Introduction
Representative suit simply means the suit filed by one person on behalf of the others who have similar interest in a case. A person may sue or be sued in representative capacity.
Provision – It has been mentioned under Order 1 rule 8 of CPC,1908.
Object –
Question arises why one person is allowed to file the suit on behalf of others ? Are the other persons
barred from filing the suit in separate capacity who have similar interest in a case?
Well, that is not the case here .As a general rule, every party has to file its separate suit if it has such
right. But representative suit is the exception to this rule wherein one person is allowed to represent the
others due to the jointness of interest they possess. Object of allowing representative suit is many folds
as under :
If every person having similar interest is allowed to file separate suit then it would unnecessarily
complicate the proceedings as same questions of law and facts are likely to arise. That’s why it is
considered prudent that one of such persons is allowed to represent them and contest the suit.
Secondly, it prevents multiplicity of proceedings.
Thirdly, it saves litigation cost, time and energy of the parties as well as the staff of court.
Concept of Representative Suit –
As stated earlier representative suit is mentioned under Order 1 rule 8 of CPC. The Supreme court in
Kalyan Singh v chhoti 1990 established the requirements of representative suit in the following manner :
Numerous persons –
According to the first condition laid down under Order 8 rule 1(1), it is said that the court must decide
whether the parties can be made numerous based on the facts of each case, taking into account, among
other things, the nature and subject matter of the dispute. Further, it was observed that the body of
persons represented by the plaintiffs or defendants does not have to be ascertainable and all that is
required is that they must be sufficiently distinct that would help the Court acknowledge.
In Masjid Shahid Ganj v SGP Committee (1938) court held that a suit with respect to the property of a village or a
community or sect, any person belonging to such community, village or sect may file a suit irrespective of the fact that
act in question affects only to the others members of village etc.
Same interest
To enable a person to file such suit,”similarity of the same interest” is the requirement and not the “same cause of
action.(Explanation appended to order 1 rule 8)
Difference between same interest and same cause of action –
Same interest means a person having bundle of rights or entitlements with respect to a thing(subject matter of the suit).
For example, there is a public amusement park in your locality(lets say village),here every person has the right to
enter in such park and avail the facilities thereof which further means you are having rights and entitlements in the
form of drinking water, running, having exercise or rest or simply wandering etc. Every person availing such facilities is
said to have same interest in such subject matter.
On the other hand, cause of action means a person has certain right and that have been violated by some other
person. In the above mentioned example if any person obstructs your entry in the park without any reason or creates
any kind of public nuisance then you would have cause of action against such act. You had some right and that has
been violated by a person.
For representative suit, one need not to have same cause of action rather violation of same interest would be
sufficient to get impleaded in the suit. To be more clear, even if you happened to be absent on the day when public
nuisance is created or you were not affected by it, still you may file a representative suit on behalf of others.
In the case of TN. Housing Board v. T.N. Ganapathy(1990), where the Housing Board assigned residential buildings
to applicants who had low-income but the issue arose when excess demand was being created after the settlement
of price. Thereafter, a lawsuit was filed in a representative capacity to dispute this, and was argued that such a suit in
a representative capacity could not be maintained because each allotee received a separate demand notice, resulting
in different causes of action. The Hon’ble Supreme Court in this particular case held that all of the allottees shared the
same interest and that the lawsuit may proceed.
Permission of the court
Court’s permission is mandatory for filing or defending the suit in representative capacity. Court may even direct any of the interested persons to sue or be sued on behalf of others.
- Notice to persons interested –
Court is duty bound to notify all the persons interested in the suit.
Such notification has to be done at the plaintiff’s expenses either by personal service or by public advertisement.
Relevance of Order 23 with Order 1 Rule 8 –
Suppose a person is representing a suit on behalf of others and while the proceedings are pending in the court,is he
allowed to abandon, withdraw or make a compromise of the suit with the opposite party straightaway?
Answer lies under order 1 rule 8(4).
If a person suing or being sued in a representative capacity, then he can’t just straightaway abandon, withdraw or
enter into any compromise or make an agreement for any satisfaction because he is not alone in the suit whose
interests are at stake rather there are numerous persons.Therefore any such act as above-mentioned shall be done
only after the court has given notice of such initiative to the all persons interested.
Res judicata and the representative suit –
Plea of res judicata bars a subsequent suit based on the same cause of action between same parties litigating under
same title among other things.(section 11)
Explanation 6 appended to section 11 of CPC provides that Where persons litigate bona fide in respect of public right
or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the persons so litigating.
It is clear from the explanation that all the persons interested in the suit are deemed to claim their right through the
representor of such suit.And once such suit is finally decided by court,no subsequent suit can be filed by any person
who was interested in the representative suit.The decision in a representative suit is binding on the all the persons
concerned.
Can a person be impleaded in the representative suit once the limitation period is over to file such suit?
When the person as a plaintiff is to be impleaded –
Once a person having same interest in the suit lets the limitation period over and does not assert his right within
period provided then he can’t be impleaded as plaintiff because a person cannot be heard who sleeps over his rights
and doesn’t assert them on time.
When a person as a defendant is to be impleaded –
Once the limitation period is over against a person, he can’t later be added as a defendant in the representative suit.
But as per section 21 of Limitation Act 1963,if such person as a plaintiff or defendant was not added due some
bona fide mistake of the party then even after expiry of limitation period, he can be impleaded.
Distinction between representative suit and the public interest litigation –
It is a popular misconception that PIL and the representative suit are same but that is not the case. Both differs from
each other.
There is no doubt that both are filed on behalf of the others but fundamental difference lies in the fact of right to locus
standi. In PIL any person from the society can represent the people on a matter of common grievance. He need not to
have any kind of interest in the subject matter of PIL whereas the right of filing the representative suit is rested only
with the person who is interested in some way in the subject matter of the suit. He not only files the suit for himself but
for others also.
Conclusion –
Court is the place of administration of justice and it must not be overwhelmed by the technicalities in the methods of
entertaining the suits.Court is not only empowered to direct the party to bring separate suits of suits if the same
causes delay or complicate the proceedings but also to allow various parties to file the suit in representative capacity
if the fact and circumstances so requires for the ends of justice. Concept of Representative suit is also supported by
principles of equity and good conscience which fulfils the above-mentioned justice.
Good!!