' This revision petition is directed against the judgment and decree, dated 18-4-1994 passed by the Additional District Judge, Sialkot, whereby dismissed the appeal of the petitioner against the judgment and decree, dated 18-2-1992, passed by the learned Civil Judge, Pasroor.
2. Brief facts of the case are that a plot measuring 10 Marlas boundaries of which has been given in the plaint, was alleged to have been in use by the people of the village for tethering cattle and for gathering on the occasions of sorrowness and happiness. It is alleged that respondent No,1 Aziz Baig purchased the suit plot from respondent No,2 Abdullah Masih through a registered sale-deed, dated 13-10-1986. This registered sale, deed has been challenged by way of civil suit on the ground that respondent No,2 was not owner of the plot in dispute. The suit was contested by the respondents. The following issues were framed by the learned Civil Judge, Pasroor:---
(1) Whether the plaintiffs have no cause of action and locus standi? OPDs.
(2) Whether the suit is hit by section 91 of C.P.C.? OPDs.
(3) Whether the suit is vexatious? OPDs
(4) Whether the sale-deed, dated 13-10-1986 is result of fraud and is ineffective and illegal as against the rights of the plaintiffs? OPP.
(5) Whether the plaintiffs are entitled to the decree prayed for? OPP.
(6) Relief..
3. After recording the evidence of the parties, the learned Civil Judge, Pasroor dismissed the suit and appeal of the petitioner was also dismissed by the learned Additional District Judge, vide judgment and decree, dated 18-4-1994.
4. The learned counsel for the petitioner raised the points which are incorporated in the admitting order of this Court, dated 7-5-1994 which are reproduced here:--- "(i) procedure in Order I, rule 8, Civil P.C. Was not followed, though an application and list of affected persons were annexed and necessary averments in the plaint for a representative suit were made;
(ii) proper issues were not settled, inasmuch as, a prima issue as to the reservation of the disputed property for use of the Christian Community was raised.
(iii) since disputed property belonged to the village proprietary body and was in the nature of Shamilat, the village proprietors were a necessary party to the correct constitution of civil suit for a satisfactory decision of the rights of the parties in it."
5. Today while arguing the civil revision, learned counsel placed reliance on Punjab Cooperative Bank Ltd. v. Hari Singh and others (1933 ALR 1213). Apart from above stated arguments, the learned counsel further submits that there is no proof of the fact that vendor Abdullah Masih was the owner of the suit land. Conversely, the counsel for the respondents argued that the petitioners who were the plaintiffs in the trial Court had to stand on their own legs and they had no locus standi to file the suit. Further, submits that the suit is hit by section 42 of the Specific Relief Act as the petitioners are out of the possession. Further, submits that Local commissioner's report has proved the fact that the respondents are in possession of the suit land that this plea that procedure in Order I, Rule 8 of C.P.C. Was not followed, although list of affected persons were annexed and necessary averments in the plaint for representating suit were made, was neither taken as ground before the learned trial Court nor before the first appellate Court.
6. I have considered the arguments of the learned counsel for the parties and perused the record.
The fact is that the suit was in representative form, the application under Order I, Rule 8 was also attached by the petitioners-plaintiffs providing the list of Christian Community of the locality on the file, a finding by the learned trial Court on Issue No,2 is favour of the learned trial Court on Issue No,2 is in favour of the plaintiffs-petitioners that the suit in representative capacity is maintainable.
According to my mind the suit could have not been proceeded under the law unless essential conditions as contemplated in Order I, Rule 8 of the C.P.C. Are fulfilled. Order I, Rule 8, C.P.C. Is reproduced here:--- "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 permissions 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.
(2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule
(1) may apply to the Court to be made a party to such suit."
' For the applicability of the above rule, the essential conditions are:---
(I) the represented parties must be numerous.
(II) They must have the same interest in the suit.
(III) The permission of the Court must be obtained by an application to the Court and
(IV) on permission being given under Rule 8 notice must be given to the parties sought to be presented in the suit.
' Reliance can be placed on Kumaravelue Chettiar and others v. T.P. Ramashwami Ayyar and others (AIR 1933 PC 183), wherein, their lordships of the Privy Council laid down that the provisions of Order I, Rule 8 must be strictly complied with.
7. The above cited decision was followed in the case of Karachi Municipal Corporation v. Ali Hassan (1982 CLC 93) and Muhammad Ashfaq and others v. Sohail Hameed and 3 others (1986 CLC 2218).
