Sona Mia and Others vs Akly Mia and Others and Saiyan Ali and Others

B.L. Hansaria, J.—The only challenge to the decreeing of the suit by the learned Court below is on the ground that the suit as filed was not maintainable. Though in the issue as framed, nothing was specified as to why the suit was not maintainable, what the Defendant had in mind was that the suit could not proceed for non-joinder of all the persons numbering about 250 and odd who were the pattadars in respect of the land. To take care of this objective the Plaintiff had invoked the aid of Order 1, Rule 8, CPC on the ground that names of all the co-sharers were not known and so it was not possible to make them party. It was also averred that all the co-sharers have same interest in the suit patta land. It was therefore, prayed that Defendant No. 25 may be allowed to represent the non impleaded co-sharers. On 15.12.65, the Court ordered for steps under Order 1, Rule 8, Code of Civil Procedure. Notices were there after issued inter alia, on Defendant No. 25 who died in the mean time. His heirs were thereafter brought record and the Court ordered on 5.4.67 to issue notice on all the co-sharers by beat of drums. The learned trial Court held the suit as non-maintainable as according to it the provision of Order 1, Rule 8, Code of Civil Procedure, were not attracted and not complied with. The learned Assistant District Judge hat inverted this finding.

Sri Laskar has first submitted that there is no specific order of the learned trial Court allowing the petition of the Plaintiff to invoke Order 1, Rule 8 and to allow Defendant No. 25 to represent the absentee co-sharers. Though this submission is factually correct, the implied permission as contended by Shri Choudhury can be read in the various orders passed by the learned trial Court. The non-passing of a specific order has, therefore, to be regarded as a mere irregularity which cannot be a ground to reverse a decree as stated in Section 29 of the Code as the same has not affected the merits the case or the jurisdiction of the Court.

The next submission is that such an order in favour of the heirs of Defendant No. 25 was also not passed. I agree with the learned Court below that as the successors of this Defendant entered into his shoes, their position would be same as that of the other Defendant No. 25. Non-passing of a specific order in this regard is also covered according to me, by the aforesaid section of the Code.

The main submission made by Shri Laskar is that one of essential ingredients of Order 1, Rule 8 was missing in the present case inasmuch as it could not be said that "the non-impleaded co-sharers had the same interest in the suit. According to him, the co-sharers had varied interest as they were the owners of different fractions of the suit land, some of whom had become owners by purchase, some by other modes of transfer. But in so far as the claim of the Plaintiffs over 3/23rd share of the patta is concerned, they had the same interest in challenging it. It cannot be said that the provisions of Order 1, Rule 8 would apply in such case only if the co-sharers enjoy the land in equal share. That hardly happens. The decision in Kodia Goundar and Another Vs. Velandi Goundar and Others, cited by Shri Laskar is one of the instance where provisions of Order 1, Rule 8 can be invoked, as it cannot be said that this provision would apply only when the property belongs to the entire community.

In the view of the above I am not in a position to uphold the contention of Shri Laskar that the suit was not maintainable on the above ground. This being the only submission the appeal has no merit and is dismissed.