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What solution is offered by the Code of Civil Procedure, 1908 for meeting the difficulty when there are numerous persons having the same interest in one suit?

January 13, 2019 0 Comment

Such suits are called representative suits and are governed by Order 1, rule 8, of the Code of Civil Procedure, which provides that where there are numerous persons having the same interest in one suit, one or more of such persons may with the permission of the court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested, and the court may direct that one or more of such persons may with the permission of the court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested, and 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. [O. 1, R. (1)].

The court shall, however, in such case give, at the plaintiffs expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by advertisement, as the court in each case may direct, [O. 1, R. 8 (2)].

Any person on whose behalf or for whose benefit a suit is instituted or defended may apply to the court to be made a party to such suit. [O. 1, R. 8 (3)].

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It will thus be seen from the above that there are four conditions before the provisions of this rule can apply. They are as follows: (1) the parties are numerous; (2) they have the same interest; (3) the necessary permission of the court has been obtained; and (4) notice has been given to all the person interested in the suit.

Sub-rule (4) of R. 8 further lays down that no part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3) or R. 1 of O. 23 (which deals with withdrawal of suit or abandonment of part of claim), and no agreement, compromise, or satisfaction shall be recorded in any such suit under R. 3 of that Order, unless the court has given, at the plaintiffs expense, notice to all persons so interested in the manner specified in sub-rule (2).

Sub-rule (5) further lays down that where any person suing or defending in any suit does not proceed with due diligence in the suit or defence, the court any substitute in his place any other person having the same interest in the suit.

Sub-rule (6) lays down 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.

The object of the rule is to afford convenience in suits where there is a community of interest amongst a large number of persons, so that a few should be allowed to represent the whole in order to save the trouble and expense.

(b) Res judicata:

A decree passed in a representative suit operates as res Judicata in a subsequent suit against such interested persons although they may not have been added as parties to the suit.

Explanation VI to Section 11 provides that where persons litigate bona fide in respect of a public right or to a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of Section 11, be deemed to claim under the persons so litigating.

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