Representative Suits under CPC

REPRESENTATIVE SUITS UNDER CPC

SUBMITTED TO:
MR. VISHAL DIXIT

(FACULTY: CODE OF CIVIL PROCEDURE)

SUBMITTED BY:
EKTA KUMARI

SEMESTER IX

SECTION C

ROLL NO. 63

SUBMITTED ON:
23.10.2019

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR,

CHHATTISGARH, 492002
 Representative Suits under CPC

ACKNOWLEDGEMENTS

Special thanks to the Almighty who blessed me the strength to accomplish the project with sheer
hard work and honesty. This research venture has been made possible due to the generous co-
operation of various persons. To list them all is not practicable, even to repay them in words is
beyond the domain of my lexicon.

This project wouldn’t have been possible without the help of my teacher, Mr. Vishal Dixit,
Faculty of Code of Civil Procedure, who has always been there at my side whenever I needed
some help regarding any information. He has been my mentor in the truest sense of the term.
The administration has also been kind enough to let me use their facilities for research
work. I thank them for this. I shall be obliged to all of them for their help.

Ekta Kumari
Semester IX,
Section C,
Roll No. 63

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 Representative Suits under CPC

DECLARATION OF ORIGINALITY

I, Ekta Kumari, have undergone research of the project work titled “Representative Suits under
CPC”, as a student of Code of Civil Procedure. I hereby declare that this research work has been
prepared by the student for academic purpose only, and is the outcome of the investigation done
by me and also prepared by myself under the supervision of Mr. Vishal Dixit, Faculty of Code
of Civil Procedure, Hidayatullah National Law University, Raipur. The views expressed in the
report are personal to the student and do not reflect the views of any authority or any other
person, and do not bind the statute in any manner.
I also declare that this Research Paper or any part, thereof has not been or is not being submitted
elsewhere for the award of any degree or Diploma. This report is the intellectual property of the
on the part of student research work, and the same or any part thereof may not be used in any
manner whatsoever in writing.

Ekta Kumari
Roll. No. 63
Semester IX,
Section C

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 Representative Suits under CPC

CERTIFICATE OF ORIGINALITY

This is to certify that Ms. Ekta Kumari, student of Semester IX, Section C, Roll Number 63,
B.A.LL.B.(Hons.), Hidayatullah National Law University, Raipur (Chhattisgarh) has undergone
research of the project work titled “Representative Suits under CPC”, in partial fulfillment of
the subject of Code of Civil Procedure. Her performance in research work is up to the level.

Place: Atal Nagar ………………………… ……………………………

Date: 14.10.2019 Mr. Vishal Dixit

(Faculty- Code of Civil Procedure)

Hidayatullah National Law University,

Raipur, Chhattisgarh

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 Representative Suits under CPC

TABLE OF CONTENTS
INTRODUCTION ................................................................................................................................ 6

OBJECTIVES ..................................................................................................................................... 7

RESEARCH METHODOLOGY ............................................................................................................. 7

REPRESENTATIVE SUITS ................................................................................................................... 8

ANALYSIS OF RULE 8, ORDER I ...................................................................................................... 10

REPRESENTATIVE SUITS AS AN INPUT FOR ACCESS TO JUSTICE…………………………………...14

CONCLUSION.................................................................................................................................. 17

REFERENCES .................................................................................................................................. 18

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 Representative Suits under CPC

INTRODUCTION

As a general rule, all persons interested in a suit ought to be joined as parties to it, so that the
matter involved therein maybe finally adjudicated upon an fresh litigation over the same matters
may be avoided. A representative suit is an exception to this rule. Order I rule 8 of CPC provides
that when there are a number of persons similarly interested in a suit, one or more of them can,
with the permission of court or upon a direction from the court, sue or to be sued on behalf of
themselves and others. The plaintiff in a representative suit need not to be obtain the previous
consent of the person to whom he seeks to represent.

The object underlying this provision is really to facilitate the decision of questions in which a
large number of person are interested without recourse to the ordinary procedure. Order I rule 8
of the code has been framed in order to save time and expense, to ensure a single comprehensive
trial of questions in which numerous persons are interested and avoid harassment to parties by a
multiplicity of suits .In cases where the common right or interest of a community or members of
an association for large sections is involved, there will be insuperable practical difficulties in the
institution of suits under the ordinary procedure, where each individual has to maintain and
action by separate suit. To avoid numerous suits being filed or for decision of a common
question , Order 1 rule 8 has come to be enacted. The provision therefore should receive liberal
interpretation, which will subserve the object of its enactment.

This project work deals with the meaning of representative suits, legal provisions under CPC,
analysis of these provisions and the impact of the provision on access to justice.

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 Representative Suits under CPC

OBJECTIVES

1. To study the meaning of representative suits and the relevant provision under the Code of
Civil Procedure, 1908.
2. To analyse the statutory provisions under Rule 8 of Order I of the Code.
3. To examine the utility of the concept of “Representative Suit”.

RESEARCH METHODOLOGY

This research is descriptive and analytical in nature. Secondary and Electronic resources have
been largely used to gather information and data about the topic.

