Dharam Pal vs Ram Bhagat and Others

K. Kannan, J.—The revision is against an order dismissing the application filed by the applicant to permit him to prosecute the application against the respondents and particularly to permit the applicant to prosecute in the representative capacity. It appears that even the suit had been filed against the defendants in the representative capacity and an order had been passed under Order 1 Rule 8 CPC, though ex parte. The case has been concluded after trial and a judgment had been pronounced showing the defendants as defending the action in a representative capacity on behalf of the sweepers of Village Farrukhnagar, Tehsil and District Gurgaon.

In appeal, an application had been filed to continue the proceedings against defendants in a representative capacity. The application had been dismissed by the Appellate Court and the appellant is the revision petitioner before this Court pointing out that even an application was not necessary to be filed at the Appellate Court. However, it had been filed by way of abandoned caution but it had been dismissed by the Appellate Court without adequate reasons.

Learned Counsel for the respondent states that the original order had been passed by the trial Court even without notice and even without plaintiffs furnishing the list of persons on whose behalf the defendants were to represent and therefore, the rejection by the Court below is correct.

The issue as to whether the procedure as laid down under Order 1 Rule 8 CPC for permitting the plaintiff to sue in a representative capacity itself does not appear to be1 a point in issue. The procedural formalities attendant on permitting a person to sue in a representative capacity are set out under the relevant provisions where the consideration shall be that parties though numerous; they have die same interest in the suit; the Court''s permission shall be obtained and notice shall be given to the parties who it is proposed to represent in the suit. This notice may be personal against every one of the persons who are not brought by the respective names but who shall be allowed to be impleaded through named persons. The other alternative would be instances where there are large body of persons and the notice could be issued by publication. The procedural formality of publication itself has been considered in several cases where if such publication is not effected, Courts have held that the case shall be understood as only being prosecuted against named individuals and would not operate as sued in a representative capacity. This has an important meaning since elsewhere u/s 11 of the Civil Procedure Code, the decision rendered on merits shall bind even persons who are not actually before the Court but whose interests are represented through named individuals. All these details are set forth only to point out to the requirements of Order 1 Rule 8 CPC and if they are not properly followed and if objection is not taken with reference to the frame of the suit as such, by the representatives so made, it shall not avail to any party to take a different view in the Appellate Court which is only a continuation of the proceeding of the original suit.

If the suit had been permitted to be prosecuted in a representative capacity, the same shall avail again even at the Appellate Court. I am not deciding here whether such an application shall necessary again before the Appellate Court but suffice it to point out that the Appellate Court could not have rejected the plea of the appellants to continue the representative character of the suit as regards the defendants. The dismissal of the petition is erroneous and the impugned order is set aside. The appeal shall be taken as being prosecuted against the respondents/defendants in a representative capacity in the same manner as described in the memo of parties before the trial Court and incorporated in the decree, which is the subject of appeal before it.

The civil revision petition is allowed in the above terms.