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PETITIONER: SINGHAI LAL CHAND JAIN(DEAD)

       Vs.

RESPONDENT: RASHTRIYA SWAYAM SEWAK SANGH,PANNA & ORS.

DATE OF JUDGMENT:       15/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1211            1996 SCC  (3) 149  JT 1996 (3)    64        1996 SCALE  (2)589

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      Heard learned counsel on both sides.      This appeal  by special  leave arises from the judgment and order  dated July 16, 1991 made in C.R. No.476/88 of the Madhya Pradesh  High Court,  Jabalpur  Bench.  The  Division Bench held  that the  objection to  the  maintainability  of representative suit without leave of the Court under Order 1 Rule 8  of the  Code of  Civil  Procedure,  1908  [Code]  is sustainable. The  decree of  the Court  is a nullity and non est.  Therefore,   Explanation  VI  to  Section  11  is  not attracted to  the  facts  in  this  case.  Accordingly,  the execution is  not  maintainable.  Calling  in  question  the finding and  decision of  the High  Court,  this  appeal  by special leave has been filed.      The facts are fairly not in dispute. The appellant laid Civil Suit No.1A/87 in the court of District Judge, Panna in Madhya Pradesh  for eviction of Rashtriya Swayam Sewak Sangh through its  Manager, Shri Gorelal Soni, its President, Shri Shiv Behari  Srivastava, Advocate  and the  Head  Master  of Saraswati Shishu  Mandir, Panna  by name Ram Kripal Chaubey, as a  member of  the Sangh. The claim was based on the title and for  eviction of the Sangh and its office bearers on the premise that  it had  no  authority  to  stay  in  the  suit premises.  It   was  the  appellant’s  plea  that  they  had requested for  temporary occupation  of  the  premises  till alternative site  was secured. He had permitted the Sangh to occupy the  premises for  office  purposes.  But  later  the respondents had not vacated the premises. Then defence taken by the  Sangh through  its Manager,  the President  and  the Member in  joint written  statement was  that  the  property belonged to  the Raja of Panna who at a meeting had declared that the  Sangh was  entitled to  occupy  the  premises  and remain in  possession for  all times. Pursuant to that, they had come into the premises and, therefore, they are entitled

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to remain  in possession. Appropriate issues were framed and after adduction of evidence and consideration thereof, the trial Court upheld the plea of the respondent; and dismissed the suit  F.A. No.70/81,  the High  Court by  an  order  and judgment dated  October 31,  1986  allowed  the  appeal  and decreed the  suit for  ejectment. All the three filed S.L.P. (C) No.2751/87  in this  Court and  by order  dated July 15, 1987 a Bench of three Judges of this Court refused leave and dismissed the petition.The appeal was argued by no less than Shri U.R.  Lalit, one  of the eminent senior counsel of this Bar. After  the execution  was laid,  Gorelal Soni  and  the respondents had  filed objections  contending that Sangh was not a  registered body  but composed of several members. The appellant had  not  followed  Order  1  Rule  8,  procedure. Therefore, the  decree was a nullity and Section 11 is not a bar. The  executing  Court  had  upheld  the  objection  and dismissed  the   petition.  On   revision,  the  High  Court confirmed the same.      Shri Shiv  Dayal  Srivastava,  learned  senior  counsel appearing for  the appellant  has contended  that in view of the stand  taken by  the Manager, the President of the Sangh and  the   Member  and   having  diligently  prosecuted  the proceedings, by  no  stretch  of  imagination  it  could  be construed to  be a collusive suit. Unless there is a finding that the  decree is  obtained by  collusion  or  negligence, every member  of the  Sangh is  bound by  the decree  Though formal permission  of the court under Order 1 Rule 8 was not sought for  in the suit, in substance it is a representative suit and  the defendants  so understood  it. Every member of the Sangh is bound by the decree. The view of the High Court is not correct in law.      Shri Adarsh  Kumar Goel,  the learned counsel appearing for  the   respondents  contended   that  permission  for  a representative suit  under Order  1 Rule  8 is  mandatory in law. No  permission having  been obtained  by the appellant, the decree  passed by the High Court on appeal is a nullity. That plea  can be  raised at  any  stage  including  in  the execution. The  High Court,  therefore,  was  right  in  its conclusion that the decree is a nullity.      The question,  therefore, is: whether the view taken by the High  Court is  correct in law. Relevant part of Order 1 Rule 8 provides thus:      "8. One person may sue or defend on      behalf of  all in  same interest. -      [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."      Procedure is  the handmain  to the substantive justice. The suit  was laid  against the  Sangh  represented  by  the Manager,  Mr.  Gorelal  Soni,  the  President,  Shiv  Behari Srivastav, a practising advocate and also a member who is no other than  a Head  Master of  a school,  three of  them had Jointly  filed   the  written  statement  with  the  defence available to  them. The  trial Court  had proceeded  on that

