passed in the suit will not be a nullity on the ground of mere not seeking a permission of the Court under Order I Rule 8 of the Civil Procedure Code and, therefore, in the instant case also merely because no permission is taken from the Court to institute the suit in the representative capacity, would not nullify the decree, is not acceptable. From the reading of the facts in case of Singhai (supra), eviction suit filed against the respondent and represented by the Manager, the President who was practicing Advocate, and also member, and all the three were prosecuting the suit. Therefore, in that case eviction suit was filed against the registered body through its Manager, President and member and all the three persons were competent to file the suit. Therefore, in the facts of that case, the Hon'ble Supreme Court had taken that view. However, in the instant case, admittedly the respondent No.1 is unregistered. It is not a registered Society or Trust etc. Therefore, it was open for all 262 members to institute the suit. The 5 plaintiffs who instituted and prosecuted the suit have not prosecuted the suit in representative capacity by taking the permission from the Court as contemplated under the provisions of Order I Rule 8 of the Civil Procedure Code. Therefore, the suit which was instituted by the respondent No.1 should have been filed by joining all its 262 members who were necessary parties to the suit. If at all the respondent No.1 wanted to file the representative suit, in that case, it was open for them to institute a representative suit by following the procedure prescribed under Order I Rule 8 of the Civil Procedure Code. In the present case, the suit was instituted in the name of Mandal through its President and 5 persons, who according to the respondent No.1 are panchas of the Mandal. The defect in the institution of suit is fatal to the maintainability of the suit itself. Therefore, in my opinion, taking overall view of the matter, it will have to be concluded that the suit which was instituted by the respondent No. 1 through its President and 5 other plaintiffs who are alleged to be the panchas of the Mandal, was not maintainable in absence of joining all 262 members as party to the suit. I also find force in the arguments of the counsel for the applicants that, if at all the possession of the suit property is to be handed over, it will have to be handed over to the 5 plaintiffs who are no more. Since the institution of the suit itself suffers from non joinder of necessary parties and the defect in the institution of the suit is fatal to the maintainability of the suit, handing over possession to the individuals who stepped in the shoes of 5 original plaintiffs who died during the pendency of the suit, would even cause damage and prejudice to the interest of the respondent No.1 itself. Therefore, though there are concurrent
