JUDGMENT
Mahmood Ali Khan, J.
1. The Supreme Court Bar Association filed on 17.4.1998 a civil suit under Order 37 of the CPC for recovery of money from the petitioner (defendant) in the court of the District Judge. Inter alia, it was alleged in the plaint that the plaintiff was an association of advocates and it looked after the welfare of its members and the advocates in general. Mr. Rupinder Singh Suri, Honorary Secretary of the plaintiff association has been authorised vide resolution of the executive committee dated 16.12.1997 to sign, verify, prosecute the civil suit for and on its behalf and to conduct proceedings before the court. The Additional District Judge to whom this case was assigned for trial treated it to be an ordinary civil suit. An application dated 1.5.1998 was filed by Mr.R.S.Suri in which it was alleged that the plaintiff association was representing the interest of large number of members and it was practically impossible for it to make all of them party to the present suit, therefore, the suit had been filed on behalf of the plaintiff association through its Honorary Secretary in a representative capacity representing the interest of the members of the plaintiff association. It was requested that the Honorary Secretary of the association Mr. R.S.Suri be permitted to sue the defendant (the petitioner) on behalf of the plaintiff association. On this application the trial court passed the following order:-
“Heard on the application moved under Order 1 Rule 8 CPC. In view of the circumstances explained in the application, the Honorary Secy of the pltf. Association Sh. R.S.Suri is permitted to sue on behalf of the pltf association as prayed. However, keeping in view the provisions of Order 8, Rule 2 CPC and submissions made by the Ld. Counsel for the plt. That Sh. R.S. Suri is representing more than three thousand Advocates of SCI, let notice of the institution of the suit be given to all persons interested in this case by means of public advertisement which be made in the “Statesman” on deposit of charges by the pltf for 29.5.1998 on which date further orders shall be passed.”
2. Subsequently, an application dated 15.9.2000 was filed by Honorary Secretary of the Supreme Court Bar Association before the trial court. In the application it was averred that the Supreme Court Bar Association was not a registered body under Societies Registration Act, therefore, an application under rule 8(1)(a) read with Section 151 CPC was also filed in the suit for permission to the them Honorary Secretary Mr. R.S. Suri to sue on behalf of the plaintiff association. The court by order dated 8.5.1998 has granted Mr. Suri this permission and has further directed the notice of the filing of the suit to be given to all the persons interested in the case by means of its publication in the newspaper “Statesman”. The list of members of the plaintiff association was not filed. It was stated that the plaintiff association has now got itself registered under Societies Registration Act w.e.f. 25.8.1999 and the certificate of the registration was being filed as annexure to the application. In the end it was prayed that the petitioner association should be allowed to continue to sue in the suit and the direction of service of notice to all the persons interested in the case be dispensed with. This application was disposed of by the trial court by passing the following orders:-
“An application u/o 1 R 10 CPC read with Section 151 CPC filed on behalf of the plaintiff. Heard. This suit was filed by the plaintiff and at the time of filing the suit the plaintiff was not a registered society and as such notice u/o 1 R 8 CPC was ordered to be issued by publication. It is now submitted that during the pendency of the suit, the plaintiff got Regd. itself under the Provisions of Society Registration Act 1860. Photostatted copy of registration of the plaintiff dated 25.8.1999 is placed on the record. In the circumstances”
3. Thereafter summons for settlement of issues was issued to the defendant/petitioner. The petitioner before filing the written statement submitted an application for review of the order by which Mr. R.S.Suri was allowed to proceed with the civil suit in representative capacity under Order 1 Rule 8 CPC. The trial court directed him to file the written statement raising all the pleas available to him. The petitioner has felt aggrieved and has challenged the order dated 8.5.1998 passed by the learned Additional District Judge in this revision petition whereby application of the plaintiff filed under Order 1 Rule 8(1)(a) read with Section 151 CPC was allowed and Mr. R.S. Suri was permitted to proceed with the case in a representative capacity.
4. The notice of the revision petition was served on the respondent. Though no formal reply is filed but the counsel for the respondent had addressed arguments opposing the petition.
5. This revision petition has been filed on 29.5.2001 against an order which was passed on 8.5.1998. The petitioner has submitted an application under Order 5 of the Limitation Act for condensation of delay. Briefly it is alleged that since he was to aware of the passing of the impugned order and came to know of it only after the summons of the case was served on him and the file was inspected, therefore, there is sufficient cause for condensation of delay. The application is supported by an affidavit.
