RULE 8  -  Representative Suit (One person may sue or defend on behalf of all in same interest)

·       Rule 8 Sub-rule (1) states that if one or more of such persons may have same interest in one suit, then 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. i.e. there is representation of  number of people by one or more person. Eg. If there is error in the CET question paper, it will affect huge number of students, in this case, the students will be represented by a one or two persons or more { basically to avoid confusion and save time of the court, as there is common question of law or facts. } In this case permission of the court is necessary. Aslo, there can be representation of the suit by the plaintiff or defendant or plaintiff and defendant. Here it is not necessary that the person representing the group of persons have the same cause of action as that of the others.

·       Sub-rule(2) states that The Court shall, in every case where 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.  It states that if the court permits for the representation of the suit , then the court shall give notice to the persons interested in the suit that there is a representation of the suit and you are a party to it ( which helps the person interested or not interested to know that he is a party to the suit , if he is not interested then he can withdraw as a party ). And such notice can be served via personal service, or if it is clear that there are huge number of parties to the suit , then to save the expense of the plaintiff , the notice will be published in the public advertisement eg. newspaper , etc.

Sub-rule 3  It is clear that sub rule 3 talks about the person interested in the suit , if a plaintiff or a defendant  feels that he has some interest in the suit, then that plaintiff or defendant has to make an application before the court to make that plaintiff or defendant a party to the suit. If the court feels the same and accepts the application , then these plaintiff or defendant is made party to the suit.

Sub-rule 4 states that          It states that the claim made by the plaintiff or defendant under subrule (1)  will be abandoned and will continue to exist, and such suit instituted cannot be withdrawn by the plaintiff , not even under sub-rule(3) rule 1 of Order 23 { i.e. if the court is satisfied , that the suit has sufficient grounds or there is no strong ground for plaintiff to file a suit, then the court can withdraw the suit }. Now here there is an exception that if the court has given notice to the person interested, at plaintiff’s cost ; then such suit can be withdrawn or abandoned.

Sub-rule (5) is It states that if the person representing group of person interested in a suit, either plaintiff or defendant does not represents the group of persons properly, then the court can substitute the person representing with the other person, it may be from plaintiff side or defendant side or both.

Sub-rule (6) states that The decree given by the court shall be binding on the plaintiff as well as the defendants. { decree is the final part of the judgement , decree is final once the judgement is given }

RULE 8

General overview

1.       The general rule is that all the persons interested in the suit should join as parties to the suit, so that no new or fresh matter is filed with same question of law

2.       But rule 8 is an exception to this, that is if one or more of such person can with the permission of the court or upon direction from the court sue or be sued on behalf of themselves and others.

3.       The plaintiff in a representative suit need not obtain the previous consent of the persons whom he seeks to represent.

4.       Representative suit is a suit filed by or against one or more persons on behalf of themselves and others having same interest in the suit.

5.       There should be liberal interpretation which serves the object of its enactment.

6.       The case will come under order 1, rule 8 of CPC when all the members have common interest in a subject-matter and a common grievance and the relief sought is beneficial to all.

7.       This provision is not an enabling provision and it does not compel anyone to represent.

8.       The provision does not vest the right to suit, if the person representing others has no right to sue.

9.       The person representing on behalf of others must have the right to sue the opposite party.

10.    

 

OBJECT

 

1.       To facilitate the decision of the questions in which a large number of persons are interested without recourse to the procedure.

2.       To save time and expense

3.       To ensure single comprehensive trial in which numerous person are interested

4.       To avoid harassment to parties by multiplicity of suits.

5.       To avoid numerous suits being filed for the decision of a common question


   Essential Ingredients – basically only 4 conditions are necessary


1.       Numerous parties

a.first condition is that there must be numerous party to the suit.

b.       numerous means group of person

c.       it is to be interpreted as numberless or innumerable

d.       The question, whether the parties can be numerous, must be decided by the court upon the facts of the case.

e.       It is not necessary to find out the number of people interested in suit.

f.        But it is necessary that the body of persons represented by the plaintiffs or defendants must be definite, so as to enable the court to recognise them as participants in the suit.

g.       Therefore, a representative suit on behalf of members of village with reference to village property, or on behalf of the members of the sect, caste or community is maintainable under this rule, as decided in Hasanali vs Mansoorali, AIR 1948 PC 66.

