Neutral Citation Number 2023:DHC:3367

RFA 279/2019

Page 1 of 26

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment reserved on: 28.04.2023

Judgment pronounced on: 15.05.2023

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RFA 279/2019 and CM APP.45728/2021 & CM APP.8257/2023

SH. ANIL KUMAR JAIN & ANR.

..... Appellant

versus

BHAGWAN MAHAVIR MEMORIAL SAMITI & ORS.

..... Respondent

HON'BLE MR. JUSTICE TUSHAR RAO GEDELA

Advocates who appeared in this case:

For the Petitioner :

Mr. S.S. Jain, Advocate.

For the Respondent :

Mr. Navaniti Prasad Singh, Sr.

Advocate with Mr. Sumit Sharma and

Mr. Shantanu Chauhan, Advocates for

R-1 & 18.

Mr. Abhishek Baid and Mr. Praneet

Das, Advocates for R-4 & 17.

Mr. Mohit Kumar Bafna, Advocate for

R-6, 13, 15, 16, 20, 22 & 23.

Mr. Anuj Jain, Advocate for R-8.

CORAM:

JUDGMENT

TUSHAR RAO GEDELA, J.

1.

The appellants challenge the order and judgment dated

15.12.2018 passed in CS No. 58528/2016 whereby the learned Trial

Court had dismissed both, the application under Order I Rule 8 of the

Code of Civil Procedure, 1908 (hereinafter as “CPC”) and the suit of the

[ The proceeding has been conducted through Hybrid mode ]

Digitally Signed

By:VINOD KUMAR

Signing Date:16.05.2023

11:47:48

Signature Not Verified

Neutral Citation Number 2023:DHC:3367

RFA 279/2019

Page 2 of 26

appellants/plaintiffs simultaneously, by holding that the suit of the

plaintiffs in which the respondent no. 1/defendant no. l society has been

sued

in

a

representative

capacity

is

filed

without

seeking

permission/leave of the court under Order I Rule 8, CPC and hence, not

maintainable.

2.

The following facts, shorn of all unnecessary details and germane

to decide the dispute are as under:-

2.1

The appellants/plaintiffs filed a suit for Declaration, Permanent

and Mandatory Injunction, besides being members of respondent

no.1/defendant no.l society, in their representative capacity of the Jain

community as a whole so as to reinstate public character and to establish

a complete democratic setup in the respondent society and to maintain

its all India stature on the basis of its only valid, legal constitution i.e.

original Memorandum of Association and Rules & Regulation

registered alongwith registration of society in the year of 1974.

2.2

As the suit of the plaintiffs would have affected 165 members of

the defendant no.l society and non-members and as it was not practically

possible to serve each of them to represent their interest, therefore, the

suit was filed in a representative capacity in such a manner that the

defendant no.l society will represent the interest of all the members.

Therefore, the plaintiffs also filed an application under Order I Rule 8

CPC to allow the defendant no.l society to be sued in representative

capacity of members of the society or the Jain Community as a whole.

2.3

Such application filed by the plaintiffs under Order I Rule 8, CPC

sought exemption from impleading all the 165 members as defendants

Digitally Signed

By:VINOD KUMAR

Signing Date:16.05.2023

11:47:48

Signature Not Verified

Neutral Citation Number 2023:DHC:3367

RFA 279/2019

Page 3 of 26

in the proceedings and permission for, if required, publishing a public

notice in any of the leading national newspapers to the effect of

pendency of the proceedings with further necessary directions as per

law.

2.4

The learned Trial Court heard the arguments of the parties on the

application of the plaintiffs under Order I Rule 8, CPC as none of the

defendants chose to file a reply to the said application and passed the

impugned order and judgment dated 15.12.2018, thereby dismissing the

application of the plaintiffs on the basis that the plaintiffs have not

sought any prayer, either in the said application or in the suit, thereby

seeking permission of the Court to sue defendants in the representative

capacity on behalf of the members of the respondent society or inst