AI Structured Summary
Not yet generated for this judgment
Judgment
Heard. Rule. Heard finally by consent of parties in terms of order dated 20th April 2018.
Both these petitions challenge legality and correctness of the order dated 8.2.2018 rejecting application of the petitioner plaintiff seeking leave to
treat the suit as representative suit in view of Order 1, Rule 8 of the Code of Civil Procedure. The applications were filed after the evidence of both
the sides was over and the suits were pending for arguments. The trial Court observed that it was too late min the day to file such applications and,
therefore, leave was refused.
It is submitted by learned counsel for the petitioner that law is now well settled after a view is taken by this Court in the case of Hiraman Nathuji
Vaidya v. Dewakripa Sahakari Griha Nirman reported in 2007 (5) Bom. C. R. 463 that leave can be granted subsequent to the filing of the suit and
during the pendency of suit. Reliance is also placed on Radhaswami Satsang Sabha, Dayalbagh, agrawal v. Smt Puttan & ors reported in AIR 1984
Allahabad 198 wherein it has been held that leave to file suit under Order 1, Rule 8 CPC can be granted at any time during the pendency of suit and
even at the appellate stage, because no time limit has been prescribed for seeking such relief.
Shri Wahane, learned counsel for respondent no. 1 is, however, in disagreement with the arguments advanced on behalf of the petitioner. According
to him, leave to institute suit is required to be obtained before hand and it cannot be granted after the suit is instituted. He submits that in order to
initiate a representative suit, the plaintiff must take due care to see that he has the capacity to institute the suit and such capacity can be conferred
only when the leave is obtained from the Court to institute a suit of the representative capacity. If this condition is not fulfilled, learned counsel further
submits, it would be a suit instituted by improper party and, therefore, not maintainable at all. He places reliance upon the view taken by the learned
single Judge of this Court in Gorakh Hilal Patil & anr v. Parit Samaj Seva Mandal & anr reported in 2012 (1) ALL MR 812.
I have gone through the impugned order and also documents placed on record. I have considered the case law cited on behalf of both the sides. On
perusal of the judgment of this Court in Hiraman (supra), I find that the judgment has been rendered in the facts peculiar in that case. In paragraph 6,
although a reference has been made to the view taken by the Allahabad High Court in the case of Radhaswami Satsang Sabha (supra) that an
application with a prayer for grant of leave to institute suit under Order 1, Rule 8 CPC can be filed at any stage of the suit or even at the appeal stage,
this Court thought it fit to adopt the view only in a limited manner considering the fact that the application under Order 1, Rule 8 COC was filed
immediately after the objection for dismissal of the suit on the ground that no leave was obtained was filed by the other side. Against the backgrou8nd
of this fact, in exercise of writ jurisdiction, this Court thought it fit to consider the application so filed as an application filed at the beginning of the suit
proceedings. But, in the instant case, the facts are entirely different. In the Written Statement, an objection as to the maintainability of the
representative suit was taken and the issues were also framed. The first issue which has been framed in the instant suit is that of maintainability of the
suit in the absence of leave taken from the Court for instituting a suit. The parties led evidence on this issue and also on the remaining issues and now,
the suit has reached the stage of final arguments. Learned counsel for the petitioner submits that no such application was filed immediately, because
the application filed by the respondent for rejection of the plaint under Order VII, Rule 11 CPC was rejected and, therefore, petitioner was under
impression that the suit was maintainable though he realized it later on that it was better to obtain leave of the Court and only out of abundant
precaution, he filed application under Order 1, Rule 8 CPC. If the petitioner was so sure about the maintainability of the suit, especially when the
application for rejection of the plaint was earlier dismissed by the Court, there was no reason for the petitioner to be apprehensive even in a small
measure of the correctness of their action in bringing suit without leave of the Court. But, the petitioner did file such an application and it shows that
some where at the back of their mind, fear was existing and, therefore, application was filed. The moment application under Order 1, Rule 8 CPC
came to be filed, what had followed was an inference about the admission of the petitioner that there was possibility of the suit being held as not
tenable in absence of leave having been taken under Order 1, Rule 8 CPC. All these facts and circumstances of the case would show that the
petitioner should have filed application before or at the time of filing of the suit or at least immediately thereafter so that no such acts were performed
by both the sides as would have no validity in the eye of law. After all, anything done in a representative suit institute without leave of the Court, would
have to be termed as having been done without authority of law and hence, vitiated. In order to avoid such situation from arising, it was imperative on
the part of the petitioner to have filed application under Order 1, Rule 8 CPC so that any further damage occurring in their case was prevented well in
time and before it was too late. But, in the present case, the proceedings have reached the stage of finality and, therefore, now the clock cannot be
turned back and if it is turned back, it would have to be done by closing everything that has so far been done by the parties with cover of validity in the
eye of law. But, this cannot be done as there is no provision found in the Code of Civil Procedure empowering the Court to do so. For these reasons, I
am of the view that the petition would get no assistance from the judgment of this Court in the case of Hiraman (supra).
