1997 PLP 846 (SCMR)

(6) Whether this Court has got no jurisdiction to entertain the suit in hand? OPP (10) Whether the defendants are joint right‑holders with the plaintiffs in the disputed forest? OPD."

4. It appears that the learned trial Judge answered Issues Nos. l to 6 in the affirmative while Issue No. 10 in the negative and thus decreed the suit.

5. The appellants, feeling aggrieved, filed an appeal before the learned District Judge, Chitral. Before the learned Appellate Court, the substantial question surviving for determination was whether the respondents being the residents of Rumboor Valley were entitled to the royalty of the forest of the Rumboor Valley to the exclusion of the appellants as they were not co‑owners thereof with the respondents. It was observed by the learned District Judge that from the record of the case it appeared that the Government of N.W.F.P. had conferred the rights up to 60 % of the royalty upon the people of respective forest area; that as per decision of the Government of N.‑W.F.P. the people of the forest area alone were entitled to the share of royalty referred to above which was indicative of the fact that the Government had recognized the entitlement of the residents in the respective forest area of their specific shares in the royalty of the forest. The learned Appellate Court, therefore, upheld findings of the learned trial Court on Issues Nos.1 to

5. Likewise the learned Appellate Court upheld the findings of the trial Court on Issue No.6 holding that the Civil Court had rightly assumed the jurisdiction in the suit. In this context, it was further observed by the learned Appellate Court that the claim of the answering respondents that they were the residents of Rumboor Valley has not been denied by the appellants having uttered not a single word in the witness‑box that the answering respondents were not the residents of Rumboor Valley;. that the claim of the respondents in respect of their shares in the royalty has not been disputed by the appellants; but, on the contrary, it was the assertion of the appellants that they were jointly entitled to the share of royalty of the forests alongwith the answering respondents. The contention of the learned counsel for the appellants that the documentary evidence adduced by them before the trial Court was repelled on the ground that the documents so relied upon by the appellants were neither public documents nor formed part of the judicial record and, therefore, no presumption of truth was attached to the documents. The Appellate Court further reached the conclusion that the execution of the documents had neither been proved nor had been signed or thumb‑impressed by she respondents or their predecessors‑in‑interest. As a cumulative effect of these findings, the appeal before the learned District Judge was dismissed.

6. Aggrieved by the order of the Appellate Court the defendants/petitioners filed a revision petition which too was dismissed by the learned Judge in Chambers of the High Court affirming in substance almost all the findings of the two Courts below.

7. Leave to appeal was granted by this Court to consider the contention whether in the absence of permission and non‑compliance of the procedure prescribed under Order I, Rule 8, C.P.C., the decision in the suit could at all bind the whole body of residents of Thoriandeh and Muldeh, and that, therefore, A the decision, if any, in the suit would confine to the parties to the suit; that although the revision application filed by the petitioners before the High Court was admitted for consideration of these points, amongst others, but no decision on these points was rendered by the learned Judge in Chambers while disposing of the Civil Revision Application. 8.Mr. M. Sardar Khan learned A.S.C. appearing on behalf of the appellants invited our attention to the three infirmities in the impugned judgments of the two Courts below, firstly, that the residents of villages Thoriandeh and Muldeh whose vital interest is involved in the matter were neither impleaded as party nor permission of the learned trial Court was obtained under Order 1, Rule 8, C.P.C., at the time of institution of the suit nor any notice was served on the persons who were sought to be sued; secondly, that the requisite permission was neither obtained by the respondents nor was it given even after the institution of the suit or, thereafter by the Appellate Court and, thirdly, that the publication of a notice at revisional stage and that too under the orders of the Court itself could not cure the‑lacuna, for, those persons had remained unrepresented in the trial Court which had resulted in serious prejudice to and adverse effect upon the interest of scores of people. The learned counsel had thus urged that in view of these infirmities of grave nature, the proceedings taken, orders made, judgments rendered. and decrees passed could not bind those persons and were liable to be annulled. In support of this proposition reliance was placed on: (1) Kumaravelu Chettiar and others v. T.P. Ramaswami Ayyar and others (AIR 1933 Privy Council 183), (2) Adam Khan v. Gulla Mir and others (PLD 1982 SC 120), (3) Muhammad Ashfaq and another v. Sohail Hameed and 3 others (1986 CLC 2218), Tanzeem Bazyabi‑e‑Haqooq Malikan‑e Oursh, Abbottabad through General Secretary v. Deputy Commissioner/Collector, Abbottabad and 8 others (1992 CLC 382), Maulu and others v. Ghanaya and others (AIR 1934 Lahore 366), Punjab Cooperative Bank Ltd., Lahore v. Hari Singh and others (AIR 1933 Lahore 749), and Bishan Singh Kala Singh and others v. Mastan Sin Sarup Sin and an (AIR 1960 Punjab 26).

