ARUMUGHA NAICKER Vs. A.KUPPUSWAMI PILLAI

JUDGEMENT

(1.) THE question that falls to be decided in this revision petition is whether a representative action under Order 1, Rule 8, C. P. C., can be brought for rendition of accounts by certain members of an unregistered society on their own behalf and on behalf of the other members of the society. In this case, a suit was filed under O. 1, Rule 8 by six members of an unregistered Sabha on their own behalf and of the members of the Sabha for account of the monies collected and spent by the first defendant on behalf of all of them for prosecuting a litigation. One of the defences was that the suit as framed was not maintainable as the procedure laid down under Order 1, Rule 8 is not available in respect of actions for recovery of money or in respect of liability on contract or tort. The trial Court decreed the suit overruling this objection. The matter was taken to the Pun Bench of the Court of Small Causes by new trial application. The learned Judges upholding the preliminary objection as regards the maintainability of the suit reversed the decree and the judgment of the trial Court and dismissed the suit. The ground of this decision was that the provisions of Order 1, Rule 8 did not govern a suit for the recovery of a debt or to money claims or to liability on contract or tort. In support of the view taken by them they placed reliance on two rulings of this Court, one in Ratnasami Nadar v. Prince of Arcot Endowments : (1938)2MLJ148 and the other in 'Travancore National Bank v. Trana Bank Union' A.I.R. 1943 Mad 530. But a careful reading of these decisions shows that they do not lend any support to the view taken by the lower Court.

(2.) IN 'Ratnasami Nadar v. Prince of Arcot Endowments : (1938)2MLJ148 , a few of the villagers were sued under Order 1, Rule 8, as representing all the villagers for various reliefs including a relief for mesne profits. One of the questions that arose for consideration before the Bench who heard the appeal was whether a decree could be granted for a consolidated sum as representing the mesne profits in a suit under Order 1, Rule 8. The learned Judges while holding that there was sufficient community of interest amongst the defendants to attract the provisions Order 1, Rule 8, observed that a decree for mesne profits could not be granted against the defendants sued in a representative capacity for the reason that the procedure prescribed under Order 1, Rule 8 does not apply to money claims or liabilities on contract or tort. The observations of the learned Judges at page 151 would show that they did not mean to lay down that the provisions of Order 1, Rule 8 could not be availed of even by the plaintiffs to bring a suit in a representative capacity for laying an action to recover a debt or for rendition of accounts. They remarked: 'In the present case, the Judge has granted a decree for a consolidated sum as representing the mesne profits. It is to be held that each individual of the 150 odd villages is liable for mesne profits in respect of the entire land, although under the karaiyedu form of enjoyment no ryot is in occupation of more than a fractional share of the whole land. The injustice of such a decree is obvious and the principle of the English decision already quoted clearly applies.' The learned Judges followed the principle enunciated in two English decisions in 'Hardie and Lane Limited v. Chilton' (1928) 1 K. B. 663 and 'Walker v. Sur' 1914 2 K. B. 930.

(3.) IN 'Walker V. Sur' 1914 2 K.B. 930 the plaintiff sued four members of an unincorporated religious society on their own behalf and on be -hall or other members for recovering money for professional services, etc., rendered to the society. It was decided there that the provisions of Order 16, Rule 9 of the Supreme Court rules would not govern it as an action for a debt against the delendants, would not come within, the provisions of Order 16, Rule 9. The observations contained in the speech of Buckley, L. J., at page 935 are pertinent. He observed: 'If this order had not been appealed, and the plaintiff had gone to trial and asked for judgment what judgment could he have obtained? At the most an order against these four persons. It is said that these four persons together with many others, making up about 1,800 in ail, are members of the society called 'The Brotherhood of St. John of God', and that that body of persons or a smaller number - - say 1,000 persons - - own property in Yorkshire, and that most or all of the other members of the brotherhood are abroad and, being outside the Jurisdiction, cannot be reached. The plaintiff says 'I want to have execution against the property in Yorkshire. But when he had obtained his judgment he could have had execution only against the share of these four persons in that property. There is nothing representative about that.' The same Law Lord remarked again: 'If all can effectually be sued, it would be strange if all could not effectually defend. Can the rule mean that while all may be sued by representatives they cannot defend unless the Court gives authority so to do?'