Abatement of proceedings in Indian law refers to the automatic termination or suspension of a legal proceeding due to specific events affecting the parties involved. It is governed primarily by Order XXII of the Code of Civil Procedure, 1908.
Showing posts with label Representative suit. Show all posts
Showing posts with label Representative suit. Show all posts
Friday, 4 July 2025
Tuesday, 24 June 2025
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
Tuesday, 14 November 2023
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.
Saturday, 29 October 2022
Whether principles of res judicata are applicable to compromise decree?
E.2.4 Compromise decree and Res Judicata
46. It is contended by the counsel for the Appellant that since a compromise deed was arrived at between the Mysore State Board of Wakf, Abdul Khuddus and the lessee with regard to the possession of the suit property, the other reliefs have been abandoned. It was thus contended that in view of the compromise deed, the claim of title to the suit property has been abandoned and cannot be raised in the subsequent suit. In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao MANU/SC/0018/1963 : AIR 1967 SC 591 and Sunderabai v. Devaji Shankar Deshpande MANU/SC/0098/1952 : AIR 1954 SC 82, this Court held that since a compromise decree is not a decision of the court, the principle of res judicata cannot be made applicable. However, it was held that the compromise decree may in effect create estoppel by conduct between the parties, and the parties by estoppel will be prevented from initiating a subsequent suit. Chief Justice Bhagwati (as he was then) writing for a three judge bench in Sunderabai observed:
12. The bar of res judicata however, may not in terms be applicable in the present case, as the decree passed in Suit No. 291 of 1937 was a decree in terms of the compromise. The terms of Section 11 of the Code of Civil Procedure would not be strictly applicable to the same but the underlying principle of estoppel would still apply. Vide: the commentary of Sir Dinshaw Mulla on Section 11 of the Code of Civil Procedure at p. 84 of the 11th Edn. under the caption Consent decree and estoppel:
The present Section does not apply in terms to consent decrees; for it cannot be said in the cases of such decrees that the matters in issue between the parties 'have been heard and finally decided' within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as res judicata as a decree passed in invitum. It raises an estoppel as much as a decree passed in invitum.
Since it is the principle of estoppel by conduct that will bar the institution of the subsequent suit, it is pertinent that we refer to the compromise decree to determine if any compromise was arrived at between the parties on the title to the suit property. On a perusal of the compromise deed, it is evident that a compromise was reached only on the issue of possession and lease. When no compromise was arrived at between the parties on the title to the suit property, then no estoppel by conduct could also be inferred. d. Additionally, the counsel for the Respondent referred to Order 23 Rule 3A to contend that a subsequent suit is barred when the previous suit is dismissed through a compromise decree. However, the provision would not be applicable to the case at hand since it only bars the challenge to a compromise decree on the ground that it is unlawful. Therefore, the disposal of the second suit in view of the compromise would not bar the filing of the suit out of which the instant proceedings arise.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 10946 of 2014
Decided On: 23.09.2021
The Jamia Masjid Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.
Hon'ble Judges/Coram:
Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.
Author: Dr. D.Y. Chandrachud, J.
Citation: MANU/SC/0691/2021.
Read full Judgment here: Click here
What are twin tests to identify whether an issue has been conclusively decided in the previous suit attracting bar of res judicata in the subsequent suit?
In view of the authorities cited above, the twin test that is used for the identification of whether an issue has been conclusively decided in the previous suit is:
A. Whether the adjudication of the issue was 'necessary' for deciding on the principle issue ('the necessity test'); and
B. Whether the judgment in the suit is based upon the decision on that issue ('the essentiality test').{Para 40}
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 10946 of 2014
Decided On: 23.09.2021
The Jamia Masjid Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.
Hon'ble Judges/Coram:
Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.
Author: Dr. D.Y. Chandrachud, J.
Citation: MANU/SC/0691/2021.
Read full Judgment here: Click here
Basic principles for deciding whether the matter was "directly and substantially" in issue and when it was only "collaterally or incidentally" in issue
On a perusal of the above authorities it is evident that a representative suit is binding on all the interested parties. Therefore, the judgment of the court in the first suit would be binding on Jamia Masjid and would preclude it from instituting another suit on the same issue if it has been conclusively decided. It is now to be analysed if the substantive issue in the instant suit was conclusively decided in the first suit.
