 CPC has been filed only after the parties led evidence on the issue of maintainability of the suit in the absence of leave taken from the Court. So, the suits have progressed so much as to reach a point of no return. By this time, several acts have been performed in the suits filed by the parties. The parties also led evidence. So, the suits have progressed so much as to reach a point of no return. By this time, several acts have been performed in the suits filed by the parties. The parties also led evidence. Now, if any leave under Order 1, Rule 8 CPC is to be granted, there has to be a provision made in the Code of Civil Procedure for granting such leave with retrospective effect so that all previous acts, otherwise invalid in law, can be validated. But, there is no such provision made in the Code of Civil Procedure. It is clear that there is no scope left for the Court to clothe validity to previous invalid and nonest acts by giving a suitable declaration. 12. The word "leave" in the present context, I must say, has to be assigned its plain and ordinary meaning. It means, permission to do or perform an act and not validation of the act already performed. For the latter sense, appropriate word is "ratification". However, provision of Order 1, Rule 8 CPC employs specifically the word "leave" and not the "ratification". There is also no explanation appended to this provision of law that the leave can be granted at any stage of the suit or even at the appeal stage and if it is granted, it would relate back to the event of institution of the suit. 13. So, I am of the considered opinion that the product in the present case, suits filed without leave, which is defective at its inception remains defective always and hence, worthy of being discarded. There is no way that a defect in filing of the suit arising from absence of leave taken under Order 1, Rule 8 CPC can be cured at a later stage. There is no way that a defect in filing of the suit arising from absence of leave taken under Order 1, Rule 8 CPC can be cured at a later stage. Even if it is accepted, just for the sake of argument, that it can be cured at a later stage of the suit, the argument has to be accepted with a rider that the defect would be curable only upto a stage till which no significant acts have been performed by any of the parties to the suit and the suit is in its early stage of hearing so that if the leave is granted after filing of the suit, it would cause no harm or damage to the rights of any of the parties by not validating the significant acts otherwise nonest in the eye of law, to the grave prejudice of any of the parties to the suit. But, if such leave post filing of the suit is granted at a stage when many acts have been performed by the parties and even the evidence has been led by the parties, I do not think that it would be such a stage as could be considered to be harmless from the viewpoint of causing of prejudice to any of the parties for the purpose of exercising discretion under Order 1, Rule 8 CPC. 14. In the present case, the suit has reached a stage where the parties have led evidence on the preliminary issue of maintainability of the suit and, therefore, if any leave is to be granted at this stage, it would result in causing of grave prejudice to the parties and perhaps, retrial of the suit would have to be ordered. This would also lead to further complications in the matter as issue of bar limitation would crop up. Therefore, I am of the opinion that the provisions of Order 1, Rule 8 CPC could not be resorted to by a party at a stage when it is likely to cause grave prejudice to either of the parties. 15. Thus, viewed from any angle, in the facts and circumstances of the present case, there was no scope for the trial Court to allow the application filed by the petitioner seeking leave to institute the suit under Order 1, Rule 8 CPC. 16. 15. Thus, viewed from any angle, in the facts and circumstances of the present case, there was no scope for the trial Court to allow the application filed by the petitioner seeking leave to institute the suit under Order 1, Rule 8 CPC. 16. As regards the judgment of the Allahabad High Court in Radhaswami Satsang , a view that leave to sue or be sued can be obtained at any stage of the suit or even at the appeal stage, I beg to defer. The reason is that the judgment does not take into consideration different dimensions of the issue and also the other relevant provisions of law. It does not consider the aspect of validity of the acts performed in the suit by the parties without having any authority to perform them, absence of any provision in the Code of Civil Procedure to grant such leave with retrospective effect, the plain meaning conveyed by the term "leave" used in Order 1, Rule 8 CPC and also the provision of Order 1, Rule 1 CPC clarifying as to who could be the proper parties to the suit. A party which files an application for seeking leave to file or defend the suit, gives an admission of the fact that it is not a proper party in terms of Order 1, Rule 1 CPC and, therefore, it feels it necessary to obtain leave of the Court to file or defend the suit. This would also give rise to a question of limitation which would have to be adjudicated upon with reference to a point at which a suit is filed by a proper party either in terms of Rule 1 or Rule 8 of Order 1. Therefore, I am also of the view that the judgment in Radhaswami Satsang would render no assistance to the petitioner in the present case. 17. On the other hand, the view taken by this Court in the case of Gorakh Hilal , in my humble opinion, would be applicable to the present case. This Court has taken a view that in a representative suit, care must be taken to ensure that necessary parties are before the Court - or otherwise, suit must fail. 17. On the other hand, the view taken by this Court in the case of Gorakh Hilal , in my humble opinion, would be applicable to the present case. This Court has taken a view that in a representative suit, care must be taken to ensure that necessary parties are before the Court - or otherwise, suit must fail. It is also held that a suit instituted in the name of an unregistered society is not maintainable unless all the members of the society are joined as parties to the suit. Of course, learned counsel for the petitioner in both the petitions submits that the facts of this case are different, in the sense that in that case, no application under Order 1, Rule 8 CPC was filed for seeking leave of the Court to institute a suit and, therefore, the Court held that the suit without any such leave having been taken, was not maintainable. True it is, no application under Order 1, Rule 8 CPC was filed therein. But, here we are only on the principle propounded in that case and the principle is that when the suit is instituted in the name of an unregistered society and is filed without all the members of the society being parties to the suit, the suit is not maintainable. It is this principle which calls for its application to the facts of the present case. 18. In view of the above discussion, in this case, an application seeking leave under Order 1, Rule 8 CPC in each of the suits ought to have been in place at the first or earliest possible opportunity and since it was filed belatedly, leave could not have been granted by the trial Court. If it had been granted, it would have necessitated retrial of the whole suit, thereby causing grave prejudice to the other side. Thus, I find that the applications in both the suits were rightly rejected by the trial Court on the ground of their belated filing. There is no merit in the petitions. 19. Writ Petitions are dismissed. Rule is discharged in both the petitions. No costs.