SUNIL KUMAR BOSE Vs. LILA GUPTA

JUDGEMENT

(1.) This application for a revision under Sec. 115 of the Code of Civil Procedure is directed against an order passed by the 3rd Subordinate Judge at Alipore in Title Suit no. 33 of 1972 on 30th of May 1973. The same arises out of an application made by the plaintiffs seeking leave to proceed with the suit in the representative character under Order I, Rule 8 of the Code of Civil Procedure (hereinafter referred to as the said Code). It appears that this suit was filed by some employees of the Calcutta Chemical Company Limited (hereinafter referred to as the said company) in respect of their Provident Fund money. It was alleged in the plaint that the Provident Fund money was misappropriated by one Jagat Prasanna Gupta, one of the Trustees of the Fund and that certain properties were purchased out of such money in the benami of certain persons. This suit was instituted against the widow of Jagat Prasanna Gupta and the so-called benamdars. After institution of the suit the plaintiffs made this application under Order 1, Rule 8 of the Code for leave to proceed with the suit in the representative character. The learned Subordinate Judge by his order dated 30th of May, 1973 dismissed the said application, it was,inter alia,held by the learned Subordinate Judge that the employees of the said company had no cause of action for the present suit inasmuch they are entitled to the Provident Fund money only on retirement and that being in service at the time of the filing of the suit they are not entitled to any amount from the said Provident Fund. The learned Judge held that the plaintiff and the other employees had no common interest in respect of the Provident Fund money due to the others and in their respective Provident Fund money. He held that there Was no common interest between the plaintiff and the other employees. On this ground the application was dismissed by him.

(2.) It appears to us that the learned Subordinate Judge proceeded on a completely wrong basis. He proceeded on the basis as if the employees have no claim in respect of the said Fund as long as they are in service or until they retire. We wonder how the learned Judge could come to such conclusion. Even in respect of statutory Provident Fund an employee is entitled to withdraw amounts under certain circumstances as provided in the Scheme framed under the Act. This is a case of exempted Provident Fund. It has got its own Rules and Regulations. If the learned Subordinate Judge had cared to look into the relevant Rules of the Provident Fund in respect of this company he would have found out that it is incorrect to say that until death or retirement no claim could be made in respect of the Provident Fund. Rule 11 of the said Rules provides that on retirement, dismissal or otherwise ceasing to be a member or in case of death of the member his nominee or legal heir in case there is no nominee, can make such a claim. Rule 16 provides in detail for loans and /or temporary withdrawals. Temporary loans can be obtained for various grounds as specified in the Rule. Advances from the Fund can also be taken for the purchase or construction of dwelling house or site or towards the allotment of a tenement constructed or to be constructed under the subsidised housing scheme for Industrial Workers. Trustees have also the duty to grant withdrawal by any member only once in every six months to make payments towards a policy of insurance. Therefore the presumption of the learned Subordinate Judge that until retirement no such amount is due is not correct. The decision of the learned Judge on the question of Order 1, Rule 8 had proceeded on such a wrong basis. The case of the plaintiffs is that out of the Provident Fund money certain properties have been purchased in the benami of one of the Trustees. The Provident Fund is a Trust the members of the Board of Trustees are the Trustees of this Fund and each employee is its beneficiary. If there is any breach of trust the beneficiaries are entitled to sue the trustees and/or follow the trust properties. This is what they are seeking to do in this case. From that aspect certainly there is a common interest. If the allegations are correct it is to the interest of all the employees who are the members of the said Fund that such a suit is instituted. As observed in the case of Bimal Behari Sarlcar Vs. The State of West Bengal reported in 66 CWN 912. The words "same interest" in the Rule do not mean the same beneficial proprietary right in the subject matter of the suit. As observed in the case of Duke of Bedford Vs. Ellis (1901) AC I, (referred to in the Calcutta case) given a common interest and a common grievance; a representative suit was in order if the relief sought was it its nature beneficial to all whom the plaintiff proposed to represent. To limit the rule to persons having a beneficial proprietary interest would be opposed to precedent, and not in accordance with common sense. The expression "same interest" must be distinguished from the expression "same transaction".

(3.) What is required under this Rule is that the parties should have the same interest. It is not necessary that (heir interests must arise from the same transaction. In the present case, all the employees of the said company who are the members of the said Fund have a common interest and a common misappropriation of the Fund and purchase of some properties in the benami of one of the Trustees. The reliefs sought for was in its nature beneficial to all the employees who are the members of the said Fund.