1. The Defendants Nos. 1 and 2 are the appellants in this appeal. The facts relating to the suit out of which this appeal has arisen, are as follows : At the instance of the Defendants Nos. 1 and 2 certain proceedings under Section 133 of the Criminal Procedure Code were taken by a criminal Court in respect of an alleged public channel or water-course. The said public channel or water-course is said to have been in existence over the plaintiffs' land, and through it, it is alleged, the surplus water of the lands lying to the south of the plaintiffs' land used to be drained off towards the north. As a result of these criminal proceedings the alleged public channel or water-course was found to-have been obstructed and an order was passed under the provisions of that Code for the removal of that obstruction, the practical result of which was that the channel or water-course, such as it was, was re-excavated. Thereafter the plaintiffs who were interested in the lands over which the alleged public channel or water-course is said to have existed instituted the present suit. In this suit they asked for several reliefs and it is necessary to mention here only two out of them, namely, first, a declaration that the plaintiffs were entitled to the lands on which the channel is alleged to have existed, and, secondly, a declaration that the Defendants Nos. 1 and 2, or the public in general, had no right of overflow of surplus water over any channel or watercourse through the plaintiffs lands. There was a prayer for a declaration that the proceedings held in the criminal Court were ultra vires and there were other prayers as well but with these we are not concerned at the present stage. In this suit the plaintiffs impleaded as defendants the Defendants Nos. 1 and 2, who are the appellants before us as the principal defendants, and twelve other persons as the pro forma defendants; and they purported to institute this suit against the Defendant No. 1, not merely in his personal capacity, but also as representative of the public.
2. The Munsif dismissed the suit holding in effect that the passage or water-course was in existence over the plaintiffs' land and that, therefore, the plaintiffs ware not entitled to any relief in the present suit. On appeal preferred by the plaintiffs the Subordinate Judge took a contrary view and held that there was no public channel or water-course over the plaintiffs' land and, therefore, gave the plaintiffs a decree to the terms of which it is necessary to refer here. By this decree the decree passed by the learned Munsif was reversed and the plaintiffs' suit was decreed their title to the disputed land was declared, and it was further declared that there was no public channel or water-course over the plaintiffs' land. The decree further directed that the principal defendants, namely, the appellants before us, do fill up the channel or water course and restore the disputed land to its original condition. Against this decree the present appeal has been preferred.
3. The contentions urged before us ultimately resolve themselves into two. The first contention relates to the propriety of the decree that has been passed by the Subordinate Judge in view of the findings that he has recorded in his judgment, In this connexion a very ingenious attempt has been made on behalf of the appellant before us to induce us to hold that the findings at which the learned Subordinate Judge has arrived are inconsistent with the position which would justify the decree that he has passed. It has been urged in substance that whereas in the judgment of the learned Subordinate Judge there are passages which go to indicate that the water of lands lying to the south of the plaintiffs' land drained out to the north through some depression on the plaintiffs' land, he has eventually held that there is no channel or water-course, and on that footing has given the plaintiffs the relief mentioned above. Reference, for instance, has been made to a passage in the judgment of the learned Subordinate Judge which runs in these words:
The general slope is from east to west and from south to north though the slope is not uniform. It then appears that the rain-water falling in the char drains off and towards the north and that it collects also in the depression of the char in the middle between the slopes to the east and west. Tide water also comes over the char from the north and during the rains the char is submerged except the high bank of a river in the east. Tide water and flood water do not appear to require any channel over the plaintiffs to pass out except perhaps the residue.
4. Other passages to the same effect and as tending to show that this was what was the state of things on the plaintiffs' lands were drawn to our notice. Beading the judgment as a whole, however, I am of opinion that the finding at which the learned Subordinate Judge arrived in this case was clearly this: that although the allegation of the defendants was that the drain or channel existed over the plaintiffs' land, and that surplus rain-water of the lands lying to the south of the plaintiffs' land used to be drained off over that channel that allegation of the defendants had not been proved or established in the case. The learned Subordinate Judge clearly said in his judgment that tide-water and flood-water did not require any channel to pass out and that ha was not satisfied that there was any water-course or channel over the plaintiffs' land and that the water which collected in the plaintiffs' land or the lands to its south passed out of if by the natural flow of water without any channel. In other words he found that there never was any defined passage in the shape of a channel or watercourse such as was alleged on behalf of the defendants through which the said water used to pass off towards the north. This, in my opinion, is the view which may be gathered, and gathered very clearly, from what has been said by the learned Subordinate Judge in his judgment. The depression that is referred to in the passage which I have quoted above is not the water-course or channel which is claimed on behalf of the defendants. I am, therefore, of opinion that the findings of the learned Subordinate Judge are not inconsistent and the first ground urged on behalf of the appellants must fail.
