Sunday, 12 July 2015

Whether prior notice is required before granting permission to sue in a representative capacity?


This Court, in the case of Narayana and Others v. Ramarkrishna and Others, reported in ILR 1998 (1) Kar 616 dealing with the question "Whether prior notice is required before granting permission to sue in a representative capacity under Order I, Rule 8 of CPC", at para 9 it was held as under:
"By reading Order I, Rule 8 of CPC along with Order VII, Rule 4 of the Karnataka amendment it is not manifest that there is any requirement to issue notice to the defendants before the Court grants permission to sue in a representative capacity where public interest is involved. If it is to be presumed that such notice is required, until the notice is served and defendants appear, that the construction will be completed and the suit itself becomes infructuous. Therefore, when there is no provision providing for issue of notice to the defendants or granting permission to sue in a representative capacity, it cannot be held that there is a requirement to issue notice before Court grants permission to sue in a representative capacity."
Equivalent Citation: 2015(2) AKR 396, 2015(1)KCCR815,AIR 2015(NOC)762 KAR
IN THE HIGH COURT OF KARNATAKA
Writ Petition No. 31334 of 2011 (GM-CPC)
Decided On: 26.03.2014
Appellants: Puttamma and Ors. 
Vs.
Respondent: Nanjundaiah and Ors.
Hon'ble Judges/Coram:N. Kumar, J.



