The Civil Procedure Code (Order 1, Rule 8) lets parties file representative suits- suits in representative character. Does this mean all parties must be connected to or related by the same cause of action?
Not necessary. The explanation to Order 1, Rule 8 clearly states that the requirement for filing a representative suit or to be sued in representative character is the existence of a “common interest”, not “common cause of action”.
Under Rule 1(a), a person or persons interested in suing or being sued or in defending a suit, may do so in representative capacity after taking the permission of the Court. Rule 1(b) allows the Court to issue a direction to this affect even when no party requests for it.
Both these sub-rules use the words “sue or be sued or may defend such suit”. Why do the Rules speak of “be sued or may defend” as if there is a difference between the two? The difference is that the first situation of “being sued” refers to a scenario where parties are sued in representative capacity as defendants.
The second situation of “may defend” refers to a situation where one person or group of persons take upon themselves the responsibility of acting as defendants in representative capacity.
The question that also arises is, does Order 1, Rule 8 mandate that a suit in representative capacity may be instituted only after permission is sought from the Court? Courts have clearly held that such permission may be granted even after the suit is instituted.
Does Order 1, Rule 8 apply only to suits? What about appeals? Again, Courts have held that appeals may be filed in representative capacity even if suits were filed individually.
In every suit, the plaint must clearly reflect pleadings on material facts and issues. This applies to the right to sue in representative capacity as well. A party acting in representative capacity must clearly set out the “common interest” which entitles him to act in representative capacity.
This requirement is set out in Order 7, Rule 4. However, Order 7 Rule 4 applies only to the Plaintiff since the order deals with Plaint. Ironically, there is no equivalent Rule in Order 8 which deals with written-statement of the Defendant.
Notwithstanding the absence of a similar rule in Order 8, I think it would only be fair to state that the requirement of setting out the common interest to act in representative capacity must be read into Order 8 even if there is no such express Rule.