Raja Brajasunder Deb vs Mani Behera and Others

Rowland, J.—These applications arise out of three analogous suits and are against interlocutory orders passed by the Subordinate Judge. The plaintiff who is the applicant is a cosharer to the extent of seven annas odd in certain estate in which, there are fisheries. The pro forma defendants are the other cosharers and the principal defendants are persons following the trade of fishermen. It is said that the principal defendants in the winter of 1935-36 from time to time made inroads on the fisheries in possession of the plaintiff and took fish therefrom; hence these suits are brought claiming declarations that the principal defendants, and others of their caste and calling have no right in the fishery, to recover damages from the principal defendants for fish actually caught and to have an injunction from the Court against the principal defendants restraining them from further trespass on the fisheries in the possession of the plaintiff. As regards the first relief for declaration that the defendants and others had no right in the fishery, the suit was framed in accordance with Order 1, Rule 8, Civil P.C., as a representative suit, the permission of the Court having been duly obtained. The principal defendants resisted the suits claiming a permanent right of fishery on a fixed rent for themselves and their eastemen about eight hundred in number.

They denied that the plaintiff was in possession of the fishery and they referred to a proceeding under Section, 145 between themselves and some co-sharers of the plaintiff in the year 1918 which had been decided in favour of the principal defendants. They raised some technical issues which they asked the Subordinate Judge to take up as preliminary issues before proceeding to hear the suits on the merits. The substantial objections were'' that the suit was not maintainable in view of the provisions of Section 42, Specific Relief Act, the plaintiff not being in possession and not having prayed for recovery of possession, that the court-fee paid was insufficient and that damages could not lawfully be claimed in a representative suit.

The Subordinate Judge, after hearing the parties but without taking any evidence, has withdrawn the permission granted under Order 1, Rule 8 given to the plaintiff to sue the principal defendants as representatives of themselves and others. He held that a higher court-fee was payable than that which has been paid and called on the plaintiff to pay it. He held that in order to make the suit maintainable the plaintiff must amend his plaint by adding prayers for a declaration of his title and for recovering possession. He gave the plaintiff a stated time for compliance with these directions.

The court-fee called for has been paid and we are not disposed to interfere with the order of the Subordinate Judge in so far as it refers to this matter. The plaintiff had valued the subject-matter of the suit for purposes of jurisdiction at Rs. 11,000 but the relief at Rs. 3400. The value of the suit for purposes of jurisdiction and for purposes of court-fee must be the same, Section 8, Suits Valuation Act.

As regards the withdrawal of permission to maintain a representative suit under Order 1, Rule 8, the Subordinate Judge has fallen into error and his order, in my opinion, cannot be supported. He has referred to a case in which plaintiffs themselves suing as representatives sought to join with their claim for a declaration of their right a claim to recover damages.

There would be obvious difficulties in giving or executing a decree of this kind in favour of persons not named in the proceedings. A similar position might arise if in the present suit the plaintiff had sought to recover damages not only from the principal defendants but from all the other members of the class of fishermen whom they were impleaded to represent. But this is not the case. The plaintiff has claimed to recover damages from the principal defendants only for trespass actually committed by them. There is no reason why this relief which neither the plaintiff claims in a representative capacity himself nor seeks to enforce against the defendants in any representative capacity should not be joined with the claim against defendants in a representative capacity in respect of a declaration of right.

Similarly there is no objection to the plaintiff maintaining this representative suit for a declaration along with his direct claim for an injunction against the principal defendants restraining them from further trespass. Therefore, the grounds on which the Subordinate Judge withdrew the permission granted under Order 1, Rule 8, are not sound, and so far as this matter is concerned, I would accede to the application and set aside this part of the order of the Subordinate Judge. The permission granted under Order 1, Rule 8 would be deemed to stand good.

Then as to the finding that the suit is not maintainable u/s 42, Specific Relief Act, the Subordinate Judge seems to have misunderstood the position. In the plaint it was alleged that in spite of the fishery having had a somewhat checkered history in the past it was at present in the possession of the plaintiff. If that was so, then Section 42 was no bar to the suit. The defendants no doubt alleged something different and if it was found as a result of hearing on evidence that the plaintiff was out of possession it might be that the result at the conclusion of the suit would be that Section 42 came into operation to bar the suit. But if the plaintiff chooses to take his chance of being able to prove the facts asserted by him in the plaint, it is not for the Subordinate Judge at the preliminary stage to anticipate what the findings of fact in the suit and are likely to be or to pass any order on the plaintiff for amendment of the plaint.

As regards the prayer for declaration of plaintiff''s title which the Subordinate Judge asked the plaintiff to insert in his plaint, this hardly seems to arise as the title of the plaintiff as proprietor does not seem to be at all controverted, and the order calling on the plaintiff to amend the plaint by in sorting this prayer was uncalled for. To the above extent I would allow the applications and direct the Subordinate Judge to proceed with the hearing of the suit, parties bearing their own costs in each of these applications.

Harries, C.J.

I agree.