As regards the judgment of the Allahabad High Court in Radhaswami Satsang (supra) holding that leave to sue or be sued can be obtained at any
stage of the suit and even at the appellate stage, I would only say with due respect, does not commede to me. The reason being that this judgment
does not take into consideration all the relevant provisions of Order 1 CPC. The judgment does not consider the plain meaning conveyed by the
expression under Order 1, Rule 8 (a) to the effect, “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 interestedâ€, which conveys the only meaning that the representative suit may be
instituted or may be defended with the permission of the Court. The effect of this expression is that as long as permission of the Court is not granted,
representative suit cannot be initiated or defended, and if it is initiated or defended, it would have no validity in the eye of law. After all, no one can file
a suit unless he has capacity conferred in law upon him and the same principle will also govern when it comes to defend suit. The capacity to institute
a suit has a direct relation with the provisions of Order 1, Rule 1 CPC which lays down that all persons may be joined in one suit as plaintiffs where
any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons,
whether jointly, severally or in the alternative; and if such persons brought separate suits, any common question of law or fact would arise. An
unregistered society, which is not a body corporate in terms of Section 36 of the Maharashtra Cooperative Societies Act, 1960, as in the present case,
is not an individual person contemplated under Order 1, Rule 1 CPC who would have any right to seek relief. Therefore, as long as the bar of Order 1,
Rule 8 CPC is crossed over, no suit can be instituted by way of representative action. Such a suit instituted without obtaining leave of the Court would
be a suit brought by wrong person and, therefore, the person who could have rightfully instituted the suit would still with the aid of Order 1 CPC can
seek to make necessary correction. But, this must be reflected from the facts manifestly clear from the fact of record. In the present case, this is also
not a case and effort has been made by all the members of the petitioner Society, stated to be 13 in number, to appear before the Court and satisfy
that the suit has been instituted through a bonafide mistake. The purpose of Rule 10 of Order 1 CPC is to enable the person entitled to claim a relief
by filing a suit to get justice from the court and also be not thrown out from the court for the technical reason of a suit having been filed by a wrong
person. So, there is a provision which bars a wrong person from instituting the suit on the one hand and there is provision for rectification of such
mistake of instituting a suit, on the other a combined effect of which is that the mistake occurring in filing of a suit by a wrong person must be
corrected as soon as possible and not at a belated stage. However, all these provisions have not been considered in Radhaswami Satsang (supra) and,
therefore, in my humble opinion, this judgment would render no assistance for resolution of the issue involved in the present case.
On the other hand, the view taken by this Court in the case of Gorakh Hilal (supra), in my humble opinion, would be applicable to the present case.
This Court has taken a view that in a representative suit, care must be taken to ensure that necessary parties are before the Court â€" plaintiff or
defendant or otherwise, suit will have to fail and the suit instituted in the name of unregistered society is not maintainable unless all the members of the
society are jointed as party to the suit. Of course, learned counsel for the petitioners in both the petitions submits that the facts of this case are
different, in sense that in that case, no application under Order 1, Rule 8 CPC was filed seeking leave of the Court to institute a suit and, therefore, the
Court held that the suit without any such leave having been taken, was not maintainable. True it is, no application under Order 1, Rule 8 CPC was filed
therein. But, here we are only on the principle propounded in that case and the principle is that when the suit is instituted in the name of unregistered
society and in the absence of all the members of the society being party to the suit, the suit is not maintainable. It is this principle which calls for its
application to the facts of the present case.
When the aboveÂreferred principle is applied to the facts of the present case and I do feel that it is applicable, the result would be that if leave to
file a representative suit at such a belated stage of final arguments is granted, it would necessitate reÂtrial of the whole suit as there is no provision in
Order 1 of the Code of Civil Procedure or elsewhere to validate the acts of the parties performed earlier without any authority in law. In other words,
whatever has been done so far including evidence of the parties, would stand vitiated and a new trial would have to be ordered. But, that would not be
in the interest of justice, especially when the petitioner was well aware of the objection taken in the Written Statement about maintainability of the suit
and yet the petitioner did nothing for a considerable period on the ground that rejection of application under Order 7, Rule 11 CPC was an assurance
to the petitioner that the suit was maintainable. I find that that rejection was also not an assurance, as alleged, otherwise the petitioner would not have
filed application under Order 1, Rule 8 CPC, may be in the name of abundant precaution. Application was rightly rejected by the trial Court on the
ground of its belated filing. There is no merit in the petitions.
Writ Petitions are dismissed. Rule is discharged in both the petitions. No costs.