Books and other reference as guided by Faculty of the subject and Library staff have been
primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have
also been referred.

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 Representative Suits under CPC

REPRESENTATIVE SUITS

A Representative Suit is a suit filed by one or more persons on behalf of themselves and others
having the same interest in the suit. It can also be a suit filed by one or more persons defending
one or more persons having the same interest in the suit.

Background: The concept of representative 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 subjectmatter must be made parties in order that
complete justice be done, or to the Chancery rules of compulsory joinder.1

Legal Provision: Representative suits can be filed in India under order I, Rule 8 of the Code of
Civil Procedure, 1908. Order I, Rule 8 describes the procedure for filing or defending a
representative suit. Order I, Rule 8: "(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
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 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.

1
Meux vs Maltby, 1 Swanst 277, 36 Eng Reprint 621.

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(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 (2).

(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 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 above section has been substituted for former Rule 8 in 1976.

Effect of substitution: 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;

(2) that before a suit under this rule is withdrawn or compromised or the claim is abandoned
notice shall be given to the persons interested in the suit (this is in conformity with the practice in
court in the absence of any express provision);

(3) to deal with cases when the persons suing do not proceed with due diligence;

(4) that the decree under this rule shall bind the parties on whose behalf the suit in instituted or
defended;

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 Representative Suits under CPC

(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 matter2.

Legal effect of permission granted under Rule 8 of Order I:

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.

ANALYSIS OF RULE 8, ORDER I

Sub-rule (1): There are two main conditions which must be fulfilled by a person to file or defend
a representative suit:

(a) There should be numerous persons, and

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.3

The principle consideration that is taken into account by a court is whether there is sufficient
community of interest as between the plaintiffs or the defendants to justify the adoption of the
procedure provided under this rule .4

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 a
suit as a representative suit.
2
Sarkar, Code of Civil Procedure , 1992, Pg 518.
3
Shantilal Bardichand Mahajan vs. Champalal Radhaji & Ors., AIR 1962 MP 363 (365).
4
Somnath vs. Tipanna Ramchandra, AIR 1973 Bom 276 (280).

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 Representative Suits under CPC

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 Order I, Rule 8 was allowed on the ground that question of limitation was not involved .5

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.6 It is only just and proper
that in a case where a person's rights are threatened by numerous persons, he 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 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 Order I Rule 8, where a
person sought to be made a representative refuses to do so.7

Sub-rule (2): makes it necessary for the representative party to give notice of such a 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 judicata by sub rule (6), to representative suits. It is the duty
of the Courts to see carefully that 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 it.8

5
Pramatha Nath Mitter & Ors. vs. Soumen Sen, (1989) 1 (Cal.) 655 (658).
6
Darshan Singh vs. Ram Pal Singh & Anr., AIR 1961 Punj. 111 (112).
7
Mohanlal Raghunath Prasad vs. Diwan Lachhman Singh & Anr., AIR 1960 M.P. 288, Dilip Construction
Company vs. Hindustan Steel Ltd., AIR 1973 MP 216.
8
Chandan Lal Joura vs. Amin Chand, AIR 1960 Punj 26 (28).

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 Representative Suits under CPC

Where, the plaintiffs filed a suit for the possession of the land in a representative capacity under
Order I, Rule 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 Order I, Rule 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 Order I, Rule 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
Order I, Rule 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 the issuance of such permission otherwise there, was nothing for that
Court to grant such permission expressly.9

Sub-rule (3): permits any such person to come to court to be made party to such a suit.
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 prayed.10 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 themselves implied as parties.11

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

9
Suraj Prakash & Ors. vs. Jagdish Raj & Ors., AIR 1987 J & K 79 (81).
10
The Municipal Council, Amravati vs. Govind Vishnu Sarnaik & Ors., AIR 1976 Bom. 401 (403).
11
Luxminarayan vs. Tehtul Masjid, (1978) 45 Cut LT 141.

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 Representative Suits under CPC

expense in the manner prescribed in sub-rule (2). After notice however the representative can
compromise the suit being dominus litis.12 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. 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 to be transposed is not acting with due
diligence. 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.13

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 followed by
the Courts.14

A decree obtained in a representative suit instituted in accordance with the provisions of Order I,
Rule 8 will be binding as res judicata on all the members that belong to the class who are sought
to be represented.15 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
that suit, whether they join and take interest in the suit or not. So a decree made in a

12
Amroha vs. Ganga Ram, AIR 1961 All 266(275)(DB).
13
Mulla: The Code of Civil Procedure with Explanatory notes and commentaries, N.M. Tripathi Pvt. Ltd. Bombay,
1976,Pg. 283.
14
Kodia Goundar & Anr. vs. Velandi Goundar & Ors., AIR 1955 Mad. 281 (283).
15
Supra 2.

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 Representative Suits under CPC

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
Explanation 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 against those 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, other kind of decree in regard to this bitadingness and
executability.

Even if the judgment does not specify in the decreetal portion that the suit is decreed against the
defendants in their representative capacity, the statutory effect is that it is binding on all persons
for whose benefit the suit was defended.16 Also, a representative suit does not abate on the death
of the representative as he or she can be substituted by another member of the plaintiff or
defendant.

