SYED ARSHAD ALI, J.- This revision petition has been tiled by the present petitioners against the judgment and decree of the learned Additional District Judge/Izafi Zilla Buller dated 28.03.2018, whereby he dismissed the appeal of the present petitioners and maintained the order and decree of the learned Trial Court dated 30.05.2017 rejecting the plaint of the present petitioners under Order VII Rule 11 CPC.
Learned counsel appearing, on behalf of the petitioners has contended that both the learned Courts below have non-suited the petitioners on a very technical ground that earlier the same set of plaintiffs/ petitioners had filed a similar suit which was dismissed in default on 14.03.2008 under Order IX Rule 8 CPC and thus fresh suit was barred under Order IX Rule 9 CPC without appreciating record of both the cases, where not only parties were different but in the earlier suit, no permission was granted to the alleged representatives of the plaintiffs to file a suit under Order I Rule 8 CPC.
Hence, in absence of any specific order, there was no suit pending before the Court in representative. capacity and the alleged dismissal of the said suit for non-prosecution would not bar the plaintiff, to file the present suit. He has further argued that under Order VII Rule 11 CPC, only the contents of the plaint to be looked into and the plea of defence cannot be considered as a ground for rejecting the plaint. In support of his claim, he has placed reliance on Adam Khan vs Gulla Mir & others (PLD 1982 Supreme Court 120), N.E.D University of Engineering and Technology vs Tariq Ali & 2 others (PLD 1993 Karachi 626), Datari Construction Co. (Pvt) Ltd. Vs A. Razak Adamjee & others (1995 CLC 846), All Residents through representatives vs Muhammad Ali & 13 others (2010 CLC 1402), Abdul Rauf Shah vs Abdul Qayyum Shah & 2 others (2016 YLR 2423), Mst. Shamim Akhtar & 4 others vs Mohammad Ashraf & 8 others. (2016 MLD 454) and Ajmal Khan vs Mst. Gul Zahira Bibi through legal heirs and 4 others (2016 MLD 1394).
3. Conversely, learned counsel representing the respondents has argued that the nature and character of the earlier suit was the same but they were represented by different persons. However, the names of the present petitioners do appear in the list of the interested persons which were appended with the plaint. He has also produced copy of the advertisement which was issued for attendance of the defendants in the earlier suit and thus has defended the impugned orders.
4. I have heard arguments of learned counsel for the parties and perused the record with their able assistance.
5. It is evident from record that the plaintiffs/present petitioners had filed a suit for declaration in representative capacity to the effect that they belonged to Kandi Musa Khail Tal Sargand Khail, whereas the revenue officials while preparing the pedigree-table has entered their names in handy Khwajis Khali Tal Rahmai Khali. Thus, such entry in the pedigree-table is liable to correction. This suit was filed by the plaintiffs/petitioners in representative capacity and along with plaint, an application was also filed seeking permission of the court to file the instant suit in representative capacity.
6. I have minutely perused the entire order sheets of the present case which are available on record from which it is evident that the application of the present petitioners seeking permission to sue in representative capacity has not been decided by the learned Trial Court and thus notices were issued to the respondents.
On receipt of notices, the respondents had contested the suit in their written statement, wherein apart from other legal objections, they have also raised an objection that a similar suit bearing No. 158/1 titled "Muqadar Khan & others vs Khan Ghalib & others" filed by the present plaintiffs in representative capacity was dismissed for non-prosecution. Therefore, the present suit was not maintainable.
7. During the proceedings, when the statement of Patwari Halqa was recorded, the respondents had filed an application for rejection of the plaint on the ground that since the earlier suit was dismissed in default on 14.03.2018, therefore the present suit was barred under Order IX Rule 9 CPC. The said application was accompanied with the entire record of the earlier suit bearing, No. 158/1 which was contested by the present petitioners. The learned Trial Court vide order/decree dated 30.05.2017 had dismissed/rejected the plaint of the plaintiffs/ petitioners under Order VII Rule 11 CPC.
8. The close perusal of the earlier suit bearing No. 158/1 and the present suit would show that the same have been filed by the plaintiffs who belonged to the caste Kandi Khawajis Khali and not only the nature and character of both the suits are the same but in both the suits cause of action is the same. Similarly, both the suits have been filed allegedly in representative capacity.