E.2.3 Conclusive decision and Res Judicata
36. The locus classicus on the point of determining if an issue was 'directly and substantially' decided in the previous suit is the decision of Justice M Jagannadha Rao (writing for a two judge bench) in Sajjadanashin Syed MD B.E. Edr. (D) by Lrs. v. Musa Dadabhai Ummer MANU/SC/0122/2000 : (2000) 3 SCC 350. During the course of the judgment, the Court analysed the expression "directly and substantially in issue" in Section 11 and laid down the twin test of essentiality and necessity:
12. It will be noticed that the words used in Section 11 Code of Civil Procedure are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.
18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says: a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter "directly and substantially" in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was "directly and substantially" in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwer Singh v. Sarwan Singh [MANU/SC/0345/1964 : AIR 1965 SC 948] and Syed Mohd. Salie Labbai v. Mohd. Hanifa [MANU/SC/0510/1976 : (1976) 4 SCC 780 : AIR 1976 SC 1569]). We are of the view that the above summary in Mulla is a correct statement of the law.
19. We have here to advert to another principle of caution referred to by Mulla (p. 105):
It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision.
(emphasis supplied)
37. Adverting to the decision in Mahant Pragdasji Guru Bhagwandasji (supra) and two earlier decisions12, the Court held that these were instances where in spite of adverse findings in an earlier suit, the finding on that specific issue was not treated as res judicata as it was purely incidental, auxiliary or collateral to the main issue in each of these cases and not necessary in the earlier case.
38. In another decision in Gram Panchayat of Village Naulakha v. Ujagar Singh MANU/SC/0628/2000 : (2000) 7 SCC 543, it has been held that the decision in an earlier suit for an injunction, where no question of title was adjudicated upon will not be binding on the question of title:
10. We may also add one other important reason which frequently arises Under Section 11 Code of Civil Procedure. The earlier suit by the Respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed v. Musa Dadabhai Ummer [MANU/SC/0122/2000 : (2000) 3 SCC 350] where this Court, on a detailed consideration of law in India and elsewhere held, that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was "necessary" in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 10946 of 2014
Decided On: 23.09.2021
The Jamia Masjid Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.
Hon'ble Judges/Coram:
Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.
Author: Dr. D.Y. Chandrachud, J.
Citation: MANU/SC/0691/2021.
Read full Judgment here: Click here
What is the scope of the suit filed U/S 92 of CPC?
A suit Under Section 92. Civil Procedure Code is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions pre fulfilled that the suit has got to be brought in conformity with the provision of Section 92, Civil Procedure Code As was observed by the Privy Council in Abdul Rahil v. Md. Barkat Ali. MANU/PR/0084/1927 : 55 Ind, App. 96, Procedure Code a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Section 92 Code of Civil Procedure. In the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of Section 92 and the suit proceeded on the footing that the Defendant, who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust. The Defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. The denial could not certainly oust the jurisdiction of the court, but when the courts found concurrently, on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of the Plaintiffs, that any direction of the court was necessary for proper administration of the trust, the very foundation of a suit Under Section 92 of the Code of Civil Procedure became wanting and the Plaintiffs had absolutely no cause of action for the suit they instituted. In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the Plaintiffs. It has been argued by the learned Counsel for the Respondents that even if the Plaintiffs failed to prove the other allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties -- a fact which the Defendant denied. In these circumstances, there was nothing wrong for the court to give the Plaintiffs a lesser relief than what they actually claimed. The reply to this is, that in a suit framed Under Section 92 of the Code of Civil Procedure the only reliefs which the Plaintiff can claim and the court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the Defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the Section if the Plaintiff is held entitled to it; but when the case of the Plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of Section 92 of the Code of Civil Procedure. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit. {Para 10}
33. Bhagwandasji (supra) lays down the following principles on the ambit of a representative suit Under Section 92 Code of Civil Procedure:
(i) The Plaintiff can only seek reliefs that fall under any of the clauses in Section 92 Code of Civil Procedure. A declaration that the suit property belongs to the trust, does not fall under the scope of any of the reliefs enumerated in Section 92 Code of Civil Procedure and is outside the scope of the provision;
(ii) Merely because the Defendant denies the title of the trust over the suit property, the jurisdiction of the court cannot be ousted;
(iii) When the title of the trust is contested, a determination of the title of the suit property is necessary for the purpose of adjudication on the final relief, and thus it can be made ancillary to the main relief if the Plaintiff is entitled to the relief sought Under Section 92 Code of Civil Procedure; and
(iv) If the Plaintiff is not entitled to the relief sought, then in that case no determination on the title of the suit property can be made since it would be inconsequential to the final decision in the suit.