9. Mr. M. Sardar Khan then invoked the provisions of the Distribution of Property (Chitral ) Regulation (No.II1 of 1974) to contend that the dispute arising out of the suit having not been earlier inquired into by the Inquiry Commission the respondents were debarred to rush to the Civil Court and, secondly, that the respondents could not claim to be the local right‑holders. Reference was made to Umer Hakim v. Deputy Commissioner, Dir and others (PLD 1990 Peshawar 91).

10. The learned counsel also urged that the High Court has given the finding on the points falling for determination without adverting to any evidence adduced by the parties. He had lastly submitted that the learned Appellate Court has erred to ignore the documents exhibited during the trial in support of the plea of the appellant raised in support of their claim.

11. Qazi Muhammad Jamil, learned A.S.C., representing the respondents, while defending the judgments of the two Courts below, duly affirmed in revision by the learned Judge in the High Court, urged that during the course of trial of the suit giving rise to this appeal the requirements of Order I, Rule 8, C.P.C., had been duly complied with by the respondents and the learned trial Court. Nonetheless, the learned counsel pointed out, that the plea qua the omission on the part of the respondents to have the permission to sue the appellants in the representative capacity was not raised in the High Court and, therefore, this plea cannot be allowed to be raised at this stage.

12. The effect of the provisions of Order I, Rule 8 highlighted by the Privy, Council in the case of Kumaravelu Chettiar (supra) which has been expressed in the illuminating paragraph of the report is as follows:‑‑ " it formulates the exception to the general principle that all persons interested in a suit shall be parties thereto. It is an enabling rule of convenience prescribing the conditions upon which such persons when not made parties to a suit may still be bound by the proceedings therein. For the section to apply the absent persons must be numerous; they must have the same interest in the suit which, so far as it is representative, must be brought or prosecuted with the permission of the Court. On such permission being given it becomes the imperative duty of the Court to direct notice to be given to the absent parties in such of the ways prescribed as the Court in each case may require: while liberty is reserved to any represented persons to apply to be made a party to the suit. " (Underlining is provided by us for emphasis).

13. The principles enunciated above were, however, substantially made relatable to the provisions of section 11, Explanation‑6, C.P.C., which was held to be controlled by Order I, Rule 8, C.P.C.

13. The implications of Order I, Rule 8 were considered in the case of Hari Singh and others (supra) and notwithstanding laying down the law that issue of a proper notice and its service either personally, or by public advertisement, on the persons concerned is an indispensable preliminary to trial under the aforesaid provisions, it was clarified that if the trial Court after getting such information as it could from the plaintiff's counsel actually causes to be served a notice purporting to be under that rule then the mere omission to pass a formal order granting sanction cannot vitiate the decree. The law thus laid down in the case of Hari Singh and others (supra) supports the case of the respondents rather than lending assistance to the plea raised by the appellants.

14. Yet another implication of Order 8, Rule 1, C.P.C., has beet: highlighted in the case of Maulu and others (supra) which, to the words of the learned Division Bench, is as under:‑ "The next question is whether the plaintiffs are entitled to a declaration that they had a right to graze their cattle in the village Shamilat. As has been stated above, they claimed to sue of all the non‑proprietors in the village in a representative capacity on behalf lage, including the non -occupancy tenants and the Kamins, and they sued the four defendants as representatives of the proprietary body. They fully realised that such a suit could proceed only if permission under Order I, Rule 8 was given and they actually made an application under that rule. But the procedure laid down therein was not followed, nor was the permission of the Court obtained. In Kumaravelu Chettiar v. Ramaswami lyer AIR 1933 PC 183 at page. 667 (of 56 Mad.) their Lordships of the Privy Council have laid down that the provisions of Order I, Rule 8 must be strictly complied with, otherwise the judgment in the action will bind only those persons whose names are actually or. the record."

15. The case of Bishan Singh Kala Singh and others (supra) from Indian jurisdiction of Punjab provides some more elaboration on the procedure to be followed in the case of institution of a suit in the representative capacity in the details that follow:‑‑ "I find from the record that an application under Order I, Rule 8 of the Code of Civil Procedure was actually filed by the plaintiff on 21‑6‑1952 and the Court ordered a notice to be given by proclamation under Order V, Rule 20, although, as the list of the proprietors attached to the petition shows, there were only 57 persons who had to be served. In my opinion, the number of persons to be served could by no means be considered to be so large as to render personal service not reasonably practicable. I also find from the record that there was neither any affidavit of the persons, who is said to have effected the substitution service, nor has any such person been examined by the Court. If such service is to be deemed to be as effectual as personal service, then in fairness to the defendants who are not actually made parties, and in the interests of justice, the Courts should always satisfy themselves that such substituted service had actually been properly and lawfully effected."

