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Harihar Jena And Others v. Bhagabat Jena And Others
Factual and Procedural Background
The respondents, suing in a representative capacity, brought a suit seeking declaration that the suit land formed part of the village road and for removal of a foundation laid by the original defendant as an encroachment. In the written statement the original defendant pleaded, inter alia, that the notice issued under Order 1, Rule 8 C.P.C. for prosecution by the respondents in a representative capacity was defective. During the suit the original defendant entered into a compromise with respondent Nos. 3 and 4, which recital asserted that the villagers never used the suit land. The learned Munsif dismissed the suit, finding that obstruction and deprivation of road amenities were not proved and that the respondents had not established right, title, interest or possession. The learned Subordinate Judge reversed the Munsif, holding that the compromise could not be used against the respondents or the public as it was not in accordance with Order 1, Rule 8(4) C.P.C., and that the original defendant had encroached on the village pathway. The legal representatives of the defendant appealed against the Subordinate Judge's reversing judgment.
Legal Issues Presented
- Whether the notice issued under Order 1, Rule 8 C.P.C. was defective for failing to indicate the names of the plaintiffs, the nature of the suit, the reliefs claimed, the subject-matter and the identities of persons selected to represent the villagers.
- If the notice was defective, whether that defect vitiates the trial and requires setting aside the judgments below and remanding the suit for fresh trial from the stage of notice.
Arguments of the Parties
Appellant's Arguments
- The notice under Order 1, Rule 8 C.P.C. was defective because it did not name the plaintiffs, did not indicate the nature of the suit or reliefs claimed, did not specify the subject-matter, and did not identify the disputed properties or the persons selected to represent the villagers.
- Counsel relied on several authorities to submit that the provisions of Order 1, Rule 8 C.P.C. are mandatory and that a proper notice under Rule 8(2) is an essential pre-condition to trial; because the notice was defective the trial was vitiated and the Subordinate Judge's judgment should be vacated and the suit remanded.
Respondent's Arguments
- The learned counsel for the respondents fairly conceded the position regarding the defect in the notice.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| (1985) 60 Cut LT 208 : (AIR 1986 Orissa 100) (Sukadev Tapaswai v. Sri Sidheswar Mahadev Bija Silod) | Support for the contention that Order 1, Rule 8 C.P.C. is mandatory and the notice must disclose nature of suit and reliefs. | Relied upon by appellant; court treated the contention as valid support for finding the notice defective and remanding the suit for proper notice. |
| (1975) 1 Cut WR 11 (Udayanath Das v. Lingaraj Moharana), (Udayanath Das v. State of Orissa) | Support for the mandatory character of Order 1, Rule 8 and the requirements of the notice under Rule 8(2). | Relied upon by appellant; court applied the principle to conclude the notice was defective and that trial was vitiated. |
| (1971) 1 Cut WR 699 (Brundabati Thakurani v. Hari Biswal) | Support for the proposition that notice under Order 1, Rule 8 must disclose necessary particulars to enable interested persons to be impleaded. | Relied upon by appellant; court treated it as corroborative authority for remanding the suit for proper notice. |
| Second Appeal No. 37 of 1968 disposed of on 29-7-1971 (unreported) | Used in support of the appellant's contention regarding mandatory compliance with Order 1, Rule 8 requirements. | Relied upon by appellant; considered as part of the authorities showing defect in notice vitiates trial; court acted consistently with that position. |
Court's Reasoning and Analysis
The Court accepted the appellant's submission that the notice issued under Order 1, Rule 8 C.P.C. did not comply with the statutory requirements: it failed to name the plaintiffs, to indicate the nature of the suit and the reliefs claimed, to specify the subject-matter and the disputed properties, and did not identify those selected to represent the villagers. Counsel for the appellant relied on several authorities establishing that the provisions of Order 1, Rule 8 are mandatory and that a proper notice under Rule 8(2) is an essential pre-condition to trial. The respondents' counsel conceded the position. Because the defect was at the very commencement of the suit, the Court concluded that the trial was vitiated and that the judgments and decrees of the courts below could not be allowed to stand. Accordingly the Court set aside the judgments below and remanded the suit to the Court of the Munsif, Puri for issuance of a proper notice under Order 1, Rule 8 C.P.C. and for fresh trial from the stage of the notice.
