Lal Chand Jain Vs. Rashtriya Swayam Sewak Sangh, Panna & Ors  INSC
266 (15 February 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
1996 AIR 1211 1996 SCC (3) 149 JT 1996 (3) 64 1996 SCALE (2)589
O R D
learned counsel on both sides.
appeal by special leave arises from the judgment and order dated July 16, 1991 made in C.R. No.476/88 of the
Madhya Pradesh High Court, Jabalpur Bench. The Division Bench held that the
objection to the maintainability of representative suit without leave of the
Court under Order 1 Rule 8 of the Code of Civil Procedure, 1908 [Code] is
sustainable. The decree of the Court is a nullity and non est. Therefore,
Explanation VI to Section 11 is not attracted to the facts in this case.
Accordingly, the execution is not maintainable. Calling in question the finding
and decision of the High Court, this appeal by special leave has been filed.
facts are fairly not in dispute. The appellant laid Civil Suit No.1A/87 in the
court of District Judge, Panna in Madhya Pradesh for eviction of Rashtriya Swayam
Sewak Sangh through its Manager, Shri Gorelal Soni, its President, Shri Shiv Behari
Srivastava, Advocate and the Head Master of Saraswati Shishu Mandir, Panna by
name Ram Kripal Chaubey, as a member of the Sangh. The claim was based on the
title and for eviction of the Sangh and its office bearers on the premise that
it had no authority to stay in the suit premises. It was the appellant's plea
that they had requested for temporary occupation of the premises till
alternative site was secured. He had permitted the Sangh to occupy the premises
for office purposes. But later the respondents had not vacated the premises.
Then defence taken by the Sangh through its Manager, the President and the
Member in joint written statement was that the property belonged to the Raja of
Panna who at a meeting had declared that the Sangh was entitled to occupy the
premises and remain in possession for all times. Pursuant to that, they had come
into the premises and, therefore, they are entitled to remain in possession.
Appropriate issues were framed and after adduction of evidence and
consideration thereof, the trial Court upheld the plea of the respondent; and
dismissed the suit F.A. No.70/81, the High Court by an order and judgment dated
October 31, 1986 allowed the appeal and decreed the
suit for ejectment. All the three filed S.L.P.(C) No.2751/87 in this Court and
by order dated July 15, 1987 a Bench of three Judges of this Court refused
leave and dismissed the petition.The appeal was argued by no less than Shri
U.R. Lalit, one of the eminent senior counsel of this Bar. After the execution
was laid, Gorelal Soni and the respondents had filed objections contending that
Sangh was not a registered body but composed of several members. The appellant
had not followed Order 1 Rule 8, procedure.
the decree was a nullity and Section 11 is not a bar. The executing Court had
upheld the objection and dismissed the petition. On revision, the High Court
confirmed the same.
Dayal Srivastava, learned senior counsel appearing for the appellant has
contended that in view of the stand taken by the Manager, the President of the Sangh
and the Member and having diligently prosecuted the proceedings, by no stretch
of imagination it could be construed to be a collusive suit. Unless there is a
finding that the decree is obtained by collusion or negligence, every member of
the Sangh is bound by the decree Though formal permission of the court under
Order 1 Rule 8 was not sought for in the suit, in substance it is a
representative suit and the defendants so understood it. Every member of the Sangh
is bound by the decree. The view of the High Court is not correct in law.
Kumar Goel, the learned counsel appearing for the respondents contended that
permission for a representative suit under Order 1 Rule 8 is mandatory in law.
No permission having been obtained by the appellant, the decree passed by the
High Court on appeal is a nullity.
plea can be raised at any stage including in the execution. The High Court,
therefore, was right in its conclusion that the decree is a nullity.
question, therefore, is: whether the view taken by the High Court is correct in
law. Relevant part of Order 1 Rule 8 provides thus:
One person may sue or defend on behalf of all in same interest. -  Where
there are numerous persons having the same interest in one suit, - (a) 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
Court may direct that one or 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."
Procedure is the handmain to the substantive justice.
suit was laid against the Sangh represented by the Manager, Mr. Gorelal Soni,
the President, Shiv Behari Srivastav, a practising advocate and also a member
who is no other than a Head Master of a school, three of them had Jointly filed
the written statement with the defence available to them. The trial Court had
proceeded on that basis. After framing the appropriate issues, the trial Court
had accepted the plea of the defendants and dismissed the suit. On appeal, when
the correctness thereof was canvassed, the respondents defended the action. The
High Court on consideration of the evidence, did not accept the plea of the Sangh
and accordingly, granted a decree. The matter did not rest there, they came in
appeal by way of special leave which was argued by one of the most eminent
members of the Bar on behalf of the Sangh. The leave was refused by this Court.