1. This Writ Petition is filed by the defendants 1 to 4 and 7 challenging the order passed by the Trial Court on an application filed under Order I, Rule 8 of CPC granting permission to the plaintiffs to prosecute the suit in representative capacity. Plaintiffs have filed a suit OS No. 115/2011 against the defendants contending that suit 'A' schedule property is a public road which they and other general public are using for ingress and egress to the Kotebetta Road from BDO Quarters road, for more than 20 years. They contend that 'A' schedule property originally belongs to Upparahalli villagers. The concerned Municipality has also passed a resolution on 4.11.2010 that 'A' schedule property is a road. The 1st defendant has got the katha transferred in her name after demise of her husband, in respect of Assessment No. 3160/2175 measuring 21' East to West and 25' North to South and obtained licence for constructing a dwelling house. Instead of constructing the building as per the licence and the sanctioned plan, the 1st defendant has encroached upon the 'A' schedule property and constructed staircase; she intends to encroach some more portion of the 'A' schedule property. The request to stop construction did not yield any results. The 1st defendant has no right to cause any obstruction to their ingress and egress through 'A' schedule property. Therefore, the plaintiffs filed the suit for declaration of the right of way and Permanent Injunction in respect of 'A' schedule property; and for Mandatory Injunction in respect of 'B' schedule property which is allegedly encroached by the defendants.
2. The plaintiffs also filed an application under Order I, Rule 8 of CPC seeking permission to file the above suit in representative capacity and requested that notice may be issued to publish in 'Andolana daily newspaper' to enable persons interested to join as defendants or plaintiffs. The said application was heard by the Trial Court and it has passed the impugned order permitting the plaintiffs to file a suit in a representative capacity. Notice to the public in general is ordered in 'Andolana daily newspaper' either to join or to defend the suit. The defendants, on coming to know about passing of the said order, have preferred this Writ Petition.
3. The learned Counsel for the petitioners assailing the impugned order contends there were litigations between the 7th respondent herein and the defendants. When the 7th respondent was not successful in the litigation, he has set up the plaintiffs to file the suit and therefore the suit as well as the application filed under Order I, Rule 8 of CPC lack bonafide. He further canvassed that there is no public road in existence as claimed. The two documents, on which the Court below relied on, are the notice issued to the defendants and the resolution passed. They do not indicate the existence of the road and therefore there is no application of mind at all on the part of the trial Court. The impugned order passed granting permission is illegal and the impugned order requires to be set aside.
4. Before going into the question of maintainability of the suit in the representative capacity, it is necessary to have a look at Order I, Rule 8 CPC, 1908 which reads as under:
"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 plaintiffs 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 plaintiffs expenses 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."
5. The Apex Court while considering the scope of Order I, Rule 8 of CPC in the case of The Chairman, Tamil Nadu Housing Board, Madras v. T.N. Ganapathy reported in MANU/SC/0117/1990 : AIR 1990 SC 642 has held as under:
"7.............The provisions of Order I, Rule 8 of CPC have been included in the Code in the public interest so as to avoid multiplicity of litigation. The condition necessary for application of the provisions is that the persons on whose behalf the suit is being brought must have the same interest. In other words either the interest must be common or they must have a common grievance which they seek to get redressed. In Kodia Goundar v. Velandi Goundar, MANU/TN/0139/1955 : ILR (1955) Mad 335: (AIR 1955 Mad. 281), a Full Bench of the Madras High Court observed that on the plain language of Order 1, Rule 8, the principal requirement to bring a suit within that Rule is the sameness of interest of the numerous persons on whose behalf or for whose benefit the suit is instituted. The Court, while considering whether leave under the Rule should be granted or not, should examine whether there is sufficient community of interest to justify the adoption of the procedure provided under the Rule. The object for which this provision is enacted is really to facilitate the decision of questions, in which a large number of persons are interested, without recourse to the ordinary procedure. The provision must, therefore, receive an interpretation which will subserve the object for its enactment. There are no words in the Rule to limit its scope to any particular category of suits or to exclude a suit in regard to a claim for money or for injunction as the present one."
6. The provisions of Order I, Rule 8 of CPC have been included in the Code in interest of the public, to avoid multiplicity of litigation. The condition necessary for application of the provision is that the persons on whose behalf, the suit is being brought must have the common interest. In other words, either the interest must be common or grievance which they seek to get redressed must be common.
7. Earlier there was some doubt about the Rule covering a case where individual persons having individual interest fighting the case separately. Therefore, an explanation was introduced by the Code of Civil Procedure (Amendment) Act, 1976. The Object and Reasons for the Amendment were stated as under:
"Rule 8 of Order I CPC deals with representative suits. Under this rule, where there are numerous persons having the same interest in one suit, one or more of them may, with the permission of the Court, sue or be sued, on behalf of all of them. The rule has created a doubt as to whether the party representing others should have the same cause of action as the persons represented by him. The rule is being substituted by a new rule and an explanation is being added to clarify that such persons need not have the same cause of action."
The explanation reads as under:-
"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 persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be."
Therefore, there is no doubt the persons who may be represented in a suit under Order I, Rule 8 of CPC need not have the same cause of action.
8. The Apex Court in the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association etc. v. Union of India and Others, reported in MANU/SC/0058/1980 : AIR 1981 SC 298 dealing with the cause of action under the Indian Jurisprudence has held at para 63 as under:
"63. XXXXXX.. Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented and envisions access to justice through 'class actions', 'public interest litigation', and 'representative proceedings'. Indeed, little Indians in large numbers seeking remedies in Courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of 'cause of action' and 'person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions."
9. This Court, in the case of Narayana and Others v. Ramarkrishna and Others, reported in ILR 1998 (1) Kar 616 dealing with the question "Whether prior notice is required before granting permission to sue in a representative capacity under Order I, Rule 8 of CPC", at para 9 it was held as under:
"By reading Order I, Rule 8 of CPC along with Order VII, Rule 4 of the Karnataka amendment it is not manifest that there is any requirement to issue notice to the defendants before the Court grants permission to sue in a representative capacity where public interest is involved. If it is to be presumed that such notice is required, until the notice is served and defendants appear, that the construction will be completed and the suit itself becomes infructuous. Therefore, when there is no provision providing for issue of notice to the defendants or granting permission to sue in a representative capacity, it cannot be held that there is a requirement to issue notice before Court grants permission to sue in a representative capacity."
10. Dealing with the question as to what are the duties of the Court when a suit is filed seeking permission to sue in a representative capacity, it was further held as under:
"When there is a public interest involved, if the Court is satisfied, it can grant permission. Thus, what all that required is that the Court must satisfy that public interest is involved. Once that is satisfied, the Court can grant permission to sue in a representative capacity. The suit in representative capacity itself suggests that one or more persons or class of persons, whose interest is affected, can file a suit. Therefore, where there are numerous persons having the same interest in a suit, one or more of such persons may, with the permission of the Court sue or be sued, any suit, on behalf of or for the benefit of all persons so interested."
11. The object of this Rule is to facilitate the decision on questions in which a large number of persons are interested, without recourse to the ordinary procedure. In cases where the common right or interest of a community or members of Association or large sections are involved, there will be practical difficulty in the institution of suits under the ordinary procedure, where each individual has an occasion for a separate suit. In order to avoid such a contingency, Order I, Rule 8 of CPC came to be enacted. In other words Order I, Rule 8 CPC is an enabling provision which entitles one party to represent many, who have a common cause of action. But it does not force any one to represent many. However such action is maintainable without the joinder of other persons. It pre-supposes that each one of the numerous persons has a right to sue. If a person has no such individual interest, he cannot be permitted to sue on behalf of others to suffer from the same disability. For grant of permission under Rule 8 of Order I of the Code, the Court has to see that the said provision is not misused by unscrupulous persons and no harm is inflicted on others. The provisions apply if the parties are numerous and having common interest. The power to grant permission to the parties to sue in a representative capacity has to be exercised by the Court only after being satisfied that the subject matter of the suit involves interest of numerous persons.
12. In the instant case, the plaintiffs have filed the suit seeking declaration of right of way in the 'A' schedule property for ingress and egress to the Kotebetta Road from BDO Quarters road. It means that the plaintiffs are not claiming any individual right over 'A' schedule property but a common right along with those who are similarly placed. It is specifically pleaded in the plaint that the plaintiffs are using 'A' schedule property for the last 20 years for ingress and egress and now, the Municipality has taken a decision to form a pakka road. When the 1st defendant allegedly put up construction encroaching upon a portion of the 'A' schedule property, notice was issued to him by the Municipality. From the facts stated supra, it becomes clear that the plaintiffs are not putting forth any personal or individual right. On the other hand they are claiming a common right in 'A' schedule property. Therefore, the Trial Court after application of mind on the basis of the material placed on record being convinced prima facie about the claim has granted the necessary permission to the plaintiffs to sue in representative capacity. The question whether the road in question is a public road or exclusively belongs to the defendant is a matter to be decided after trial in the suit. Similarly, the question whether the 7th respondent in these proceedings who was not successful in the litigation has set up the plaintiffs to file the suit is also a matter to be decided after trial. As the averments in the plaint discloses a cause of action and the relief sought is for the benefit of the public, the granting of permission to file the suit in representative capacity cannot be found fault with. The order impugned herein therefore, cannot be said to be illegal or contrary to law and no case for interference is made out.
Hence, the Writ Petition is dismissed.

Print Page

No comments:

Post a Comment