V) Representative Suits in India; Analysis of the

provision.

(A) Background: Representative suits can be filed

in India under order 1, Rule 8 of the Code of Civil

Procedure, 1908. Order 1, Rule 8 describes the

procedure for filing or defending a representative

suit.

The text :;of order 1, Rule 8, one person may sue

, * *

or defend on behalf of all in same interest reads:

"(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,

. .I

defend such suit, on behalf of, or for the benefit

of, all such persons so interested,

(b) the Court may direct that pne 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

71
is not reasonably practicable by public

advertisement, as the Court in each case may be

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shall be withdrawn under sub-rule (3), of Rule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 expense, notice to all

persons so interested in the manner specified in

sub-rule^.

(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.

Explanation.- For the purpose of determining whether

72
the persons who sue or are sued, or defend, have

the same interest in one suit, it is not necessary

to establish that such persons have the same cause

of action as the persons on whose behalf, or for

whose benefit, they sue or are sued, or defend

the suit, as the case roe be".

It may be noted here that the above section

is substituted for former Rule 8 in 1976.

The effect of substitution is ^that old

sub-rule (1) has been redrafted into sub-rule (1)

and sub-rule (2) without any change in substance.

New sub-rule (3)corresponds to old sub-rule (2).

The rest is new. In the substituted rule provisions

have been added to the effect:

(1) that the court can direct one or more persons

to sue under this rule on behalf of others (sub-rule

(1)(b));

(2) that before a suit under this rule is withdrawn

or compromised or the claim is abandoned notice

shall be
1
given to the persons1 l
interested in the
' I

suit (this is in conformity with the practice in

i
court in the absence of any express provision)
f
(sub-rule (,4))y

(3) to deal with cases when the persons suing do

not proceed with due diligence (sub-rule (5);

(4) that the decree under this rule shall bind

73
the parties on whose behalf the suit in instituted

or defended (sub-rule(6)).

(5) Explanation has been added to clarify the

position that it is not necessary that the party

representing and the parties represented should

have the same cause of action as the expression

’’same interest" created a doubt in the matter^.

The scheme of filing of suits and adjudicating

upon causes under the Code indicates ttiat it is

almost a four dimensional movement -
Firstly action by one party called plaintiff against

an opposing party termed defendant;

Secondly, with regard to certain matters said to

, l

be in dispute; thirdly, having claim for certain

cause of action; and

Fourthly seeking some sort of legal relief(2).

Order 1, as its title indicates, deals with

the first part or the basic requirement of the

suit, that is the parties which can' be arrayed

either as plaintiffs or defendants. Rule 1 deals

with plaintiffs and Rule 2 permits the courts to

direct separate trials. Rule 3 indicates who can

*aj&4
be the defendants . To Rule 1 and 3 Rule 8 is

in the nature of a proviso, so that with the

74
permission of the Court, without either following

the joinder prescribed by Rule 1 or Rule 3, a person

who can be called a representative of others, either

plaintiff or defendant, may prosecute or defend

the action (5). Once the permission is so granted

under Rule 8, the legal effect of, such permission

is as follows.

If the permission is in favour the plaintiff,

the suit is deemed to have been instituted by

everyone whose interest is permitted to be

represented by the plaintiff and, if the permission

is for the defence, the representative defendant

represents the interest of all those for whom the

representation is allowed. To both these categories

the term "representative suit" is commonly applied.

The concept of representative1 suits is a

traditional legal concept having its base 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 be or done, to the Chancery rules of

compulsory joinder. 5A

75
(B) Analysis of the Rule s

It is clear from sub-rule 1, that there are

two main conditions which must be fulfilled by

a person to file or defend a representative suit.

There should be numerous persons and they must

all have same interest in one suit. The categories

of cases which can come under this rule will depend

particularly on the interpretation of the term

"same interest." Permission of the Court must be

obtained and the Court plays a significant role

in representative suits. It has been held that
such a permission may be granted even after the

institution of the suit, even at the appellate

stage®. The principle 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 of1 the

7
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 (by converting) or prosecuting

76
a suit as a representative suit. What is sufficient

community of interest is dealt with in detail later.

