CAROLINE SOYSA et al., Appellant, and LADY RATWATTE et al Respondent

152-NLR-NLR-V-45-CAROLINE-SOYSA-et-al.-Appellant-and-LADY-RATWATTE-et-al-Respondent.pdf


Caroline Soysa and Lady Ratwatte.
553
1944Present: Howard C.J. and de Kretser J.CAROLINE SOYSA et al., Appellants, and LADY RATWATTE et al.
Respondents.
80—D. G. (Inty.) Kandy, 457.
Action—Right to sue in a representative capacity—Persons having a commoninterest—Permission tosue granted—Notice to show cause—Proceed-ings irregular—Properapplication of s action-—CivilProcedure Code
s. 16.
Wherepermission is givenbyCourtundersection16 ofthe Civil
ProcedureCode to a party tosueon behalfofpersonshavinga common
interest in bringing the action, the section imposes on the Court, aftergranting suchpermission,the duty ofgivingnotice'of theinstitution
of the action to all persons on behalf of whom the action is brought.
Where the Court, after giving permission to sue, proceeded to directnotice of theapplicationto sue to begivenin thenewspapers inviting
persons interested to show cause against the application.
Held, that the notice was misconceived and that the proceedings were-irregular.On an applicationforleavetosueundersection16 such
objectors are not entitled to be heard.
Wherethe applicants for permission tosueonbehalfof anAssociation
claimed the right to represent a section of the members, who held certainviews with regard to its management at the time of the institution of theproceedings, itis not avalid objectionto theapplication thatthe whole
body on whose behalfthe proceedingsare taken isnot ofthe same
opinion.i.
rpHE appellants applied to the District Court of Kandy for permissionto sue one H. L. Ratwatte on behalf of certain members of anAssociation called the Sadachara Bauddha Kulangana Samithiya inorder to terminate the said Ratwatte’s management of a school establishedby the Association. The appellants also asked the Court to direct noticeof the said application to be given to members by publication in a news-paper. The application was supported by an affidavit in which theappellants stated that they and a certain number of the members of theAssociation had the same interest in file action while certain others hadacted in a way inconsistent with, the duty they owed to the Association.
As a result ‘of the notice the intervenients filed objections and thelearned District Judge after hearing the objections dismissed the applica-tion. The learned Judge held that 'If the applicants are to be deemedmembers of the Association the intervenients are equally entitled torights of membership. He further held that an application for a represent-ation order cannot be entertained on behalf of one section of theAssociation.
H. V. Perera, K.G. (with him N. Nadarajah, K.G., and H. W. Thambiah),for the petitioner, appellants.—This is an appeal'from an order madeunder section 16 of the Civil Procedure Code. Section .16 contemplates asummary application by persons who desire to sue on behalf of all personsinterested in bringing or defending the action. The scope and nature of:
554
*£JOWA3tD C.J.—Caroline Soysa and Lady Ratwatifi.
an inquiry under section 16 has been misunderstood by the District JudgeIt is clear that two or three persons of an Association cannot prevent anaction being brought by the others against a wrongdoer. The onlyquestion before the District Judge was whether the petitioners could bringthe action on behalf of the 77 members surviving out of the original 118members of the Association- The only point for his consideration waswhether there were numerous parties having a common interest. Theissues framed by the District Judge were unnecessary at that stage. Adissenting minority, or even a dissenting majority, cannot, wreck anaction—Wilson v. Church1; Fraser v. Cooper, Hall & Co.2. See also theremarks of Lord Lindley in The Taff Vale Railway Co. v. The AmalgamatedSociety of Railway Servants3, and The DvJee of Bedford v. Ellis*.
M. T. de S. Amerasekere, K.C. (with him H. W. Jayawardene), for the1st to 9th intervenients, respondents.—The authorities cited for theappellants are not ^applicable to the facts and circumstances of this ease.
