Order I rule 8, CPC (Representative Suit) When and How? Whether Order I rule 8 Decree is Enforceable in Execution?

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  • (4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order,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 v. 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 v. 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.”  

Representative Suit (OI, r8) Not Abate on death of a Plaintiff or a defendant

In Charan Singh v. Darshan Singh, AIR. 1975 SC 371, it was held by our Apex Court as under:

  • “… Since the suit had been filed in a representative capacity, it is clear that on the death of one of the plaintiffs it did not abate.”

In Jagdam Ram v. Asarfi Ram, AIR 1937 Pat. 149, it was held that the provisions of Order 22, CPC relating to the death of a plaintiff or a defendant cannot be applied to a case instituted or defended by a few persons on behalf of numerous persons not on record under Order I, Rule 8, CPC. (Referred to in: C. Ramasamy v. The District Collector, 1990-2 LW 363; 1990-2 MLJ 562).

In C. R. Ramakrishnan v. Raman, 1983 1 ILR(Ker) 566; 1983 KLT 63, it was held (referring Charan Singh v. Darshan Singh, AIR. 1975 SC. 371) as under:

  • ” 7. Learned counsel for the respondents raised a preliminary objection to the effect that since the legal representatives of the 6th respondent have not been impleaded, the appeal has abated cot only against the 6th respondent but as a whole. Learned counsel for the appellant would submit that the suit being a representative one, it was unnecessary to implead the legal representatives of a deceased defendant and the death of such a representative party cannot lead to abatement of the appeal to any extent.
  • 9. …. In an appeal filed before the Supreme Court (in Charan Singh and another v. Darshan Singh, AIR. 1975 SC. 371) by some of the defendants, it was contended that the second appeal had abated in view of the failure to implead the legal representatives of one of the plaintiffs. Relying on the decision Raja Anand Rao v. Ramdas Daduram (AIR. 1921 P.C.123), the Supreme Court held that as the suit was filed in a representative capacity, on the death of one of the representatives, the suit did not abate. That was because the suit was not prosecuted by individuals in their own interest but as representatives of others. There could be no abatement in such a case. We also notice that various High Courts have taken the same view. Vide

In K. Suseelan, v. Thamarakshy, 2020-1 KHC 618; 2020-1 KLJ 745, it is observed as under:

  • “But, the death of any of the defendants would attract the rigour of Order 22 C.P.C. ( Rule 3 or 4),unless it was defended in a representative capacity for the persons having the same defence in the suit.”

In G.F.F. Foulkes v. Suppan Chettiar, AIR 1951 Mad 296, Rajamannar, C.J., observed at page 300 as follows:

  • “There is authority for the position that when a suit is brought by several persons in a representative capacity, and if one of them dies, the suit does not abate, because, the right to represent others of a class is not a right which ipso facto survives to the legal representatives of the deceased party. The source of that right is the order of the court permitting the party to represent others. In such a contingency, namely, the death of one of the parties to whom originally permission was granted to institute a suit in a representative capacity, it is for the court to decide whether the suit can be allowed to be continued by the surviving person or persons or whether other person or persons should be joined….” (Quoted in: C. Ramasamy v. The District Collector, 1990-2 LW 363; 1990-2 MLJ 562; C. Ramasamy v. The District Collector, 1990-2 MLJ 562;

In G. Christhudas v. Anbiah, AIR 2003 SC 1590: 2003-3 SCC 502, the Apex Court held that a representative suit does not abate on the death of the plaintiff. It is for two reasons:

  • Firstly the plaintiff does not represent only himself but represents all other persons on whose behalf he is prosecuting the suit, thus all those persons are also parties to the suit albeit constructively, the conduct of the suit being in the hands one person to whom permission has been granted by the court and in case of his death, any other person can continue the suit.
  • And secondly, the persons represented by the plaintiff cannot said to be legal representatives of the deceased plaintiff within meaning of Section 2 (11) of Code of Civil Procedure and hence the provisions of order 22 would not apply to such case. (See: Sadati Al Hussaini Al Jalali Trust v. Qasim Ganaie (J&K High Court, 03.05.2024)

