Requirements of a Representative Suit and Suits against Government

I have written before on the essential requirements of institution of a representative suit under Order 1, Rule 8. I recently came across two judgements of the Supreme Court which shed more light on its nuances and scope. The first one was delivered in 1963 and the second in 1990.

In the first judgement, the issue before the Court involved a combined interpretation of Section 80 of the CPC (suits against Government) and Order 1, Rule 8. In this case, two individuals issued a notice under Section 80 to the then State Government of Madras notifying the Government of their intention to the sue it and also highlighting the fact that their notice was on behalf of other individuals with similar grievances as them. While the notice did not identify all such individuals, it clearly identified the grievance, the cause of action, names and places of residence of the two individuals issuing the notice and the reliefs sought. Out of the said two individuals, however, only one of them finally sued the Government.

The Government objected to the maintainability of the suit on the ground that (a) the Section 80 notice was not in accordance with the law since it failed to specify the particulars of all individuals who had such a grievance; (b) that before issuing the Section 80 notice on behalf of others their consent was not sought; and (c) that only one of the “noticers” finally sued the Government instead of both of them, which according to the Government was not in accordance with Order 1, Rule 8.

The Supreme Court held that as long as the Section 80 notice clearly identified the grievance along with the particulars of the issuers of the notice and the reliefs claimed, and had a statement to the effect that the notice was representative in nature, the fact that it did not specify the details of other aggrieved individuals did not affect the legality of the notice. The Court also clarified that the consent of the other affected parties was not needed to issue a Section 80 notice on their behalf and categorically rejected the argument that the leave of the Court was needed even before issuing the Section 80 notice.

Keeping with this logic, the Court further held that it was not necessary to seek the permission of all affected parties to sue on their behalf under Order 1, Rule 8 since such permission to sue in representative capacity was, in any case,  to be sought from and granted by the Court to the Plaintiff upon institution of the suit. The Court reasoned that since the provision itself envisaged issuance of a public notice by the trial court to similarly placed individuals/parties at the expense of the Plaintiff, there was no need for the Plaintiff to seek permission from such parties prior to the institution of the suit. The Court also pointed out that there was nothing either in Section 80 or in Order 1, Rule 8 which mandated institution of the suit by everyone who issued the Section 80 notice in order for the suit to be maintainable.

In the second judgement, delivered in 1990, the case involved demands for additional payments issued by the State Housing Board of Tamil Nadu to allottees of housing units. When a representative suit was instituted by the one of the allottees, the State Government objected to its maintainability on the ground that a representative suit could not be filed against monetary claims since the claim amounts would differ from person to person, and that the demand made to each person would give rise to a separate cause of action, thereby precluding the application of Order 1, Rule 8. 

The Apex Court dismissed these contentions on the ground that there was nothing in Order 1, Rule 8 which precluded its application to any class of claims or actions. Importantly, the Court reiterated the position that the fundamental basis of a suit under the provision was a commonality of interest, which in itself would arise from the nature of the cause of action notwithstanding the differences in the quantum of claims. In other words, it could either be argued that the cause of action i.e. the demand for payment, need not be the same for Order 1, Rule 8, or it could be argued that the cause of action in such a case would be the broad fact that similar demands were issued to similarly placed parties/individuals. The net result would be the same.

The following extracts from the judgement capture the position with great clarity:

“The provisions of Order 1 of Rule 8 have been included in the Code in the public interest so as to avoid multiplicity of litigation. The condition necessary for application of the provisions is that the persons on whose behalf the suit is being brought must have the same interest. In other word,s either the interest must be common or they must have a common grievances which they seek to get redressed.

In Kodia Goundar and Another v. Velandi Goundar and others, |LR 1955 Madras 339, a Full Bench of the Madras High Court observed that on the plain language of Order 1, Rule 8, the principal requirement to bring a suit within that Rule is the sameness of interest of the numerous person on whose behalf or for whose benefit the suit is instituted. The Court, while considering whether leave under the Rule should be granted or not, should examine whether there is sufficient community of interest to justify the adoption of the procedure provided under the Rule. 

