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Representative Suit Under The Code Of Civil Procedure, 1908

Order I Rule 8 of the Code of Civil Procedure 1908 deals with representative suit. A representative suit is a suit that is filed by one or more persons on behalf of themselves and others having same interest in the suit. The general rule is that all persons interested in a suit ought to be joined as parties to it. Rule 8 forms an exception to this general rule. The rule enacted is for convenience based on reason and good policy as it saves from expense and trouble which would otherwise have to be incurred in such cases.

Definition: A representative suit is a suit filed by or against one or more persons on behalf of themselves and others having the same interest in the suit.

Order I Rule 8 reads as

Rule 8 - One Person May Sue Or Defend On Behalf Of All In Same Interest

  1. Where there are numerous persons having the same interest in one suit,-
    (a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
    (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.
     
  2. The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
     
  3. Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.
     
  4. No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order,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).
     
  5. Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.
     
  6. A decree passed in a suit under this 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.

Explanation
For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the person on whom behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.

Object
The object of the rule is to afford convenience in suits where there is community interest among large number of persons so that a few should be allowed to represent. In other words, the object for which this provision is made is really to facilitate the decision of question in which a large body of persons are interested without recourse to ordinary procedure otherwise there will be inseparable practical difficulty in the institution of suits, where each individual has ro maintain an action by a separate suit. (Kodia Gounder v. Velandi Gounder AIR 1955)

Conditions for a representative suit

There are basically four essential conditions for a party to institute a representative suit which can be derived from the provision of Rule 8, they are:
  1. The parties are numerous
  2. Same interest or Community of interest
  3. Necessary permission of the Court has been obtained
  4. Notice to all the persons interested in the suit
  • The Parties are Numerous:
    The word numerous is by no means a term of art. It implied a group of persons such as would make it convenient to implead all of them individually. The word is not synonymous with ‘numberless' or ‘innumerable'. The number must be definite for the Court to recognize as non-impleaded parties to the suit. Thus under this provision the body of persons represented must be sufficiently definite.

    Masjid Shahid Ganj v. SGP Committee AIR 1938
    The Court has said that a representative suit on behalf of inhabitants of a village with reference to the village property or on behalf of the members of sect, caste or community is maintainable under this rule. It is also noted that the Rule does n olt debar any member of a community from maintaining a suit in his own right inspite of the fact that the act complained of injuries to other members of the community as well.
     
  • Same Interest:
    For the representative suit it is essential that the parties have the same interest in the suit. The interest must be common to them all or they must have a common grievance of which they seek the redress. ‘Community of Interest' is sine qua non to maintain a representative suit. If for example- A sues 100 persons who have in pursuance of a conspiracy trespassed on his land or have wrongfully confined him, and A asks for declaratory relief, the court should have the power to permit him to sue, say, 3 of the opponents as representatives of all the hundred, provided there is community of interest among them, which can be said to exist where there is concerted action or a common object though the cause of action against each trespasser is separate. The interest need not be proprietary neither joint nor concurrent.

    The expression ‘Same Interest was well explained by Lord Machaghten in Bed Ford (Duke of) v. Ellis in 1901 as given a common interest and common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent.

    The question of same cause of action arises from the objects and reasons of Rule 8. The amendment to the rule in 1976 has added an Explanation to clarify that such persons need not have the same cause of action. Same interest therefore does not mean same cause of action under this rule.
     
  • Permission of Court:
    Court must have granted permission or the direction must have been given by the Court. This is required in order to bind the persons other than those who are actually parties to it. If no permission is taken the suit will not be a representative one. Permission under Order 1, Rule 8, CPC may be granted even after the institution of the suit and even at the appellate stage by allowing an amendment, if such amendment does not materially change the nature of the suit.[i]
     
  • Notice:
    This is the last condition that notice will have to be given to all concerned parties. Where permission is granted to file a suit in representative capacity then it is mandatory to give notice of the institution of suit to all the persons interested. Notice maybe given directly through personal service or by advertisement as directed by the Court.

Courts must see that if they direct that the notice should be by public advertisement, it must disclose the nature of the suit as well as the reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the case or to defend against it. Further the notice must mention the names of the persons who have been permitted to represent them so that the persons interested may have an opportunity of knowing who have been selected to represent them.[ii]

Representative Suit and Res judicata

Sub-rule 6 provides that a decree is binding on all persons on whose behalf or for whose benefit the suit is instituted. Therefore, Section 11 of the Code is applicable to representative suits also. It has been held in several decisions that, it being so, the procedure prescribed by rule 8 must be strictly followed by the Courts.

A decree obtained in a representative suit instituted in accordance with the provisions of Order 1, Rule 8 will be binding as res judicata on all the members that belong to the class who are sought to be represented.

Thus, if notice as prescribed in sub-rule 2 is given, the decision in a representative suit will be binding on all the members of the class sought to be represented in that suit, whether they join and take interest in the suit or not. Thus, where a representative suit is brought under Section 92 of the Code and a decree is passed in such a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and therefore, are constructively barred by res judicata from reagitating the matters directly and substantially in issue in the former suit.

Addition or Substitution of Parties

Sub rule 3 of Rule 8 provides that any person on whose behalf a suit is filed or defended under sub rule 1 may apply to the court to be added as a party to the suit. Such person must show that the conduct of the suit is not in proper hands and that his interests will be seriously affected to his prejudice if he is not joined as a party to the suit. The reason is that considerable delay may be caused in filing a fresh suit by such party and the cost of litigation will also be increased.

Such application must be made without delay. Such person can only be added as co-plaintiff or as co-defendant but cannot be substituted for the original parties. But sub rule 5 as added by the Amendment Act of 1976 now provides that where any person suing in such capacity or defending a representative suit does not proceed with due diligence in the suit or defence, the court may substitute in his place any other person having the same interest in the suit.

Abatement

A Representative suit does not abate on the death of the representative as he or she can be substituted by another member of the plaintiff on defendant.[iii]

Indigent Person

It is possible for a forma paupers i.e., indigent person to file a suit in indigent capacity provided that he shall satisfy the indigence under Order XXXIII of the Code.

Concluding Remark
Rule 8 is mandatory and must be complied with. A suit filed without complying conditions cannot be said to be a representative suit. In this also, parties on record may be made liable to pay costs. In exceptional cases, however, even unrepresented parties may be directed tio pay costs.[iv] It is also to be noted that a decree passed in a representative suit can be executed like any other decree passed in a regular suit. It can be executed against the persons representing and who are parties eo nomine as also against the persons represented through parties on record.

End-Notes:
  1. Mookka Pillai v. Valavanda Pillai AIR 1947 Mad 205
  2. Sukadev Tapaswai And Ors. vs Sri Sidheswar Mahadev Bija Silod AIR 1986 Ori 100
  3. Ram Kumar v. Jiwanlal AIR 1960 Mad 288
  4. Mussadi Lal v. Dal Chand AIR 1935 Oudh 369
Image Courtesy: https://www.nationstates.net/nation=the_armed_crystal/detail=factbook/id=966502

Written By: Vanshika Sharma

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