1. An interesting point with regard to the procedure required to be followed by Court while permitting representation to others under Order 1, Rule 8, of the Code of Civil Procedure, has been raised by the present revision.
2. Few facts need be stated to appreciate the submissions of the learned counsel. The opponents purported to institute a suit on July 30, 1971 claiming relief of permanent injunction against the applicant Municipal Council restraining it from imposing, assessing or levying scavenging tax, general water tax and light tax for the year 1970-71 and the consolidated property tax for 1971-72 on the basis of tentative assessment lists of 1969-70 and 1971-72 respectively, and also for costs. In the body of the plaint, plaintiffs purported to aver that they along with rest of the tax prayers own houses within the limits of the Municipal in Old Camp Area and that the defendant-Council is imposing taxes for the years 1970-71 and 1971-72. Plaintiffs sought to challenge the taxation on the grounds inter alia stated in paragraph 2 of the plaint. Along with this plaint, as per Exh. 4, these plaintiffs who are three in number, purported to file application under Order 1, Rule 8, of the Code of Civil Procedure, stating that the suit has been brought on behalf of the plaintiffs themselves and on behalf of other house owners and tax prayers of Champ Area of the Municipal Council, Amravati. They further stated that all the house owners of the Camp Area have common and same interests and therefore they sought permission to file the representative suit and prayed that notices be given to the interested persons by public advertisement. When the matter came before the Court along with this application, the present applicant Municipal Council filed objections to the application under Order 1, Rule 8, Civil Procedure Code, inter alia contending that the application was entirely misconceived and further that the terms of Order 1, Rule 8, were not satisfied. By the impugned order made on October 13, 1971 the Court rejected the objection of the Municipal Council and held that the application of the three plaintiffs was entertainable. While deciding this application, the Court granted permission to the plaintiffs to sue in the representative capacity but as it was not practicable to serve individual notices to every tax payer, it further directed that notice of the suit be published in the local newspapers. Thus having granted the permission to sue under Order 1, Rule 8, the public notice was directed to be issued to the tax payers. This order is questioned.
3. Apart from the other grounds raised by the learned counsel appearing for the Municipal Council, Mr. Chandurkar, about the merits of the plaintiff's entitlement to seek to sue in representative capacity, the question of procedure under Order 1, Rule 8, has been argued, in that it is contended that Rule 8 of Order 1 is in the nature of an exception to the general provisions contained in Order 1 with regard to joinder of plaintiffs or with regard to joinder of defendants in a given cause. It is submitted that all the conditions of Rule 8 will have to be strictly complied with before the Court can exercise its power of permitting certain persons to sue on behalf of others. For this, emphasis is laid on the second part of sub-rule (1) of Rule 8, which indicates that before the permission is granted the Court is bound to give notice at the plaintiff's expense of the institution of the suit to all such persons either by personal service or by public advertisement on whose behalf such a suit is purported to have been filed. Emphasis is laid on the preposition 'But' employed by the Legislature in Rule (1) with which the second part of the rule begins. As a matter of construction the learned counsel submits that the said preposition 'But' should be interpreted to mean 'unless'. Without notice, therefore, the Court should not proceed to grant permission under this rule, for, according to the learned counsel, there are obvious reasons which are involved in every litigation that may bind the fate of several persons by improper or even slovenly representations in such causes.
4. It is undoubtedly true that in the present caw, as the facts indicate, the Court did not issue notice to the person or body of persons on whose behalf the three plaintiffs purported to institute the suit. It is only after the permission is granted to sue in representative capacity, the Court directed the issue of notice in public newspapers.
5. Rule 8 (1) of Order 1 of the Code of civil Procedure reads as follows:-
'R. 8(1) Where there are numerous persons having the same interest in one suit, one to more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or where from the number of persons or any other cause each service is not reasonably practicable, by public advertisement, as the Court in each case may direct.'
The terms of these rules are clearly enabling the party with the permission of the Court either to sue or be sued or to defend actions governed by the Code of Civil Procedure. Court is empowered to grant permission where there are numerous persons having the same interest in one suit. While granting this permission it is obvious that Court is permitting departure from normal rule that the person or persons who are likely to be affected one way or the other should be directly joined as parties.
