Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2859 of 2013 ====================================================== 1. Raja Singh S/O Late Angrahit Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 2. Shobha Narain Singh @ Nanhak Singh S/O Late Angrahit Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. .... .... Petitioner/s Versus 1. Murti Kalijee, Through Birendra Nath Mishra, Mutwalli S/O Resident Of Village Tulsi, P.S- Jagdishpur, P.S- Kaura, District- Bhojpur. 2. Birendra Nath Mishra S/O Late Banshidhar Mishra Resident Of Village Tulsi, P.S- Jagdishpur, P.S- Kaura, District- Bhojpur. 3. Uma Shankar Dubey S/O Late Bachcha Dubey Resident Of Village Tulsi, P.S- Jagdishpur, P.S- Kaura, District- Bhojpur. 4. Kashi Nath Singh S/O Darichhan Singh Resident Of Village Tulsi, P.S- Jagdishpur, P.S- Kaura, District- Bhojpur. 5. Manoj Kumar Dubey S/O Chandrama Dubey Resident Of Village Tulsi, P.S- Jagdishpur, P.S- Kaura, District- Bhojpur. 6. Kanhaiya Singh S/O Newas Singh Resident Of Village Tulsi, P.S- Jagdishpur, P.S- Kaura, District- Bhojpur. 7. Laxman Singh S/O Ram Janam Singh Resident Of Village Tulsi, P.S- Jagdishpur, P.S- Kaura, District- Bhojpur. 8. Dinesh Kumar Dubey S/O Late Jagdish Narayan Dubey Resident Of Village Tulsi, P.S- Jagdishpur, P.S- Kaura, District- Bhojpur. 9. Gango Devi W/O Deo Raj Singh And D/O Late Lal Bahadur Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 10. Laljee Singh S/O Late Ragho Pati Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 11. Lal Pari Devi W/O Late Raghu Pati Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 12. Ram Tapasya Singh S/O Late Chandrama Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 13. Dhan Kumari Devi D/O Late Chandrama Yadav Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 14. Prabhawati Devi W/O Late Raghu Nath Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 15. Satya Narain @ Bhulan S/O Late Raghu Nath Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 16. Chote Lal Dubey S/O Late Raj Narain Dubey Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 17. Sheo Kumar Kunwar W/O Late Shankar Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 18. Sri Bhagwan Singh S/O Late Shankar Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 19. Radhey Shyam Singh S/O Late Shankar Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 20. Satya Narain Singh S/O Late Shankar Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 21. Ashok Kumar Singh S/O Late Shankar Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 2 Patna High Court CWJC No.2859 of 2013 (3) dt.19-03-2013 2 / 5 22. Bishnu Deo Singh S/O Late Shankar Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 23. Khija Mati Devi D/O Late Shankar Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 24. Hira Jhari Devi D/O Late Shankar Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur. 25. Lagamati Devi D/O Late Shankar Singh Resident Of Village- Tulsi, P.S- Jagdishpur, P.O- Kaura, District- Bhojpur.
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER 3 19-03-2013 This writ application has been filed against the order dated 1.12.2012 by the defendants on the ground that the plaintiffs could not proceed with the suit as the provisions of Order 1, Rule VIII were not complied with by the plaintiffs, considering that the suit had been filed in the representative capacity. The plaintiffs have filed the suit for declaration that Kali Jee Shankar Jee temple belongs to the general public and for cancellation of wrong survey entry made in the name of defendant nos. 1 and 2 with respect to new survey Khesra No. 842/1782 new survey Khata No. 169 measuring 14 decimals appertaining to Mauza Tulsi, P.S. Jagdishpur in the district of Bhojpur. The defendants on the other hand have taken a stand that the land in question was settled by the ex-landlord in favour of the ancestors of defendant nos. 1 and 2 and their names have been entered in the 3 Patna High Court CWJC No.2859 of 2013 (3) dt.19-03-2013 3 / 5 revisional survey Khatiyan. On appearance, defendant nos. 1 and 2 filed an application under Order 1 Rule VIII challenging the institution of the suit on the ground that the provisions of Sub Rule 2 of Rule VIII-Order 1 provides that 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. Apparently there is no order of the Court below which specifically grants written permission to the plaintiffs to pursue the suit in the representative capacity however, the records of the suit show that on 30.1.2003, 20.11.2003 and 16.1.2004 notice was issued to the general public regarding the institution of the suit. On the basis of the aforesaid fact, the court below has held that there is sufficient compliance of Order 1 Rule VIII. Learned counsel for the petitioners submits that as per the provisions of Order 1 Rule VIII, as well as by the judgment in the case of Smt. Munni Devi & Ors. Vs. Satgur Dayal Tandon & Ors. (AIR 1973 Allahabad 281), it is essential that 4 Patna High Court CWJC No.2859 of 2013 (3) dt.19-03-2013 4 / 5 notice should be issued by the court in a case where a suit is filed in a representative capacity. It is further held that it is a mandatory provision which should be complied with. In the case aforesaid, the Trial Court had held that a property did not belong to the Hindu community whereas the appellate authority had come to the conclusion that the property belongs to the Hindu community. On appeal filed before the High Court, the suit was dismissed on the sole ground that no steps were taken under Order 1 Rule VIII and that the notices that were filed did not disclose that there was a compliance of Order 1 Rule VIII of the Code of Civil Procedure. On the other hand, counsel for the respondents relies on the judgment of this case in the case of Ramrup Pandey Vs. Kamla Prasad Sinha & Anr. (AIR 1981 Patna 315) wherein this Court has considered the specific question while considering whether grant of permission by the court must be expressly given writing or where it could be implied from the circumstances of the case. This Court held that it was not essential that it should be an expressed permission rather there can be inferred from the circumstances and the records of the case. This Court would rely on the judgment of this Court to hold that if the circumstances of the case indicate that the Trial 5 Patna High Court CWJC No.2859 of 2013 (3) dt.19-03-2013 5 / 5 Court had granted permission and that in pursuance of the implied permission, steps were taken to issue notice to the general public at large regarding the fact that the plaintiffs have filed a suit in a representative capacity, as such, it would be permissible for the Trial Court to proceed with the suit. Apparently, the Trial Court has noted that the notices were issued to the general public at large. The defendants i.e. the petitioners before this Court have not been able to demonstrate before this Court that such notices were not properly issued or that they did not disclose the intention of the plaintiffs that the suit was filed in a representative capacity. In such circumstances, this Court finds no reason to interfere with the order impugned. This writ application is dismissed. Sanjay/- (Sheema Ali Khan, J.)