What is the difference between representative suit and administration suits as per indian law?

 Representative Suits vs Administration Suits

Representative suits and administrative suits serve entirely different purposes under Indian law and are governed by different legal frameworks.

Representative Suits

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What are the requisites for a representative suit?

 In India, a representative suit, also known as a class action suit, allows one or more persons to sue or defend on behalf of a group of persons who have the same interest in the subject matter of the lawsuit. The primary purpose of a representative suit is to efficiently resolve common issues or rights of a large group of people. The requisites for a representative suit are outlined in Order 1, Rule 8 of the Code of Civil Procedure, 1908. Here are the key requisites for a representative suit:

• 1) Numerosity: There must be a large number of persons having the same interest in the subject matter of the suit. A representative suit is suitable when it is impractical for each person in the group to file an individual lawsuit.

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Whether representative suit filed by secretary or officer bearer of unregistered society is maintainable?

All the said judgments indicate that the provisions of Order 1 Rule 8 of the Code are intended to avoid multiplicity of litigation and ought to be given a liberal construction. The best way for an unregistered Society to maintain a suit, in fact, as indicated in such judgment, would be for the Secretary or its office bearer(s) to sue in a representative capacity on behalf of the Society, upon seeking permission under Order 1 Rule 8 of the Code. That is what was done precisely in the present case.

25. As such, the impugned order granting leave to the plaintiff/opposite party No. 1 to proceed with the suit under Order 1 Rule 8 of the Code of Civil Procedure was perfectly justified and suffers from no jurisdictional error at all.

IN THE HIGH COURT OF CALCUTTA

C.O. No. 2274 of 2018

Decided On: 08.08.2018

 Biraj Bhattacharya  Vs. Indian Culture Centre

Hon'ble Judges/Coram:

Sabyasachi Bhattacharyya, J.

Citation: AIR 2019(NOC) 246 Cal

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What is importance of issuing notice in representative suit?

Admittedly, the trial court failed to comply with the provisions of Order, 1, Rule 8, C.P.C. The said provision of law is mandatory in nature. In the absence of any notice, the provisions of Sub-rule (2) would become redundant and grave injustice may result there from in the form of a decree against persons who were never told that a case was pending against them. It was held in Radha Kishan. v. Raja Ram MANU/PH/0187/1976 : (1976) 78 PLR 271 that the issue of a notice is not a mere empty formality but a sine qua non for the applicability of the rule. Under the circumstances, the lower appellate court rightly set aside the decree of the trial court and remanded the case for fresh decision after complying with the provisions of Order 1, Rule 8....

17. Orissa High Court has gone a step further in recognising the importance of the notice under Rule 8(2) CPC in "Kusasan Samal v. Chandramani Pradhan" MANU/OR/0409/2002 : AIR 2003 Orissa 157. In that case notice to the public was issued but was found to be defective and the High Court held that when the notice under Rule 8(2) CPC is defective even then the entire proceedings in a suit of representative character get vitiated. This is what was held in this judgment:

Now coming to the question as to whether notice indicates all the requirements or not, reference may be made to a decision of this Court in the case of Purna Chandra Panigrahi v. Baidya Jani reported in (1992) 74 CLT 309. In the said decision this Court held that notice under Order 1, Rule 8(2), C.P.C. is mandatory in nature and is an essential pre-condition for trial of the suit. Notice under the provision must disclose the nature of the suit as well as relief's claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or opposite it. The notice must state about why the suit has been filed and what is the relief claimed therein, and it must also state who are the persons selected to represent the cause. Relevant portion of the judgment is quoted below:

It is not in dispute and indeed learned Single Judge has accepted the position that notice under Order 1, Rule 8, C.P.C. is of mandatory character. The provisions of Order 1, Rule 8, C.P.C. are mandatory and not directory in nature and notice under Order 1, Rule 8(2), C.P.C. is an essential pre-condition for trial of the suit. This view was succinctly expressed in Harihar Jena v. Bhagabat Jena MANU/OR/0077/1987 : AIR 1987 Orissa 270 and Lakhana Nayak v. Basudev Swamy MANU/OR/0011/1991 : AIR 1991 Orissa 33. The notice under the provision must disclose the nature of the suit as well as reliefs claimed therein in order to enable the persons interested to get themselves impleaded as parties to the suit either to support the cause or opposite it. The notice must state about why the suit has been filed and what is the relief claimed therein, and it must also state who are the persons selected to represent the cause. The object for which Order 1, Rule 8, C.P.C. has been enacted is really to facilitate the decision of question in which a large body of persons are interested without recourse to ordinary procedure where each individual has to maintain an action by a separate unit. Where there is community of interest amongst numerous persons to avoid expenses, trouble and multiplicity of proceedings, few of them are allowed to represent the whole.