The Apex Court held as under:

  • “… The High Court after adverting to the decision of this Court in Charan Singh v. Darshan Singh, AIR 1975 SC 371, and Ramaswamy vs. Collector of Dindigul, 1990 II MLJ 562, set out the law correctly to the effect that if a suit had been filed in a representative capacity, there can be no abatement on the death of any one of the plaintiffs or the appellants; that only Article 137 of the Limitation Act is applicable and within the period set out therein an application for impleadment could be made inasmuch as no particular provision is made therein as to the period within which such application can be filed.”

In Abdulkhader Haji v. Kunhammed, AIR 1986 Ker 3, it is pointed out relying on T K. Amma v. M. K. Ravunni Nair, AIR 1965 Ker. 303, and Charan Singh v. Darshan Singh, AIR. 1975 SC 371, that there would be no abatement of a representative suit by the death of the plaintiff.

On death of a Trustee, Trust Would Not Fail; Vests in Remaining Trustees

In Kapoorchand Rajendra Kumar Jain v. Parasnath Digambar Jain Bada Mandir, 2000-1 MPJR 199, it is held as under:

  • “A trustee exercises the rights of the beneficiary in such a dispute. He represents and personates the beneficiary, while dealing with the world at large. Thus, he acquires a legal personality. If there be more than one trustee, then all of them conjointly form a corporate or legal personality. This principle has been recognized under Order 31 Rule 1 of the Code of Civil Procedure. The Court has ample power to order that a suit on behalf of the beneficiary shall be represented by one or more trustees. Where there be order of the Court or if the requirement of the law, all trustees have to be joined as parties to the suit. The trust would not fail because one of the trustees had died after filing of the suit. The body of trustees is not dissolved. The trust vested in the remaining trustees shall continue. The rights and the duties of the trustees are not abrogated by the death of one of trustees. So in this case, the remaining trustees after the death of two trustees could continue the suit. The right to sue for and on behalf of the beneficiary continued. There was no abatement. This principle was recognized by the Privy Council in the case of Raja Anand Rao v. Ramdas Daduram and others, reported in AIR 1921 P.C. 123, wherein their Lordships stated that a suit, filed under Section 539 of the Code of Civil Procedure Code, 1882, could continue even after the death of person whom the Court granted permission to sue. It could be continued by a member of the public. This case was referred to with approval of the decision in the case of Charan Singh and Anr. v. Darshan Singh and others, reported in AIR 1975 SC 371 (at para 5 page 373). In somewhat similar circumstances, the Supreme Court in the case of Krishna Singh v. Mathura Ahir and others, reported in AIR 1980 SC 707, held that the death of Mahant during the pendency of a suit for ejectment brought by him against a trespasser would no cause the suit, to abate. It is true that the obligations of a Mahant are not that of a trustee but his office is akin to the office of a trustee. Therefore, the principle laid down in that case would apply.”

Effect of the death of a party in a suit under Section 92, CPC

In Charan Singh v. Darshan Singh, AIR. 1975 SC. 371, considering the effect of the death of a party in a suit under Section 92, CPC, the Supreme Court held that there was no abatement on the death of one of the plaintiffs. The Supreme Court referred to with approval the decision of the Privy Council in Raja Anand Rao v. Ramdas Deduram, 48 LA. 12. (See: C. Ramasamy v. The District Collector, 1990-2 LW 363; 1990-2 MLJ 562).

On death of a Trustee, new Trustee cannot be a Legal Representative

It is pointed out in Sadati Al Hussaini Al Jalali Trust v. Qasim Ganaie (J&K High Court, 03.05.2024) the Apex Court had held, in two cases, that on the death of a trustee new trustee (elected or appointed) cannot be said to be a legal representative of the deceased trustee but is a person on whom the interest of the Trust property devolves, under the provisions of Order 22 Rule 10; as it applies to him. The cases referred to by the J&K High Court are the following –

  • Charan Singh v. Darshan Singh,1975 (1) SCC 298;
  • Karuppaswamy v. C. Ramamurthy, 1993(4) SCC 41.

