JUDGMENT
B.P. Dharmadhikari, J.
Page 0667
1. The original defendant has filed this writ petition challenging order dated 9.6.2005 passed by the 4th Joint Civil Judge, Senior Division, Nagpur, below Exh. 12 and Exh. 14 in Special Civil Suit No. 223 of 2003. Said suit has been instituted by present respondent, an unregistered body i.e. proposed Cooperative Housing Society through its Chief Promotor for specific performance of contract against present petitioner. The present petitioner filed application in that suit for its dismissal on the ground that respondent / plaintiff is not legal entity at all. Thereafter, the respondent filed application under Order 1, Rule 8 of Civil Procedure Code, seeking permission to sue on behalf of unincorporated body and its members. The said application was opposed by the petitioner. By common order mentioned above, the Court below has allowed application under Order 1, Rule 8 of C.P.C. and has rejected the prayer of the petitioner to dismiss the suit.
2. Considering the nature of controversy, at the request of parties, matter has been heard finally at the stage of admission itself and Rule is made returnable forthwith. I have heard Shri Dhoble, learned Counsel for the petitioner and Shri Giradkar, learned Counsel for the respondent.
3. First submission of Shri Dhoble, learned Counsel is that the suit ought to have been filed by a registered Cooperative Society and present respondent could not have instituted it at all. The second contention is that application under Order 1, Rule 8 of C.P.C. ought to have been filed along with suit itself and Court below could not have entertained such an application in a suit which was not validly instituted at later point of time and could not have allowed respondent . plaintiff to cure that defect. Lastly, he has argued that Page 0668 in any case the court below has not found that there was any community of interest insofar as alleged members of respondent unregistered cooperative society are concerned. He contends that names and details of those members are also not disclosed and hence even on merits, impugned order shows non-application of mind. He has relied upon the judgment of this Court in the case of Mathura Bhuvan Co-op. Housing Society v. Official Liquidator reported at and judgment of Karnataka High Court in the case of Narayansa v. Ramakrishna reported at 1998(2) Civil L.J. 850.
4. As against this, Shri Giradkar, learned Counsel for the respondent and plaintiff has contended that law does not require application under Order 1, Rule 8 of C.P.C. to be filed at the institution of suit itself. He states that the error of not filing such an application can be allowed to be rectified even later on because it is merely an irregularity. He has relied upon the judgment of Allahabad High Court in the case of Radhaswami Satsang Sabha v. Puttan reported at , in support of his stand.
5. In view of the arguments, the first question which arises for consideration is whether in a suit which is filed by unregistered body, application under Order 1, Rule 8 of C.P.C. must be filed along with the plaint itself and if it is not so filed, whether the Court can permit it to be filed later on. The Court below has found that there is no prohibition and after relying upon the judgment in Radhaswami Satsang Sabha v. Puttan (supra), has found that such permission can be granted even on application preferred later on. It has also considered the judgment of this Court in the case of Mathura Bhuvan Co-op. Housing Society v. Official Liquidator (supra). The said judgment states that a suit filed by an unincorporated association of persons is not maintainable. However, this Court has also stated that such an association cannot sue in its proposed name or through its Promotor/ Chief Promotor without obtaining leave under Order 1, Rule 8 of C.P.C. From the judgment, it is clear that no such leave was applied for in that case. Here, admittedly, such leave has been applied for and has been granted. Said judgment, therefore, has no application. The other judgment in the case of Narayansa v. Ramakrishna (supra), again considers entirely different controversy. The question there was whether provisions of Order 1, Rule 8 read with Order 7, Rule 4 of Karnataka Amendment to C.P.C. required issuance of notice to defendants before the Court granted permission to sue in representative capacity where public interest is involved. It found that had such notice been issued first, construction impugned in the suit would have been over and suit itself would have become infructuous. It is also observed that where there is public interest involved, if the Court is satisfied about it, it can grant permission and it is therefore apparent that insofar as first argument of Shri Dhoble is concerned, this ruling again has no application.
