Representative Suits in India: Analysis of Order 1 Rule 8
The concept of representative suits is a traditional legal concept having its origin in English and American laws. It is an ancient exception, based upon considerations of necessity, paramount convenience and the desire to prevent a failure of justice, to the general rule in equity that all persons materially interested in the subject- matter must be made parties in order that complete justice is done, or to the Chancery rules of compulsory joinder.
In India, representative suits can be filed under Order 1 Rule 8 of the Code of Civil Procedure. The rule describes the procedure for filing or defending a representative suit.The rule reads as follows:
“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 plaintiff’s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct.
(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(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3) of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless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 plaintiff’s 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.”
Analysis of the Rule:
Sub- rule 1 sets two pre requisites for a person to file or defend a representative suit. The two pre-requisites are that there should be numerous persons and they must all have the same interest in the suit. The Court plays an important role in interpreting the term ‘same interest’ and only once the Court has granted permission can a representative suit be filed or defended. The permission may be obtained even at the appellate stage after the institution of the suit. The main consideration that should weigh with a court is whether there is sufficient community of interest as between the plaintiffs or the defendants to justify the adoption of the procedure provided under this rule. Sub-Clause (b) of sub-rule 1, gives power to, the court to suo moto direct one or more such ’ persons to represent others in suitable cases which satisfy the tests of "numerous persons" and "same interest" Thus, the initiative in the interest of justice can be taken even by the Court as the court is expressly authorised by the legislature to direct filing or prosecuting a suit as a representative suit.
Question of limitation would not arise for getting permission to continue with a suit already filed as a representative suit. Thus it has been held that in a suit filed in 1982 for declaration that the election of the President of the society is illegal, application after number of years, for leave under 0.1, R 8 was allowed on the ground that question of limitation was not involved.
The consent of the defendant is not necessary to enable the Court to permit the plaintiff to sue the defendant as representing the whole community. It is only just and proper that in a case where a person's rights are threatened by numerous persons, he should be permitted to sue them, making a few of them to represent themselves, and the rest.
A notice to public will be advertised and any person interested may apply to the Court to be made a party to such suit. It is no ground to reject an application under Or. 1 R-8 where a person sought to be made a representative refuses to do so. On the other hand if the plaintiff chooses to implied large number of persons having the same interest in the suit, it gives option to some of the defendants to seek permission to defend on behalf of or for the benefit of all .
Sub-rule 2 makes it necessary for the representative party to give notice of, such a suit to all persons who he thinks will be interested in such a suit either by personal service or by public advertisement. It is only when due, to the number of persons or any other cause which the Court thinks is appropriate (e.g. a fluctuating body) that personal service is not reasonably practicable, service by public advertisement will be allowed. Notice assumes particular importance due to the applicability of the principle of res judicata by sub rule 6, to representative suits. It is the duty of the Courts to see carefully that proper notices are issued and that notices, where they are published, are printed in such a paper that the persons interested are likely to read it.
Sub-rule 3 then permits any such person to come to court to be made party to such a suit. Permitting the person to sue as a representative of another is a matter of far-reaching effects as it is likely to determine the rights of those who may not participate as the suit proceeds to hearing. Such persons are entitled obviously to put before the Court the objections to the filing of the suit, to the capacity of the representative who seeks either to be the plaintiff or defendant, and even to the merits of the cause which is tried to be put before Court in the shape of reliefs prayed . It is for the court to decide whether one or more persons out of the numerous persons for or against whom the action is brought should be permitted to sue or be sued against. The Court can pass suitable orders for this purpose.
The notice by public advertisement must disclose the names of persons permitted to be representative plaintiff or defendant, nature of the suit as well as the reliefs claimed therein so as to enable interested persons to get them implied as parties.
Sub-rule 4 prohibits abandonment, withdrawal, compromise or agreement of the suit, either of the whole or part, until notice to all interested persons has been given by court at the plaintiff's expense in the manner prescribed in sub-rule 2. After notice however the representative can compromise the suit being dominus litis. Order 23, rule 3B of the C.P.C. also expressly enacts that no agreement or compromise in a representatives 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. This shows the desire of the legislature to protect the interest of all possible persons who would be affected by the compromise of a representative suit.
Sub-rule 5 gives power to the court to substitute the representative with another person having the same interest if the representative is not acting with due diligence. According to Mulla's Treatise on the Code: "Sub-rule 5 provides for transposition of party from category of defendant to plaintiff and vice versa. For such transposition court has to see that, the party sought to be transposed is not acting with due diligence. There is no limit of satisfaction and hence to act case has to be judged on its own merit. Previously transposition was done under inherent power. Under this Rule court can transpose a defendant to plaintiff and a plaintiff to a defendant. The only pre-requisite for such transposition is that he is not acting genuinely; otherwise court's hand is fettered to pass such an order.
Sub-rule 6 provides that a decree is binding on all persons on whose behalf or for whose benefit the suit is instituted. It has been held in several decisions that, it being so, the Courts must strictly follow the procedure prescribed by rule 8. A decree obtained in a representative suit instituted in accordance with the provisions of Order 1, Rule 8 will be binding as res judicata on all the members that belong to the class who are sought to be represented. Thus, if notice as prescribed in sub-rule 2 is given, the decision in a representative suit will be binding on all the members of the class sought to be represented in that suit, whether they join and take interest in the suit or not.
So a decree made in a representative suit under rule 8 is not only not open to challenge by other members of the class that were sought to be represented because of the rule of res judicata under Section 11 read with Explanation 6 with regard to the public right or private right which can be claimed by the class of persons, but because of this express provision made in the Code, such a decree is also binding and actually enforceable by execution against those others not implied in the suit but represented by others actually on record, and this express provision makes no distinction between a decree of injunction and other kind of decree in regard to this executability. Even if the judgment does not specify in the decreetal portion that the suit be decreed against the defendants in their representative capacity, the statutory effect is -that it is binding on all persons for whose benefit the suit was defended.
It has been made clear beyond all doubts that it is not necessary that the party instituting and the parties represented should have the same cause of action. What is more important is community of interest. If for example- A sues 100 persons who have in pursuance of a conspiracy trespassed on his land or have wrongfully confined him, and A asks for declaratory relief, the court should have the power to permit him to sue, say, 3 of the opponents as representatives of all the hundred, provided there is community of interest among them, which can be said to exist where there is concerted action or a common object though the cause of action against each trespasser is separate.