19. Such being the significance of the issuance of notice under Rule 8(2) of Order 1 CPC and consequences of a defective notice, the non- issuance of the notice would certainly vitiate the entire proceedings conducted by the trial Court in the case in hand after grant of permission to the appellant-plaintiff to sue in a representative capacity without ordering issuance of a public notice of the suit. The learned trial Court was not justified in proceeding to frame the issues arising out of the pleadings of the parties who had been impleaded by the plaintiff without first issuing notice of the suit to the public at large and without that having been done no decision on the merits of the case could have been passed.

IN THE HIGH COURT OF DELHI

RFA N0. 283 of 2008

Decided On: 06.10.2009

 Anang Pal  Vs.   Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

P.K. Bhasin, J.

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Whether defendant can raise objection that notice to all persons on whose behalf representative suit is filed is not served?

 Still further, the said objection regarding non-compliance of the mandatory provisions of Order 1 Rule 8 of the Code is available only to a party who was not arrayed in the list attached with the application and had been adversely affected by the decision of the suit. The objection raised at the behest of those defendants who were served notice shall not be maintainable.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Decided On: 16.05.2008

 Rulda Ram  Vs.  Barkat Ali

Hon'ble Judges/Coram:

Ajay Kumar Mittal, J.

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Whether Representative suit is to be dismissed if there is non compliance of O 1 R 8 of CPC?

 Even the findings of the learned Courts below that the suit must be dismissed because the provisions of Order 1 Rule 8 CPC have not been complied with are not correct. Order 1 Rule 8 CPC deals with suits filed in representative capacity and a person filing a suit in representative capacity is supposed to file a list along with his application giving the names, parentage, and details of all persons on whose behalf the suit is purported to be filed.

9. In the present case, though an application for permission to file the suit in representative capacity was filed the plaintiffs did not make any effort to have this application decided and no orders of the Court were obtained permitting the plaintiffs to file the suit in representative capacity. The learned lower Appellate Court has totally mis-read the record in holding that no list of persons was filed. List of persons was filed but that was not a proper list since only names were given and no details as required by law were given. In a claim relating to Bartandari rights the plaintiffs should have also given the details of the residence of each of the claimants since only the persons residing in particular villages would have Bartandari rights in the land. In a suit filed under Order 1 Rule 8 CPC the Court before granting permission must give notice of the institution of the suit to all the persons so interested though it is not necessary that such notice must be by way of personal service. This notice can be given by public advertisement also. The purpose of giving such a notice is that the persons on whose behalf the suit is stated to be filed have a right to apply to the Court to be made parties to the suit. A suit which has been filed under Order 1 Rule 8 and where permission has been sought cannot be withdrawn or abandoned unless notice is given to all the persons for whose benefit the suit was stated to have been filed. A decree passed in such a representative suit virtually operates like a decree in arm.

10. In the present case, it appears that though an application was filed the plaintiffs never obtained orders of the Court on the said application nor took any steps to ensure that notice is issued to the persons for whose benefit the suit was purported to be filed. Therefore, the provisions of Order 1 Rule 8 CPC have not been complied with.

11. Having said so, in case of non-compliance with the provisions of Order 1 Rule 8 CPC the suit itself cannot be dismissed. At best, the suit can be treated to be a suit filed by the parties in their individual or personal capacity. It may not be treated as a representative suit but it cannot be said that the suit itself has to be dismissed; To this extent the findings of both the Courts below are wrong. Therefore, question No. 2 is also decided in favour of the appellants.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Decided On: 19.11.2009

Devi Singh  Vs.  Chairman, Managing Committee, D.A.V. Public School and Ors.

Hon'ble Judges/Coram:

Deepak Gupta, J.

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Whether decree passed in suit will be binding only to parties to suit if their application for filing representative suit is rejected?

