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."