5. The second ground relates to the validity of the proceedings which were taken in connexion with the representation of the public by the Defendant No. 1 in the suit. It may be observed at the outset that in the written statement that was filed on behalf of the Defendants Nos. 1 and 2 no objection in particular was taken to the validity of these proceedings, and although two issues were framed regarding the maintainability of the suit, and the form thereof, those issues appear not to have been pressed during the trial of the suit in the Court of first instance. In the judgment of the learned Subordinate Judge there is also no mention of any objection having been taken so far as this matter is concerned. These, however, are objections which relate to the legality of the procedure that was adopted and the validity of the decree that has been passed and having regard to the insistence and ability with which they have been put forward before us, we think we must deal with them here.
6. In the memorandum of appeal that has been presented to this Court there is one paragraph in the grounds which relates to some of these objections and that ground, taken along with arguments that have been advanced before us, means to object to the validity of the proceedings on the ground that although there may have been a permission duly granted by the Court for representation of the public by the Defendant No. 1 in the Court of first instance there was no such permission either taken or granted for the purposes of the appeal that was heard by the lower appellate Court, it being remembered that the plaintiffs were the appellants in that appeal. No authority has been brought to our notice for the proposition that if a permission has been validly granted for such representation of the suit in the Court of first instance a fresh permission is necessary for the purposes of an appeal if an appeal is preferred subsequent to the disposal of the suit by the Court of first instance and, in my opinion, it would be unreasonable to hold that in point of fact a fresh permission for the purposes of the appeal would be necessary under the law. The law does not require such permission to be given, and so far as this question is concerned the proceedings in appeal may very well be regarded as proceedings in continuation of the suit and the result of the appeal would be taken as the result of the suit itself. I am of opinion that if there has been a permission properly granted for the representation of the public by some of the defendants in a suit it is not necessary that a fresh permission should have to be taken or granted for the purposes of such an appeal in that suit at any subsequent stage.
7. It has next been said that although the Defendant No. 1 may be taken to have been permitted to appear in the suit as representing the public, ha entered appearance not in his character as representative of the public but in his own personal capacity and in support of that our attention has been drawn to the written statement that was filed in the suit on behalf of the defendants. It is true that in this written statement the Defendant No. 1 nowhere says that he was in point of fact appearing as representative of the public But at the same time there is nothing to show that he objected to appear in that capacity. The position seems to be that the Defendant No. 1 was aware of the fact that he was required to appear in the suit and defend the same in his personal capacity as well as representing the public; and being aware of these conditions he did appear in the suit and contest it. In the circumstances, in my opinion, it cannot be said that the mere fact, that he did not choose to state specifically in the written statement that he was appearing not merely in his individual capacity, but also as representing the public, indicates that the public were not represented. It was argued that there was no obligation on the said defendant to represent the public; but then it must be remembered that an order for such representation may be made by a Court notwithstanding that it is objected to by the parson who is asked by the Court to represent the public. In this connexion reference may be made to the decision o Wood v. McCarthy [1893] 1 Q.B. 775 in which it has been held that an order may be made under Order 16, Rule 9, which corresponds to Order 1, Rule 8 of the Civil P.C. authorizing one or more persons to defend on behalf of persons interested against the will of the parser or parsons so authorized.