"We are satisfied," say the learned Judges,

that no permission was applied for orally or in writing, and that no permission was granted expressly or impliedly under Section 50 corresponding to Order 1, Rule 8, Civil P.C., to the plaintiffs to sue on behalf of or for the benefit of all the Vaniyas interested, along with the plaintiffs, to worship in the Tiruchendur temple as alleged by the plaintiffs.

12. In the result with all these converging considerations in mind their Lordships are in agreement with the learned Subordinate Judge that the original suit, at all events by the date of the decree, had become one from which every trace of representation was eliminated: that the decree of dismissal was as it bears to be a decree inter partes only: and that if the plaintiffs had, by the learned Subordinate Judge, been held entitled to judgment, they would have obtained from him, at the most, the individual (order is the terms which, as he stated, they were then claiming.

BEFORE THE PRIVY COUNCIL

Decided On: 11.04.1933

Kumaravelu Chettiar  Vs. T.P. Ramaswami Ayyar and Ors.

Hon'ble Judges/Coram:

Blanesburgh, Macmillan and John Wallis, JJ.

Citation : AIR 1933 PC 183

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When personal notice is to be issued in Representative suit?

In this judgment at page 906 reference is made to Bir Singh v. Pirthi Singh, AIR 1928 Lah 693, where personal notices were served on 79 defendants and the learned Chief Justice considered this to be the right method in such suits. In the present case also as noticed above, there are only 57 persons to be served and, in my opinion, the desirable and right course, would have been to serve these parties personally. In the case before me service appears to have been effected under the provisions of O. V, R. 20, Code of Civil Procedure. This provision does not dispense with or do away with the provision of law which lays down that the defendant is entitled to receive a copy of the plaint or, in certain circumstances, a concise statement.

In Pesu Mal Harbhagwan Das v. Bishen Das Mewa Ram AIR 1927 Lah 376, Jai Lal J. observed that where the summons is affixed on the door of the defendant's house, but is not accompanied by a copy of the plaint, the affixation of such summons is not a sufficient compliance with the law and the service of summons in this manner is not a proper service. 

IN THE HIGH COURT OF PUNJAB

Second Appeal No. 409 of 1954

Decided On: 27.02.1959

Bishan Singh Kala Singh Vs.  Mastan Singh Sarup Singh and Anr.

Hon'ble Judges/Coram:

I.D. Dua, J.

Citation: Citation : AIR 1960 P and H 26

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What is duty of court if application is made for addition of parties in Representative Suit?

 Having given our considered thought to the point under reference, we are of the view that what was opined by the learned single Judge in Chintamani's case merits acceptance, because of which a person seeking to invoke the power of the court under Sub-rule (3), which power has been accepted by the learned Judge making the present reference also as discretionary, has to satisfy the court that the person on record is acting prejudicially to the applicant because of which he ought to be brought on record to protect his interest. As the power under Sub-rule (3) is discretionary, we would however like to observe that the circumstance under which the discretionary power can be exercised cannot be put in a strait-jacket, and so, if in a given case the court were to be satisfied that even without proving that the person on record is acting prejudicially to the applicant his prayer to be impleaded deserves to be allowed, it would be open for it to do so, but the court shall have to be satisfied that a reason akin to prejudicial acting by the person on record exists. To put it differently, the prayer would not be allowed merely on asking. We further state that merely because the application is not mala fide or does not tend to abuse the process of law, the same would not be required to be allowed unless the aforesaid requirement exists.

IN THE HIGH COURT OF ORISSA

Civil Revision No. 89 of 1990

Decided On: 04.08.1993

Balaram Palai Vs.   Collector, Puri

Hon'ble Judges/Coram:

B.L. Hansaria, C.J. and R.K. Patra, J.

Authored By : B.L. Hansaria, R.K. Patra

B.L. Hansaria, C.J.

Citation: Citation : AIR 1994 Ori 21

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Whether third party would be entitled to challenge compromise decree passed in representative suit passed in violation of O 23 R 3-B of CPC?

 The decree is contended to be void for two reasons. Firstly, the compromise entered into in the representative suit without the leave of the court and without due notice and publication as required under Order XXIII Rule 3-B and Order I Rule 8(4) of CPC is void; secondly, in view of the violation of Sections 89 and 139 of the Kerala State Housing Board Act, the decree is void.