REPRESENTATIVE SUITS AS AN INPUT FOR ACCESS TO JUSTICE

Following are major advantages of this kind of a suit:

(1) Social, Economic and Political Justice : Preamble to the Constitution of India enshrines
social, economic and political justice to Indian people.17 Part III of the Constitution gives
fundamental rights to Indian citizens.18 Articles 38 and 39A of the Constitution make it a
duty of the state to provide for equal social economic and political justice to Indian
people. Representative suits can help in bringing about justice and greater access to
justice for the Indian masses.19
(2) Greater access to justice: At times we come across poor quality of service or poor
quality of product, government inaction or lawlessness. Normally, as individually
fighting for the same is not economically feasible and possible we ignore the same. But,
if we use the tool of representative suits and if there are other people who have similar
experience, a suit which may be economically unfeasible individually, can become viable

16
Soman v. Appurty, AIR 1988 Kerala 212 (215).
17
The Constitution of India, 1950, Preamble.
18
The Constitution of India, 1950, Articles 12 to 35.
19
The Constitution of India, 1950, Articles 38 & 39A.

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 Representative Suits under CPC

due to collectivisation of resources. The need for such a tool is very much there as with
market economies growing in the world, such a tool can be a check on scrupolous people
who may calculate only the individual loss and on that basis continue with their
exploitation and/or illegal practices thinking that no one will take them to the courts of
law.
(3) Collectivisation of resources of a group: In a representative suit resources of a group
are gathered together. It will result in lesser burden on a single person and sound
collectivisation of resources.20 Morally, also when a group is behind a representative he
will be strengthened. They can engage highly competent and innovative lawyers,
examine expert witnesses and see to it that trial is conducted in the best possible manner.
All parties can share the expenses as well as fruits of the litigation.
(4) Economies of time, money and energy: Representative Suits can save time, money and
energy of the plaintiffs, defendants and even the Court, a much needed function. But, for
this provision persons having same interest would be required to file separate suits,
defend them separately and the courts would be required to take separate trials and give
separate judgements. Instead, the courts can try similar suits jointly. But, then in the
absence of a provision of representative suit or its use, similar suits filed by different
parties at different times are tried separately, sometimes even without knowing that a
similar suit has been decided. The notice requirement of a representative suit can do
away with this difficulty as everyone who wants to join has to join. Even if he or she
does not join, the decision will nevertheless be binding on them.
(5) Uniformity of decisions as to persons similarly situated: Representative suit is also in
the interest of judicial discipline and will help to preserve the system of precedents^All
the questions which are similar to the plaintiffs and defendants will be decided at once
and will be binding on the entire class. Further due to the applicability of the principles
of re judicata, the same questions can't be reagitated by mebmers of the same class who
were represented.
(6) Deterrence on illegal behaviour: As, if a class succeeds in getting what it wants, the
effect is going to be wide, far reaching and financially heavy, Representative Suits can

20
Supra 2.

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 Representative Suits under CPC

well act as deterrent to illegal behaviour of corporations, public officers etc.21 For
example, if compensation by way of damages is awarded to a class of people who have
suffered due to use of a consumable item, say for e.g., a soap, the manufacturer may have
to pay huge compensation if the product has been widely used'. It will also affect his
credibility and reputation in the market. This will of course have a deterrent effect on
him and others. It will aid the legitimate business enterprises by curtailing illegitimate
competition. The very existence of this device and its regular use can even result in
settlements out of court or through court considering its effects on the defendant.

21
Nani Palkhiwala: We the people. Strand Book Stall, 1984.

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CONCLUSION

Where there are numerous persons having same interest in one suit, one or more of such persons
may sue or be sued on behalf of all persons interested with the permission of the court in
accordance with Order I Rule 8 of CPC.
The provision for “Representative Suits” laid down in the code will save the precious time of the
Court and cut down expense. The matter can be determined in a single trial. It may be clarified
that the numerous persons may not have same cause of action or same transactions. What is
required is the same interest between parties to the matter.
The further proceedings of representative suit is dealt within Order I Rule 8 sub-rules (2) to (6)
of CPC. The Court shall give notice at the expense of the plaintiff to all interested persons. Any
person who has an interest in the suit and on whose behalf or benefit the suit is instituted or
defended may apply to make himself as a party to such suit. Any abandonment of claim in such
suit, withdrawal and compromise has to be made known to the parties. The decree passed in a
representative suit shall be binding on all persons.

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REFERENCES

STATUTE REFERRED

 The Code of Civil Procedure, 1908.

BOOKS REFERRED

(1) Mulla: The Code of Civil Procedure with Explanatory notes and commentaries, N.M.
Tripathi Pvt. Ltd. Bombay, 1976.

(2) C.K. Takwani, Civil Procedure with Limitation Act, 1963, 7th Ed., Eastern Book Company,
New Delhi, 2013.

WEBSITES REFERRED

 http://www.legalservicesindia.com/2212/Representative-Suits.html
http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/10/10_chapter%204.pdf
 http://www.shareyouressays.com/114927/section-436-of-code-of-civil-procedure-1908-c-
p-c-explained

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