16. The precedent of Adam Khan (supra) is substantially based on the law laid down in the Privy Council's case of Kumaravelu Chettiar (supra). It was observed that: "Ordinarily all persons interested in a suit ought to be joined as parties. As against this Rule 8 of Order I of the C.P.C. is a rule of convenience based on reason and good policy and saves the trouble and expense which would otherwise have to be incurred in such cases. A' suit filed with the permission to sue for and on behalf of numerous persons having the same interest under Order I, Rule 8 is still a suit filed by the person who is permitted to sue as the plaintiff, and the persons represented by him do not by virtue of the permission become plaintiffs in the suit. Such other persons would be bound by the decree in the suit but that is because they are represented by the plaintiffs and not because they are parties to the suit unless by express order of the Court they are permitted to be impleaded as such in their own capacity and are not allowed to sue in a representative capacity. Conversely and similarly it will be clear that the persons who are all sued in a representative capacity will not become parties to the suit as defendants, and if, therefore, they are not on record as such, the question of bringing on record a legal representative in case of demise of any one of them does not arise."

17. The cases of Muhammad Ashfaq from Karachi jurisdiction and that of Tanzeem Bazyabi‑e‑Haqooq Malkhan‑e‑Orush case from Peshawar jurisdiction also proceed substantially on the principles enunciated in the case of Kumaravelu Chettiar.

18. There is no cavil with the propositions laid down in the case‑law cited in para.8 ante. Nonetheless, photo copy of the order sheet furnished in the Supplementary Paper Book reveals that the respondents while presenting their plaint to the learned trial Judge on 1‑9‑1988 had also appended therewith an application under Order 1, Rule 8, C.P.C. The order sheet dated 28‑9‑1988 to which the case was posted further shows that notice by substituted service in the name of "Ahalian‑e‑Rumboor Nisbat Numaindgi" has been completed and that no objection had been filed qua the representative capacity of the respondents. In consequence of learned trial Judge permitted the respondents to sue in their representative capacity. Again, in the same order‑sheet, it was further ordered that a notice by substituted service should issue to the "Ahalian‑e‑Thoriandeh and Ahalian Muldeh" for , raising objection, if they so wished, on the appointment of the appellants as their representatives. On 6‑10‑1988 this notice is recorded to have been served and that on the appointment of the appellants as the representatives of the two villages was not objected to by any one, therefore, the appellants were appointed as their representatives.

19. The precise objection of the learned counsel for the appellants seems to be that the list of the local right‑holders of Rumboor Valley had, whom the respondents sought to represent and those of villages Thoriandeh and Muldeh whom the appellants represented were not furnished to the trial Court so as to enable it for proper service. This indeed seems to be correct. We are of the considered view that such lists were required to have been furnished. Nonetheless, the appellants while filing appeal before the learned District Judge had themselves omitted to provide the requisite lists. The record reveals that they had complied with such a requirement in the High Court. During the pendency of the suit and the appeal no such objection is shown to have been raised either by those whom the appellants were said to represent or for that matter by any local right‑holder of Rumboor Valley or by both sets listed in the High Court had raised any such objection or challenged the representative capacity of the parties before us, From the above narration, it Is clear that substantial compliance of the provisions of Order 8, Rule 1, C,P.C., was made. We are, therefore, of the considered view that the defect, if any, in the procedure prescribed under Order I, Rule 8 of the C.P.C., in the instant case is also fully cured. The first objection raised by Mr. M. Sardar Khan is untenable and is liable to be overruled which we do accordingly. 20, The next contention of Mr. M. Sardar Khan that the respondents could not have invoked the jurisdiction of the Civil Court in view of the bar under the provisions of the Distribution of Property (Chitral) Regulation (No.III of 1974) and that the respondents should have resorted to the hierarchy provided for therein is rendered without substance after the repeal of the aforesaid Regulation III of 1974 under section II of the Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Shariah Regulation No.II of 1994). In consequence of this repeal hierarchy provided for under the repealed Regulation (ibid) is no more available to the respondents,

21. The next contention that the learned Single Judge in the High Court while dismissing the revision petition had not adverted to the evidence adduced by the parties is also without merit. On the factual aspect of the case. the two Courts below had recorded concurrent findings of fact that the appellants have got no right whatsoever in the forest in dispute, therefore, the view of the learned Judge in the High Court affirming those findings does not suffer from any legal infirmity of the nature warranting our interference at this stage.

22. After going through the record of the case in general and perusal of the documents in particular which were sought to be relied upon by the appellants, we tend to uphold the findings of the two Courts below and the learned Single Judge in the High Court that neither the aforesaid documents had any evidentiary value qua claim of the appellants nor have been proved in accordance with the provisions of Chapter V of the Qanun‑e‑Shahadat, 1984.

23. We are, therefore. of the considered view that no fault can be found with the High Court's ,judgment which proceeds on correct application of the relevant principles of law to the facts and circumstances of the case leaving no room for interference of this Court. This appeal is therefore, dismissed with no order as to costs. A.A/A‑1451/S Appeal dismissed.