9. It is not in dispute that the suit was instituted by the plaintiffs in a representative capacity. The suit was decreed, as prayed for. in the compromise entered into pending appeal, the decree was accepted by the defendant and the plaintiffs gave up their right to recover costs, it is also not in dispute that prior to entering into the compromise, the leave of the court under Order XXIII Rule 3-B CPC was not obtained and the publication as required under Order I Rule 8(4) of CPC was not effected.

10. What is the effect of non-compliance of Order XXIII Rule 3-B and Order I Rule 8(4) of the CPC, on the decree in question? It would be appropriate to refer to Order XXIII Rule 3-B and order I Rule 8(4). The said provisions read thus:-

"3-B. No agreement or compromise to be entered in a representative suit without leave of Court.- (1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void."

"8(4) (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 expense, notice to all persons so interested in the manner specified in sub-rule (2)."

A plain reading of the provisions indicate that the provisions regarding leave and notice, are mandatory in character. In Mohammed v. Avarankutty Haji [1996 (1) KLT 474], relying on the judgment of the Apex Court in Charan Lai Sabhu v. Union of India (MANU/SC/0285/1990 : AIR 1990 SC 1480), it was held that, violation of Order XXIII Rule 3-B and Order I Rule 8(4) of the CPC makes the order void.

11. Then the question would be, is the defendant who suffered a decree in terms of the plaint, entitled to take shelter under the said provisions and contend that the decree is void? To whom would such a plea be available?

12. It is to be noticed that the defendant was impleaded in the suit in his individual capacity and it was the plaintiff who filed the suit in a representative capacity. Under Order I Rule 8 CPC, one person may sue or be sued on behalf of numerous persons having the same interest. As per Order I Rule 8(6) CPC, a decree passed in such a suit binds all persons on whose behalf the suit is instituted or on whose behalf the suit is defended, as the case may be.

13. The trial court decreed the suit, as prayed. The decree was literally accepted in the compromise, and no prejudice was caused to the plaintiffs or the numerous persons whose interests they purported to represent in the suit.

14. The very purpose of requiring leave of the court to enter into a compromise and also effecting publication in terms of Order I Rule 8(4) CPC is to ensure that the persons who represent the interests of others, does not enter into a compromise defeating, prejudicing or affecting the interests of the third parties whose interests also they represent. As noticed supra, the decree binds them also. So, if a compromise is entered into and decree passed in violation of Order XXIII Rule 3-B and Order I Rule 8(4), the decree shall be void in so far as they are concerned- They will not be bound by the decree. However the eo-nominee parties to the compromise should be held by the same. The plea that the decree passed on compromise is void for violation of Order XXIII Rule 3-B and Order I Rule 8(4) shall be open only for the persons whose interests were represented by the plaintiff or the defendant in the suit, as the case may be. in other words, the decree on compromise without conforming to the provisions of Order XXIII Rule 3-B and Order I Rule 8(4) will be void only as against persons who interests the plaintiff or the defendant, as the case may be, sought to represent. Such a plea would not be available to the persons who entered into the compromise. The provisions are to be so read and understood. Any other interpretation would entail miscarriage of justice.

17. The construction of the procedural provisions, Order XXIII Rule 3-B and Order I Rule 8(4), as I have adopted, would only advance the cause of justice.

18. In the instant case, as noticed supra, no prejudice whatsoever has been caused to the persons whom the plaintiff represented. The decree would at best be void as against the interests of the persons whom the plaintiff represented and not as against the defendant who had contested and lost. Therefore, I hold that the plea that the decree is void for violation of Order XXIII Rule 3-B and Order I Rule 8(4) is not available to the defendant, on the facts of the case.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C) No. 2075 of 2018

Decided On: 16.11.2018

Shibu Vs. Pradeep Kumar and Ors.

Hon'ble Judges/Coram:

Sathish Ninan, J.

Citation: AIR 2019(NOC) 98 Ker

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What are necessary conditions for compromise of representative suit?

