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TMI Blog1954 (9) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed. In appeal, A. S. No. 82 of 1927, the Subordinate Judge granted a decree on 19-8-1929, declaring that the Kothapatti ryots are entitled to irrigate their lands through a particular sluice for two days and issuing a permanent injunction restraining the Kadrnara singapuram ryots from closing the sluice during the said two days and from otherwise preventing the Kothapatti ryots taking water to their lands from the said sluice. The appellants as plaintiffs in the said suit filed an execution petition No. 236 of 1948 praying for impleading respondents 4 to 13 as defendants and asking for an order of attachment of their properties and for committing them for contempt to civil jail or disobedience of order of injunction. Respondents 4 to 13 contended that the decree could not be executed against them as they were not parties to the suit. The trial court accepting their, contention rejected the execution petition. In appeal the learned Subordinate Judge held that the decree was executable and in second appeal Panchapagesa Sastri J. reversed the decision of the appellate court upholding the contention of the respondents 4 to 13 that the decree was not executable against them. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any subsequent proceedings be binding not only on the parties but also on all the persons interested in such right and who were constructively represented in the previous litigation. Such a result would depend not only on the requirements of Section 11, C. P. C. being satisfied, but it must be shown that the persons who represented the others conducted the litigation 'bona fide'. 5. It is urged that the suit in the present case must be deemed to be against the entire residents of the Kadinarasingapuram village, though only some of their representatives were made parties to the suit and that the suit as well as the decree passed therein must be deemed to have been passed not only against the persons who are on record out against the larger body of persons whom the parties on record represented by virtue of the order obtained under Order 1, Rule 8 C. P. C. There can be no doubt that the defendants who were impleaded in the suits, represented a larger body of persons on whose behalf they were sued, in which case the decree will be binding on the entire body of villagers by operation of the principle of 'res judicata' as enacted in Section 11, Explanation VI. The mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though they were sought to be represented by the defendants on record by reason of the procedure in Order 1 Rule 8 having been followed. 7. In Sadagopachari v. Krishnamachari, 12 Mad 358 (A), a similar question arose. There in a suit of 1840, the plaintiffs who were members of the Vadagalal sect obtained against the defendants who were members of the Tengalai sect, a decree declaring that the defendants were not entitled to install an image of their saint Manavala Mahamuni in a certain temple of the village and directing that the same be removed if it was so installed. Several years later, in 1338, the members of Vadagalai sect, asserting that the members of the Tengalai sect had acted in contravention of the decree filed an execution petition praying that the various members of the Tengalai sect be arrested for disobedience of the order of injunction. It was held that the decree could not be executed, Muttuswami Aiyar and Parker JJ. observed at p. 365 as follows : The contention that a few may represent many in a suit when the matter litigated is of common interest might support a fresh suit instituted to bring those not named in a writ of injunction within its scope, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Judges in the Madras case were 'obiter dicta'. It was further observed that the whole object of a representative suit of this kind would be defeated if it were held that a decree obtained in such a suit could not be executed against any person except the chosen representatives. But the serious consequences of a personal decree held to be executable against persons who are not parties have also to be envisaged. It may be that the decree might have been obtained at a time when the persons against whom it is sought to be executed were never in existence and it may be that in some cases the existence of such a decree may not be within the knowledge of these persons and questions as to whether the parties litigated 'bona fide' and as to whether the decree was not tainted by fraud or collusion are all matters for which opportunity must be given, to persons, who had no part directly in the litigation, to raise any defences open to them. The circumstances that Order 1, Rule 8, C. P. C. was not in force in the case in 12 Mad 356 (A) is not of any consequence, as the suit itself was instituted in a representative capacity against the other sect, who were also su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt Rules corresponding to Order 1, Rule (8), C. P. C., and in 1914 2 KB 930 (F)', Buckley L. J. while refusing the leave observed that if leave was to be granted and decree was to be passed in the suit execution could be maintained against all the persons represented and that such a consequence could be avoided only by refusing leave. 11. In 'Nandaramdas Atmaram y. Zulika Bibi AIR 1943 Mad 531 (H), the scope of Order 1 Rule 8, came to be considered and the view taken was that Order 1 Rule 8 should not be construed to mean that the entire body of persons interested in the litigation are should be deemed to be actually parties to it and that such a construction is to some extent negatived by Sub-rule (2) which suggests that any person is not a party until the court allows the application and makes him a party. 12. Whatever may be the view in England as regards the executability of such decrees solely founded on the observations of Buckley L. J. in '1914-2 KB 930 (F)', where, however, the question did not directly arise, but come to be incidentally, considered in judging the consequences of giving leave in a money suit against defendants in a representative capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh and long grass produce removed by the defendants from the Deevalur lake contrary to the terms of the decree in O. S. No. 81 of 1935. The suit was in effect for loss caused to the plaintiffs by the defendants interfering with the right declared to the plaintiffs in the earlier suit. One of the defences raised was that the suit was not maintainable. The trial court overruled the objection and granted a decree for ₹ 525 as damages. In appeal, the learned Subordinate Judge upheld the objection and held relying on -- Katha Pillai v. Kanakasundaram Pillai, AIR 1919 Mad 1143 (I); and-- 'Narayana Mudali v. Peria Kalathi AIR 1939 Mad 783 (J), that the plaintiffs cannot sue for damages in a representative capacity. 14. The point for determination in this appeal is whether a representative suit under Order 1, Rule 8 could be instituted for recovery of loss and damages which the plaintiffs have sustained by reason of the interference with the rights of the nanja ayacutdars of Deevalur village by the defendants. Order 1 rule 8 provides that, Where there are numerous persons having the same interest in one suit, one or more of such persons, may with the permission of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rame of the suit and such a suit for damages in tort was held to be hot maintainable, though it was observed that a representative suit for damages could be combined with other reliefs. 17. In 'Ratnaswami Nadar v. Prince of Arcot's Endowments AIR 1938 Mad 755 (M), certain defendants were sued under Order 1 Rule 8, as representing a large number of villagers holding a tenure called Karaiyedu on the ground that they had taken unlawful possession of the land and a decree for possession and mesne profits for a consolidated sum was passed by the trial Court. In appeal the decree was confirmed except in so far as it pertained to the recovery of mesne profits. While observing that there was sufficient community of interest as between the defendants to render Order 1, Rule 8 applicable, the learned Judges were of the opinion that the lower court was wrong in passing a decree for mesne profits. They further observed at pp. 755-756: Though the point is not covered by Indian authority, the law seems quite clear under the corresponding English rule, that the procedure pertaining to representative suits is inapplicable to actions of debt, to money claims or to liabilities in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 not as to-- 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 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 associatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e terms of Order 16, Rule 9 of the Supreme Court rules by the judges there we consider that in India where rights of communities to Own property is recognised, it is necessary that Order 1, Rule 8, C. P. Code, should receive an interpretation to subserve the practical needs of the situation. In cases of appropriation of or injury to communal property unless a right of suit under Order l, Rule 8, C. P. Code were held applicable to suits on behalf of such bodies for damages occasioned by misappropriation of or injury to communal property the injury could not be redressed at all. There is nothing to the language of Order 1, Rule 8 to exclude such suits from its scope and to permit such actions would lead to no inconvenience or Injustice. On the other hand to deny such a method of proceeding would practically be tantamount to denying all relief to such injury, since a suit by the individual composing the community would be met by the objection that the plaintiff could not predicate his individual or personal rights to any defined or aliquot part the sum due to the community. In our view, the present suit being a claim for recovery of a sum of money alleged to be the loss caused to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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