Section 16 of our Civil Procedure Code differs from the Indian andEnglish rules. Permission to sue can only be given if the parties havea common interest. It is competent for the judge to examine whetherthey have a community of interest—Re Gregorys. The Court is notprecluded from considering whether the party applying could be allowedto sue in a representative capacity. In India institution of an actiontakes place before application to sue in a representative capacity—Order I, rule 8; 2 Chitaley 1271. There must be a “ suit ”, in an actioninstituted, before an application for a representative order can be made—Bhicoobai v. Hariba Raghuji6; Sayad Anwar v. Mohideen Shamsudeen7.The judge must exercise his judicial discretion as to whether there is secommunity of interest. In Ceylon permission is necessary before thebringing of action. In India, generally, permission is asked for afterbringing of action—{1918) I. L. R. 42 Bombay 556. The Court has aright to ask how the common interest arose.The question is at what
stage this has to be decided. If it is conceded that the Court can admitevidence of persons submitting affidavits-, then this evidence is sufficientto establish that .tbere is no such Association as is alleged by the petitioners{1939) A. 1. R.. Rangoon at p. 21.
E. B. Wikremanayake (with him E. A. G. de Silva), for the 20th to 23rdintervenients, respondents.
H. V. Perera, K. C., replied.
Cur. adv. vult.
October 26, 1944. Howard C.J.—
This appeal raises an interesting question of law in regard to the powersof the Court on an application being made to bring a represntativeaction under section 16 of the Civil Procedure Code (Cap. 86). This sectionis worded as follows : —-
“ Where there are numerous parties having a common interest in
bringing or defending an action, one or more of such parties may, with
(1878)9 Ch D. 552.* (1901)A.C. 1.
(1882)21Ch D. 718.5 (1943)1A. C. R.293.
• (1901)A.C. 426 at p. 442.• (1917)A.I. R. Bombay 141 atp. 148
7(1932) A. 1. R. Bombay 65.
HOWARD C. J.—Caroline Soysa and Lady Ralwatte. d555
-g-
the permission of the Court, sue or be sued, or may defend in such anaction on behalf of all parties so interested. But 'the Court shall in suchcase give, at the expense of the party applying so to sue or defend,notice of the institution of the action to all such parties, either bypersonal service or (if from the number of parties or any other causesuch service is not reasonably practicable, then) by public advertise-ment, as the Court in each case may direct.”
On December 23, 1941, the appellants applied to the District Court ofKandy under this section for permission to sue one H. L. Ratwatt-e onbehalf of the members of a certain Association known as the SadacharaBauddha Kulangana Samithiya, Kandy. • The appellants also asked theCouft to direct notice of the said application to be given to the membersby publication in the Newspaper' “ Ceylon Daily NewsThe applica-
tion of the appellants was supported by an affidavit and a draft plaint.In these documents .the appellants stated as follows : —
That they are members of and contributors to an Associationcalled the Sadachara Bauddha Kulangana Samithiya, Kandy, foundedin 1924, with the object of establishing a Buddhist. Girls’ School atKandy.
That at the end of the year 1931 .the number of members of theAssociation was 118, but since 1940 certain members of the Associationset out in the list “ B ” had acted in a way inconsistent with the dutyowed to the Association.
That the present membership of the Association consists of 77members set out in list “ A *’ and the appellants and the members whosenames are specified in this list have the same interest in respect of thesaid school.
That the Association about November, 1931, established a Buddhist
school for girls known as Mahamaya College on premises purchased bythe Association.:
That about December, 1931, the Association appointed Adigar
J.C. Batwatte as Manager of the school. About November 1, 1932,one W. A. B. Soysa assumed the management of the school at therequest of Adigar Batwatte and managed it until April, 1938, when i.twas handed over by W. A. B. Soysa to one H. 3j. Batwatte.
That about April 7, 1940, the Association terminated the manage-ment of H. L. Batwatte and requested him to hand over the schoolto the Association. The. said H. Lt. Batwatte failed to hand over theschool to the Association or to give over the management to the personnominated by the latter and since April, 1940, wrongfully holds himselfout as Manager and, though called upon to do so, fails to render anaccount of the management of the school showing sums received byhim from April, 1938, to April 15, 1940.
That it has become necessary to institute an action against thesaid H. L. Batwatte to obtain a declaration—
(a) that he ceased to have the right of managing the said schoolon behalf Of the said Association since the April 15, 1940;
556
li HOWARD C. J.—Caroline Soysa and Lady RatwaU*.