Thus it can be concluded that the Sangh was properly represented by the
President, the Manager who was at the relevant time in office on behalf of the Sangh
and also member of the Sangh who was no other than a Head Master and a practising
advocate as President. The High Court, after hearing counsel on either side,
considered the case and decreed the suit. With dismissal of the special leave
petition by this Court, the decree became final, Therefore, it cannot be said
to be a collusive suit nor a shadow of negligence is traceable so as to treat
the decree a nullity.
true that no permission of the Court was taken to be sued in a representative
capacity by or on behalf of the Sangh. But clause (b) of Order 1, Rule 8
indicates that it may sue or be sued, or may defend such suit, on behalf of, or
for the benefit of all persons so interested, Clause (b) clearly applies to the
facts in this case. The President of the Sangh, the Manager of the Sangh and a
Member have duly represented the Sangh and defended the suit for the benefit of
all the persons so interested in the Sangh.
been thus defended, the question arises: whether the decree operates as a res judicata.
Section 11, Code envisages principle of res judicata, i.e., no court shall try
any suit or issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them, claim, litigating
under the same title, in a suit in which such issue has been subsequently
raised, and has been heard and finally decided by such court. Explanation VI to
Section 11 is relevant in this behalf and reads thus:
persons litigate bona fide in respect of a public right or a private right
claimed for themselves and others, all persons interested in such right shall,
for the purposes of this section, be deemed to claim under the persons so
litigating." Therefore, the respondents now claim under the same title in
the previous suit and thereby they are bound by the decree. The doctrine of
evolved the public policy to prevent trial of an issue twice over. It clearly
applies to the facts of the case. Accordingly, they are precluded to raise
objections on behalf of the Sangh by filing the objections.
Begum [Mst.] v. Mohd. Usman & Ors [(1991) 3 SCC 114], this Court has
considered the effect of Explanation VI of Section 11 and held thus:
principle of representation of the interest of a person, not impleaded by name
in a judicial proceeding, through a named party is not known. A karta of a
Joint Hindu Family has always been recognized as a representative of the other
members of the Joint Hindu Family, and so has been a trustee. In cases where
the provisions of Order 1, Rule 8 of the Civil Procedure Code are attracted a
named party in a suit represents the other persons interested in the
litigation, and likewise a receiver appointed in one case represents the
interest of the litigating parties in another case against a stranger.
Similarly the real owner is entitled to the benefits under a decree obtained by
his benamidar against a stranger and at the same time is also bound by the
decision. Examples can be multiplied. It is for this reason that we find
Explanation VI in the following words in Section 11 of the Code of Civil
VI. - Where persons litigate bona fide in respect of a public right or of a
private right claimed in common for themselves and others, all persons
interested in such right shall, for the purposes of this section, be deemed to
claim under the persons so litigating".
of course, is subject to the essential condition that the interest of a person
concerned has really been represented by the others; in other words, his
interest has been looked after in a bona fide manner. If there by any clash of
interests between the person concerned and his assumed representative or if the
latter due to collusion or for any other reason mala fide neglects to defend
the case, he cannot be considered to be a representative. The issue, when it
becomes relevant, has, therefore, to be answered with reference to the facts
and circumstances of the individual case. There may be instances in which the
position is absolutely clear beyond any reasonable doubt one way or the other
and the question can be settled without any difficulty; but in other cases the
issue may have to be decided with reference to relevant evidence to be led by
the parties. Surayya Begum's case is of this class while Renu Sharma's appeal
belongs to the first category".
Privy Council in Talluri Venkata Seshayya & Ors. v. Thadikonda Kotiswara Rao
& Ors. [AIR 1937 PC 1] had held thus:
provisions of S.11 of the Code are mandatory and the ordinary litigant, who
claims under one of the parties to the former suit, can only avoid its
provisions by taking advantage of S.44, Evidence Act, which defines with
precision the grounds of such avoidance as fraud or collusion. It is not for
the Court to treat negligence or gross negligence, as fraud or collusion,
unless fraud or collusion is the proper inference from facts. Other factors in
Except.6 to 5.11 being present, the section lays down a condition that the
persons must be litigating bona fide and the fulfillment of this condition is
necessary for the applicability of the section." Thus it could be held
that the Sangh having been duly represented in the previous proceedings and
conducted the litigation on behalf of the Sangh bona fide and were unsuccessful
in the suit, no one on behalf of the Sangh can lay any objection in the
execution nor plead nullity of the decree. The doctrine of res judicata prohibited
the members of the Sangh to obstruct the execution of the decree. The decree of
ejectment binds every member of the Sangh and, therefore, the appellant is
entitled to have the decree executed and possession taken.
appeal is accordingly allowed and the respondents are directed to deliver the
vacant possession of the premises within six months from today. In default, the
appellant is entitled to day. In default, the appellant is entitled to have the
decree executed through the assistance of the police. No costs.