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

O
that question of limitation was not invplved .

The consent of the defendant , on the record

is not necessary to enable the Court to permit

the plaintiff to sue the defendant as representing

the whole community 9 . It is only just and proper ' ’ * ■»

that in a case where a person's,, rights are

>1

threatened by numerous persons, h!e should be

permitted to sue them, making a few of them to

represent themselves, and the rest. Thus, where

the defendants prevented the plaintiff from removing

the trees from his land saying that they had planted

them on behalf of the local inhabitants, the persons

who can really be interested in resisting the suit

are the defendants in particular and all other

inhabitants of the vicinity in general. To such

a case. Order 1, Rule 8 is well attracted. Some

of the persons of the locality can validly be sued

77
as representatives, it is their choice whether

to pursue the matter or to allow it to go by

default. 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
i
a
v r )

suit to all persons who he thinks will be interested

in such a suit either by personal service or1 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

10A
judicata by sub rule 6, to representative suits.
It is the duty of the Courts to see carefully that

78
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

it11.

Where, the plaintiffs filed a suit for the

possession of the land in a representative capacity

under 0.1, R.8 for permission to sue on behalf

of and for the benefit of all the members of the

institution, and the trial Court in its turn,issued

publication as required under 0.1, R.8 but nobody

came forward after the publication of notice either

to oppose the suit or to be made a party in the

case and after a decade had elapsed when the appeal

was pending an objection was raised that the

permission as required under 0.1, R;8 has not! been

granted by the trial Court, it was held that,

it would be deemed that the trial Court by issuing

publication under 0.1, R.8 impliedly granted the

permission to the plaintiffs to sue on behalf of

institution and there was no need jto remand the
i

suit as ,{no prejudice was caused to anybody. In

fact, the trial Court has assumed 1 the issuance

of such permission otherwise there, was nothing

for that Court to grant such permission expressly 12

Sub-rule 3 then permits any such person to

come to court to be made party to such a suit.

79
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

13
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. It can/^'*'
allow parties to be arrayed as formal plaintiffs

or defendants if they object to their representative

defendant or plaintiff respectively. The Court

can restrict the class only to consenting members,

leaving open the question relating to others. 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 themseiVes implieded
14
as parties

80
 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

15
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

:j
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

I
to be transposed is not acting with due diligence.

81
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 bonafidely,

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. In other words this

sub-rule makes the principle of res judicata as

enshrined in Section 11 of the Code applicable

even to representative suits. It has been held

in several decisions that, it being so, the

procedure prescribed by rule 8 must be strictly

17
followed by the Courts . 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

18
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

82
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 Expln 6 with

regard to the publicright or private right which

can be claimed by theclass of persons, but because

of this express provision made in the Code, such

a decree is also binding and actually enforceable

by execution againstthose others not implieded

in the suit but represented by others actually

on record, and this express provision makes no

distinction between a decree of injunction and

, 1 i

other kind of decree in regard to this bitadingness

and executability. Even if the judgment ' does ■ not

specify in the decreetal portion that1 the suit

i
is decreed against the defendants in their

representative capacity, the statutory effect is

-that it is binding on all persons for whose benefit

19
the suit was defended .

As is clear from the Objects and Reasons 20

Order 1, Rule 8 created a doubt as to whether the

party representing others should have |the same

cause of action as the persons represented by him.

83
The amendment to the rule in 1976 has added an

Explanation to clarify that such persons need not

have the same cause of action. Same interest

therefore does not mean same cause of action under

this rule.

It has been made clear beyond all doubts

by the insertion of Expln. by 1976 Amending Act

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

21
separate . This concept is elaborated in more
details in the next portion.

