What is “Representative Suit”?

 

By Shivani Karmakar

Introduction

Generally, in the interests of full and final disposition of the case all interested parties to a litigation ought to be joined as parties thereto. However, the exception to this rule is provided by Order 1 Rule 8 of the Code of Civil Procedure in the form of Representative suits, where one or more people, can, if there are several persons similarly interested in the suit, with the permission of the court or upon a direction from the court, sue or be sued on behalf of themselves and the others.^[1]

What are Representative Suits?

Simply said, a representation suit is a suit filed by or against one or more persons, on behalf of other persons who are similarly interested in that suit, i.e., a suit filed in a representative capacity.

For instance, where A, on behalf of all creditors of B, sues B, it would be a suit filed in representative capacity.

Object

The object is to facilitate judicial decisions in cases involving the common interest of a large number of people.^[2] Where the common right or interest of a community on members of an association or large sections is involved, there will be insuperable practical difficulty in the institution of suits under the ordinary procedure, where each individual has to maintain an action by a separate suit.^[3]

Representative suits under Rule 8 helps in avoiding numerous suits being filed for the decision of a common question.^[4] It, therefore, saves time and expense by ensuring a single comprehensive trial of question in which several people are interested so as to avoid harassment to parties by multiplicity of suits.^[5]

It is an enabling provision, and therefore, must be interpreted liberally, so as to give effect to the object of its enactment.^[6]

In T.N. Housing Board V. T.N. Ganapathy^[7] the Apex court held that Order 1 Rule 8 being an enabling provision, does not compel an individual to represent other persons having community of interest if his action is otherwise maintainable without joining the rest in this suit. In other words, it does not debar a member of a community from maintaining a suit in his own right in respect of a wrong done to him.

Conditions

The Supreme Court in Kalyan Singh v. Chhoti^[8] laid down the prerequisite conditions in order to file a representative suit. These are:

• the parties must be numerous;
• they must have the same interest in the suit;
• permission or direction to file the representative suit must be given by the court;
• notice must be issued to the parties who are proposed to be represented by the suit.

Let us look at the essentials one by one.

• The Parties Must Be Numerous

The question whether the parties can be set to be numerous must be decided by the Court upon the facts of each case taking into consideration inter-alia, the nature of the controversy, the subject matter in dispute etc. It is not necessary that the body of persons represented by the plaintiffs or defendants must be ascertainable, however, they must be sufficiently definite so as to enable the Court to recognise the participants in the suit.^[9]

• Same interest in the suit

Community of interest is essential and it is a condition precedent for bringing a representative suit. This interest must be common to all, or, all must have a common grievance which they seek to get rid rest in the representative suit.

The Explanation to Rule 8 states that in order to determine whether or not the persons being represented have the same interest as the person instituting or defending the suit, it is not neccessary that all must have the same cause of action. That is to say, even where the cause of action differs, the interest might be same.

In Duke of Bedford v. Ellis^[10] it was held that, “A representative suit was in order if the relief sort was in its nature beneficial to all whom the plaintiff proposed to represent.”

In In TN. Housing Board v. T.N. Ganapathy^[11], residential buildings were allotted by the Housing Board to the applicants who belonged to low-income group. After settlement of price, excess demand was made. This was challenged by filing a suit in a representative capacity. It was contended that such a suit in a representative capacity was not maintainable as separate demand notices were issued against each allotlee, thereby giving rise to separate causes of action.

However, the Supreme Court held that all the allottees had the^[12] same interest and, therefore, the suit was maintainable.

• Permission of Court/ Direction by Court

The court must Grant permission or give direction to file a representative suit. It is the discretion of the court whether or not to grant such permission and the decision must be based on the whether or not there is a sufficient community of interest as between the plaintiffs or the defendant, as the cases may be, to justify the adoption of the procedure under rule 8.

Such permission may be granted before the suit is filed, or even at the appellate stage by amendment of plaint.