 

2.       Same or common Interest


a.       The second requirement for the maintainability of the representative suit is that the person on whose behalf the suit is instituted must have the same interest.

b.       The interest must be common to them all or they have a common grievance which they seek to get redressed.

c.       Community of interest is an essential condition for bringing a representative suit.

d.       The interest need not be priority one, nor it be joint or concurrent.

e.       Lord MacNaughten in Duke of Bedford v. Ellis, explains that “ a representative suit is in order if the relief sought is beneficial to all the plaintiff, then it is a common interest or common grievance.

f.        Eg. When a person dies leaving numerous creditors, any one of them may sue on behalf of himself and other creditors.

g.       It is not necessary that all the persons must have the same cause of action or the interest arise from the “same transaction”.

h.       Even if the persons who are represented in a representative suit have separate causes of action or there are separate transactions.

i.         A suit under order 1 rule 8 can be filed if all of them have the same interest.

j.       In T.N. Housing Board v. Ganapathy, residential buildings were allotted to applicants of low income group by the Board, after the settlement of price, board demanded for excess money. Then the allottees filed a representative suit, but it was contended that there were separate demand notices against each allottees, giving rise to different cause of action so the suit was not maintainable. But the Supreme court held that all of them have the same interest and therefore, the suit is maintainable.

 

3.       Permission or direction by Court


a.       The third requirement is the permission of the court.

b.       The suit does not become representative suit , if the permission is not obtained.

c.       The court has the discretion of grant a permission to a person to sue in representative capacity.

d.       It cannot ipso facto grant such permission merely on the basis of content in the plaint.

e.       When question arises whether to allow such grant or not, the principal consideration should weigh with the court is whether it is satisfied that there is sufficient community of interest as between the plaintiffs or the defendants, as the case may be .

f.        The proper procedure is to obtain permission before the suit is filed.

g.       But it maybe granted even after filing of the suit or even at an appellate stage by allowing amendment of the plaint.

h.       When a plaintiff intends to sue on behalf of others, it is the plaintiff who should apply for the leave

i.         When there are numerous defendants having same interest are sued and it is decided that one of them will represent on behalf of others, such application has to be made by that defendant.

j.         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


a.       When a person sues or is sued , or defends a suit on behalf of himself and others, any decree that may be passed in the suit is binding upon them all.

b.       Such suit is not binding if decree is obtained by fraud or collusion.

c.       It is therefore, necessary that the notice of the suit should be given to all the parties, who will be bound by the decree, or-else the person might be affected by the decree even though not on record or not aware of the suit.

d.       The issue of the notice of the institution of the suit is necessary and if it is not given , then the decree will bind only those parties who are on record.

e.       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.

f.        It is also the duty of the court to publish such notice in the newspaper which the persons interested are likely to read.

g.       This is necessary

 

5.       Title

 

Where the suit is filed by or against person in a representative capacity, that fact should be stated in the body of the plaint as well as the title of the suit. The title of the suit where the plaintiff sues in a representative capacity is as follows :

 

                     

                      

 

                                                               

            

                             

 

 

6.       Addition or Substitution of the parties.

a.       Sub-rule (3) if rule 8 clearly states that any person on whose behalf

b.       Such person must show that the conduct of the suit is not in proper hands and that his interests will be seriously affected , if he is not made party to the suit.

c.       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.

d.       Such application must be made without delay.

e.       Such person can only beaded as a co-plaintiff or a co-defendant but cannot be substituted for the original parties.

f.        But sub-rule (5) provides that where any person suing in a representative capacity or defending representative suit 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.

 

7.       Withdrawal or Compromise


a.       Sub-rule (4) mentions that no part of claim in representative suit can be abandoned under sub-rule(1).

b.       And no such suit will be withdrawn under sub-rule(3) of Rule1 of Order 23.{ which is court can withdrawn suit if satisfied}

c.       No agreement , compromise or satisfaction can be recorded in any such suit under order 23, rule 3,

d.       Exception – if the court gives notice to all the person interested, at the plaintiff ’s expense in manner specified under sub-rule(2) rule 8 order 1, then the court can withdraw the suit .

e.       Also order 23 rule 3-B , provides that no agreement or compromise can be entered in representative suit without the permission of the court.

 

8.       Res Judicata


Explanation 6 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.