On applying the principles evolved in Bhagwandasji (supra) to the facts of the case, the relief sought in the first suit Under Section 92 Code of Civil Procedure was for determination of a scheme of management of the mosque. A determination of the title of the suit property with respect to the mosque was ancillary to the main relief, Under Section 92 of the Code of Civil Procedure.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 10946 of 2014
Decided On: 23.09.2021
The Jamia Masjid Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.
Hon'ble Judges/Coram:
Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.
Author: Dr. D.Y. Chandrachud, J.
Citation: MANU/SC/0691/2021.
Read full Judgment here: Click here
When can the court decide the issue of res judicata as a preliminary issue?
We are unable to accept the submission of the Appellants that res judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced. In the present case, a determination of the components of res judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. The issue has been argued on that basis before the Trial court and the first appellate court; followed by two rounds of proceedings before the High Court (the second following upon an order of remand by this Court on the ground that all parties were not heard). All the documentary material necessary to decide the issue is before the court and arguments have been addressed by the contesting sides fully on that basis.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 10946 of 2014
Decided On: 23.09.2021
The Jamia Masjid Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.
Hon'ble Judges/Coram:
Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.
Author: Dr. D.Y. Chandrachud, J.
Citation: MANU/SC/0691/2021.
Read full Judgment here: Click here
Whether the subsequent suit is barred by res judicata if there has been any material alteration in law or facts since the first suit was decreed?
The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of Section 11 Code of Civil Procedure are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 10946 of 2014
Decided On: 23.09.2021
The Jamia Masjid Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.
Hon'ble Judges/Coram:
Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.
Author: Dr. D.Y. Chandrachud, J.
Citation: MANU/SC/0691/2021.
Read full Judgment here: Click here
Print PageWhether the second suit is barred by res judicata if the decree passed in the previous suit is nullity?
Justice K. Ramaswamy writing for a three judge bench of this Court in Sushil Kumar Mehta v. Gobind Ram Bohra MANU/SC/0593/1989 : (1990) 1 SCC 193 held that the principle of res judicata cannot be fit into the pigeon hole of 'mixed question of law and facts' in every case. Rather, the plea of res judicata would be a question of law or fact or a mixed question of both depending on the issue that is claimed to have been previously decided. The court while determining the applicability of the plea of res judicata would determine if there has been any material alteration in the facts and law applicable:
26. The doctrine of res judicata Under Section 11 Code of Civil Procedure is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus, the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 10946 of 2014
Decided On: 23.09.2021
The Jamia Masjid Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.
Hon'ble Judges/Coram:
Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.
Author: Dr. D.Y. Chandrachud, J.
Citation: MANU/SC/0691/2021
Print Page
Sunday, 26 September 2021
Whether a party can claim a declaration of title in Representative suit?
E.2.1 Determination of title in a Representative suit
32. In Mahant Pragdasji Guru Bhagwandasji v. Patel Ishwarlalbhai Narsibhai AIR 1952 SC 143, a three judge Bench of this Court explained the ambit of a representative suit under Section 92 of the CPC. In that case, one of the reliefs sought was the declaration of the suit property as the religious and charitable trust property of Kaivalya or Karuna Sagar Panth while the defendant contended that the suit property was private property. Justice BK Mukherjea speaking for the Bench expounded on the scope of a suit under section 92 CPC, particularly in view of the relief seeking a declaration:
“10 A suit under S.92. Civil P.C. is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions pre fulfilled that the suit has got to be brought in conformity with the provision of S.92, Civil P.C. As was observed by the Privy Council in Abdul Rahil v. Md. Barkat Ali. 55 Ind, App. 96, P.C. a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of S.92. Civil Procedure Code. In the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of Section 92 and the suit proceeded on the footing that the defendant, who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust. The defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. The denial could not certainly oust the jurisdiction of the court, but when the courts found concurrently, on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of the plaintiffs, that any direction of the court was necessary for proper administration of the trust, the very foundation of a suit under Section 92 of the Civil Procedure Code became wanting and the plaintiffs had absolutely no cause of action for the suit they instituted. In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiffs. It has been argued by the learned Counsel for the respondents that even if the plaintiffs failed to prove the other
allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties — a fact which the defendant denied. In these circumstances, there was nothing wrong for the court to give the plaintiffs a lesser relief than what they actually claimed. The reply to this is, that in a suit framed under Section 92 of the Civil Procedure Code the only reliefs which the plaintiff can claim and the court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it; but when the case of the plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of Section 92 of the Civil Procedure Code. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit.