6. The judgment of Allahabad High Court in the case of Radhaswami Satsang Sabha v. Puttan (supra), again considers provisions of Order 1, Rule 8 and in para 13, the learned Single Judge has observed that a prayer for leave under Order 1, Rule 8 can be sought at any stage and generally stated there is no Page 0669 time limit for making an application for such prayer and leave can be sought even at appellate stage in a suit. Similar controversy is considered by the Madras High Court in the judgment in the case of N. Anandan v. Ayyanna Gounder reported at . However, there provisions of Section 92 of C.P.C. have been considered and in para 4 after making reference to earlier two judgments of Madras High Court, it has been concluded that the language used in Section 92 of C.P.C. clearly show that leave of the Court is a condition precedent for the institution of a suit against a public trust. It has been thereafter pointed out that the permission spoken to in Order 1, Rule 8 is not and has also not been held to be condition precedent and it can be granted even after institution of suit and even at appellate stage by allowing the amendment, if such amendment does not materially change the nature of suit. The law therefore appears to have been settled insofar as provisions of Order 1, Rule 8 are concerned and accordingly I find that Court below has taken correct view in the matter. The suit filed by the respondent could not have been dismissed merely because application seeking leave under Order 1, Rule 8 was filed belatedly. It is to be noted that said application has been filed immediately after present petitioner moved an application for dismissal of suit on the ground that it was filed by unregistered body.
7. This brings me to consider the arguments advanced by Shri Dhoble, learned Counsel for the petitioner, on merits. In this respect, reference can be made to Full Bench of Madras High Court in the case of Kodia Goundar v. Velandi Goundar reported at . The point for determination in said case was whether the decree for injunction could be enforced against the respondents who were not .eo nomine. parties to the suit or decree. It has been observed that a decree obtained in a suit instituted according to Order 1, Rule 8 will be binding as res judicata on all the members that belong to class who are sought to be represented. There, the suit filed against representatives of Ryots of one village was dismissed. Said suit was instituted by Ryots of another village in representative capacity for declaration that they were entitled to irrigate their lands through a particular sluice for two days and for issuing a permanent injunction restraining the other Ryots from closing sluice during said two days. The appellate Court decreed that suit and then in execution respondents No. 4 to 13 were sought to be added as defendants and asked for an order of attachment of their properties and for committing contempt. The said respondents contended that decree could not have been executed against them as they were not parties to the suit. In this background in para 10, the Hon’ble Full Bench has made reference to the judgment of this Court in the case of Harischandra Khanderao v. A.S. Craig reported at AIR 1942 Bom. 136, where the circumstances relevant for application of Order 1, Rule 8 of C.P.C. have been considered. The question before this Court arose in an application for leave to sue in representative capacity under Order 1, Rule 8. The suit was brought by a person who claimed to be a legal advisor to the defendant society and it was for recovery of damages for wrongful termination of his services. The trustees of the society were sought to be sued in representative capacity and said leave was granted. The Page 0670 defendants then applied for setting aside said leave and plaintiff asked for personal decree against defendants as representing the society as there was nothing in the prayer that decree which plaintiff might have obtained would be restricted to the funds of society in the hands of defendants. The objection to the grant of leave was made on the ground that if a decree was passed against the defendants on the plaint as it stood, it would have been open to plaintiff to execute it against the persons other than who were on the record of the suit. The contention was accepted by this Court and leave granted was vacated. In para 19, the Hon’ble Full Bench has also made reference to two English decisions which also speak of unregistered association. The said observations are relevant and are reproduced below:
19. The present is a case where the question is as to whether a representative suit on behalf of large body of persons like the nanja ayacutdars of Deevalur village, who claimed to have suffered damages by reason of the interference by the defendants with their exclusive rights to the fish and grass produce, could be brought under the provisions of Order 1 Rule 8, C.P.C. In the two English decisions, ‘1914-2 KB 930 (F)’, and ‘1928-1 KB 663 (G)’, the defendants were sought to be sued as representing a large body of persons. Those cases were not by the plaintiffs in a representative capacity, but against defendants who were sought to be sued in a representative capacity, and because of the difficulties that would arise in execution of such a decree it was held that leave should not be granted. In ‘1928-1 KB 663 (G)’, the plaintiffs, who were members of an association of motor dealers and manufacturers being an unregistered association brought an action against three of the members of the association, who were named twice over and were sued on their own behalf and on behalf of all other members of the association for damages. It was held that the plaintiffs were not entitled under Order 16, Rule 9, C.P.C. of the Supreme Court Rules corresponding to Order 1, Rule 8, C.P.C., or otherwise to maintain the action against the defendants as representatives of the association, there being no ground for saying that the members of the association had the same interest in the action or the defence to it. Sargent L.J. in holding that leave to sue the defendants on behalf of the other members of the association was rightly refused observed at p.699 as follows:
The action here is not to enforce a right against a fund in which all the members of the Motor Trade Association have a common interest or to declare the interpretation of regulations binding them in common, a class of cases to which Order 16, Rule 9, is at any rate primarily applicable. It is to enforce a strictly personal liability against the named defendants and the whole of the members of the association. Whether the liability so sought to be imposed is in contract, as in 1914-2-K.B. 930 (F), or in tort as in -Mercantile Marine Service Association v. Toms 1916-2 K.B. 243 (O), and the present case, the judgment of this Court in both these reported cases show decisively how impossible it is that the named defendants can adequately represent for the purposes of defence, the different individual members of the association since these individuals may Page 0671 obviously have defences separate and distinct from those of the named defendants and of each other.
