KARAM DLAHEE CHAUHAN, J.-Six plaintiffs whose names were given in the title of their plaint filed a suit for (i) a declaration that they were exclusive owners in possession of the suit land measuring 226 kanals and 14 marlas and that (ii) the claim of the defendants based on certain relevant entries in the revenue record to the effect that the land was a shamlat deh belonging to whole proprietary body list of which was filed along with the plaint was not correct; (iii) with a consequential relief to issue an injunction to the defendants to restrain them from interfering with the possession of the plaintiffs; (iv) and also for possession of 10 kanals of land which was part of the plaintiff ownership as aforesaid but which too was held by the Revenue Authorities at the instance of defendant No. 1, as a Shamilat land.
2. Along with the plaint the plaintiff filed an application under Order I, rule 8, C. P. C. (Act V of 1903), which as indicated above, contained a list of all the co-owners or proprietary body numbering 197 (including defendant No. 1, Gulla Mir) who claimed to be interested in the area of the land in dispute, allegedly as Shamilat-deh and permission was sought that all the proprietary body/co- owners including defendant No. 1 be allowed to be sued in a representative capacity through Mir Sahib Shah and Nawaz Khan (defendants Nos. 2 and 3) (members of proprietary body). Thisprayer was granted on 1 I-10-1962 and the suit in the trial Court proceeded in that form and shape.
4. The defendants filed an appeal which was accepted by the learned District Judge vide his judgment and decree dated 21-5-1965, whereby the order of the learned Civil Judge was reversed and the suit of the petitioner/ appellant was dismissed.
5. The appellant-plaintiff then filed an R. S. A. No. 331 of 1965, in the same pattern of suit. - During the pendency of appeal, Gulla Mir, defendant No. 1, died and as his Legal Representatives had not been brought on record, a learned Single Judge of the High Court dismissed the appeal as having abated in toto, because, in his opinion where all the proprietors were necessary parties as joint owners of land but permission was given to some only to conduct an appeal under Order I, rule 8, C. P. C. And one of the respondents for which permission was given was dead, the appeal abates if his legal representatives were not brought on record. For this proposition he relied upon Rikhi Ram aced others v. Durga Das and others (1), he also referred to Alam Khan and others v. Syed Mastan Shah and others (2), for a general proposition that where interests are joint and indivisible the whole appeal abates if legal representatives of any one of a joint owner are not brought on record.
6. The appellant/plaintiff has come up in an appeal to this Court by special leave which was granted on 8-12-1972, to consider the soundness and application of the above view, to the peculiar facts and the circumstances of the present case.
7. Before proceeding further we would at this stage like to reproduce the provisions of Order I, rule 8, C. P. C., which reads as follows :- Order I, rule 8. One person may sue or defend on behalf of all in same interest.--(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 plaintiff's 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.
(2) Any .Person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule
(I) may apply to the Court to be made a party to such suit."
8. A perusal of the aforesaid will show that following conditions must be fulfilled in order to institute a representative suit:-
(4) Notice must be given to all the persons whom it is sought to represent or sue.
9. In the instant case it is not disputed that the persons interested in the suit were numerous-(it was stated that they were 197 in number). The interest of all these persons was same namely that they were interested in getting the suit land declared as Shamilat-deh belonging to the whole proprietary body of the village of which they were all members and owners, or to be more precise, according to their written statement co-owners. This was also the position of defendant No. 1 who was shown in the list filed of the proprietary body, and for suing whom as such along with others permission in that capacity was sought from the Court. Defendants Nos. 2 and 3 were made and appointed as the Representatives of the whole proprietary body, to reiterate, including defendant No. 1, who was one of them. This list, this characteristic and status of the defendants ,has not been disputed before us and not has any objection been 'taken to the order of the trial Court dated I 1-10-1962, authorising the institution of suit against 197 members of the proprietary body including the defendant No. 1, through defendants Nos. 2 and 3. In this way, it is evident A that all these 197 persons whose names were mentioned in the aforesaid f list stood duly represented and it was not necessary to array them in l the panel of the respondents in the second appeal in the High Court 11t and only mention of the names of their representatives and their representative capacity was enough. It is not contended that the initial institution of the R. S. A.
