G. Sasidharan, J. 1. This appeal is filed by defendants 9 and 10 in O.S.No. 196 of 1977 on the file of the 1st Additional District [Special) Court, Ernakulam. The suit was originally filed as O.S.No. 203 of 1973 in the Sub Court, Kottayam. Subsequently the suit was transferred to the Special Court, Ernakulam, which tries the church cases where it was re-numbered as O.S. No. 196 of 1977. On 9-1-1998, the learned counsel appearing for the plaintiffs in that suit made an endorsement in the plaint that the said had become infructuous in view of the Supreme Court judgment and on the basis of that endorsement the learned District Judge dismissed the suit. The Judgment of the learned District Judge dated 9-1-1998 against which this appeal is filed reads as follows :
"The plaintiffs counsel submitted that O.S. 196/77 is infructuous and the counsel prays to dispose of the case as infructuous. In this circumstances the case is suo motu advanced to this day and the counsel also made an endorsement on that back of the plaint. In view of this the suit is dismissed."
2. It is seen from the judgment that the counsel appearing for the plaintiffs in the suit submitted that the suit had become infructuous and hence the suit may be disposed of. There was no posting of the suit to that day and the Court suo motu advanced the posting of the case and on getting an endorsement on the plaint that the suit had become infructuous the suit was dismissed.
3. It is not disputed that the suit was filed in a representative capacity and that the defendants in the suit were sought to be served for and on behalf of those who were having the same interest in the suit. At the time of the institution of the suit, there were two plaintiffs and 7 defendants in the suit. The appellants in this appeal who are defendants 9 and 10 in the suit got themselves impleaded after publication made under Order 1, Rule 8, Code of Civil Procedure. Now the appellants challenge the correctness of the judgment and decree in the suit by saying that the dismissal of the suit on the basis of the endorsement made by the learned counsel appearing for the plaintiffs that the suit had become infructuous without making publication under Order 1, Rule 8(4) of the Code of Civil Procedure was illegal.
4. Sub-rule (4) of Order 1, Rule 8 reads as follows :
"No part of the claim in any such suit shall be abandoned under Sub-rule (1), and no such suit shall be withdrawn under Sub-rule (3), of Rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order unless the Court has given at the plaintiff's expense, notice to all persons so interested in the manner specified in Sub-rule (2)."
No notice as envisaged in the above provision in the Code of Civil Procedure was given before dismissing the suit on the basis of the endorsement made by the plaintiffs.
Even though the submission made by the learned counsel appearing for the plaintiffs was that the suit had become infructuous, such a statement was made before Court and an endorsement to that effect was made by the counsel as a reason for not prosecuting the suit. The Court when dismissing the suit did not go into the correctness of the submission made by the learned counsel appearing for the plaintiffs that the suit had become infructuous. The Court dismissed the suit for the reason that the plaintiffs did not want to prosecute the suit. When it is said that the plaintiffs did not want to prosecute the suit that means that the plaintiffs did not want the reliefs prayed for in the suit. The question whether notice as envisaged in Order 1, Rule 8(4) of the Code of Civil Procedure ought to have been given by the Court before dismissing the suit has to be considered in the light of the above facts.
5. The argument advanced by the learned counsel appearing for the appellants is that this is a suit in which the plaintiffs abandoned the claim for relief and hence as mentioned in the above sub-rule of Order 1, Rule 8 notice would have been given by the Court before dismissing the suit. The necessity of giving notice under the above sub-rule arises in cases in which permission had been given for suing or being sued in a representative capacity. When the persons who are in the party array in the suit are allowed to sue for and on behalf of others who had not been figured in the suit as parties to the proceedings, when a decision is taken by those persons who are actually parties to the suit that the suit need not be prosecuted, it is necessary that others who are not parties to the suit and who are represented by the plaintiffs in the suit must also agree to the abandonment of the claim. Such a provision has been made in the Code of Civil Procedure to make it possible that those who are represented in the suit by the parties to the suit can elect to proceed with the suit in the event of the parties to the suit taking a decision not, to prosecute the suit. For achieving the purpose for which such a provision is made in the Code of Civil Procedure it is necessary that when the plaintiff in a suit does not want to prosecute the suit or wants to abandon the claim the parties for whom they are prosecuting the suit should also know that the party to the suit does not want to prosecute the suit or he wants to abandon the claim.
6. The necessity of issuing notice under Order 1, Rule 8(4) came up for consideration of this Court in Mohammed v. Avarankutty Haji, (1996) 1 Ker LT 474 : (1996 AIHC 3909). There the trial Court allowed an application filed for appointment of a Receiver and there was a C.M.A. filed against the order of the trial Court. The suit was one filed in a representative capacity after getting permission under Order 1, Rule 8, CPC. In the C.M.A. on the basis of an affidavit filed by the 2nd defendant in the suit who was the 2nd appellant in the appeal as agreed to by respondents 1 and 2 the appeal was disposed of. The direction given by the appellate Court was that the Receiver had to conduct the election of the office bearers of the managing committee. The order passed by the appellate Court was challenged before this Court by contending that before passing the order notice as envisaged in Order 1, Rule 8(4), CPC was not given. This Court held that the provisions as to notice contained in Order 1, Rule 8(4), CPC are mandatory and must be substantially fulfilled before a decree can be allowed to stand or passed under it. In that decision this Court held the view that Order 1, Rule 8(4), CPC is applicable even when interim orders are passed in the proceedings on the basis of compromise.
7. An attempt has been made by the learned counsel appearing for the respondents to argue that the submission made by the counsel for them in the trial Court that the suit had become infructuous cannot be said to be abandonment of the claim or withdrawal of the suit and hence notice as enjoined, in Order 1, Rule 8(4) was not necessary to be issued by Court before dismissal of the suit. What the learned counsel would say is that when the plaintiff in a suit does not appear before Court for prosecuting the case it can only be said that there was abandonment as envisaged in the above Rule. But this is a case in which even though the grounds stated for not pressing the reliefs in the suit was that the suit had become infructuous, the case is one in which there was abandonment of the claim in the suit. So. there is no merit in the contention for and on behalf of the respondents that there was no need for sending notice under Order 1, Rule 8, CPC.
8. Since the Court proceeded to dismiss the suit without giving notice as mentioned in Order 1, Rule 8(4), CPC, the disposal of the suit cannot be said to be one made by the Court in accordance with law. A reading of Order 1, Rule 8(6) would go to show that a decree passed in the suit under that rule shall be binding on all persons on whose behalf or for whose benefit the suit is instituted or defended as the case may be. A decision taken in a suit filed in a representative capacity will be binding on those who are represented by the plaintiffs even though the decision is taken on the basis of the submission made by those who are in the party array. For the above reason also it becomes mandatory that notice under Order 1, Rule 8(4) has to be given before a suit is decided on the ground that the claim is abandoned by the plaintiffs or the suit is withdrawn by them. The judgment and decree of the trial Court have to be set aside and the suit has to be remanded to the trial Court for disposing of the same afresh.
9. In the result, this appeal is allowed on setting aside the judgment and decree of the trial Court. The suit is remanded to the trial Court. The trial Court will cause notice to be given as envisaged in Order 1, Rule 8(4), CPC and then proceed with the suit. In the circumstances of the case, parties are directed to suffer their respective costs.