V KRISHNA AIYAR Vs. PACHAIYAPPA CHETTI

JUDGEMENT

(1.) The plaintiff instituted the suit for a declaration that the sale deed, dated the 16 September, 1919, executed by the Official Assignee of Rangoon in favour of the defendant is null and void. He described himself in the plaint as a creditor of T.A.R.A.R.M. Ramanathan Chetti who was adjudicated an insolvent and whose estate was represented by the Official Assignee above mentioned. This suit was filed on the 15 of January, 1920. Among other pleas, the defendant stated that he did not admit that the plaintiff was a creditor of the insolvent firm. Issues were framed on the 30 March, 1920, and the third issue runs thus: Whether the plaintiff was one of the creditors of the insolvent Ramanathan Chetty, and, if so, whether he has no cause of action to maintain this suit ?

(2.) The trial was about to commence in January, 1923, and on the 24 of January, one Krishnier made an application to the Court for the purpose of being added as a plaintiff to the action. I may state that the plaintiff is a Nattukottai Chetti and was represented throughout by this Krishnier. The reason why he desired to be added as a party is set forth in para. 4 of his affidavit, dated 24th January, 1923. " The defendant has taken the objection that the plaintiff is not a creditor of the insolvent firm and has no locus standi to maintain the suit. In order to obviate any technical objection on that ground, it is necessary in the interests of justice that this Hon ble Court should be pleased to join me as a plaintiff and I am willing to continue the suit from the stage which it has now, reached. "

(3.) Mr. G. Krishnaswami Aiyar, the learned Vakil for the petitioner, has contended that the suit having been instituted under Order 1, Rule 8, Civil Procedure Code, was a representative suit filed in the interests of the creditors of the insolvent, that therefore Krishnier was throughout constructively a party to the proceedings, that the application in effect was to place Krishnier on the record eo-nominee as a party and that in making the application he was merely taking advantage of the provision contained in Clause 2 of Rule 8. If this argument is correct, in my opinion there will be very little difficulty in acceding to the request. But the question is, is Krishnier a party to the proceeding at all ? Is he a party although on the record his name does not appear ? The answer to this question will depend upon the construction of Order 1, Rule 8. The object of this provision is that in certain cases one person or a few persons should be allowed to represent all persons interested in a suit. The rule is in fact an exception to the general rule that all persons interested should be made parties to a suit. It pre-supposes the existence of a right in the plaintiff. It assumes that under the substantive law, the plaintiff has a right of suit and the rule enables him to represent the whole body of persons whom he seeks to represent. The rule says : " Where there are numerous persons having the same interest in one suit, one person may sue on behalf of all persons so interested. " The " one person" indicated in the rule is the person who has an interest common to himself and the body whom he professes to represent. The community of interest between him and the others of the class is the pre-requisite necessary to the end proposed. It is not any person that may sue on behalf of a class, but it is that person who has an interest which is the same as that possessed by the whole body of persons. " Given a common interest and a common grievance, a representative suit is in order if the relief sought is in its nature beneficial to all whom the plaintiff proposes to represent. " Judgment of Lord Macnaghten in Bedford, Duke of V/s. Ellis (1901) AC 1 at 8. If this condition is found wanting, if the plaintiff turns out not to be a member of the class on whose behalf he professed to institute the suit, I am of the opinion that the suit is wrongly constituted. The permission to sue is given by the Court on the assumption that the plaintiff is a member of the class and if the assumption is shown to be wrong the suit is not a representative suit and no member of the class is constructively a party to it. On the assumption, therefore, that the plaintiff in the present suit is not a creditor of the insolvent, Order I, Rule 8 has no application.