Suit Not Liable To Dismissal For Want Of Permission To Sue In Representative Capacity, But Outcome Binds Only Parties: Allahabad High Court

The Allahabad High Court has held that a suit filed in a representative capacity under Order 1 Rule 8 CPC is not liable to be dismissed merely because the permission of the Court was never sought. It held that the only consequence is that it is treated as a suit by the plaintiffs alone, binding only the parties to it.

Justice Saurabh Shyam Shamshery held,

“As referred above, purpose of Order 1 Rule 8 C.P.C. is that if the permission is sought and granted the suit will be considered to be filed in representative capacity and in case permission is rejected, it would be considered that outcome of suit will be final between parties only.”

The suit was filed in 1970 by the plaintiffs-respondents, who claimed the land in dispute had been used as a Muslim graveyard for more than 300 years and sought to stop the defendant-appellant interfering with it. The plaint said it was being filed in a representative capacity under Order 1 Rule 8 CPC, but permission was never sought, and so was neither granted nor refused. The defendant-appellant pleaded that he had bought the land and could build on it, and that it had never been a graveyard, or at most in a small part.

The Trial Court partly decreed the suit on 29.01.1976, separating the graveyard land from the land available to the defendant-appellant. That decree was set aside by the District Judge, Hamirpur on 05.10.1977 and the matter remitted. On re-hearing, the Trial Court decreed the suit in entirety on 26.04.1978, holding the whole 18.14 acres to have always been used as a graveyard, and the defendant-appellant's appeal was dismissed on 02.03.1981.

The second appeal, filed in 1981, had been admitted on two questions of law which counsel for the appellant fairly accepted were mixed questions of law and fact. He proposed instead that the suit was liable to be dismissed at the threshold for want of permission under Order 1 Rule 8 CPC, relying on Kalyan Singh vs. Smt. Chhoti and others. He submitted that the point had been raised in neither court below, and the plaintiffs-respondents opposed it on that ground.

On facts, the Court found no illegality in the concurrent findings, the courts below having relied on the evidence and on a spot inspection report that largely went unchallenged.

On the surviving question the Court relied on the Supreme Court's decision in Hari Ram vs. Jyoti Prasad and another, where a suit was held not bad for non-compliance with Order 1 Rule 8 CPC because it had been brought by an aggrieved person whose own right was prejudicially affected. That decision had referred to Kalyan Singh, which held the Court's permission mandatory before a suit can be treated as representative, but also that a member of a community may sue to assert or protect his right in community property without complying with the provision.

Applying this, the Court held,

“Therefore, when in the present case though suit was filed purportedly under the provisions of Order 1 Rule 8 CPC but since no permission was sought, therefore, no permission was granted and, therefore, suit shall be considered to be filed by plaintiffs only and list shall remain between parties to suit only. The suit will not be considered to be filed in representative capacity or for entire Muslim community.”

Where permission under Order 1 Rule 8 CPC is not sought or not granted, the Court held, the only effect is that the outcome of the suit is final between the parties to it alone. The question proposed was accordingly not a substantial question of law.

Finding that no substantial question of law was involved, the Court dismissed the second appeal.