Remanded

Secretary Irrigation Department, Govt of Orissa v. Laxmidhar Mohapatra and Ors.

Orissa HC25 Jul 2019SA/37/1989

Case brief

AI extract

What is this about?

The High Court set aside the lower appellate court's judgment allowing a permanent injunction suit. The Court held that the trial was vitiated due to non-issuance of mandatory notice under Order 1 Rule 8 CPC to interested parties. The suit has been remanded for a de novo hearing after proper issuance of notice.

What did the court decide?

The impugned judgment was set aside, the appeal was allowed, and the suit was remanded to the learned trial court for a de novo hearing after compliance with Order 1 Rule 8 CPC.

Secretary Irrigation Department, Govt of… — Civil Procedure and Limitation | Orissa HC (2019)

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HIGH COURT OF ORISSA: CUTTACK

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S.A. No.37 of 1989

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From the judgment and decree dated 12.10.1988 and 7.11.1988 respectively passed by Sri P. Mishra, learned District Judge, Dhenkanal in T.A. No.16/85 reversing the judgment and decree dated 23.3.1985 and 4.4.1985 respectively passed by Sri P.K. Panda, learned Additional Munsif, Kamakhyanagar in T.S.No.8/81.

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Secretary, Irrigation Department, Govt. of Orissa, Bhubaneswar and others

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…………..… Appellants

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---versus—

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Laxmidhar Mohapatra (since dead) through L.Rs. and others ……………… Respondents For Appellants : Miss Samapika Mishra, A.S.C. For Respondent Nos.2 to 4 : Mr. R.C. Rath, Advocate For Respondent Nos.6 and 9 : None

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J U D G M E N T

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P R E S E N T:

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THE HON’BLE DR. JUSTICE A.K. RATH

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---------------------------------------------------------------------------Date of Hearing : 25.07.2019 │ Date of Judgment: 25.07.2019 ----------------------------------------------------------------------------

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Dr. A.K. Rath, J. This appeal at the instance of defendant nos.1 to 3 assails the reversing judgment of learned District Judge, Dhenkanal in T.A. No.16/85.

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2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that the plaintiffs-respondent nos.1 to 4 instituted the suit for permanent injunction in the representative capacity. They represent the villagers of Bhagirathipur. The defendant nos.1 to 3 and 4 to 8 filed separate written statements denying the assertions made in the plaint. On the interse pleadings of the parties, learned trial court struck eleven issues. Both parties led evidence. The suit was dismissed. Assailing the judgment and

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decree, the plaintiffs filed T.A. No.16 of 1985 before learned District Judge, Dhenkanal. The same was allowed. It is apt to state here that during pendency of the second appeal, the respondent no.1-plaintiff no.1 died, whereafter the legal heirs have been substituted.

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3. The second appeal was admitted on the substantial questions of law enumerated in grounds nos.(b) and (d) of the appeal memo. The same are:

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“(b) Whether in view of the finding by both the courts below that the State is the owner in respect of the suit Bandha, the finding of the lower appellate court that on the principle of equitable estoppel the State is bound to irrigate 100 acres of land of village Bhagirathipur Sasan is sustainable in law.

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(d) Whether in view of the finding of the court below that Hadagudi Miner Irrigation Project was constructed by the State Government, the further finding of the learned District Judge that the State is bound to provide Irrigation Facilities first to the lands of Bhagirathipur Sasan to the extent of 100 acres of land by way of promissory estoppel.”

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4. Heard Miss Samapika Mishra, learned A.S.C. for the appellants and Mr. R.C. Rath, learned counsel for the respondent nos.2 to 4. None appears for the respondent nos.6 and 9.

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5. Miss Mishra, learned A.S.C. for the appellants, submits that the plaintiffs filed the suit in the representative capacity. But then, no notice under Order 1 Rule 8 CPC was issued by the court below. The requirement of the said provision has not been complied with.

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6. Per contra, Mr. Rath, learned counsel for the respondent nos.2 to 4, submits that no issue was framed with regard to non-issuance of notice under Order 1 Rule 8 CPC. The same point was not urged before the courts below. Thus, the defendants cannot urge the said point in the second appeal.

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7. In Purna Chandra Panigrahi v. Baidya Jani , Vol-74 (1992) C.L.T. 309, a Division Bench of this Court went in-depth into the matter and held that the provisions of Order 1, Rule 8 CPC are mandatory in nature. Notice under Order 1, Rule 8 (2) CPC is an essential pre-condition

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for trial of the suit. The notice under the provision must disclose the nature of the suit as well as reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or oppose it. The notice must state about why the suit has been filed and what is the relief claimed therein, and it must also state who are the persons selected to represent the cause. The object for which Order 1, Rule 8, CPC has been enacted is really to facilitate the decision of question in which a large body of persons are interested without recourse to ordinary procedure where each individual has to maintain an action by a separate suit. Where there is community of interest amongst numerous persons to avoid expenses, trouble and multiplicity of proceedings, few of them are allowed to represent the whole.

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8. The ratio in the decision cited supra applies with full force to the facts of the case. Admittedly, the notice in the case has not been issued under Order 1 Rule 8 CPC. It is the responsibility of the court under Order 1 Rule 8 CPC to give proper notice. Non-issuance of notice vitiates the trial of the suit.

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9. In view of the foregoing discussions, the impugned judgment is set aside. The appeal is allowed. The suit is remanded to learned trial court for de novo hearing, which shall be disposed of after compliance of the provision under Order 1 Rule 8 CPC. Since the suit is remanded to learned trial court, this Court refrains itself from answering the substantial questions of law.

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………………………………. Dr. A.K. Rath,J.

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Orissa High Court, Cuttack The 25^th July, 2019/Basanta

Secretary Irrigation Department, Govt of Orissa v. Laxmidhar Mohapatra and Ors.

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Secretary Irrigation Department, Govt of Orissa v. Laxmidhar Mohapatra and Ors.

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