(fa) .that the said H. L. Rajbwatte had no right to represent himselfas Manager of the said school; and
that the said H. L. ftatwatte is liable to render an account of
all sums received by him as Manager of the said school;
that in view of the facts set out in the affidavit the appellants
asked for leave to sue on behalf of the said members of theAssociation.
The application with affidavit and draft plaint was filed by a Proctorappearing on behalf of the appellants, who moved in accordance withsuch application. The order made by the Additional Judge was “ Allowed.Publication on 21/1/42 ”. Proof of publication was given on February11,1942. As the result of the publication in the “ Daily News ”,
objections were filed on February 25, 1942, by a Proctor Mr. Vanderwallappearing on behalf of certain persons. On April 6, 1942, Mr. Vanderwallasked the Court, under section 102 of the Civil Procedure Code, to makean order for discovery of all documents. On May 27, 1942, the DistrictJudge ordered the appellants to declare by affidavit documents in theirpossession or power they rely on in support of their allegation that theyare members of the Association. On August 24, 1942, further proceedingstook place before the District Judge who decided that the following‘ ‘ points seemed to require adjudication ” : —
Whether the petitioners were members of .the Society at the date
of the filing of the petition ?
Whether .the respondents numbered 4, 5, 7, 9, 10, 12, 13, 15 and 16
were themselves members of the Society ?
Did the Society cease to exist in or about 1932 since the establish-
ment of the Mahamaya College ?
Was the said Society revived in or about March, 1940 ?
Are the petitioners members of the revived Sadachara Bauddha
Kulangana Samithiya ?
Does the Mahamaya College constitute a de facto charitable trust ?
If .so, should any action relating to the said College or to its manage-
ment be instituted under section 101 of the Trusts Ordinance ?
In view of the provisions of the Education Ordinance, No. 31 of
1939, has this Court jurisdiction to entertain the application ?
With regard to these points Mr. Nadarajah, on behalf of the appellantscontended the points for determination as issues (3) and (4) are basedupon facts which are not only not pleaded, but are at variance with theaverments in the statemeent of objections. He had, however, noobjection to the question being framed as .to whether the Society hadceased to function and not that it had ceased to exist. Mr. Nadarajahalso stated that questions (6), (7)‘ and (8) did not arise on the application.Evidence was then called both on behalf of the appellants and theintervenients who had filed objections. The hearing was adjourned onnumerous occasions for further evidence to be called and legal argumentto be adduced. On March 12, 1943, the learned District Judge gavejudgment answering the points as‘ follows:—(1) No. (2) No. (3) Yes.
No. (5) No. (6) Yes.' (7) Does not arise. (8) Yes. Having regard
HOWARD C.J.—Caroline Soysa and Lady Ratuiatte
657
to his decisions on these points he dismissed the appellants' applicationwith costs. In the course of his judgment the learned Judge held thatthd question whether the appellants and the others mentioned in list“ A ” or whether the intervenients constitute 'the members of theAssociation is one which does not fall within the ambit of section 16of the Code and is moreover one that cannot' be adjudicated upon inthese proceedings. He further held that the first objection taken by theintervenients was sound and that before the appellants can be givenpermission to sue, their assertion that they are members of the Associationmust be established to the satisfaction of the Court. The learned Judgethen examined at considerable length the history of the Association andthe proceedings of various meetings during the relevant years and heldthat no valid meeting of the Association as such had been held sinceJanuary, 1932. It was therefore idle for one set of persons to denymembership to any other set or any other person who was a memberin December, 1931. The results of this holding was that if the appellantsas well as those whose names appeared in list A ” are to be deemedto be members, those on list ‘ ‘ B ” Were equally entitled to rights ofmembership. Applying the principle laid down in the case of HadjiSaheed Hamjeed Lebbe v. Mohamed Gaderp'illai Marakayar & others1he held that it was manifest that the application for a representationorder on behalf of those in list “ A is one on behalf of one section ofthe body and. is one that cannot be entertained, for a second suit will lieand can lie at the instance of those named in list “ B ”.