6. The scheme of filing of suits and adjudicating upon causes under the Code indicates that it is almost a four-dimensional movement-firstly action by one party called plaintiff against opposing party termed defendant: secondly, with regard to certain matters said to be in dispute; thirdly, having claim for certain cause of action; and fourthly, seeking some sort of legal relief. All these necessarily have to exist for making it a suit. Order 1 by itself deals, as its title indicates, with the first part or the basic requirement of the suit, i.e. the parties which can be arrayed either as plaintiff(s) or defendant(s). Rule 1 deals with plaintiffs and Rule 2 permits the Court to direct separate trials. Rule 3 indicates who can be the defendants. To Rules 1 and 3, Rule 8 is in the nature of the proviso, so that with the permission of the Court, without either following the joinder prescribed by Rule 1 and 3, the person who can be called a representative of others i.e. either plaintiff or defendant may continue or defend the action. Once the permission is so granted under Rule 8, the legal effect of such permission is if the permission is in favour of the plaintiff the suit is deemed to have been instituted by every one whose interest is permitted to be represented by the plaintiff and if the permission is for the defence, the representative defendant who represents the interest of all those for whom the representation is allowed. To both these categories the term 'representative suit' is commonly applied. Though therefore the primary and initial requirement of Order 1 is to have the parties joined by themselves upon satisfaction of the conditions of Rule 8 and because of the necessities arising out of obvious convenience to further the ends of a given cause, the Code postulates tenability of such action. Obvious reason for enacting such an exception is the principal anxiety to make convenient, speedy as well as effective modality of justice available. There may be several persons who remain silent under oppressed conditions and aggressions of their rights and yet one amongst them may shout for justice on behalf of all. Law permits the cause of others to be represented in such type of action so that justice is done and injustice is banished.
7. There are serious consequences attached to the decision one way or the other rendered in such representative action and it is well settled that the decrees made in such suits may not be open to challenge because of the rule of res judicata under Section 11 read with Explanation VI with regard to a public right or a private right which can be claimed in common by the class of persons. Though firstly, therefore, it is fundamental that decrees passed in suits would bind only those who are parties to the actions or to the extent the party before the Court represents the others, it appears that with regard to matters of public right, decrees made in representative suits may bind even known and unknown persons. To achieve this result the anxiety should be, firstly, to ascertain the persons as far as possible for whom the representation is sought under Rule 8 (1) and, secondly, the enabling power should not be exercised by the Court without issue of notice about the institution of such suit to the person or persons on where behalf such a representation is sought. In the entire Code there is clear legislative concern indicating that Court should only make judicial orders after hearing the persons likely to be affected by any decision in any cause. Permitting the person to sue as a representative of another is a matter of far-reaching effects as it is likely to affect the interests of those who may not participate as the suit proceeds to hearing. Such persons are entitled obviously to put before the Court the objections to the filing of the suit, to the capacity of the representative who seeks either to be the plaintiff or defendant and even to the merits of the cause which is tried to be put before the Court in the shape of reliefs prayed. All this is possible if the party who is sought to be represented by others is afforded an opportunity of making objection.
