Maintainability of representative action for rendition of accounts.

The question that falls to be decided in this revision petition is whether a representative action under Order 1, rule 8, Civil Procedure Code, can, be brought for rendition of accounts by certain members of an unregistered society on their own behalf and on behalf of the other members of the society. In this case, a suit was filed under Order 1, rule 8, by six members of an unregistered Sabha. on their own behalf and of the members of the Sabha for account of the monies (Collected and spent by the first defendant on behalf of all of them for prosecuting a litigation. One of the defences was that the suit as framed was not maintainable as the procedure laid down under Order 1, rule 8, is not available in respect of actions for recovery of money or in respect of liability on contract or tort. The trial Court decreed the suit overruling this objection. The matter was taken to the Full Bench of the Court of Small Causes by a new trial application. The learned Judges upholding the preliminary objection as regards the maintainability of the suit reversed the decree and the judgment of the trial Court and dismissed the suit. The ground of this decision was that the provisions of Order I, rule 8, did not govern a suit for the recovery of a debt or to money claims or to liability on contract or tort. In support of the view taken by them they placed reliance on two rulings of this Court, one in Ratnasami Nadar v. Prince of Arcot Endowments1, and the other in Travancore National Bank v. Tana Bank Union2. But a careful reading of these decisions shows that they do not lend any support to the view taken by the lower Court.

In Ratnasami Nadar v. Prince of Arcot Endowments1, a few of the villagers were sued under Order 1, rule 8, as representing all the villagers for various reliefs including a relief for mesne profits. One of the questions that arose for consideration before the Bench who heard the appeal was whether a decree could be granted for a consolidated sum as representing the mesne profits in a suit under Order 1, rule 8. The learned Judges while holding that there was sufficient community of interest amongst the defendants to attract the provisions of Order 1, rule 8, observed that a decree for mesne profits could not be granted against the defendants sued in a representative capacity for the reason that the procedure prescribed under Order i, rule 8, does not apply to money claims or liabilities on contract or tort. The observations of the learned Judges at page 151 would show that they did not mean to lay down that the provisions of Order 1, rule 8, could not be availed of even by the plaintiffs to bring a suit in a representative capacity for laying an action to recover a debt or for rendition of accounts. They remarked:

“In the present case, the Judge has granted a decree for a consolidated sum as representing the mesne profits. It is to be held that each individual of the 150 odd villages is liable for mesne profits in respect of the entire land, although under the karaiyedu form of enjoyment no ryot is in occupation of more than a fractional share of the whole land. The injustice of such a decree is obvious and the principle of the English decision already quoted clearly applies”.

The learned Judges followed the principle enunciated in two English decisions in Hardie & Lane, Ltd. v. Chiltern3 and Walker v. Sur4.

In Hardie & Lane, Ltd. v. Chiltern3, the plaintiffs who were members of an association of motor dealers and manufacturers which was an unregistered trade union brought a suit against some of the members on their own behalf and on behalf of all the other members of the association for damages under Order 16, rule 9, of the Rules of the Supreme Court which is similar to Order 1, rule 8, Civil Procedure Code. It was held that the defendants could not be sued in a representative capacity as there was no ground for holding that the members of the association had community of interest either in the action or in the