• Notice

Since, unless the decree has been obtained by fraud or collusion, it is binding on all such persons on behalf of whom the suit was instituted or being defended, it is binding on all, notice of the suit must be sent to all parties who would be bound by the decree. otherwise, they might get prejudicially affected even though they’re on aware of the suit. Therefore, notice is necessary.

In Kumaravelu Chettiar v. Ramaswami Ayyar^[13], it was held that, if notice is not given, the decree will bind only those persons who are on record.

Such notice shall be at the plaintiff’s expense, and must be given either by personal service, or where that is not possible due to practical considerations, by public advertisement, according to the directions of the court.^[14]

Addition or Substitution of Parties

Any person on whose behalf a suit is filed all defended under sub rule one may apply to the court to be added as a party to the suit. Such person must make an application without delay showing that the conduct of the suit is not in proper hands and that his interests will be detrimentally affected if he is not joined as party to the suit. This is to prevent any delay that may be caused in filing a fresh suit by such party.^[15]

Further, by way of sub rule 5, the Court may substitute any person suing or defending in a representative capacity, if he does not proceed with due diligence. Any other personhaving the same interest may be placed in his stead.^[16]

Withdrawal or Compromise

In order to abandon any claim under (1), or withdraw a suit under sub rule (3) of Order 23, or reach an agreement, compromise, or satisfaction, notice to all persons interested must be given at plaintiff’s expense in accordance with the procedure given under sub rule (2).^[17]

Additionally, any such agreement, compromise, or satisfaction must be entered into only by the leave of court, and any agreement, compromise, or satisfaction recorded without the Court’s leave shall be void.^[18]

Decree

A decree passed under a representative suit shall be binding on all persons on behalf of whom the case is filed or defended.^[19] It operates as Res Judicata.

Abetment

The Bombay High Court, in Bhicoobai v. Haribai Raguji^[20] held that “The suit does not abate if a person appointed to conduct it dies. Other person(s) interested in the suit may proceed with it or may apply to be added as plaintiff(s).” This is because such a person is merely the representative of all persons who are constructively parties to the suit.

Conclusion

Thus, a representative suit eases the burden of Court where several people maybe interested in the outcome of a litigation by preventing multiplicity of suits. It enables the Court to decide matters involving a community of interest.

1. Diwakar Shrivastava v. State of M.P., AIR 1984 SC 468. ↑
2. T.N. Housing Board V. T.N. Ganapathy, AIR 1990 SC 642. ↑
3. Kodia Gounder v. Velandi Gounder, AIR 1955 Mad 281. ↑
4. Teja Singh v. UT, Chandigarh, AIR 1982 P&H 169. ↑
5. Lingam Ramaseshayya v. Myreni Ramayya, AIR 1957 AP 964. ↑
6. Teja Singh v. UT, Chandigarh, Supra Note 4. ↑
7. T.N. Housing Board V. T.N. Ganapathy, Supra Note 2. ↑
8. Kalyan Singh v. Chhoti , AIR 1990 SC 397. ↑
9. Moran Mar Basselios Catholicos v. Thakalan Paulo Avira, AIR 1948 SC 31. ↑
10. Duke of Bedford v. Ellis, 1901 AC 1 (HL). ↑
11. T.N. Housing Board V. T.N. Ganapathy, Supra Note 2. ↑
12. Kalyan Singh v. Chhoti, Supra Note 8. ↑
13. Kumaravelu Chettiar v. Ramaswami Ayyar, AIR 1933 PC 183. ↑
14. Order 1 Rule 8 (2). ↑
15. Order 1 Rule 8 (3). ↑
16. Order 1 Rule 8 (5). ↑
17. Order 1 Rule 8 (4). ↑
18. Order 23 Rule 3B . ↑
19. Order 1 Rule 8 (6). ↑
20. Bhicoobai v. Haribai Raguji, AIR 1917 Bom 141. ↑