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basis. After framing the appropriate issues, the trial Court had accepted  the plea  of the  defendants and dismissed the suit. On appeal, when the correctness thereof was canvassed, the respondents  defended the  action.  The  High  Court  on consideration of  the evidence,  did not  accept the plea of the Sangh  and accordingly, granted a decree. The matter did not rest  there, they came in appeal by way of special leave which was  argued by  one of the most eminent members of the Bar on  behalf of  the Sangh.  The leave was refused by this Court. Thus  it can be concluded that the Sangh was properly represented by  the President,  the Manager  who was  at the relevant time  in office  on behalf  of the  Sangh and  also member of  the Sangh who was no other than a Head Master and a practising  advocate as  President. The  High Court, after hearing counsel  on either  side, considered  the  case  and decreed the  suit.  With  dismissal  of  the  special  leave petition by  this Court, the decree became final, Therefore, it cannot  be said  to be  a collusive  suit nor a shadow of negligence is traceable so as to treat the decree a nullity. It is  true that  no permission of the Court was taken to be sued in  a representative  capacity by  or on  behalf of the Sangh. But  clause (b)  of Order 1, Rule 8 indicates that it may sue  or be  sued, or may defend such suit, on behalf of, or for  the benefit of all persons so interested, Clause (b) clearly applies  to the facts in this case. The President of the Sangh,  the Manager  of the Sangh and a Member have duly represented the  Sangh and defended the suit for the benefit of all the persons so interested in the Sangh.      Having been thus defended, the question arises: whether the decree  operates as  a res  judicata. Section  11,  Code envisages principle  of res  judicata, i.e.,  no court shall try any  suit or  issue in  which the  matter  directly  and substantially in  issue has  been directly and substantially in issue  in a  former suit  between the  same  parties,  or between parties  under whom  they or  any  of  them,  claim, litigating under  the same  title, in  a suit  in which such issue has  been subsequently  raised, and has been heard and finally decided  by such court. Explanation VI to Section 11 is relevant in this behalf and reads thus:      "Where persons  litigate bona  fide      in respect  of a  public right or a      private    right     claimed    for      themselves and  others, all persons      interested in such right shall, for      the purposes  of this  section,  be      deemed to  claim under  the persons      so litigating."      Therefore, the  respondents now  claim under  the  same title in the previous suit and thereby they are bound by the decree. The doctrine of evolved the public policy to prevent trial of  an issue  twice over.  It clearly  applies to  the facts of  the case. Accordingly, they are precluded to raise objections on behalf of the Sangh by filing the objections.      In Surayya  Begum [Mst.] v. Mohd. Usman & Ors [(1991) 3 SCC  114],   this  Court   has  considered   the  effect  of Explanation VI of Section 11 and held thus:      "The principle of representation of      the  interest   of  a  person,  not      impleaded by  name  in  a  judicial      proceeding, through  a named  party      is not  known. A  karta of  a Joint      Hindu  Family   has   always   been      recognized as  a representative  of      the  other  members  of  the  Joint      Hindu Family,  and so  has  been  a

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    trustee.   In   cases   where   the      provisions of  Order 1,  Rule 8  of      the  Civil   Procedure   Code   are      attracted a  named party  in a suit      represents   the    other   persons      interested in  the litigation,  and      likewise a  receiver  appointed  in      one case represents the interest of      the litigating  parties in  another      case against  a stranger. Similarly      the real  owner is  entitled to the      benefits under a decree obtained by      his benamidar  against  a  stranger      and at  the same time is also bound      by the  decision. Examples  can  be      multiplied. It  is for  this reason      that we  find Explanation VI in the      following words  in Section  11  of      the Code of Civil Procedure:           "Explanation   VI.   -   Where           persons litigate  bona fide in           respect of  a public  right or           of a  private right claimed in           common  for   themselves   and           others, all persons interested           in such  right shall,  for the           purposes of  this section,  be           deemed  to   claim  under  the           persons so litigating".      This, of  course, is subject to the      essential   condition    that   the      interest of  a person concerned has      really  been   represented  by  the      others;   in   other   words,   his      interest has been looked after in a      bona fide  manner. If  there by any      clash  of   interests  between  the      person concerned  and  his  assumed      representative or if the latter due      to  collusion   or  for  any  other      reason mala fide neglects to defend      the case,  he cannot  be considered      to be  a representative. The issue,      when  it   becomes  relevant,  has,      therefore,  to   be  answered  with      reference   to    the   facts   and      circumstances  of   the  individual      case. There  may  be  instances  in      which the  position  is  absolutely      clear beyond  any reasonable  doubt      one  way   or  the  other  and  the      question can be settled without any      difficulty; but  in other cases the      issue may  have to  be decided with      reference to  relevant evidence  to      be  led  by  the  parties.  Surayya      Begum’s case is of this class while      Renu Sharma’s appeal belongs to the      first category".      The Privy Council in Talluri Venkata Seshayya & Ors. v. Thadikonda Kotiswara  Rao &  Ors. [AIR  1937 PC  1] had held thus:      "The provisions of S.11 of the Code      are  mandatory   and  the  ordinary      litigant, who  claims under  one of

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    the parties to the former suit, can      only avoid its provisions by taking      advantage of  S.44,  Evidence  Act,      which defines  with  precision  the      grounds of  such avoidance as fraud      or collusion.  It is  not  for  the      Court to  treat negligence or gross      negligence, as  fraud or collusion,      unless fraud  or collusion  is  the      proper inference  from facts. Other      factors in  Except.6 to  5.11 being      present, the  section lays  down  a      condition that  the persons must be      litigating  bona   fide   and   the      fulfillment of  this  condition  is      necessary for  the applicability of      the section."      Thus it  could be  held that the Sangh having been duly represented in  the previous  proceedings and  conducted the litigation on  behalf  of  the  Sangh  bona  fide  and  were unsuccessful in  the suit, no one on behalf of the Sangh can lay any  objection in the execution nor plead nullity of the decree. The  doctrine of res judicata prohibited the members of the  Sangh to  obstruct the  execution of the decree. The decree of  ejectment binds  every member  of the  Sangh and, therefore, the  appellant is  entitled to  have  the  decree executed and possession taken.      The appeal  is accordingly  allowed and the respondents are  directed  to  deliver  the  vacant  possession  of  the premises within  six months  from  today.  In  default,  the appellant is  entitled to  day. In default, the appellant is entitled to  have the decree executed through the assistance of the police. No costs.