The decision proceeded therefore mainly on the basis that there was nothing in common as between the defendants which would entitle some of the defendants competent to represent the other as members of the association and the real ground for holding that a representative action against the defendants as representatives of the other members of the association was not maintainable was the absence of any community of interest.
8. The Full Bench in para 20 concluded that decrees obtained in a representative suit against the defendants in a representative capacity cannot be executed personally against persons who are not .eo nomine. parties. It has been further observed that from the plain language of Order 1, Rule 8, the principal requirement to bring a suit within that rule is the sameness of interest of the numerous persons on whose behalf or in whose benefit the suit is instituted, and if that requirement is satisfied, and provided the other conditions as to notice is also satisfied, there is no reason why such a representative suit should not be allowed. Full Bench states that principal consideration is that whether there is sufficient community of interest as between the plaintiff or the defendants as the case may be to justify adoption of procedure provided under Order 1, Rule 8. The object for which provision has been enacted is to facilitate the decision of questions in which a large body of persons are interested without recourse to ordinary procedure.
9. In case of Radhaswami Satsang Sabha v. Puttan (supra), the learned Single Judge of Allahabad High Court has also considered the principles relevant in this respect in para 11 and has found that Order 1, Rule 8 contains a salutary principle which ensures convenience in disposal of a controversy between the parties where members of unregistered body are several and keep on changing from time to time. It has been observed that only proper and convenient mode to sue them and to bind them with consequence of the decree eventually following is of leave under Order 1, Rule 8 of Civil Procedure Code. Even learned Single Judge of Karnataka High Court in the case of Narayansa v. Ramakrishna (supra) has while appreciating the controversy raised before him, noted that Court has to find out whether the suit brought is really in the nature of representative capacity to redress the grievance of class of citizens or group of persons, whose rights are violated or infringed, once that is satisfied, it is held that the Court can grant permission to sue in representative capacity.
10. In view of the Full Bench judgment of Madras High Court mentioned above and also 1942 judgment of this Court discussed therein, I do not find it necessary to dwell more on this controversy in present matter. The provisions of Order 1, Rule 8 contemplate giving of notice of institution of such suit at plaintiff’s expenses to all persons interested in appropriate manner as specified therein. Sub-rule 3 permits such person on whose behalf suit is instituted to apply to Court to be made a party to such suit. It is clear that this procedure has not been followed in present matter because Court below has yet not reached that stage. But perusal of impugned order reveals that there are no findings about community of Page 0672 interest in it. The application filed by the respondent plaintiff seeking leave under Order 1, Rule 8 also does not give necessary details in this respect. The names of members of proposed cooperative society and their interest in suit property are not disclosed. I, therefore, find that Court below has not applied its mind to the ingredients of Order 1, Rule 8 of Civil Procedure Code at all.
11. In these circumstances, the impugned order insofar as it grants leave to present respondent under Order 1, Rule 8 of Civil Procedure Code is hereby quashed and set aside. Rest of the order rejecting application of present petitioner for dismissal of suit is maintained. Writ Petition is partly allowed. However, the respondent . plaintiff is at liberty to move appropriate application under Order 1, Rule 8 of Civil Procedure Code, giving necessary particulars so as to enable the Court below to properly apply its mind and pass fresh orders upon it as per law. Rule is made absolute accordingly. However, in the circumstances of the case, there shall be no order as to costs.
