Saji Koduvath, Advocate, Kottayam.

Introduction

Order I rule 8 of the Code of Civil Procedure, 1908, enables the plaintiffs to file a suit in a representative capacity on behalf of or for the benefit of a class of (numerous) persons. There should be a common grievance, seeking a common relief also. Law requires proper notice (including news-paper advertisement) to all such persons interested.

Object of Order I rule 8

The object of Order I rule 8 is to avoid multiplicity of litigation (Chairman, T. N. Housing Board, Madras v. T. N. Ganapathy, AIR 1990 SC 642, 1990-1 SCC 608).

In Narayanan v. Kurichitanam Educational Society, AIR 1959 Ker 379, it was pointed out that it would be difficult to prescribe a minimum number which would be sufficient to satisfy the expression ‘numerous’ as used in Order I, r. 8. It is a matter of discretion left to the court.

When Order I Rule 8 Representation allowed

Order I Rule 8 reads as under

“8. One person may sue or defend on behalf of all in same interest.

• (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 persons so interested;
  (b) the Court may direct that one 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 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.
• (4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order,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 person on whom behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.”

Numerous Persons “Having The Same Interest”

Order I Rule 8 can be invoked,  with the permission of the Court –

• (i) where numerous persons having the same interest have to sue (as plaintiff) or
• (ii) numerous persons having the same interest are to be sued (as defendants)
• (iii) it can be invoked by the defendants also, for Order I Rule 8 (1) (a) says – “one or more of such persons may, with the permission of the Court … defend such suit, on behalf of, or for the benefit of, all persons so interested”.

“Numerous Persons” need not have “same cause of action”

The Explanation to this rule was introduced by the Code of Civil Procedure (Amendment) Act, 1976. It was needed as doubts arose as to whether the party representing others should have the ‘same cause of action as the persons represented by him’.

The objects and reasons for the amendment were stated below:

• “Rule 8 of O. I 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 representing 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. ” (Quoted in Chairman, T. N. Housing Board, Madras v. T. N. Ganapathy, AIR 1990 SC 642, 1990-1 SCC 608)

‘Sameness of Interest’ Or ‘Community of Interest’ of Numerous Persons

In Chairman, T. N. Housing Board, Madras v. T. N. Ganapathy, AIR 1990 SC 642, 1990-1 SCC 608, it is said as under:

• “7. … The provisions of O. 1 R. 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 words either the interest must be common or they must have a common grievance which they seek to get redressed. In Kodia Goundar v. Velandi Goundar, ILR (1955) Mad 335, a Full Bench of the Madras High Court observed that on the plain language of 0.1, R.8, the principal requirement to bring a suit within that Rule is the sameness of interest of the numerous persons 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 enacted is really to facilitate the decision of questions, in which a large number of persons are interested, without recourse to the ordinary procedure.”       

Chairman, T. N. Housing Board, Madras v. T. N. Ganapathy, AIR 1990 SC 642, 1990-1 SCC 608. Is referred to in the following decisions:

• Brigade Enterprises Limited v. Anil Kumar Virmani, AIR 2022  SC 119; 2022-4 SCC 138
• Manish Kumar v Union of India, 2021-5 SCC 1
• Anjum Hussain v. Intellicity Business Park Pvt Ltd., 2019-6  SCC 519,
• Shri V. J. Thomas v Shri Pathrose Abraham, AIR 2008 SC 1503; 2008-5 SCC 84.

Interest Need Not be Identical or joint and concurrent

To invoke O I r 8 CPC what is needed is same or similar interest. It need not be identical or ‘interest in entirety’.

In K. P. Venkata Subbaiah v. Hlndupur Municipality, 1976-1 APLJ 302, it was pointed out that Community of Interest is therefore essential and it is a condition precedent for bringing a representative suit. (Referred: Kodla v. Velandi, ILR 1955 Madras 339). But, the Madras High Court (K. P. Venkata Subbaiah) pointed out that “it is not necessary that the interest should be identical or should be joint and concurrent“.

Whether O.I r.8 Decree is Res Judicata

• Order I Rule 8(6)says that 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.

Whether the decree in such a suit operates as res judicata against the persons who are represented remains as a controversy.  In any event, by the insertion of Sub-rule (6) to rule 8 of Order I, in 1976, it became legitimate to say that the decree stands as res judicata. Sub-rule (6) lays down that a decree passed in a suit under rule 8 shall be binding on all persons on whose behalf or for whose benefit the suit is instituted or defended.

