1986 Supreme(MP) 614

IN THE HIGH COURT OF MADHYA PRADESH
V.D. Gyani, J.
Panchan Hindu Tal – Appellant
Versus
Panchan Ahala Islam Tal – Respondent
S.A. No. 453 of 1975 (I)
Decided On : 21-03-1986

Headnote:(1)Civil Procedure Code, 1908 – S. 11 – previous suit not in representative capacity – judgment does not operate as res – judicata in subsequent suit in representative capacity.

       (2)Civil Procedure Code, 1908 – O. 1, R. 8 – suit in representative capacity – class of persons should be clearly defined.

        Short Note

       1. The crux of the question lies in a narrow compass whether the judgment and decree in a suit though not representative in character, decision given therein on a public right, whether would be binding on a subsequently instituted representative suit?

       2. Law assumes that all persons who have the same interest as the plaintiff in the representative suit were represented by the said plaintiffs and therefore, are constructively barred by res – judicata from re – agitating the matters directly and substantially in issue in the said suit. A similar result follows if a suit is either brought or defended under Order 1, Rule 8 in that case, persons either suing or defending the action are doing so in a representative character and so the decree passed in such a suit binds all those whose interest were represented either by the plaintiffs or by the defendants. Thus, it is clear that in determining the question about the effect or a decree passed in a representative suit it is essential to enquire which interest were represented by the plaintiff or defendants. The Supreme Court in Ahmad Adam vs. M.E. Makhri, 1964 SC 107 dealing with a representative suit brought by the Cutchi Memon Community in respect of mosque in Bangalore, while considering the nature of a representative suit, vis – a – vis the interest of the Muslim Communities other then Cutchi Memon held as follows: –

       "That the plaintiffs in the suit did not claim and in fact, did not represent the interests of any community other than the Cutchi Memon Community. The suit instituted on the narrow basis could riot be regarded as a representative suit so far as the interest of Muslim Communities other than the Cutchi Memon Community residing in Bangalore were concerned. Those who filed the said suit expressly pleaded that no other community was concerned or interested in the said Trust and therefore, it would be idle for them subsequently to contend that they purported to represent the interests of the other communities."

       3. It is not disputed that the earlier Suit No. 51/71 was not a representative suit. The submission made by Shri Khan learned Counsel for the respondents is that procedural technicalities should not be allowed to creep in, cannot be accepted as compliance of Order 1, Rule 8 CPC is not a more procedural technicality but it formulates an exception to the general principle that all persons interested in a suit shall be parties thereto. In a representative action it is essential that the class of persons on behalf of whom relief is sought should be clearly defined. The gist of requirement is that as the judgment in such an action is binding on all the members of the class represented it is of essence that the range of the estoppel be defined somewhere on the face of the proceeding (See AIR 1933 PC 183). In the earlier a suit no permission to sue in representative capacity was applied for not the present plaintiff appellants were represented therein. In such circumstances, the decree in the former suit cannot operate as a res – judicata against the present appellants. One of the essential requirements of Section 11 CPC is that the parties in the former suit must be litigating under the same title which is not to be found in the present suit. In the former suit no such permission as required by Order 1, Rule 8 was given by the Court to the defendants to represent the interest of the community. AIR 1933 PC 183 and AIR 1936 PC 147 referred to. AIR 1964 SC 107 followed. Appeal allowed.