We also find ourselves unable to agree with the
contention of the appellants that the violations of Order XXIII
Rule 3B, CPC while passing the compromise decree dated
16.02.1981 in O.S. No. 10/1974 are merely procedural and do
not vitiate the decree, and that the decree should therefore be
regarded as proof of breach of custom.
Under Order I Rule 8, CPC, which pertains to
representative suits, a person may sue or defend on behalf of
others and for the benefit of others having the same interest, with
the permission of the Court. The object of Order I Rule 8 is to
facilitate the decision of questions in which a large number of
persons are interested without recourse to ordinary procedure.
Per Order XXIII Rule 3B, in order to compromise in a
representative suit, it is necessary to obtain the leave of the
Court. Before grant of leave to compromise, the Court needs to
give notice in such a manner as it may think fit, to such persons
as may appear to it to be interested in the suit.
It is pertinent to note that it is not clear whether the suit
in O.S. No. 10/1974 was filed under Order I Rule 8 or not. Even
assuming that we accept the respondents’ contention that the
said suit was not strictly filed under Order I Rule 8, it would be
regarded in the nature of a representative suit for the purposes of
Explanation (c) to Order XXIII Rule 3B. Explanation (c) provides
that the term ‘representative suit’ includes suits where the
compromise decree passed therein becomes binding on persons
not named as parties to the suit. In O.S. No. 10/1974, Pattakal
Koyammakoya was representing the respondent family’s interests
in his capacity as Karanavan of the family. Hence the compromise

decree, if upheld, would prejudice the family’s customary right to
the office of mutawalli and the terms thereof would become final
and binding by virtue of Section 96(3), CPC. Thus, it is clear that
the two conditions mentioned supra in relation to representative
suits have to be complied with if the compromise decree passed in
O.S. No. 10/1974 is to be held valid.
The Tribunal as well as the High Court, on considering
the compromise decree passed and the records thereof, have on
facts concluded that the parties to the decree did not obtain leave
of the court and did not give notice to other persons who were
interested in the suit, i.e., members of the Pattakal family, as
required under Order XXIII Rule 3B. The appellants before this
court have also not disputed that the compromise decree was
without leave of the court and without notice to interested family
members. As is evident from the foregoing discussion, such
violations of Order XXII Rule 3B
cannot be said to be merely
procedural, and go to the root of the matter since they deprive the
affected parties of the chance to question the terms of the
compromise that they are going to be bound by. Since both the

conditions required under Order XXIII Rule 3B were not complied
with, the compromise decree was void.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9586 OF 2010

ALIYATHAMMUDA BEETHATHEBIYYAPPURA
POOKOYA Vs  PATTAKAL CHERIYAKOYA
Dated:August 1, 2019.

MOHAN M. SHANTANAGOUDAR, J.

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Whether court should allow some of person to sue in representative capacity?

As held by the Hon'ble Supreme Court
in Tamil Nadu Housing Board (supra), the
interest of the persons on whose behalf the
claim is brought must be common or they must
have a common grievance which they seek to
get addressed. The defect or deficiency in

the goods purchased, or the services hire
or availed of by them should be the same for
all the consumers on whose behalf or for
whose benefit the complaint is filed.
Therefore, the oneness of the interest is
akin to a common grievance against the same
person. If, for instance, a number of flats
or plots in a project are sold by a
builder/developer to a number of persons, he
fails to deliver possession of the said
flats/plots within the time frame promised
by him, and a complaint is filed by one or
more such persons, either seeking delivery
of possession of flats/plots purchased by
them and other purchasers in the said
project, or refund of the money paid by them
and the other purchasers to the
developer/builder is sought, the grievance
of such persons being common i.e. the
failure of the builder/developer to deliver
timely possession of the flats/plots sold to
them, they would have same interest in the
subject matter of the complaint and
sufficient community of interest to justify
the adoption of the procedure prescribed in
Order 1 Rule 8 of the Code of Civil
Procedure, provided that the complaint is
filed on behalf of or for the benefit of all
the persons having a common grievance
against the same developer/builder, and
identical relief is sought for all such
consumers.
The primary object behind permitting a class
action such as a complaint under Section
12(1)(c) of the Consumer Protection Act
being to facilitate the decision of a
consumer dispute in which a large number of
consumers are interested, without recourse
to each of them filing an individual
complaint, it is necessary that such a
complaint is filed on behalf of or for the
benefit of all the persons having such a
community of interest. A complaint on behalf
of only some of them therefore will not be
maintainable. If for instance, 100 flat
buyers/plot buyers in a project have a
common grievance against the
Builder/Developer and a complaint under
Section 12(1)(c) of the Consumer Protection
Act is filed on behalf of or for the benefit
of say 10 of them, the primary purpose