The object for which this provision is enacted is really to facilitate the decision of questions, in which a large number of persons are interested, without recourse to the ordinary procedure. The provision must, therefore, receive an interpretation which will subserve the object for its enactment. There are no words in the Rule to limit its scope to any particular category of suits or to exclude a suit in regard to a claim for money or for injunction as the present one.

8. Coming to the relevant circumstances in the present case it will be seen that all the allotments in Ashok Nagar were made under the same Scheme and all the relevant facts are common. The basis of the impugned demand of the appellant is equally applicable to all the allottees and the plea of the plaintiff is available to all of them. The trial court was, therefore, perfectly right in permitting the plaintiff to proceed under Order 1, Rule 8 of the Code of Civil Procedure. Nobody in this situation can complain of any inconvenience or injustice. On the other hand, the appellant is being saved from being involved in unnecessary repeated litigation.

9. It is true that each of the allottees is interested individually in fighting out the demand separately made or going to be made on him and, thus, separate causes of action arise in the case, but, that does not make Order 1. Rule 8 inapplicable. Earlier there was some doubt about the Rule covering such a case which now stands clarified by the Explanation introduced by the Code of Civil Procedure (Amendment) Act, 1976, which reads as follows: "Explanation--For the purpose of determining whether 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 may be."

The objects and reasons for the amendment were stated below: "OBJECTS AND REASONS: Clause 55; sub-clause (iv),--Rule 8 of Order 1 deals with representative suits. Under this rule, where there are numerous persons having the same interest in one suit, one or more of them may, with the permission of the Court, sue or be sued, on behalf of all of them. The rule has created a doubt as to whether the party represent- ing others should have the same cause of action as the persons represented by him. The rule is being substituted by a new rule and an explanation is being added to clarify that such persons need not have the same cause of action." There is, therefore, no doubt that the persons who may be represented in a suit under Order 1, Rule 8 need not have the same cause of action."

Section 13 of the Evidence Act- Part II

In the last post, I had discussed the judgement of a Full Bench of the Calcutta High Court delivered in 1880 on Section 13 of the Evidence Act. In stark contrast to the ratio of the majority of the said judgement, in The Collector Of Gorakhpur vs Ram Sundar Mal (1934) and in judgements before that, the Privy Council and the Calcutta High Court took the view that a judgement which is not inter partes is still admissible as a transaction within the meaning of Section 13 in a subsequent proceeding. Extracted below is the relevant portion of The Collector judgement:

“The question whether statements in judgments and decrees are admissible under Section 13 read with Section 43 is elaborately discussed by Sir John Woodroffe in his new edition of the Evidence Act(1931), p. 181 et seq. He would hold that they are not admissible at all under Section 13 ; but this view is not in accordance with the decisions of the Board in Ram Ranjan Chuckerbutty v. Ram Narain Singh(1894) L.R. 22 I.A. 60 and Dinontoni Chowdhrani v. Broja Mohini Chowdhrani (1901) L.R. 29 I.A. 24 : S.C. 4 Bom. L.R. 167. At the bottom of p. 194, however, the learned author treats judgments as evidence of admissions by ancestors. There are great difficulties about Section 13, but Dinomoni's case is express authority for the proposition that " on general principles and under Section 13 " orders made under the Criminal Procedure Code are admissible for the purposes mentioned in the passage quoted at p. 191 from the Board's judgment.”

This position was reiterated by the Supreme Court in Shrinivas Krishnarao Kango vs Narayan Devji Kango And Others (1954), and in Sital Das vs Sant Ram And Ors. (1954), wherein the Court held as follows:

“We agree with the High Court that in the absence of any evidence to show as to who propounded this pedigree which the Subordinate Judge acted upon, it is not possible to say that it was an admission by Kishore Das through whom Ishar Das lays his claim and consequently the pedigree would not be an admission relevant under section 21 of the Indian Evidence Act. But the judgment itself, we think, can be received in evidence under section 13 of the Evidence Act as a transaction in which Kishore Das, from whom Ishar Das purports to derive his title, asserted his right as a spiritual collateral of Mangal Das and on that footing got a decree. The decree also recognised the right of Kishore Das to institute the suit as such collateral. We think therefore that the judgment could be received in evidence and although it is not by any means conclusive and has got to be weighed and appraised for what it is worth, it can be used in support of the oral evidence adduced in the case. It is to be noted that this part of the plaintiff's story was not challenged by the defendants in their evidence at all. In our opinion therefore on the evidence on the record it is fully established that Sital Das was a spiritual collateral of Kishore Das.”

