1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION JUDGE'S ORDER NO.53 OF 2011 IN SUIT (L) NO.205 OF 2011 Shankerlal H. Acharya @ Sharma and another Plaintiffs versus Shyamsunder G. Gajja and others Defendants Mr.C.T.Kripalani for plaintiffs. CORAM : S.J.KATHAWALLA, J. DATE : 28th March 2011 PC : 1. By this Judge's Order the plaintiffs are seeking leave of this Court to file the suit as a representative suit under Order I, Rule 8 of the Code of Civil Procedure, 1908 ("Code" for short). 2. There are only two plaintiffs to this suit. According to the plaintiffs they along with seven others are the children of one Lachhmi H. Acharya. The said Lachhmi Acharya was the sister of Manilal H. Gajja who expired in Mumbai on 10th August 1996. According to the plaintiffs the said Lachhmi Acharya was the only legal representative of the deceased Manilal H. Gajja. On 15th July 1997 a probate petition was filed by one Shamsunder G. Gajja as executor of the will of the deceased Manilal H. Gajja. Upon citations being served, the said Lachhmi H. Acharya filed a caveat and therefore the probate petition was converted into a T & I Suit No.14 of 1998. The said suit is pending before this Court. The said Lachhmi Acharya died intestate in Mumbai in October 2003. 3. Pending the T & I Suit No.14 of 1998, two of the sons of Lachhmi 2 Acharaya i.e. the plaintiff nos.1 and 2 have now filed the present suit for administration of the estate of their deceased uncle Manilal H. Gajja. In the said suit the plaintiffs have taken out this Judge's Order and have submitted that they have not joined their other seven brothers/sisters to the suit since they have a common interest and also to avoid multiplicity of proceedings. It is submitted that the plaintiff nos.1 and 2 therefore be granted permission to file the above suit as a representative suit under Order I, Rule 8 of the Code. The learned advocate for the plaintiffs has relied on Order I, Rule 8 of the Code which reads as under :- "Order-I : Parties to Suits :- Rule 8 : (1) Where there are numerous persons having the same interest in one suit, - (a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. (2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit. (4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3) of Rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2). 3 (5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be." He has submitted that the requirement of Order I, Rule 8 of the Code are met in the present suit and therefore the plaintiffs are entitled to such leave from this Court. 4. The Hon'ble Apex Court in the case of Chairman, Tamil Nadu Housing Board, Madras Vs. T.N.Ganapathy (AIR-1990-SC-642) has analyzed the object of the enactment i.e. Order I, Rule 8 of the Code. In paragraph 7 of the said decision the Hon'ble Apex Court whilst confirming a Full Bench decision of the Madras High Court in the case of Koodia Gounder Vs. Velandi Goundar ILR (1955) Mad 335 has held as follows :- "A Full Bench of the Madras High Court observed that on the plain language of Order I, Rule 8, the principal requirement to bring a suit within that Rule is the sameness of interest of the numerous persons on whose behalf or for whose benefit the suit is instituted. The Court, while considering whether leave under the Rule should be granted or not, should examine whether there is sufficient community of interest to justify the adoption of the procedure provided under the Rule. The object for which this provision is enacted is really to facilitate the decision of questions, in which a large number of persons are interested, without recourse to the ordinary procedure. The provision must, therefore, receive an interpretation which will subserve the object for its enactment. There are no words in the Rule to limit its scope to any particular category of suits or to exclude a suit in regard to a claim for money or for injunction, as the present one." 5. Though it is true that the word "numerous" used in Order I, Rule 8 does not fix any limit on the number of persons, the Apex Court has inter alia held that to invoke the provisions of Order I, Rule 8 of the Code, there 4 should be sufficient community of interest to justify the adoption of the procedure provided under the Rule and the object for which this provision is enacted is really to facilitate the decision of questions in which a large number of persons are interested. 6. In the case of The Municipal Council Amravati Vs. Govind Vishnu Sarnaik and others (AIR-1976-Bombay-401) a Single Judge of this Court whilst interpreting Rule 8 of Order I of the Code has held that the said Rule 8 is an exception to the general rule and being an exception, all its conditions will have to be strictly satisfied. 7. The present suit does not meet with the requirements laid down by the Hon'ble Apex Court. What the plaintiffs are seeking to do is to avoid joining their seven siblings to the present suit who are necessary parties to the suit and if not joined as plaintiff are required to be joined as defendants to the suit. In view thereof, the provision which is an exception to the general rule cannot be allowed to be used by the plaintiffs in the present case. In view thereof, the application seeking leave under Order I, Rule 8 of the Code of Civil Procedure, 1908 is rejected. (S.J.KATHAWALLA, J.)