But, in G.F.F. Foulkes v. A.S. Suppan Chettiar, AIR 1951 Mad 296, it was held as under:

  • “When a suit is brought by several persons in a representative capacity, and if one of them dies, the suit does not abate because, the right to represent others of a class is not right which ipso facto survives to the legal representatives of the deceased party. The source of that right is the order of the Court permitting the party to represent others. In such a contingency, namely, the death of one of the parties to whom originally permission was granted to institute a suit in a representative capacity, it is for the Court to decide whether the suit can be allowed to be continued by the surviving person or persons or whether other persons should be joined. The proper procedure , in a case like this, is for the remaining person or persons to apply to the Court for directions and it is for the Court to decide whether it will permit the remaining person or persons to whom the original sanction was given to continue to prosecute or defend the suit or appeal or it will give directions to bring on record additional person or persons.”

In a subsequent suit, Ram Kumar v. Jiwanlal, AIR 1960 Mad 288, the Madras High Court took a liberal view. It was held in this decision that 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 on defendant. (See also: Raja Anand Rao v. Ramdas Daduram, AIR 1921 PC 123, State of Rajasthan v. Mst. Parwati Devi, AIR 1966 Raj 210).

O 22 Not Apply to Repre. Suits where devolution (Not Substitution) takes place

In Jagadamba Bai & Beharilal Khandelwal v. Biswanath Jhunjhunwala, 1978 Cal HN 1050, it is observed as under:

  • 8. In a case reported in AIR 1975 SC page 371 between Charan Singh v. Darshan Singh, Supreme Court has held that where the suit is filed in a representative capacity death of one of the plaintiffs during the pendency of the appeal, the appeal does not abate. In AIR 1921 PC at page 123 in the case of Raja Anand Rao v. Ramdas Dadu Rao, a distinction was drawn between a suit which was prosecuted by an individual for his own interests and persons suing as representatives of the general public.
  • 9. Order 22 of the Civil Procedure Code provides the rules for recording the death and/or substitution of the parties.
  • Order 22 Rule 1 provides-
    • “The death of a plaintiff or defendant shall not cause a suit to abate if the rights of suit survive”.
  • Order 21 Rule 2 provides that
    • where there are more plaintiffs or defendants than one, and anyone of them dies and where the rights of a suit survive against the surviving defendants alone, the court shall cause an entry to that effect to be, made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants.
  • Order 22 Rule 10 provides
    • in other cases of assignments, creation or devolution of interest during the pendency of a suit, the suit may by leave of the court be continued by or against the person to or upon whom such interest has come or devolved.
  • 10. Order 22 does not apply to representative suits. Suits brought in a representative character can be continued under Order 22 Rule 20(10) by the successor in office. Where a trustee dies or retires or is removed and another is elected it is a case of devolution. In this respect the relevant cases are reported in AIR 1928 Cal. page 651 and also in AIR 1926 page 540. The right to apply in such a case is pending law and accrues from day to day and is therefore not barred by the law of limitation. In this respect, reference can be made to cases reported in 57 CWN page 710 and also AIR 1952 Pat. 323 and 30 Cal. page 609. In case reported in 36 CWN at page 816 (Sri Sri Keshab Rai Jeu Thakur & Raja Jyoti Prasad Sinsh Deo) a Division Bench judgment of this High Court presided over by Mitter J. and Bartley J. it was held that Order 22 Rule 10 of the Civil Procedure Code applies to a case of substitution of a person who had sued or held been sued against in a representative capacity. In the case reported in 27 CWN at page 710 which was referred in my order, Chatterjee J. and Pearson J. held that where the heirs are substituted on the ground of devolution of interest such interest would be governed by Order 22 Rule 10. It further held that three months limitation does not apply to a case of devolution pending the suit. It further held that application under Order 22 Rule 10 can be made in the Appellate Court even over the devolution of interest when the case was pending before the Trial Court.”

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