While these judgements were endorsed again by the Supreme Court in Tirumala Tirupati Devasthanams vs K.M. Krishnaiah (1998), which appears to have continued even until 2015 in K. Nanjappa (D) By Lrs vs R.A. Hameed @ Ameersab (D)By Lrs., a much more nuanced opinion emerged in 1983 in State of Bihar vs Radha Krishna Singh & Ors. which was delivered by a three-Judge Bench. Here are the relevant portions of the said judgement, which I will deal with:

“…it is well settled that judgments of courts are admissible in evidence under the provisions of sections 40, 41 and 42 of the Evidence Act. Section 43 which is extracted below, clearly provides that those judgments which do not fall within the four corners of sections 40 to 42 are inadmissible unless the existence of such judgment, order or decree is itself a fact in issue or a relevant fact under some other provisions of the Evidence Act:-

"43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant- Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment? order or decree is a fact in issue, or is relevant under some other provision of this Act."

Some Courts have used section 13 to prove the admissibility of a judgment as coming under the provisions of s. 43, referred to above. We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions in order to make a particular document admissible. In order words, if a judgment is not admissible as not falling within the ambit of sections 40 to 42, it must fulfil the conditions of s. 43 otherwise it cannot be relevant under s. 13 of the Evidence Act. The words "other provisions of this Act" cannot cover s. 13 because this section does not deal with judgments at all It is also well settled that a judgment in rem like judgments passed in probate, insolvency, matrimonial or guardianship or other similar proceedings, is admissible in all cases whether such judgments are inter parties or not. In the instant case, however, all the documents consisting of judgments filed are not judgments in rem and therefore, the question of their admissibility on that basis does not arise, As mentioned earlier, the judgments filed as Exhibits in the instant case, are judgments in personam and therefore, they do not fulfil the conditions mentioned in s. 41 of the Evidence Act.”

The Bench also cited Fatten Lall v. Guju Lall to support its position and then quoted a Calcutta High Court judgement and another Privy Council judgement to hold as follows:

“In Gadadhar Chowdhury & Ors. v. Sarat Chandra Chakravarty & Ors.(1) it was held that findings in judgments not inter parties are not admissible in evidence. In this connection a Division Bench of the Calcutta High Court observed as follows:

"Though the recitals and findings in a judgment not inter parties are not admissible in evidence, such a judgment and decree are, in our opinion, admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed."

This, in our opinion, is the correct legal position regarding the admissibility of judgments not inter parties, In Maharaja Sir Kesho Prasad Singh Bahadur v. Bahuria Mt. Bhagjogna Kuer & Ors.(1) the Privy Council made the following observations:

"Whether based upon sound general principle or merely supported by reasons of convenience, the rule that so far as regards the truth of the matter decided a judgment is not admissible evidence against one who is a stranger to the suit has long been accepted as a general rule in English law."

The cumulative effect of the decisions cited above on this point clearly is that under the Evidence Act a judgment which is not inter partes is inadmissible in evidence except for the limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject matter of the suit. In these circumstances, therefore, it is not open to the plaintiff’s respondents to derive any support from some of the judgments which they have filed in order to support their title and relationship in which neither the plaintiffs nor the defendants were parties. Indeed, if the judgments are used for the limited purpose mentioned above, they do not take us anywhere so as to prove the plaintiff’s case.”

What could all this mean and is it possible to reconcile all these judgements? 

My take- In order to use a judgement under Section 13 to prove a right (public or private, corporeal or incorporeal) or a custom, reference must be made to Sections 40-43. This is because the fundamental premise of Sections 40-43, especially Section 43, is that the said provisions are self-sufficient is so far as relevancy of judgements, orders and decrees is concerned. If a judgement, which is sought to be used as evidence under Section 13, does not satisfy Sections 40-42, it can be introduced under Section 43 as being relevant only if “the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act”. 