The learned Judge also held that a further objection to the grantingof the application was the fact that, there were 118 members of theAssociation and the names enumerated in lists “ A and B were notexhaustive inasmuch as they left 18 members unaccounted for. Thesepersons might have the same interest as the appellants or they mighthold views opposed to those of the appellants. In order to bind themthe application must be made on their behalf.
In my – opinion the inquiry undertaken by the learned Judge wasmisconceived. In fact there seems to have been general misconceptionon the part of all concerned as to the ambit and purpose of section 16•of the Civil Procedure Code.. On December 23, 1941, the Court wasmoved by Mr. H. A. C. Wickremeratne to give permission to sue on behalfof the Association. The second part of the motion, that is to say—(3),was for the Court to direct notice of .the application to be given in the■“ Daily News.” (b) was not in order inasmuch as the last part of section16 merely imposes on the Court after granting permission to sue theduty of giving notice of the institution of the action to all parties on whosebehalf the action is being brought. The learned Judge allowed thismotion, that is to say, he gave permission to sue, and then proceeded todirect notice of the said application to be given to the said members bypublication in the Newspaper “ Ceylon Daily News. ” In view of thefact that permission to sue had been allowed, on December 23, 1941,this notice was not in order inasmuch as it gave notice of the applicationand not as laid down in section 16 of “ the institution of the action. ”Although the application had beep granted and permission to sue had
i A. I. R. 1925 Madras 985.
658HOWARD C.J.—Caroline Soysa and Lady Ratwatte
been given on "December 23, 1941, the notice in the “ Daily News ”invited persons interested to show cause against the application on^February 11, 1942. In my opinion all proceedings held after December23, 1941, to hear objections to the application were -ultra vires. On anapplication under section 16 for leave to sue such objectors were notentitled to be heard and had no status so far as the application wasconcerned.
Although the proceedings were ultra vires, it is relevant to considerwhether, on the assumption that an application under section 16 wasproperly before him, the learned Judge’s treatment of such applicationwas in accordance with the law, and in refusing permission to the appel-lants to sue in a representative capacity he adopted proper legal principles.Section 16 of .the Civil Procedure Code agrees almost word for wordwith Rule 8 of Order 1 of the Indian Civil Procedure Code. In Bhicoobaiv. Ha-riba Baghvjiit was held that the Court should exercise a judicial'‘discretion in granting permission to a person to sue in a representativecapacity under the rule. In the second edition of Chitaley’s Code of CivilProcedure, Vol. 2, pp. 1085—86, it is stated that the conditions for theapplicability of the rule are—
“ (1) The parties must be numerous; and
(2) They must have the same interest in the suit. ”
With regard to (1) the rule does not fix any particular number. I do notconsider that it could be urged in this case that the persons alleged to havethe same interest in the action, that is to say 77, were not numerous.With regard to (2) the appellants in the affidavit and in the plaint claimedto represent the interest not of the persons who originally formed theAssociation, but of a certain section of such persons whom, so theyclaimed, had the right to represent the Association at the time of theinstitution of proceedings. The true principle underlying the rule isthat the suit, in form, be constituted into a representative one in orderto prevent the defendant from being vexed by others. The rule does notrequire that the whole body on whose behalf the proceedings are takenshould be of the same opinion. The rule was considered at some lengthin Sayad Anwar v. Mohiddin Sbamsuddin2. In his judgment Patkar J.stated that it was not permissible for a Judge to dismiss the suit underOrder 1, Rule 8, simply on .the ground that some persons objected to theplaintiff carrying on the suit. Such persons could be brought onthe record as parties. The following passages at pp. 67 — 68 from thejudgment of Tyabji J. is of interest—
“ Coming to the learned Judge’s decision under O. 1, R. 8, the objectof that rule is to provide facilities where numerous persons have thesame interest in a suit. The rule provides a method by which suchnumerous persons can be before the Court as if they were plaintiffs ordefendants without the necessity of making every one of them a party.The scheme of the rule is that in such a case one or more persons may begiven leave to sue or to defend the suit on behalf of all persons interested.Leave may be given to one, or if necessary, to several representativepersons. The leave may be sought on behalf either of the plaintiffs* A. I. R. 1917 Bombay 141.* A. I, R. 1932 Bombay 65.
