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Essential Requirements, Res Judicata and Compromise in Representative Suits under the CPC, 1908

Introduction to Representative Suits
The Black’s Law Dictionary states that a representative is one who stands for or acts on behalf of another. Sometimes, there arises a situation where there are many people sharing the same interest in a suit. In such a scenario, one or more of them may, with the due permission of the court, may file the suit, sue or be sued, or even defend in such a suit on behalf of those people who share such similar interests in such a suit. The provision which mentions the meaning of and deals with representative suits in general is Order 1 Rule 8 of the Code of Civil Procedure, 1908. Rule 8(1) states as follows:

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:
    1. 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;
    2. 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.

The sole legislative intent behind the inclusion of this provision in the Code of Civil Procedure, 1908, is to avoid conflicting decisions and multiple proceedings. As was held in the cases of Kumaravelu v. Ramaswami, AIR 1933 PC 183, and Saraf & Co v. Munnal, AIR 1973 MP 216, this 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. Furthermore, it must be noted that this provision is applicable to suit proceedings, which are generally concerned with the enforcement of legal rights, and not to writ proceedings, which are concerned with the enforcement of fundamental rights.

Required Conditions for instituting a Representative Suit
As was held in the cases of Gangavishnu v. Nathulal, AIR 1957 MP 173, and Kumaravelu v. Ramaswami, AIR 1933 PC 183, the required conditions to be fulfilled before instituting such a suit are as follows:
  1. There should be numerous parties in a single suit
  2. They must have the same interest
  3. The permission of the court
  4. Notice of the suit

Numerous Parties in a single suit
The term ‘numerous’ is not a term of art and is not synonymous with the word innumerable and the rule does not fix any limit to the number, as observed by the Hon’ble High Court of Calcutta in the case of Bimal Behari Sarkar v. State of West Bengal, 66 CWN 912. When it comes to numerous parties being made a part of the suit, it must be ensured that there must be a definite and a certain number with regard to the number of parties involved in a case. For example, it was held in the case of Manmatha v. Haris, AIR 33 Cal 905, 911, that a suit cannot be instituted on behalf of the Hindu community which is incapable of ascertainment.

The term numerous was incorporated in Order 1 Rule 8 primarily to ensure that there is no individual impleading of each member in a group of persons who would otherwise find it convenient to go before the court together. In accordance with this rule, the plaintiff cannot sue on behalf of the public generally, but on behalf of a clearly defined and a limited class with which he has a common right and a common interest.

They must have the same interest
This means that the parties appearing before the court under Order 1 Rule 8 must have an inseparable and a joint interest, even if the subject matter arises from the same act or transaction, as held in the case of S. Avtar v. State of J&K, AIR 1980 J&K 50. The expression, same interest in Order 1 Rule 8 cannot be interpreted to mean identical interest in its entirety. It applies not only to cases where concurrent interests are concerned but also where they are similar though distinct. Furthermore, it is not always necessary that the persons who are sued under Order 1 Rule 8 have the prior requisite authority to sue and be sued, as long as they have the same in interest in the suit.

In Kaira District Co-op. Milk Producers Union Ltd. And Ors. v. Kishore Shantilal Shah, AIR 1983 Bom 66, a member of the Jain Community, namely Kishore Shantilal Shah come forward and filed a suit in a representative capacity seeking a declaration that Amul cheese is not a vegetarian product and that the defendant should not sell it as a vegetarian product. Kishore further alleged that all members of the Jain community are strictly vegetarian and have been deceived. It was held by the Hon’ble High Court of Bombay in this case that the members of the Jain community have the same interest and the suit under Order 1 Rule 8 was thus tenable.

The permission of the court
The rule under this provision requires that the Court must exercise a judicial discretion in permitting a definite person or a set of persons to sue or be sued on behalf of all the interested persons.

In light of the same, it is necessary that the requisite leave has been obtained at the beginning of the proceedings. It has to be noted further in this regard that non-compliance with the provision with regard to prior permission is fatal to the suit, as held in the case of Govind Ram v. Gokul, AIR 1929 All 806, and Manrakhan Baldeo Prasad v. Amir Khan Azam Khan, AIR 1958 MP 189.

While considering the granting of the permission, the Court has a duty to determine whether the claim is bona fide or not. Furthermore, the court can also grant permission in the appellate stage if it had not been requested for earlier, as held in the case of Mukaremdas v. Chhagan Kisan Bhawasar, ILR 1957 Bom 809.

Notice of the Suit
It is the duty of the Court to confer a notice upon all the persons whom the plaintiffs purport to represent either by public advertisement or by means of personal service as the Court in each case may direct. It has to be noted that this occurs at the plaintiff’s expense of the institution of the suit.

The aforementioned was eld in the cases of K.F. Nariman v. Municipal Corporation of Bombay, AIR 1923 Bom 305, and Ramjanam Singh v. Rambaran Singh, AIR 1933 Pat 302. It has to be ensured in this regard that:
  1. The notice must contain the names of the persons who have been permitted to represent others. But a mere non mentioning of names in the notices does not make the decree a nullity.
  2. The notice being put out by means of public advertisement must disclose the nature of the suit as well as the reliefs which are claimed therein so as to enable the persons so interested to get themselves impleaded as parties in the suit to either support the cause or to defend against it.

Compromise in a Representative Suit
With regard to compromise in a representative suit, a rule which is Rule 3-B in Order 23 was inserted. It states as follows:
Order XXIII – Withdrawal and adjustment of suits
(3) Where the Court is satisfied —
….
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim.

For a compromise in a representative suit, it is mandatory that the leave of the court is granted; a compromise without the required leave leads to the compromise getting rendered void. Furthermore, a notice before granting a leave is necessary

Applicability of the doctrine of Res Judicata to a Representative Suit
A decree that is obtained in a representative suit which has been instituted in accordance with Order 1 Rule 8 will be binding on all of the parties who belong to a particular class of people being represented in a suit.

For example, in the case of Chitui Naga v. Onhen Kuki, AIR 1984 Gau 62, Onhen Kuki, a village chief filed a case against another village chief, Chitui Naga, claiming a certain amount of property to the villagers of his community. It was held by the Hon’ble High Court of Gauhati in this case that the villagers were necessary parties and thus, need not be impleaded. They would be bound by the decree ipso facto.

And thus, by means of the aforementioned case-laws and reasoning, the author hopes that the reader arrives upon a well-informed conclusion on the topic.

Award Winning Article Is Written By: Mr.Abhijith Christopher
Awarded certificate of Excellence
Authentication No: MA34084065472-19-0521

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