9. Admittedly, the earlier suit was dismissed for non-prosecution and there is no cavil to the proposition that once suit dismissed in default, fresh suit on the same cause of action by the same plaintiffs is barred by the explicit words of Order IX Rule 9 CPC which is couched in negative language. However, it is settled law that when any provision in its nature is penal that is to say deprive a party to bring an action before the Court of law, it should be construed strictly.
10. Although it is stated in the plaint in suit bearing No. 158/1 that that suit was being filed in representative capacity , however I have perused all the order sheets available on record, despite the fact that a separate application for seeking permission to sue on behalf of the plaintif fs in representative capacity , no such permission was granted to the alleged representatives of the said suit to represent all the plaintif fs whose list was provided.
11. In any suit which is filed by certain number of plaintif fs claiming, to represe nt numerous persons having a common right in a mater and seek permission to file a suit in representative capacity , their request for permission to file the suit in representative capacity cannot he considered as a. matter of course and as evident from the language of Order I Rule 8 CPC, not only notices must be issued to all the interested persons but permission of the Court should also be obtained in a very clear words to represent the said numero us persons as the Court has to form its opinion before granting permission whether the essential ingredients to allow the representatives to represent numerous persons exists before passing an order to sue on behalf of the numerous persons whose interest is common in the suit property . For ready reference, Order I Rule 8 CPC is reproduced as under:- Order I Rule 8 of the Civil Procedure Code:
(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiffs expense, notice of the institution of the suit to all such persons either by personal service or, where from 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.
The basic principle to file a suit under Order I Rule CPC has been very elaborately and precisely laid by the august Supreme Court of Pakistan in case titled Raja Ali Shan vs Messrs Essem Hotel Limited and others reported as 2007 SCMR 741 as following:- "It is a settled law that the following conditions must be fulfilled in order to institute a representative suit:--
(a) Persons interested in the suit must be numerous.
(b) They all must have the same interest in the suit.
(c) Permission of Court under ride 8 shall be obtained.
(d) Notice must be given to all the persons whom. It is sought to represent.
(e) indian Supreme Court while interpreting Order I, rule 8, C.P.C. in the State of Andhra Pradesh v. Gundugola Venkata Suryanarayana Garu AIR 1965 SC 11 laid down the following principle:-- "To enable a person to file a suit in a representative capacity for and on behalf of numerous persons where they have the same interest, the only condition is the permission of the Court".
12. The rationale behind allowing the representatives to sue numerous persons whose interest is the same is that the said represented persons by virtue of the said permission do not become plaintiffs in the suit. However, the said persons would be bound by the decree in the suit in view of the said permission granted by the Court. The august Supreme Court of Pakistan in Adam Khan vs Gulla Mir and others reported as PLD 1982 Supreme Court 120 has laid the said rules in the following terms:-
10. Ordinarily all persons interested in a suit ought to be joined as parties. As against this rule 8 of Order I of the C. P. C. is a rule of convenience based on reason and good policy and saves the trouble and expense which would otherwise have to be incurred in such cases. A suit filed with the permission to sue for and on behalf of numerous person having the same interest under Order 1, rule 8 is still a suit filed by the person who is permitted to sue as the plaintiff, and the persons represented by him do not by virtue of the permission become plaintiffs in the suit Such other persons would be bound by the decree in the suit but that is because they are represented by the plaintiffs and not because they are parties to the suit unless by express order of the Court they are permitted to be impleaded as such in their own capacity and are not allowed to sue in a representative capacity. Conversely and similarly it will be clear that the persons who are all sued in a representative capacity will not become parties to the suit as defendants, and if, therefore, they are not on record as such the question of bringing on record a legal representative in case of demise of any one of them does not arise.
13. Since in the earlier suit, permission of the Court allowing the then alleged representatives to represent the other members of the caste was not granted, therefore the penal provision of Order I Rule 8 CPC would not be attracted in the present suit. Both the learned Courts below have not properly appreciated this aspect of the case. Hence, the impugned orders do not appear to be correct on legal premises.
14. Before parting with this judgment, when I have thoroughly examined the entire order sheets even in this case, despite there is an application of the plaintiffs to sue in representative capacity, the said application has not been decided by the learned Trial Court. However, for this omission, the plaintiffs cannot be blamed because it is settled law that the act of the Court prejudices none. Hence, all the proceedings after raising a suit in the present case do not appear to be legally correct. Therefore, on acceptance of this revision petition, the impugned judgments and decrees of the learned Courts below are set aside and the instant case is remanded to the learned Trial Court who before proceedings in the matter shall first decide the said application by giving notices to all the interested persons in accordance with Order I Rule 8 CPC.