behind permitting a class action will not be
achieved, since the remaining 90 aggrieved
persons will be compelled either to file
individual complaints or to file complaints
on behalf of or for the benefit of the
different group of purchasers in the same
project. This, in our view, could not have
been the Legislative intent. The term
'persons so interested' and 'persons having
the same interest' used in Section 12(1)(c)
mean, the persons having a common grievance
against the same service provider. The use
of the words 'all consumers so interested'
and "on behalf of or for the benefit of all
consumers so interested", in Section 12(1)
(c) leaves no doubt that such a complaint
must necessarily be filed on behalf of or
for the benefit of all the persons having a
common grievance, seeking a common relief
and consequently having a community of
interest against the same service provider.”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1676 OF 2019

ANJUM HUSSAIN Vs   INTELLICITY BUSINESS PARK PVT. LTD.

Uday Umesh Lalit, J.
Dated:May 10, 2019.

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Notes on Representative suit under O 1 R 8 of CPC

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

 O 1 R 8 of CPC: One person may sue or defend on behalf of all in same interest -

1) Where there numerous persons having the same interest in one suit -

a) one or more of such persons may with the permission of court may sue or defend such suit on behalf of or for benefit of all persons so interested;

b) Court may give direction to sue or defend in representative capacity.

2) Court shall give direction for issuing notices to all interested persons either by personal service or by paper publication.

3) Interested party may apply to be made party in the suit.

4) Notice to be issued to all interested party -

a) before abandonment of part of claim in suit;or

b) before withdrawal of suit;or 

c) compromise of suit.

5) person can be substituted by court  if he is not proceeding or defending suit with due diligence.

6) Decision given in this suit is binding on all interest parties.

Explanation:- parties should have same interest in suit even if cause of action is not same.

Read important Judgments on Representative suit: Click here

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Whether it is necessary to obtain leave for amending plaint in representative suit?

MAINTAINABILITY OF MANNATHUR CHURCH SUIT:

180. It was also submitted by Shri Mohan Parasaran, learned senior Counsel that the Mannathur Church matter suit was not maintainable. It was not of a representative character and in view of Order 1 Rule 8 Code of Civil Procedure, fresh leave was not sought when the reliefs were amended and enlarged. We are not satisfied with the submissions raised. The suit was clearly representative in character and has been contested in that manner. It was not necessary to adopt the procedure as suggested after amendment as the amended relief was traceable from the main relief. It was not at all necessary to obtain fresh leave.

 It was not necessary, after amendment of the plaint in Mannathur Church matter, to adopt the procedure once again of representative suit Under Order 1 Rule 8 Code of Civil Procedure. It remained a representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3674, 3681, 3682, 3683, 8790, 8789 of 2015, 

Decided On: 03.07.2017

 K.S. Varghese and Ors. Vs. ST. Peter's and Paul's Syrian Orth. and Ors.

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Whether issues decided in representative suit will be binding on all persons or will operate as res judicata?

The 1995 judgment arising out of the representative suit is binding and operates as res judicata with respect to the matters it has decided, in the wake of provisions of Order 1 Rule 8 and Explanation 6 to Section 11 Code of Civil Procedure. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit, i.e., Samudayam suit are also binding on Parish Churches/Parishioners to the extent issues have been decided.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3674, 3681, 3682, 3683, 8790, 8789 of 2015, 
Decided On: 03.07.2017

 K.S. Varghese and Ors. Vs. ST. Peter's and Paul's Syrian Orth. and Ors.

Hon'ble Judges/Coram:
Arun Mishra and Amitava Roy, JJ.
Citation:(2017) 15 SCC 333

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Whether some members of unregistered society can file eviction suit on behalf of society?

