Bombay High Court
Baburao Sambhaji Shelke And ... vs Sambhaji Balaji Puri And Another on 21 August, 2021
Bench: Mangesh S. Patil
926 WP 9040 21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
926 WRIT PETITION NO.9040 OF 2021
BABURAO SAMBHAJI SHELKE AND ANOTHER
VERSUS
SAMBHAJI BALAJI PURI AND ANOTHER
...
Advocate for Petitioners : Mr. Salunke Sudarshan J
CORAM : MANGESH S. PATIL, J.
DATE : 21.08.2021.
PER COURT :
Heard learned advocate Mr. Salunke for the petitioner. The
petitioners are the original defendants impugning the order passed by the
learned Civil Judge on the plaint (Exh.1) directing that since a leave to
prosecute the suit in a representative capacity was granted as contemplated
under Order I Rule 8 of the Code of Civil Procedure by the order dated
11.10.2013, a public notice was never issued and therefore it was directed
to issue such a public notice.
2. The learned advocate for the petitioners would submit that after a
lapse of about seven years that for the first time such a direction is issued by
the learned Judge. The suit is awaiting decision for years together. It has
reached the final stage and at that stage the impugned order has been
passed which has the effect of setting the clock back. He would submit that
the petitioners are asserting their right, title and possession over the
disputed property which is under a clog because of the pendency of the suit.
Any delay in decision is likely to cause them serious prejudice and there was
no reason why the learned Judge now should become active in directing a
926 WP 9040 21.odt
procedure to be followed under Order I Rule 8(1) of the Code of Civil
Procedure.
3. I have considered the submission, perused the impugned order and
the papers.
4. It is apparent that the respondents who are the original plaintiffs have
filed the suit with a prayer to restrain the petitioners from obstructing use
of the disputed property as a burial ground/cremation of a Gosavi Samaj.
Obviously, considering the nature of the dispute which is likely to affect all
the persons from that community, a leave was sought and granted to
prosecute the suit in a representative capacity as is contemplated under
Order I Rule 8 of the Code of Civil Procedure by the order dated 11.10.2013.
5. If such was the state of affairs, mere granting of leave was not
contemplated and was not sufficient. Over and above the provision requires
a public notice to be issued so that any person interested in the suit may
come forward and participate.
6. There is one more aspect which needs to be borne in mind, though the
defect does not go to the root of maintainability of the suit which can still
be decided as it is, but the judgment would operate in personam and would
only bind the parties to the suit. If the suit is allowed to be prosecuted by
following the procedure as is contemplated under Order I Rule 8 of the Code
of Civil Procedure, the decision in the suit would be a judgment in rem and
would bind the whole world.
7. This is what precisely seems to be the reason, though it has not been
spelt out in so many words, while passing the impugned order. Once having
granted a leave to prosecute the suit in a representative capacity, it was not
only the duty of the respondent/plaintiffs but even the Court ought to have
taken cognizance of the lapse. In any event, the impugned order only seeks
to set right the irregularity which taking into account the facts and
926 WP 9040 21.odt
circumstances is a step in the right direction albeit taken belatedly.
8. Considering the aforementioned facts and circumstances and the law,
in my considered view there is no illegality in the order passed by the
learned Judge.
9. The Writ Petition is dismissed in limine.
(MANGESH S. PATIL, J.)
mkd/-