The underscored portion may be misunderstood as the judgement itself being relevant under some other provisions of the Act, when in fact if the sentence is taken as a whole it reads “the existence of such judgment, order or decree is relevant under some other provisions of this Act”. This means, that the window provided under Section 43 does not deal with the admissibility of the contents of the judgement, but allows it to the limited extent of proving its existence if the existence itself is a fact in issue, or if such existence is relevant under some other provisions of the Act. In relation to Section 43, this condition needs to be satisfied in order to prevent Section 13 from being used as an omnibus backdoor to sneak in any and every judgement not inter partes as evidence which does not satisfy the requirements of Sections 40-43.

In the context of Section 13, this means, that the current position of Indian law differs from Fatten Lall v Gujju Lall, and treats even previous judgements as transactions within the meaning of Clause (a) of the said provision. However, for such judgements to be admissible as evidence as transactions, they must satisfy the requirements of Sections 40-43 which are particularly stringent when it comes to using judgements which are not inter partes and which do not relate to rights in rem. 

There’s a chance my restatements are repetitive, but the idea was to capture what I have understood, with a measure of clarity. I am not sure the law on Section 13 is settled yet. In light of what has been discussed, what is the distinction between "transaction" in Clause (a) of Section 13 and "instance" in Clause (b)? Comments and suggestions are welcome!

Proving the Existence of a Right or a Custom

How does one prove the existence of a right or a custom in any proceeding before the Court? Is there a specific provision which applies to such a circumstance? In what context does the exercise become relevant? To address these and such questions, one must look to Section 13 of the Evidence Act, 1872, which is reproduced below:

13. Facts relevant when right or custom is in question

Where the question is as to the existence of any right or custom, the following facts are relevant.

(a) Any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence;

(b) Particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted or departed from.

Illustration

The question is, whether A has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father, irreconcilable with the mortgage, instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbors, are relevant facts.

Does the provision apply to inter partes proceedings/in personam rights, or does it apply only to rights which have a public or a quasi-public character? What would qualify as a “transaction” within the meaning of Clause (a)? Would a judgement, wherein the right or custom was discussed, qualify as a transaction? Or would   the judgement, or the legal proceeding where the judgement was delivered, qualify as an “instance” within the meaning of Clause (b)?

One of the earliest judgements on the provision was delivered by a Full Bench of the Calcutta High Court in 1880 in Fatten Lall vs Gujju Lall. Compared to other statutes, given that the analysis of judgements relating to the Evidence Act is even more guided by the facts of the cases they were delivered in, it becomes important to understand the backdrop in which the judgement was delivered.

In the judgement under discussion, a person X sued Y with respect to title over an immoveable property P and the issue of X’s succession from another person Z had a bearing on X’s right with respect to the property. In a previous proceeding initiated by Y against Q, it was established that X was indeed a successor of Z. Consequently, X wanted to place reliance on the judgement delivered in the previous proceeding (“earlier judgement”) in his current suit against Y on the ground that the said judgement was a “transaction” within the meaning of Section 13, and was therefore admissible. Y objected to the reliance on the judgement on the ground that it was inadmissible in evidence in X’s suit against Y since X was not party to the previous proceeding.

By 4-1 majority, the Bench held that the previous judgement was inadmissible in evidence. While the entire judgement makes for an extremely enlightening read on Sections 11, 13, 32, 40-43 and 48 of the Evidence Act, the quality of analysis in the minority and majority opinions is a treat for litigators.  

The minority opinion of Justice Mitter discussed the possibility of pegging the earlier judgement under Sections 40-42 of the Evidence Act, which deal with relevancy of judgements, orders or decrees of Court, and concluded that the earlier judgement while not attracting Sections 40-42, would certainly attract the window provided under Section 43. Section 43 provides that "judgments, orders, or decree, other than those mentioned in Sections 40, 41, and 42, are irrelevant, unless the fact that such a judgment, order, or decree existed is relevant under some other provision of this Act. He, therefore, concluded that the earlier judgement was relevant under Sections 11 and 13 of the Act.