”
(emphasis supplied)
33. Bhagwandasji (supra) lays down the following principles on the ambit of a representative suit under section 92 CPC:
(i) The plaintiff can only seek reliefs that fall under any of the clauses in section 92 CPC. A declaration that the suit property belongs to the trust, does not fall under the scope of any of the reliefs enumerated in section 92 CPC and is outside the scope of the provision;
(ii) Merely because the defendant denies the title of the trust over the suit property, the jurisdiction of the court cannot be ousted;
(iii) When the title of the trust is contested, a determination of the title of the suit property is necessary for the purpose of adjudication on the final relief, and thus it can be made ancillary to the main relief if the plaintiff is entitled to the relief sought under Section 92 CPC; and
(iv) If the plaintiff is not entitled to the relief sought, then in that case no determination on the title of the suit property can be made since it would be inconsequential to the final decision in the suit.
On applying the principles evolved in Bhagwandasji (supra) to the facts of the case, the relief sought in the first suit under section 92 CPC was for determination of a scheme of management of the mosque. A determination of the title of the suit property with respect to the mosque was ancillary to the main relief, under Section 92 of the CPC.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 10946 of 2014
The Jamia Masjid Vs Sri K V Rudrappa
Print PageSaturday, 25 September 2021
When would adverse findings given on any particular issue not be res judicata?
E.2.3 Conclusive decision and Res Judicata
36. The locus classicus on the point of determining if an issue was ‘directly and substantially’ decided in the previous suit is the decision of Justice M Jagannadha Rao (writing for a two judge bench) in Sajjadanashin Syed MD B.E. Edr. (D) by Lrs. v. Musa Dadabhai Ummer.25 (2000) 3 SCC 350. During the course of the judgment, the Court analysed the expression “directly and substantially in issue” in Section 11 and laid down the twin test of essentiality and necessity:
“12. It will be noticed that the words used in Section 11 CPC are “directly and substantially in issue”. If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only “collaterally or incidentally” in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.”
PART E
18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says: a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter “directly and substantially” in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was “directly and substantially” in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was “necessary” to be decided for adjudicating on the principal issue and was decided, it would have to be treated as “directly and substantially” in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwer Singh v. Sarwan Singh [AIR 1965 SC 948] and Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780 : AIR 1976 SC 1569] ). We are of the view that the above summary in Mulla is a correct statement of the law.
19. We have here to advert to another principle of caution referred to by Mulla (p. 105):
“It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision.”
(emphasis supplied)
37. Adverting to the decision in Mahant Pragdasji Guru Bhagwandasji (supra) and two earlier decisions26, the Court held that these were instances where in spite of adverse findings in an earlier suit, the finding on that specific issue was not treated as res judicata as it was purely incidental, auxiliary or collateral to the main issue in each of these cases and not necessary in the earlier case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 10946 of 2014
The Jamia Masjid Vs Sri K V Rudrappa
Author: Dr Dhananjaya Y Chandrachud, J
Dated:September 23, 2021
Print PageSaturday, 2 May 2020
Important Notes on Civil procedure Code
1) Execution of decree -Important provisions of CPC
2) Notes on Representative suit under O 1 R 8 of CPC
3) Good article on Res Judicata, stay of suit and estoppelhttps://www.lawweb.in/2018/05/good-article-on-res-judicata-stay-of.html
4) Basic concepts of CPC 4 -definitions
Tuesday, 29 October 2019
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.
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
Sunday, 13 October 2019
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.
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.
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.
Whether representative suit abate on death of one of plaintiff?
The last two points may be shortly disposed of as they have to be stated merely to be rejected. Point No. (2) was eventually given up as it was completely devoid of substance. Since the suit had been filed in a representative capacity, it is clear that on the death of one of the plaintiffs it did not abate. In Raja Anand Rao v. Ramdas Daduram and Ors. 48 I.A.R. 12 it has been said Lord Dunadin at page 16" There was also a point that the person who originally raised the suit and got the sanction having died the suit could not go on, but there does not seem any force in that point either, it being a suit which is not prosecuted by individuals for their own interests, but as representatives of the general public. It is plain that the second appeal did not lose its competency on the death of one of the plaintiffs appellants.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 505 of 1974
Decided On: 17.12.1974
Charan Singh Vs. Darshan Singh and Ors.
Hon'ble Judges/Coram:
K.K. Mathew, N.L. Untwalia and P.N. Bhagwati, JJ.
Citation : AIR 1975 SC 371
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
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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