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TMI Blog1985 (8) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... dents Nos. 2 to 6 here, directors of that company, were defendants Nos. 2 to 6 therein. The object of the said suit of respondent No. 1 was to obtain a declaration invalidating a resolution dated November 15, 1980, of the board of directors of the petitioner-company relating to issue of fresh equity shares of the company, and other consequential reliefs. For instituting that suit on behalf of, and for the benefit of, other shareholders of the petitioner-company, respondent No. 1 filed an interlocutory application, I.A.I., therein seeking the court's permission therefor under clause ( a ) of sub-rule (1) of rule 8 of Order 1 of the Code of Civil Procedure, 1908 (for short "the Code"). The court, by its order dated November 12, 1981, allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s its place. According to him, when clause ( a ) did not contemplate issue of prior notice by the court before grant of permission thereunder, the order of the court allowing I.A.I., without issue of such notice, does not stand vitiated. Sub-rule (1) of rule 8 of Order 1 of the Code, in which clause ( a ) finds its place, and sub-rules (2) and (3) of that rule 8, may be set out at the outset for a proper 'appreciation of the above rival contentions of the learned counsel. They read : "8(1) 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 interested ; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission of the court or as directed by the court. Whether or not prior notice under clause ( a ) above is required to be issued by the court before grant of permission thereunder, is the controversy which calls to be resolved now. The express language in clause ( a ) above, as is apparent therefrom, does not require issue of prior notice before grant of permission thereunder. Then, can such a requirement be implied in the setting of the provisions in which clause ( a ) finds its place. Such requirement, in my view, cannot be implied for the reasons which I shall presently state. Clause ( b ) above which finds its place next to clause ( a ) above, while empowers the court, on its own motion, to direct one or more of numerous persons havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson on whose behalf, or for whose benefit, a suit is instituted or defended under sub-rule (1) to apply to the court to be made a party to such suit. When sub-rule (3) above enables any person on whose behalf, or for whose benefit, a suit is instituted or defended under sub-rule (1) to apply to the court to become a party to such suit, either as plaintiff to support the suit or as defendant to oppose the suit, it is difficult to think that any useful purpose would be served by issue of prior notice to such person either before grant of permission under clause ( a ) or issue of direction under clause ( b ), of sub-rule (1) of rule 8 of Order 1 of the Code. Issue of prior notice before grant of permission under clause ( a ) or issue of dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, as it stood then, read thus : "8(1). Where there are numerous persons having the same interest in one suit, one or 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 such service is not reasonably practicable, by public advertisement, as the court in each case may direct." The Bombay High Court, for holding that prior notice was to be given by the court under sub-rule (1) above before it granted permission thereun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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