8. A third objection has been taken it connexion with these proceedings and that relates to the notice that was issued for the purposes of this representation. This notice to which our attention has been drawn gives first of all the names of the plaintiffs as Niamat Khan and others. It purports to state that a suit has been instituted by the plaintiffs against the defendants for the declarations to which I have already referred, and it calls upon the public or such members of the public as may so desire to appear and contest the plaintiffs' claim. There is then a schedule attached showing the plots of land with regard to which a declaration was sought for by the plaintiffs in the suit. It has been contender before us that the notice doss not satisfy the requirements of law, and I may say at once that I feel very much pressed by this contention. The object of a notice required by Order 1, Rule 8 of the Civil P.C. has been clearly explained in the casa of Kali Kanta Sarma v. Gouri Prosad Surma [1890] 17 Cal. 905, where Mr. Justice Banerji, delivering the judgment of this Court, observes thus:
Section 30, as we understand it, requires that the Court should exercise a judicial discretion in permitting some definite person or persons to sue or be sued on behalf of all the persons interested, and it further requires the Court to give to the parsons interested notice of the institution of the suit which must include a notice of the names of the parsons who have bean permitted to represent others, so that the persons interested may have an opportunity of knowing who have been selected to represent them. Now, in the present case, no such thing was done. In the first place the Court did not give permission to any definitely named persons among those interested to represent the rest; and in the second place the notice issued by the Court did not show who the persons were that had been selected to represent the remaining persons interested.
9. Judged by the test laid down in that case the notice in the present case falls far short of the requisite. It did not in point of fact mention the fact that the Defendant No. 1 would be authorized to represent the public in the suit and the public in general could not possibly have any idea as to the persons who were going to represent them for the said purpose. Whether a decree obtained in a suit in which a notice of this character was issued would be binding on the public or not is a question with regard to which we are not called upon on the present occasion to express any definite opinion. In the present case, however, the Defendant No. 1, knowing that he had been asked to represent the public, had appeared in the suit and presumably taken all the defences that were possibly open. The decree that has been passed in the suit can under no circumstances be treated as not binding as against the defendants, at any rate, who have appeared and contested the suit under the circumstances to which I have referred-If in future the public succeed in showing that they were not properly represented, or that the decree is not binding on them or in a future suit in which the public are properly represented it is found that the channel or water-course does exist in fact and that there is a right of the public to drain off their surplus water through the same, the Defendants No. 1 and 2 would not be prevented from coming in as members of the public and getting the benefit of that decree; for, on the present occasion, we think they are bound by the present decree on the footing that they did not represent the public properly, but appeared in the suit on their own behalf. Another ground has been taken, namely, that there is no specific order granting the permission required by Order 1, Rule 8; but having regard to the order in the order-sheet to which our attention has been drawn, and taking the same in conjunction with the proceedings that have taken place, it is open to us to infer that such permission was granted. It has been laid down by this Court in a series of decisions that the leave of the Court necessary under Order 1, Rule 8, Civil P.C., need not be express, and it is enough if it can be gathered from the proceedings: sea Dhunpat Singh v. Paresh Nath Singh [1894] 21 Cal. 180, Kalu Khabir v Jan Meah [1902] 29 Cal. 100, and Krishna Kumar Deb v. Atul Chandra Ghose .
10. Lastly, it has been argued that the "public were a necessary party to the suit and the provisions of Order 1, Rule 9, Civil P.C. will not enable the plaintiffs to maintain the suit in the absence of the public. Reference in this connexion has been made to the case of Performing Bight Society v. London Theatre of Varieties [1924] A.C. 1 and the observations of Viscount Cave, L.C. at page 14 in that case, which are in these words:
Further, under Order 16, Rule II, (which corresponds to Order 1, Rule 9, of our Code) no action can now be defeated by reason of the misjoinder or non-joinder of any party; but this does not mean that judgment can be obtained in the absence of a necessary party to the action, and the rule is satisfied by allowing parties to be added at any stage of a case.
11. These observations were made in connexion with a suit in which the interest of the plaintiffs, the Performing Right Society, Ltd., in the performing rights was equitable only, and they brought an action to obtain a perpetual injunction against an infringement of their rights without joining She legal owners of the copyright as parties to the action, and it was held that the plaintiffs were prevented by the law and practice of the Courts from obtaining the perpetual 'injunction which they claimed. It is not possible to say in the present case that the reliefs which the plaintiffs have obtained were not such as they were not entitled to obtain in a suit against the Defendants Nos. 1 and 2 only, though a decree in such a suit will not be of any avail as against the public in general.
12. These are all the contentions that have been urged before us in this appeal and as they fail the appeal must be dismissed with costs.
Graham, J.
13. I agree.