While interpreting the provisions of Order I, rule 8 of the C.P.C., in case of Datari Construction Company (Pvt.) Limited v. A. Razaq Adamgi and others (1995 CLC 846), it was held, that while giving essential conditions for the applicability of the above rule, the perusal of the plaint would show that the suit was not a representative suit on behalf of the numerous persons, therefore, the suit was filed after seeking permission from Advocate-General. The view of the Cour was that the suit was only between the plaintiffs and defendants and was not a representative suit as contemplated in Order I, rule 8. In the case (supra) relied by the learned counsel for the petitioners, it was held that, "R. 8, while conferring on the Court power to allow one or more of a numerous body or persons to sue, or be used, on behalf of, or for the benefit of, all persons so interested, imposes on it the duty of issuing; 'at the plaintiff's expenses 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 practicably by public advertisement, as the Court in such case may direct.
"This provision is mandatory and not merely directory, and is an essential condition for the trial of the case as a representative suit. The reason for this obviously is that any decision given in the case operates as res judicata not only against the persons who were actually before the Court but also against those whom they were permitted to respondent. It follows, therefore, that a proper notice and its service either personally, or by public advertisement on the persons concerned is an indispensable preliminary to the trial of the suit under Order 1, Rule 8."
' In the recent judgment of the Hon'ble Supreme Court of Pakistan reported in the case of Forest Development Corporation and another Gujjar Khan and others (1999 SCMR 1168), it was held that, "Constitutional petition were tiled by petitioners in their own capacity as well as representative for persons/ local right-holders of village--- ' Application for suing in representative capacity was allowed but no service/publication was effected as provided under 0.I, R.8, C.P.C.---Validity---Supreme Court converted petitions for leave to appeal into appeals, set aside judgment of High Court and remanded cases with direction to get notice under 0.I, R.8, C.P.C. Served/published on remaining right-holders and to decide Constitutional petitions afresh."
' As for the objection that this point of representative suit under Order I, rule 8, C.P.C. Was not taken in the trial Court or in the first Appellate Court, need not to say that this being pure question of law can be taken in revision petition under section 115, C.P.C. For the first time before this Court. See case of Board of Intermediate and Secondary Education, Sargodha v. Muhammad Akram (1993 CLC 926).
9. The second point in this case is that the plaintiffs alleged in the plaint that the disputed property is reserved for the use of Christian Community and belonged to village proprietary body. This fact had been denied by the defendant and asserted that defendant No,1 had purchased the disputed land from defendant No,2 under Order 14, Rule 5, it was obligatory upon the Court that after reading the plaint and the written statement, if any, and after such an examination of the parties as may appear necessary ascertain upon what material proposition and fact or law, the parties at variance, and shall there upon and proceeded to frame and record the issue on which the right of decision of the case appears to depend, it is well-settled law, where proper issues are not framed by the trial Court the Appellate Court can remand the case for framing of proper issues or after itself framing proper issues, or need if any, the case be remanded. See the case of Bakhtzamin v.
L.D.A. (1985 CLC 2028), so issue No,4 is deleted and reframed as follow because the defendant No,2 is beneficiary of the sale, therefore, onus lies on him to prove the sale. One additional issue is also framed.
' Issue No,4. Whether defendant No,2 is the lawful owner of the suit land on the basis of registered sale-deed executed by defendant No,1 in favour of defendant No,2? OPD. And additional issue is also framed.
' Addl. Issue. Whether the property belonging to the village proprietary body (Christian Community) and was in nature of Shamlat? OPP
10. Since in this case there are numerous persons having the same interest in one suit and in spite of the fact that the suit was a representative form and an application under rule 8, Order I, C.P.C.
Alongwith the list of the persons having the same addresses was on the file and essential conditions of representative suit were not fulfilled, neither any notice was issued by the Court nor an application under Order I, Rule 8 of the C.P.C. Was disposed of. Material issues arising out of the pleadings of the parties framed above were not framed by the learned trial Court under Order 14, Rule 1 (5), C.P.C. And the registered sale-deed in favour of defendant No, 1, dated 13-10-1986 Exh.D.5 does not disclose from where defendant No,1 Aziz Baig had acquired the title of the property. The arguments of the learned counsel for the respondent is that the suit is hit by proviso of section 42 of the Specif Relief Act and the petitioner had no locus standie to file the suit depends on the decision of Issue No,4 reframed by this Court and Issue No,5 already framed by the trial Court.
Therefore, what has been discussed above I am of the view that both the Courts have committed material irregularity while not disposing of the application under Order I, Rule 8 and not framed proper legal issues arising out of the pleading of the parties. Exercising power under section 115, C.P.C, the case is to be remanded under Order 41 Rule 25, C.P.C., See case of Malik Raheem Bakhsh Awan v. Ijaz Mahmood and another (PLD 1990 Lah. 37).
11. In this view of the matter, and what has been discussed above, this revision petition is accepted.
The judgment and decree of the learned Civil Judge, dated 18-2-1992 and that of learned First Appellate Court (Additional District Judge), dated 18-4-1994 are set aside. The case is remanded to the trial Court for a fresh decision on all the issues including the modified and additional issues framed by this Court.