8. Keeping in view this basic requirement of the hearing necessary in any cause, the terms of Rule 8 will have to interpreted. As stated earlier, it is an exception to the general rule and being an exception, all its conditions will have to be appropriately satisfied. The requirement stated by the second lib of Rule 8 (1) and its obvious purpose cannot be overlooked while considering the process of granting permission in representative actions. The preposition 'But' with which the latter part opens is significant and by itself it carries the sense of the procedure which the Court is required to follow. The term 'But' is equivalent so as to mean 'except', 'unless' as well 'if not'. The words in the second part which make it necessary for the Court to give notice of the institution of the suit are also significant, for, the notice is not be given after permission is accorded but after the institution of the suit and before the permission is accorded. Even the requirement that as far as possible personal service should be resorted to and only in case where there are number of persons whom for any other good cause such service is not practicable the mode of public advertisement should be followed, is also indicative that before the Court accords permission of representation in the cause, the notice of institution of such a suit has to be given to the persons likely to be affected or interested in that cause. All this requirement on clear policy underlying Rule 8 should precede the grant of permission in a representative action; or else, the very purpose of giving the notice would be lost. If the body of persons on whose behalf the presentation is sought, be ascertainable or numerically small, it is obvious that personal service as far as possible will have to be resorted to. If on the other hand Court comes to the conclusion that it is a fluctuating body or a group of persons like community or class whose interest is being represented where it is not possible to ascertain the individuals with any certainty or for the reasons of convenience personal service is not possible, then the notice by public advertisement is treated as a good notice. After such notice is given, as stated earlier, the parties to whom such a notice is addressed have valuable rights of making appropriate objections which may include even bona fide challenge to the capacity of a given representative. It is for the Court to decide whether one or more persons out of the numerous persons for or against whom the action is brought should be permitted to sue or be sued against. That also shows that without giving a prior notice so as to make objections, Court will not be in a position even to make appropriate orders with regard to persons who may be permitted to sue or be sued in a suit as the representative of others.
9. Whether in a given case want of such notice has in fact affected the merits of a cause or not will have to be determined under the facts and circumstances of the particular cause, for, the defects of such procedure will not in a given case prejudicially affect the interest of others by grant of leave under O. 1 R.8. Notice, after all like other similar legal device, is meant to inform other about action. Conduct of such party may indicate that want of notice did not substantially affect the validity of cause and even to cases such a notice impliedly may be taken or expressly waived. Such consideration would arise where parties at a later stage set up plea of defect of notice. However at the outset or there should of the institution of suit the question would be different and procedural safeguard which obviously subserves the ends of justice will have to be followed particularly when objection is raised.
10. Here the plaintiffs purport to file the suit as Exh, 7 states in representative capacity on behalf of 'all other house owners, tax prayers of the Old Camp Area of Amravati Town'. What is the Old Camp Area of Amravati town and who are the house owners or tax payers is not stated with certainty and it is all a matter of guess. Whether Camp Area by itself is any Municipal division or not is also not stated in the application. The challenge in the suit itself is limited to tentative assessment and the following assessments for two years. That shows that this suit purported to be on behalf of those who were subjected to property tax by the Municipal Council for those two years and further that they were owning houses in Camp Area of Amravati town. Nothing has been said in the application why their names could not be disclosed by the plaintiff and why personal service to each of them is not possible. In fact as stated earlier without notice to any person, i.e. house owners to tax payers likely to be affected by this representative action, the Court has accorded permission to these three persons to be the representative-plaintiffs. It is obvious that the procedure followed was not in accord with Rule 8 of Order 1 which requires the Court to issue notice of the institution of the suit before according permission to such plaintiffs to maintain actions on behalf of others. It may be that plaintiffs would be able to satisfy the Court about other requirements of Rule 8; but that satisfaction has to be reached after the notice is issued to the class of persons even assuming that such unascertainable class exists which the plaintiff can represent before the Court. The defect of want of notice in such circumstances particularly where it is possible to ascertain the persons who are assessed to tax and who are residents, house owners and tax payers of the area, cannot be said to be a mere technical defect. Decision one way or the other is likely to affect valuable interest of other persons in the matter of tax.
11. That being the position, it has to be held that the order made below Exh. 4 has not been property made in accordance with the procedure required to be followed by Rule 8 of Order 1 and the same cannot be upheld. That order is set aside and the trial Court is directed to issue notice on Exh. 4, if the plaintiff discloses the names of persons whose interest they want to represent, personally to those persons or if the Court is satisfied that such a notice is not conveniently possible then by direction notice by public advertisement calling upon the persons who are likely to be affected to make objections. After giving hearing to those who may come forward the Court will decide whether the plaintiffs should be allowed to continue the suit in representative capacity or any other persons desirous be permitted to sue. It is obvious that plaintiffs for themselves in their personal capacity are entitled to maintain the action.
12. For all these reason the revision is allowed, the impugned order is set aside and matter is remitted back for following the directions given above. Applicant would be entitled to costs of revision from the opponents.
13. Revision allowed.