G.B. THAPA vs TAJENDRA PAL SINGH GULIANI

THIS appeal under Section 15 of the Consumer Protection Act, 1986 (for short "CP Act") is by a group of consumers who had filed a joint complaint which has been dismissed by the Forum below with liberty to the appellants to file separate complaints in respect of their individual grievances, vide order dated 3.1.2003 in Case No. 181/2001.

THE appellants are 14 in number who have purchased one flat each in a multi-storeyed complex constructed by respondent No. 2 - M/s. Competent Builders & Developers respondent No. 1 Tajendra Pal Singh being their partner. THE appellants filed joint complaint before the Forum below alleging more or less similar defects in their individual flats as also in respect of certain services of common use in the complex. During the hearing of the complaint, an application was made under Section 12(1)(c) and Section 13(6) of the C.P. Act read with Order 1 Rule 8 of the Code of Civil Procedure, 1908 for permission to file and prosectue the complaint in representative capacity. The Forum below vide impugned order has not only dismissed the application but also the complaint with liberty to the appellants to file separae complaints in respect of their individual grievances.

We have heard Mr. V.K. Saxena, learned Counsel for appellants and Mr. Shashank Pandey, learned Counsel for respondents.

THE question requiring determination is whether the appellants could jointly file and prosecute the complaint in the form and manner presented by them before the Forum below. We may here usefully refer to certain provisions of the C.P. Act relevant for the purpose of this appeal. Section 2(1)(b) defines the term "complainant" and Clause (iv) thereof provides that complainant means one or more consumers, where there are numerous consumers having the same interest (inserted by the Amendment Act of 1993 w.e.f. 18.6.1993). Section 12 lays down the manner in which the complaint shall be made. While under Clause (a) of Sub-section (1) of Section 12, a complaint may be filed by the consumer to whom goods are sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided; Clause (c) enables one or more consumers where there are numerous consumers having the same interest, with the permission of the District Forum to file complaint on behalf of, or for the benefit of, all consumers so interested. Sub-section (6) of Section 13 makes the provisions of Rule 8 of Order 1 of the first Schedule of Code of Civil Procedure, 1908 applicable in a case where the complainant is a consumer referred to in Sub-clause (iv) of Clause (b) of Sub-section (1) of Section 2.

WE may also refer here Rule 8 of Order 1, CPC 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 such suit, on behalf of, or for the benefit of all persons so interested. This provision is more or less the same as contained in Clause (c) of Section 12(1) of the C.P. Act. When we read the aforesaid provisions in juxtaposition two things clearly emerge : one that a complaint can be filed by an individual consumer or by one or more consumers jointly having the same interest; and two by one or more such consumers on behalf of, or for the benefit of all consumers so interested. It is only in a latter contingency that permission of the Forum as envisaged under Section 12(1)(c) of the C.P. Act and Order 1 Rule 8, CPC shall be required. If all the aggrieved persons having same interest are before the Forum then notwithstanding that the complaint is filed by more than one persons, no permission under Section 12(1) (c) would be necessary. However, before any such complaint filed jointly by more than one consumers can be entertained, it is necessary to demonstrate that their interests are similar or common to all. The legal position on the point is made luculent by a decision of the National Commission in the case of M/s. Anil Textorium Pvt. Ltd. v. Rajiv Niranjanbhai Mehta, III (1997) CPJ 31 (NC) in following words: "The complainants can be one or more consumers, where there are numerous consumers having the same interest. The interest must be common to them all or they must have a common grievance which they seek to get redressed. The sine qua non for applying under Section 2(i)(b)(iv) read with Section 13(6) is the existence of same interest. Community of interest is an essential condition precedent for bringing a complaint by more consumers than one. The definition clause does not restrict or fix any limit to the number of consumers who may join in a complaint where there is community of interest. Where all the consumers jointly interested are made parties to the complaint, it is not a representative complaint in the strict sense of the provisions of Order 1 Rule 8 and no permission is necessary. When there are identified consumers in the complaint, the trial of the complaint and grant of reliefs, if found entitled, would present no difficulty."

In the case before us the consumers in the complaint are identified and they have complained of more or less similar defects in the apartments purchased by them from the respondents or in the area of common utility in the complex developed and built-up by the respondents. In such a situation the complaint cannot be termed as a representative complaint in the strict sense of the provisions of Order 1 Rule 8, CPC and as held in the case of M/s. Anil Textorium (supra) no permission was necessary. The appellants were entitled to maintain such a complaint jointly. Needless to say that in law singular includes plural and the term "complainant" referred to under the C.P. Act would mean and include more than one such complaint having similar interest. In fact, this is so provided expressly under Section 2(1)(b)(iv) of the C.P. Act. The Forum below in our considered view was wrong in dismissing the complaint. We, therefore, set aside the impugned order and remand the case back to the Forum below for decision in accordance with law. We, however, make no order as to costs which the parties are left to bear their own as incurred. Appeal allowed.