According to Justice Mitter, the word transaction was wide enough to take within its ambit an earlier judgement and since there was no restriction on the nature of right or custom referred to in Section 13, it included even in personam rights. He further added that the existence of the earlier judgement was itself a relevant fact within the meaning of Section 11 since its existence would affect the fact in issue in the current suit. The fact that X was not a party to the earlier judgement did not affect its admissibility under Section 13, according to Justice Mitter. Also, he was of the view that the Indian Evidence Act did not necessarily mirror the English law of evidence in every way.

On these, the majority opinions disagreed with Justice Mitter. One of the majority opinions observed that Section 13 did not relate to the issue of ownership of property, but was limited in its application to incorporeal rights, and that a judgement was not a transaction in any sense of the word. As regards the applicability of Section 11, it was held that while the existence of the earlier judgement could be treated as a fact, the judgement in itself was not a fact but an opinion and therefore did not attract Section 11. The substance of the majority opinion is, perhaps, best expressed in the words of the then Chief Justice who was part of the Bench:

“73. I suppose it must be generally acknowledged, that, with some few exceptions, the Indian Evidence Act was intended to, and did in fact, consolidate the English law of evidence.

74. The different chapters of the Act deal seriatim with the relevancy and consequent admissibility of the different kinds of evidence, and upon this principle, Sections 5 to 16 deal with the admissibility of facts, whilst Sections 40 to 45 deal expressly with judgments; and I cannot help thinking, with all deference to the opinions of those learned Judges who have expressed a contrary opinion, that if it had been really the intention of the Legislature to depart entirely from the English rule, and to make a very large class of judgments admissible here, which had never been admissible before the Act, either in England or in this country, they would have expressed their intention more plainly, by means of suitable provisions introduced into that portion of the Act which deals exclusively with judgments.

75. If there is one rule of law which is better known and approved than another, as being founded upon the most manifest justice and good sense, it is this; that (except in the case of judgments in rem and judgments relating to matters of a public nature, which are governed by a different principle) no man ought to be bound by the decision of a Court of Justice, unless he or those under whom he claims were parties to the proceedings in which it was given.”

On the intent and purpose of Sections 40-43, following were the findings of the Chief Justice:

“81. Section 40, in my opinion, admits as evidence all judgments inter partes which would operate as res judicata in a second suit. Section 41 admits judgments in rem as evidence in all subsequent suits where the existence of the right is in issue, whether between the same parties or not. And Section 42 admits all judgments not as res judicata, but as evidence, although they may not be between the same parties, provided they relate to matters of public nature relevant to the enquiry.

83. It is obvious that, if the construction which the respondent's counsel would put upon Section 13 is right, there would be no necessity for Sections 40, 41, and 42 at all. Those sections would then only tend to mislead, because the judgments which are made admissible under them would all be equally admissible as "transactions" under Section 13, and not only those, but an infinite variety of other judgments which had never before been admissible either in this country or in England. And it is difficult to conceive why, under Section 42, judgments though not between the same parties should be declared admissible so long as they related to matters of a public nature, if those very same judgments had already been made admissible under Section 13, whether they related to matters of a public nature or not.

84. But then it is said, that Section 43 expressly contemplates cases in which judgments would be admissible under other sections of the Act, which are not admissible under Sections 40, 41 or 42. This is quite true. But then I take it, that the cases so contemplated by Section 43 are those where a judgment is used not as a res judicata or as evidence more or less binding upon an opponent by reason of the adjudication which it contains, (because judgments of that kind had already been dealt with under one or other of the immediately preceding sections). But the cases referred to in Section 43 are such, I conceive, as the section itself illustrates, viz., when the fact of any particular judgment having been given is a matter to be proved in the case. As for instance, if A sued B for slander, in saying that he had been convicted of forgery, and B justified upon the ground that the alleged slander was true, the conviction of A for forgery would be a fact to be proved by B like any other fact in the case, and quite irrespective of whether A had been actually guilty of the forgery or not. This, I conceive, would be one of the many cases alluded to in Section 43.”

In other words, under Section 43, a previous judgement in an inter partes dispute between two or more parties cannot become admissible in evidence against one of the parties in a subsequent proceeding involving that party and a stranger to the earlier proceeding. In the next few posts, I will continue with my discussion on Sections 11, 13 and 40-43 by referring to a few more judgements.