 Therefore, it follows from the aforesaid authoritative pronouncement of the Humble Supreme Court that the care must be taken to ensure that necessary party is before the Court, be it a Plaintiff or Defendant, otherwise, the suit or the proceedings will have to fail. 26. The contention of the counsel for the Respondents that in case of Singhai Lal Chand Jain (dead) v. Rashtriya Swayamsewak Sangh, Panna and Ors. MANU/SC/0323/1996 : (1996) 3 SCC 149,the Supreme Court has taken a view that the decree passed in the suit will not be a nullity on the ground of mere not seeking a permission of the Court under Order I Rule 8 of the Civil Procedure Code and, therefore, in the instant case also merely because no permission is taken from the Court to institute the suit in the representative capacity, would not nullify the decree, is not acceptable. From the reading of the facts in case of Singhai (supra), eviction suit filed against the Respondent and represented by the Manager, the President who was practicing Advocate, and also member, and all the three were prosecuting the suit. Therefore, in that case eviction suit was filed against the registered body through its Manager, President and member and all the three persons were competent to file the suit. Therefore, in the facts of that case, the Hon'ble Supreme Court had taken that view. However, in the instant case, admittedly the Respondent No. 1 is unregistered. It is not registered Society or Trust etc. Therefore, it was open for all 262 members to institute the suit. The 5 Plaintiffs who instituted and prosecuted the suit have not prosecuted the suit in representative capacity by taking the permission from the Court as contemplated under the provisions of Order I Rule 8 of the Civil Procedure Code. Therefore, the suit which was instituted by the Respondent No. 1 should have been filed by joining all its 262 members who were necessary parties to the suit. If at all the Respondent No. 1 wanted to file the representative suit, in that case, it was open for them to institute a representative suit by following the procedure prescribed under Order I Rule 8 of the Code of Civil Procedure Code. In the present case, the suit was instituted in the name of Mandal through its President and 5persons, who according to the Respondent No. 1are panchas of the Mandal. The defect in the institution of suit is fatal to the maintainability of the suit itself. Therefore, in my opinion, taking overall view of the matter, it will have to be concluded that the suit which was instituted by the Respondent No. 1 through its President and 5 other Plaintiffs who are alleged to be the panchas of the Mandal, was not maintainable in absence of joining all 262 members as party to the suit. I also find force in the arguments of the counsel for the applicants that, if at all the possession of the suit property is to be handed over, it will have to be handed over to the 5Plaintiffs who are no more. Since the institution of the suit itself suffers from non joinder of necessary parties and the defect in the institution of the suit is fatal to the maintainability of the suit, handing over possession to the individuals who stepped in the shoes of 5 original Plaintiffs who died during the pendency of the suit, would even cause damage and prejudice to the interest of the Respondent No. 1 itself. Therefore, though there are concurrent findings of the fact that the Respondent No. 1 is entitled to decree for bonafide requirement, the defect in the institution of the suit is fatal to the maintainability of the suit and, therefore, the suit should necessarily fail.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 202 of 2007

Decided On: 21.07.2011

Gorakh Hilal Patil and Smt. Shantabai Hilal Patil Vs.  Parit Samaj Seva Mandal

Hon'ble Judges/Coram:

S.S. Shinde, J.

Citation: 2010(2) MHLJ 177

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Whether court can give direction to sue in representative capacity?

 Even if it is found that the suit was not filed strictly in accordance to the provisions of Order 1 Rule 8 the Court could have directed that the suit be converted into one under Order 1 Rule 8. If Rule 8 of Order 1 is read carefully it would be clear that it covers two situations; one, permission granted by Court to sue in representative capacity and two, directions to such person to sue in representative capacity. Thus the Court has a power to give even a direction to sue in a representative capacity.

13. Another aspect which needs consideration is that the other persons who are said to be the members of the society had already 

moved an application under Order 1 Rule 10 to add them as party. Instead of deciding this application the learned Judge chose to decide the application under Order 7 Rule 11 and that too without considering the provisions of order 1 Rule 10 Civil Procedure Code. The Judge must always bear in mind that he should always try to decide all matters finally and effectualy and thus do substantial justice between the parties. Had he cared to decide the application under Order 1 Rule 10 first, he may not have been required to spend so much time in deciding the application under Order 7 Rule 11 Civil Procedure Code.

Bombay High Court

Ramesh Shriram Sule vs Dilipraj Niranjankumar Goenka on 21 November, 2008

Bench: C. L. Pangarkar

Citation; 2009 (1) ALL MR;2009(2)BomCR118, 2008(111)BOMLR315, 2009(1)MhLj429

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