Holding and Implications
HOLDING: The appeal is allowed; the judgments and decrees of both courts below are set aside and the suit is remanded to the Court of the Munsif, Puri for issuance of proper notice under Order 1, Rule 8 C.P.C. and for trial afresh from the stage of the notice. There shall be no order as to costs so far as this Court is concerned.
Implications: The direct effect is that the prior trial and its outcomes have been set aside and the suit will be retried from the stage of serving proper Rule 8 notice. The opinion does not discuss any broader precedent beyond applying established authority that compliance with Order 1, Rule 8 C.P.C. is mandatory.
1. This appeal is at the instance of the legal representatives of the defendant against a reversing judgment of the learned Subordinate Judge, Puri, decreeing the suit brought by the respondents in a representative capacity to declare the suit land as part of the village road and for removal of the foundation laid by the original defendant encroaching upon the suit land.
2. In contesting the suit one of the grounds pleaded in the written statement was that the notice issued by the Court under Order 1, Rule 8 C.P.C for prosecution of the suit by the respondents in a representative capacity was defective. During pendency of the suit, the original defendant entered into a compromise with respondent Nos. 3 and 4. The compromise deed contained a recital that the villagers never used the suit land. The learned Munsif dismissed the suit on the finding that the obstruction by the defendant on the village road had not been proved and that the respondents could not be said to have been deprived of the amenities of the road, the suit land appertains to plot Nos. 712 and 715 belonging to the appellants and that the respondents were not able to establish right, title, interest or possession over the suit land. The findings of the learned Munsif were reversed by the learned Subordinate Judge holding that the compromise effected between the original defendant and respondent Nos. 3 and 4 could not be utilised against the respondents or the general public since the same was not in accordance with Order 1, Rule 8(4) C.P.C; the suit land appertains to plot No. 669 and that the original defendant had encroached on the village pathway.
3. Mr. P.K Mishra, the learned counsel appearing for the appellants has urged, without going into the merits of the case, that the judgment of the learned Subordinate Judge was liable to be vacated and that the suit is to be remanded for fresh trial since in giving of the notice under Order 1, Rule 8 C.P.C, the requirements of law were not kept in view for which the notice has become defective inasmuch as the notice did not indicate the names of the plaintiffs and only indicated Bhagabat Jena and others to have been permitted to represent the villagers of Radho. The notice also did not indicate the nature of the suit and the reliefs claimed the subject matter of the suit was not specified and even the disputed properties had also not been indicated. He placed reliance on (1985) 60 Cut LT 208 : (AIR 1986 Orissa 100) (Sukadev Tapaswai v. Sri Sidheswar Mahadev Bija Silod), (1975) 1 Cut WR 11 (Udayanath Das v. Lingaraj Moharana), (Udayanath Das v. State of Orissa), (1971) 1 Cut WR 699 (Brundabati Thakurani v. Hari Biswal) and an unreported decision of this Court, Second Appeal No. 37 of 1968 disposed of on 29-7-1971 in support of his contention. It is well settled that the provisions of Order 1, Rule 8 C.P.C are mandatory and not directory in nature and the notice under Order 1, Rule 8(2) is an essential pre-condition for the trial of the suit. The notice under the provision must disclose the nature of the suit as well as reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or oppose it. The notice must state about why the suit has been filed and what is the relief claimed therein and it must also state as to who are the persons who have been selected to represent the counsel Admittedly, the notice in the case has not been issued in such manner. It is the responsibility of the Court under Order 1, Rule 8 C.P.C to give proper notice and when it becomes defective, the trial of the suit becomes vitiated. The defect being at the very commencement of the suit, the judgment of the learned Subordinate Judge cannot be allowed to stand. Mr. R.K Mohapatra the learned counsel appearing for the respondents also fairly concedes the position.
4. In the result, the appeal is allowed and the judgments and decrees of both the courts below are set aside. The suit is remanded to the Court of the Munsif, Puri for issuing proper notice under Order 1, Rule 8 C.P.C and to proceed with the trial of the suit afresh from the stage of the notice in accordance with law. There shall be no order as to costs so far as this Court is concerned.
Order accordingly.
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