Finally, a Representative suit does not abate

on the death of the representative as he or she

can be substituted by another member of the

22
plaintiff on defendant . It may also be noted

84
that it is possible under Order 33, rule 1 for

a representative to file a suit in forma paupers

i.e. as indigent person. But the Explanation to

that rule makes it clear that where the plaintiff

sues in a representative capacity, the question

whether he is indigent person shall be determined

with reference to the means possessed by him in

such capacity.

Now we turn to the discussion of the types

of suits that are filed as representative suits

in India on the basis of the facts which show "same

interest" either of the plaintiffs or defendants.

This will give us an idea of different substantive

areas of law where this legal device has been used

in India.

85
Foot Notes of Representative Suits in India :
Analysis of the provision .

(1) Sarkar, Code of Civil Procedure , 1992. Page

518.

)
(2) (1907) 31 Bom 393, (398)

(3) Text of Order 1, Rule 1 CPC: All persons may

be joined in one suit as plaintiffs wherp-

(a) any right to relief in respect of, or arising

out of, the same act or transaction or series of

acts or transactions is alleged to exist in such

persons, whether jointly, severally : or in the

alternative; and

(b) if such persons brought separate suits, any

common question of law or fact would arise.

(4) Text of Order 1, Rule 3, CPC: All persons may

be joined in one suit as defendants where -

(a) any right to relief in respect of, or arising

out of, the same act or transaction, or series of

acts or transactions is alleged to exist against

such persons, whether jointly, severally or in

the alternative; and

(b) if separate suits were brought against such

persons any common question of law or fact would

86
arise

(5) AIR 1976 Bom. 401 (403).

(5A) 59 Am.Jur. 2d Sec.47, Meux v. Maltby, 1 Swanst

277, 36 Eng Reprint 621.

(6) AIR 1962 Madh Pra 363 (365), A 1978 H.P.22(23)

(7) AIR 1955 Mad 281 (286, 287 ). ,(FB) ,AIR 1973

Bom 276 (280)

(8) AIR 1961 Punj. 111, (1989) 1 Cur, CC 655 (658)

(Cal.)

(9) AIR 1961 Punj. 111 (112)

(10) AIR 1960 M.P.288 (288), AIR 1973 MP 216.

(10A) Res Judicata; Thing Adjudicated. Rule that

a final judgement rendered by a Court of competent

jurisdiction on merits is conclusive as to the

rights of the parties and their privies, and, as

to then* constitutes an absolute bar to a subsequent

action involving the same claim, demand and cause
"J t

of action. (Black's Law Dictionary, Supra)

87
(11) AIR 1960 Punj 26 (28)

(12) AIR 1987 Jand K 79 (81)

(13) AIR 1976-Bom. 401 (403)

(14) (1978)*
45 »
Cut LT 141, AIR 1927 Cal 608:101

IC 738, AIR 1973 All 281.

(15) See generally AIR 1961 All 266(275)(DB).

(16) Mulla: The Code of Civil Procedure with

Explanatory notes and commentaries, N.M. Tripathi

Pvt. Ltd. Bombay, 1976.P. 283.

(17) For example, AIR 1955 Mad. 281 at 283: "To

render a decree in a representative suit to have

binding force on the class of persons who are sought

to be bound by it, the procedure laid down in Order

1, Rule 8 has to be strictly followed".

(18) Ibid foot-note 7.

(19) Soman v. Appurty, A 1988 Kerala 212. 215.

'Expin.6 to Sec.11 CPC Text: Where persons litigate

bonafide in respect of a public right or of a

88
private right claimed in common or themselves and

others, all persons interested in such right shall,

for the purposes of this section, be deemed to

claim under the persons so litigating.

(20) Gazette of India, 8.4.1974,pt. II, S.2, Ext.,

p. 311.

(21) Vide Law Commission's 54th Report pp. 114,

115

(22) AIR 1951 M.P. 296. AIR 1961 All . 266

89