6. Counsel for the respondent has argued that the petition is filed after over three years from the date of order and there is no good ground for condensation of the delay. The petition should be dismissed for this reason alone it was argued by him.
7. Admittedly, the petitioner was served with summons for settlement of issues only after the permission was granted to the respondent to sue in its own name and after the order to proceed against the petitioner ex-parte was set aside. It is now a settled position in law that a liberal approach should be adopted for condensation of delay in filing of the petition for advancing the cause of justice. The petitioner evidently came to now of the impugned order long after the summons was served on him. Keeping in view the facts of the case and also the facts stated in the condensation application which are supported by unrebutted affidavit of the petitioner, I find sufficient cause for condoning the delay in presenting this petition and condone the delay.
8. The argument of the counsel for the petitioner is that the civil suit was filed by the Supreme Court Bar Association on 17.4.1998. It was not a registered society and had no legal entity to file the civil suit in it sown name. The learned Additional District Judge ought to have rejected the plaint of the suit as not maintainable then and there. He submitted that the application under Order 1 Rule 8 (1)(a) read with Section 151 CPC was also moved on behalf of the plaintiff Bar Association for permission to proceed with the case in representative capacity through its Honorary Secretary Mr. R.S. Suri. The trial court granted the permission without issuing a notice to the petitioner. The trial court while granting permission envisaged under Order 1 Rule 8 CPC also directed Mr. Suri to get the notice served on all the interested persons by publication of the notice in the newspaper “Statesman”. But in spite of availing several opportunities steps were not taken for publication of the notice. Instead another application under Order 1 Rule 10 CPC was filed stating that the plaintiff association had been registered under Societies Registration Act, and therefore, it be permitted to proceed with the suit in its own name and that permission was also granted by the trial court.
9. It is further submitted that the impugned order of the trial court is not in accordance with the provision of Order 1 Rule 8 CPC and does not validate the suit which was filed by the Bar Association which lacked legal capacity, therefore, the impugned order be set aside and the suit filed by the Bar Association be dismissed.
10. On the other hand counsel for the respondent, though conceded that the plaintiff Bar Association was not registered under the Society Registration Act at the time of filing of the suit but contended that it was na association of about 3000 lawyers practicing in the Supreme Court and that an application under Order 1 Rule 8 CPC for permission to sue in representative capacity could be filed at any stage of the proceeding subsequent to the filing of the suit. It is stated that Honorary Secretary of the plaintiff Bar Association moved an application dated 1.5.198 seeking permission to sue in representative capacity for and on behalf of and in the interest of the members of the association and this permission was granted by the court. He argued that the defect in the filing of the civil suit, if any, has been cured. It is further submitted that the application under Order 1 Rule 8 CPC was filed on 1.5.1998 and it was accepted by the court and the requisite permission was granted. The suit shall be deemed to have been filed from the date of the application i.e.1.5.1998. He has cited Satyavart Sidhantalankar v. Arya Samaj, Bombay AIR (33)1946 Bombay 516 and Sri Nitai Gour Radheyshyam v. Harerishna Adhikar and Ors., and Hubli Panjarapole and Ors. v. Saraswatevva Bayappa Kala Ghatki in support of his arguments.
11. The counsel for the petitioner has fairly conceded and rightly that an application under Order 1 Rule 8 CPC can be filed subsequently at any stage of the proceeding in the suit. He argued that in the instant case after the permission was granted the notice was directed to be issued for service by publication in the newspaper to all the persons who were interested in the suit but no steps was taken and the notice has not been issued and served. He further submitted that the application under Order 1 Rule 8 CPC was also filed by the plaintiff Association with the prayer that the suit may be allowed to be proceeded with as a representative suit. According to him the suit has not been filed within three years of the amount claimed became due, therefore, the suit was barred by time.
12. The plaintiff Association had no legal entity and could not have filed the civil suit for recovery of money in its own name. However, before the summons could be issued to the defendant (petitioner) an application was moved for permission to proceed with the suit in a representative capacity thorough the Honorary Secretary Mr. R.S.Suri. Indeed the application is not happily worded. The application ought to have been filed by Mr. R.S.Suri, Honorary Secretary of the Supreme Court Bar Association on his own behalf praying that he may be permitted to sue in representative capacity since the suit is filed in the interest and for the benefit of a large number of members of the association. But the court should not be hyper-technical in construing such applications. The application read as a whole may convey implicitly that Mr. Suir wanted permission to proceeded with the suit in representative capacity as the Bar Association itself had no legal capacity to sue in its own name. The application was allowed by the trial court under Order 1 Rule 8 CPC which reads as under:-
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 person 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 ore 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, given 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 defend, 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 int he manner specified in Sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence int eh suit or defense, 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.
