REPRESENTATIVE SUIT: ORDER 1 RULE 8
"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."
Rule 8 of order 1 provides for filling the representative suit as it provides that when there are a number of persons similarly interested in a suit, one or more of them can, with the permission of the court or upon a direction from the court, sue or be sued on behalf of themselves and others.
As a general rule, all persons interested in a suit ought to be joined as parties to it, so that the matters involved therein may be finally adjudicated upon and fresh litigations over the same matters may be avoided.
Rule 8 is an exception to this general principle. The plaintiff in a representative suit need not obtain the previous consent of the persons whom he seeks to represent.
OBJECT--
The object underlying this provision is to facilitate the decision of questions in which a large number of persons are interested without recourse to the ordinary procedure. to save time and expense, to ensure a single comprehensive trial of question in which numerous persons are interested and to avoid harassment to parties by a multiplicity of suits.
Order 1 Rule 8 of the Code of Civil Procedure is an enabling provision and does not compel anyone to represent many if, by himself, he has a right of suit.
The rule does not vest a right of suit in a person and if he, by himself, has no right to sue, he cannot proceed to sue on behalf of others by invoking the aid of Order 1 Rule 8 of Code of Civil Procedure.
At the same time, this Rule does not debar a member of the village community from maintaining a suit in his own right in respect of a wrong done to him though the act complained of may also be injurious to some other villagers.
RULE 8. ONE PERSON MAY SUE OR DEFEND ON BEHALF OF ALL IN SAME INTEREST —
Where there are numerous persons having the same interest in one suit,— one or more of such persons, with the permission of the Court, may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; 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 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.
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.
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).
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.
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.
CONDITIONS
As per the provisions of Order 1 Rule 8, a representative suit may be filed following conditions exist:
1. The parties must be numerous;
2. They must have the same interest in the suit;
3. The permission must have been granted or direction must have been given by the court; and 4. Notice must have been issued to the parties whom it is proposed to represent in the suit.
NUMEROUS PERSONS MUST BE INTERESTED IN THE SUIT.
It is, however, not necessary that the number of persons should be capable of ascertainment. ▪ But it is necessary that the body of persons represented by the plaintiffs or defendants must be sufficiently definite so as to enable the court to recognize as participants in the suit.
THEY MUST HAVE THE SAME INTEREST IN THE SUIT;
The interest must be common to them all or they must have a common grievance which they seek to get redressed. COMMUNITY OF INTEREST is, therefore, essential and it is a condition precedent for bringing a representative suit.
The Explanation added by the Amendment Act of 1976 clarifies that such persons need not have the same cause of action.
T.N. HOUSING BOARD V. T.N. GANAPATHY, [(1990) 1 SCC 608: AIR 1990 SC 642.]
In this case residential buildings were allotted by the Housing Board to the applicants who belonged to the low income group. After settlement of price, excess demand was made by the Board. The allottees challenged the demand by filing a suit in a representative capacity. It was contended that such a suit in a representative capacity, was not maintainable as separate demand notices were issued against each of the allottees, giving rise to separate causes of action.
Negating the contention the Supreme Court held that all of them had the same interest and, therefore, the suit was maintainable.
The interest need not be a proprietary one, nor need it be joint or concurrent. Thus, where a person dies leaving numerous creditors, any one of them may sue on behalf of himself and other creditors, or any one taxpayer may file a suit against a municipality on behalf of himself and the other taxpayers to restrain the municipality from misapplying its funds.
3. THE PERMISSION MUST HAVE BEEN GRANTED OR DIRECTION MUST HAVE BEEN GIVEN BY THE COURT;
f this essential condition is not fulfilled, the suit does not become a representative one.
Under sub-rule (1)(b), where there are numerous persons having the same interest in the suit, 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 court has discretion to grant permission to a person to sue in a representative capacity. ▪ It cannot, however, ipso facto grant such permission merely on the basis of averments made in the plaint.
The proper course is to obtain permission before the suit is filed. But it may be granted after filing of the suit or even at an appellate stage by allowing amendment of the plaint.
Where a plaintiff intends to sue on behalf of others, it is the plaintiff who should apply for leave.
Where numerous defendants having the same interest are sued and it is sought to be defended by one of them on behalf of others, such application should be made by that defendant.
Such permission may be express or implied and may be gathered from the proceedings of the court in which the suit is filed.
4. NOTICE MUST HAVE BEEN ISSUED TO THE PARTIES WHOM IT IS PROPOSED TO REPRESENT IN THE SUIT.
It is, therefore absolutely necessary that the notice of the suit should be given to all the parties who would be bound by the decree, and if it is not given, the decree will bind only those parties who are on record.
It is the duty of the court to take care that proper notice is issued which would provide sufficient information to the persons interested in the suit so that they might apply for becoming parties to the suit.
TITLE
Where the suit is filed by or against persons in a representative capacity, that fact should be stated in the body of the plaint as well as in the title of the 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.
Sub-rule (5) as added by the Amendment Act of 1976 now provides that where any person suing in a representative 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.
NON-COMPLIANCE: EFFECT
Rule 8 is MANDATORY and must be complied with. A suit filed without complying with the provisions of Rule 8 is not maintainable.
Likewise, a decree passed in a representative suit without observing the conditions prescribed by Rule 8 ▪ will not bind the persons represented in the suit, though it will bind the persons joined as parties.
WITHDRAWAL OR COMPROMISE
Under sub-rule (4), no part of the claim in a representative suit can be abandoned, no such suit can be withdrawn, and no agreement, compromise or satisfaction can be recorded in any such suit under Order 23 Rule 3, unless the court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2) either by personal service or by public advertisement.
Similarly, Order 23 Rule 3-B as inserted by the Amendment Act of 1976 provides that no agreement or compromise can be entered in a representative suit without the LEAVE of the court.
DECREE
A decree passed in a representative suit is binding on all persons on whose behalf, or for whose benefit, such suit is instituted or defended. [R.8(6)
RES JUDICATA---
Explanation VI to Section 11 deals with representative suits. It states that where a representative suit has been decided, such a decision would OPERATE AS RES JUDICATA.
ABATEMENT--
In a representative suit, even if any person who is conducting the suit dies such, suit will not abate, and other person or persons interested in the suit may proceed with the suit or may apply to be added as plaintiff or plaintiffs.
COSTS--
In a representative suit also, parties on record may be made liable to pay costs. In exceptional cases, however, even unrepresented parties (i.e. parties not on record) can be directed to pay costs, to the other side. In appropriate cases, the court may direct costs to be paid out of the property belonging to the community represented in the suit.
EXECUTION
A decree passed in a representative suit can be executed like any other decree passed in a regular suit.