Suffered from any such defect. If, in this context, therefore, any of these 197 persons died, it was equally unnecessary for the further progress of the appeal to bring on record his legal representatives, and the mere fact that it happened to be Gulla Mir, who bad been shown as defendant/respondent and whose legal representatives were not brought on record will not make any difference. If this principle is not accepted then the whole purpose of suing numerous persons in a representative capacity will be defeated and the plaintiff will be undergoing the same agony which Order 1, rule 8 wants to avoid.
10. Ordinarily all persons interested in a suit ought to be joined a s 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 I, 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 I s 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. The proposition seems to us to b unexceptionable and support for it is [available from copious case-law though for our purpose reference may be made to Udmi and others v. Hira and others (1) Khuda Bakhsh and another v. Ahmad and others (2), Ram Diyal v. Muhammad Raju Shah and others (3), Afial-un-Nisa v. Fayaz.Ud-Din (4) and Mehtab and others v. Ahmad Khan and others (5).
It may be pointed out that we have not embarked upon the exercise of zomparing one case with another or others and notice their inter se distinction as such but have interpreted the law on the subject in hand from the text of Order 1, rule 8 keeping in view its purpose and object as above explained.
11. When confronted with the above situation learned counsel for the respondents/ defendants submitted that in this case despite the grant of permission to sue all proprietary body including defendant No. 1, Gulla Mir, through defendants Nos. 2 and 3, as the name of defendant No. 1, still remained on the record, therefore, he was a party in the case appeal and failure to bring on record his legal representatives was fatal to the continuation of the appeal. He submitted that there was a distinc--tion between two classes of people mentioned in Order I, rule 8, namely (1) those, in which the public or a large part of the public, are interested in the subject-matter of the dispute and some persons sue, or are sued, on behalf of this indeterminate body; and (2) cases in which the persons interested are named in the record and only some of them have been permitted to sue or defend the suit as a matter of convenience. The conten--tion has no merit and was repelled as far back as in Fazal Rahim Khan v. Hussaina and others (1), where it was held : "With great respect we cannot find any justification for this distinction in Order 1, rule 8 or any other provision of the law. As has been explained in Udmi v. Hira, Afzal-un-nisa v. Fayaz-ud-Din (2) and 46 P R 1919 (Ram Diyal v.
Muhammad Raja Shah at page 118), after an order under Order 1, rule 8 has been passed, the only effective parties to the suit or appeal are the nominees of the Court, and not the other persons interested even though their names are allowed to remain on the record. Unless, of course, any of such persons applies under sub-rule (2) of rule 8 and his application is granted, when he become a "party". Mr. Jagan Nath was unable to suggest any valid basis for this distinction and we have no hesitation in rejecting his argument."
12. Before parting with this case we may point out that Rikhi Ram and others v. Durga Das and others on which the learned Single Judge relied referred to and was based on Wall Muhammad v.
Mahlu (3) which in its own place followed Rup Chand v. Bunyad Ali, both of which were dissented from in Afzal-un-nisa v. Fayaz-ud-din and even otherwise as the case of Rikhi Ram and others v.
Durga Dos and others, goes contrary to what has been held above by us, the same is declared as not laying down a correct law on the subject and is hereby overruled. Similarly Alam Khan and others v. Syed Mastan Shah and others to which the learned (Single Judge referred was not a case under Order I, rule 8, C. P. C., and had no application to the peculiar facts and the circumstances of the present case.
13. The result is that this appeal is accepted with costs, the impugned order of the High Court is set aside, and the case is remanded to the High Court for fresh decision of the Regular Second Appeal on merits early.