13. Order 1 Rule 8 applies only to representative suits when there are large number of persons having common interest in a suit. One or more of those persons with the permissions of the court can sue or be sued or defend the suit on behalf of others also. On such permission, if given, it becomes the imperative duty of the court to direct notice to be given to the absent parties in the manner as the court in each case required. Under this rule the suit cannot be filed on behalf of innumerable, countless persons but it may be filed on behalf of limited and clearly defined class of people who had common interest and common right. Indeed the proper course is to obtain the permission for suing in representative capacity before the suit is actually instituted. But Order 1 Rule 8 CPC does not forbid leave being granted afterwards at any stage of the proceeding. No notice of the application is contemplated to be served on the opposite party for granting the permission. In the instant case the permission has been applied for and granted by the court though notice has not been issued to all those persons on whose behalf and in whose interest the suit was filed because of a subsequent event.
14. The view taken above finds support from the judgment of Division Bench of Bombay High Court in Hubli Panjarapole and others v. Sarasswatevva Bayappa Kala Ghatki (supra) as under:
“it is true that ordinarily leave has to be and should be obtained under Order 1, Rule 8, at the time of the institution of the suit. Where there are numerous persons having the same interest in one suit, the Court should be invited at the outset to give leave to bring the suit in a representative capacity. If there are numerous defendants having the same interest, leave has to be obtained to bring the suit against them in a representative capacity, and when leave is granted, notice of the institution has to be issued to all persons, as may be directed by the court. Even so, it cannot be disputed that the suit would not be dismissed only on the ground that the requisite leave has not been obtained under Order 1, Rule 8, at the commencement of the proceedings; it would be open to a party to apply for such leave and to take such further action as it required by order 1, and Rule 8, even during the pendency of the suit.”
15. Similar view was taken by a learned Single Judge of Calcutta High Court in Sri Sri Nitai Gaur Radheyshyam (supra). It was further held in the judgment that the suit will be revalidated only with effect from the date on which the plaintiff applies for permission under Order 1 Rule 8/ Order 33 Rule 1 CPC.
16. The fact remains that the suit has been proceeded with as a representative suit under Order 1 Rule 8 CPC. Whether non-issuance of notices under Order 1 Rule 8 CPC to the persons in whose interest and on whose behalf the representative suit was filed and brought any infirmity in the case may be gone into and decided by the trial court when proper issues are framed on the plea raised by the petitioner in his written statement. It will also not be necessary to decide in this petition legality and validity of the subsequent order of the trial court by which the plaintiff Bar Association has been permitted to proceed with the suit in its own name. These questions may be gone into and decided by the trial court and any observation on them made in this order may cause prejudice to one or the other party.
17. In the case of Satyavart Sidhantalkar v. Arya Samaj, Bombay (supra) referred to by counsel for the respondent the dispute was whether some of the members of a registered society could file a suit against the decision of the registered society. This judgment is not relevant for deciding the controversy before the court.
18. The counsel for the respondent has also argued that an application filed by the petitioner for review of the order impugned in this petition is pending and it will be not competent for the petitioner to seek his remedy before the trial court and this court simultaneously. It is true the petitioner cannot resort to who separate remedies available to him to assail an order simultaneously and should have elected one of the proceedings but the court will be charry in throwing out this petition at this stage on technicalities.
19. It is also submitted on behalf of the respondent that the petitioner had filed a civil revision against the subsequent order of the Civil Judge by which the respondent after its registration under Societies Registration Act was permitted to sue in its own name and this court disposed of that petition directing him to raise the plea in the written statement and the petitioner has accordingly filed written statement in which this plea has been taken. This order admittedly had no bearing on the present proceedings.
20. For the reasons stated above I do not find any error of jurisdiction or material irregularity in the exercise of the jurisdiction warranting interference in the impugned order. The petition has no merit and deserves to be dismissed. It is dismissed. But parties shall bear their own costs.