Therefore, the view taken in Srinivasa Aiyankar v. Aryar Srinivasa Aiyankar, (1910) ILR 33 Mad 483 : 6 IC 229, that the decisions do not bind on those who were not actually (eo nominee)  parties (and hence not res judicata and not enforceable in execution)  does not hold good at present. This view in Srinivasa Aiyankar had been taken in following cases (prior to 1976) also:

• Sahib Thampi v. Hamid, 36 Mad. 414
• Walker v. Sur, 1914-2 KB 930
• Hardie and Lane Limited v. Chiltern, 1928-1 KB 663
• Kodia Goundar v. Velandi Goundar. AIR 1955 Mad 281

When Order 1 rule 8 Petitions are Dismissed

• No sameness of the interest i.e. no common grievance – Surender Pal Singh VS DLF Homes Panchkula Pvt.  Ltd., 2018-3 CPJ(NC) 534; 2018-2 CPR (NC) 752
• No common interest or common grievance – Surender Pal Singh VS DLF Homes Panchkula Pvt.  Ltd., 2018-3 CPJ(NC) 534; 2018-2 CPR (NC) 752
• Not seeking same/identical relief- Surender Pal Singh VS DLF Homes Panchkula Pvt.  Ltd., 2018-3 CPJ(NC) 534; 2018-2 CPR (NC) 752
• Suit/complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking a common relief (Surender Pal Singh VS DLF Homes Panchkula Pvt.  Ltd., 2018-3 CPJ(NC) 534; 2018-2 CPR (NC) 752)

Whether O.I r.8 Decree is Enforceable in Execution against one ‘Represented’

The enforceability of an injunction decree, under r. 32 of O. XXI, in a representative suit against the persons represented is yet to be resolved either by enactment, or by an authoritative decision taking note of the divergent views of various High Courts in this matter.

It is noteworthy that even when Sub-r. (6) of r. 8 of O. I was not available in the Code, it was observed in Waryam Singha v. Sher Singh, AIR 1942 Lah 136, that the decree for injunction could be executed against any of the persons who were represented under O. 1 r. 8 CPC; because,  all the persons who were represented must be held to be parties as the decree obtained in such a suit was binding on all of them. This view is taken in following cases also:

• Mool Chandra Jain v. Jagdish Chandra Joshi, AIR 1955 All 385
• Abdulla v. Parshotam Singh, AIR  1935 Lah 33
• Jatindra Mohan Banerje v. Kali Charan, AIR 1960 Cal 623

Relying on Shri V. J. Thomas v. Shri Pathrose Abraham, AIR 2008 SC 1503, and Kodia Goundar Vs. Velandi Goundar, AIR 1955 Mad 281,the Kerala High Court has in Narayanan V. Periyadan Narayanan Nair, 2021 (3) KHC 211 (FB) held that execution of a decree is not possible if he was not impleaded as a defendant. The Full Bench overruled James Vs. Mathew (ILR 2012-4 Ker 753, 2012-4 Ker 640, 2012-4 Ker LT 666, 2012-4 KHC 604 ), which held that a decree for injunction obtained in a representative suit is binding on all persons for whose benefit the suit was defended, though they were not eo nomine parties to the suit; and that in case of wilful disobedience of such a decree by those persons for whose benefit the suit was defended, it is enforceable against them under r. 32 of O. XXI of the Code.

Theory of Revival of Decree of Injunction by a Separate Suit

The Madras High Court, in Kodia Goundar Vs. Velandi Goundar, AIR 1955 Mad 281, propounded a theory of ‘revival of injunction‘, in a representative suit, by a separate suit. It was observed as under:

• “11. This principles that a decree for injunction cannot be extended so as to render those who are not ‘eo-nomine’ defendants liable for disobedience of the decree is based on sound and equitable grounds. Before any person could be proceeded against personally for disobedience of a decree of court, it must be shown that he was bound personally by the decree and obliged to obey such a decree. To entitle the decree-holder therefore to proceed against such persons who are not parties on record the injunction must be revived against them, which must be by a separate suit and in such a suit an opportunity will be afforded to them to raise appropriate defences. Without a revival therefore of the decree for injunction against these other persons, no proceedings in pursuance of the decree could be started against them.”  

Read Blog: Decree in OI R8 CPC-Suit & Eo-Nomine Parties