Report No. 54
Parties to a Suit
1P.1. The first question for a person seeking judicial relief is whether a suit is competent. This is dealt with in the body of the Code. When this question is answered in the affirmative, the second question for the person seeking judicial relief is, to which court he ought to resort. This question is also answered in the body of the Code, by a set of provisions dealing mainly with the competence of courts with reference to pecuniary value of the subject-matter and the place of suing. Having ascertained the court to which he must resort, the third question for the person seeking judicial relief is, for and against what parties such relief must be claimed. This is dealt with in Order 1.
1P.2. In general, a wide latitude is given, in this respect, to the plaintiff, as is evidenced by various permissive words, such as, "may", "may be joined", "it shall not be necessary", "the plaintiff may at his option join" and "where the plaintiff is in doubt", which occur in various rules in Order 1.
To avoid conflicting decisions and multiplicity, of proceedings, there is a provision under which one person may, with the permission of the court, sue or defend on behalf of numerous persons having the same interest in one suit. Mis-joinder and non-joinder of parties, in general, would not affect a suit, except where a necessary party is omitted to be joined. This, in brief, is the scheme of Order 1. While the first seven rules do not seem to have much scope for improvement, rule 8 and some of the subsequent rules require discussion.
Order 1, rule 8 and numerous parties
1P.4. Order 1, rule 8 deals with what are known as 'representative suits'. Under this rule, where there are numerous persons having the 'same interest' in one suit, one or more of them may, with the permission of the court, sue or be sued or defend in such suit, on behalf of all of them. The other persons have, of course, to be notified, and can apply to be made a party to the suit.
1P.5. Now, a question which presents some difficulty is, what is meant by the expression "same interest". It is not necessary to go into the cases on the subject. But, in one respect, a clarification is needed. The impression seems to prevail that the party representing and the parties represented should have the same cause of action. This is not in our view, necessary; nor is there any reason why it should be so. What is more important is community of interest.
If, for example, A sues one hundred persons who have, in pursuance of a conspiracy, trespassed on his land, or have wrongfully confined him, and A asks for declaratory relief, the Court should have power to permit him to sue, say, three of the opponents as representatives of all the hundred, provided there is community of interest among them. Such community of interest can, ordinarily, be said to exist where there is concerted action or a common, object. The cause of action against each trespasser is separate. But, if their interests are common, one suit should be permissible, of course with the leave of the court.
1P.6. We, therefore, recommend that the following Explanation should be inverted below Order 1, rule 8:-
"Explanation-It is not necessary that the person who sue or are sued or defend should have the same cause of action as the persons on whose behalf or for whose benefit they sue or are sued or defend, as the case may be."
Order 1, rule 8 and execution
1P.7. The Commission, in its earlier Report on the Code,1 proposed some changes in Order 1, rule 8 regarding execution. The main change to which it drew attention was the proposed provision to the effect, that while a judgment under this rule should be binding on all persons on whose behalf the suit is brought or is defended, it shall not, except with the leave of the court, be executed against any such person who is not actually a party to the suit. In suggesting this amendment, the Commission followed the provisions of Order 15, rule 12(2), of the Revised Supreme Court Rules of England.
1. 27th Report, para. 62.
1P.8. The relevant provisions as formulated in the Appendix to the Report1 are as follows:
"(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; but such decree shall not be executed by or against any person not a party to the suit except with the leave of the court.
(7) Notice of an application for the grant of leave under sub-rule (6) shall be served on the person against whom the decree is sought to be executed in the manner provided in this Code for the service of a summons.
(8) Notwithstanding that a decree to which any application for the grant of leave under sub-rule (6) relates is binding on the person against whom the application is made, that person may dispute liability to have the decree executed against him on the ground that by reason of facts and matters peculiar to his case he is entitled to be exempted from such liability."
1. 27th Report, Appendix showing the draft amendments, Order 1, rule 8, Proposed sub-rules (6) to (8).
1P.9. We have carefully considered this particular point, and we think that such a restriction is unnecessary. We, therefore, recommend that while carrying1 out the amendment in Order 1, rule 8, as proposed in the earlier Report on the Code, the restriction as to execution without leave need not be incorporated.
1. To be borne in mind while amending Order 1, rule 8, as per 27th Report.