HOWARD C. J.—Caroline Soysa and Lady Ratipatte.
559
or the defendants. When the leave is applied for, the Court may,of course, take steps to verify the allegations of the applicant or appli-cants. . If the number of those who apply to the- Court on the groundthat they have the same interest is “ numerous ” (that is the word ofthe rule) the Court has jurisdiction to make the order. If an applicationis made on behalf of persons, as to whose willingness to be representedby the applicant or applicants, the Court desires to have some evidencethere is no difficulty in this being insisted upon. As a further safe-guard, it is provided that notice, in the manner laid down in the ruleshall be given to all such persons, as are alleged to have the sameinterest in the suit. Finally, under sub-section (2), if these otherpersons are not satisfied by the plaintiff representing them, they mayapply to be made parties.
This being an enabling rule, for the purpose of making it practicableto bring to trial, a suit in which numerous persons would otherwisehave to be made parties, whose number might make the trial embarrass-ing, I am at a loss to understand what the learned Judge can meanwhen he says:
“ I hold that plaintiffs have no right to sue in the representativecapacity, and that the suit is bad under O. 1. R. 8, CivilP.C.”
Order 1, R. 8, does not make any suit bad or good. It only providesfor a case where a number of persons are interested in a suit. A meansis devised by which such a suit may be placed before the Court withgreater facility.'’
In Kali Kanta Surma v. Gouri Prosad Surma Bardeuri1 Banerjee J.at page 911 referred to the purpose of section 30 of the Code of CivilProcedure, now Order 1, R. 8, in the following passage: —
“ Section 30, as we understand it, requires that the Court shouldexercise a judicial discretion in permitting some definite person or• persons to sue or be sued on behalf of all the persons interested, andit further requires the Court to give .to the persons interested noticeof the institution of the suit which must include a notice of the namesof the persons who have been permitted to represent others, so that thepersons interested may have an opportunity of knowing who havebeen selected to represent them. Now in the present case no suchthing was done. In the first place the Court did not give permissionto any definitely named persons among those interested to represe’nt.the rest; and in the second place the notice issued by the Court did notshow who the persons were that had been selected to represent theremaining persons interested. That being so, we think that thepersons interested in the result of the suit who are necessary partieshave not been properly made parties to it, and that the suit must failby reason of deject of parties.”
Again in Adamson v. Arumugam? it was held that section 30 of the Codeof Civil Procedure was not intended to allow individuals to sue on behalf
» 17 Calcutta 906.
* 9 Madras 464.
560
HOTJPARD C. J.—Caroline Soysa and Lady Ratwatte.
of the general public, but to enable some of a class having special intereststo represent the rest of the class. This case was followed in MuhamadBin Mianayo Mt. Atirajo Kuer.1
In Kalidas Jivram v. Got Parjaram Hirji2 the plaintiffs were 208ip number and as they had the same interest in the subject matter of thesuit, 13 plaintiffs obtained leave to sue on behalf of the rest under section30 of the Civil Procedure Code. The following passage at page 311 of thejudgment of Parsons J. is of interest—
“ The objection that s. 30 of the Code of Civil Procedure does.not permit of the present, suit is untenable, since here we have a easenot of persons suing on behalf of a class, but of 208 persons suing forthemselves, the 195 persons as per list (Ex. 5) having been actuallybrought up on the record as plaintiffs just as the 119 persons as perlist (Ex. 6) have been brought on the reeord as defendants. ' The-objection that under section 26 of the Code the plaintiffs cannotall be joined in this suit, is also, I think, one that we ought not. toentertain. The issue by the defendants of the rules under date October12, 1883, gave a cause of action to each of the plaintiffs. It also gavethe same cause of action to all of them, since the rules prohibited theiradmission into the shrine of the temple for purposes of worship excepton the production of passes to be obtained on payment. In so far asthe issue of these rules gives the same cause of action to all the plaintiffs,
I think the suit is rightly brought to have the obnoxious rules declaredto be invalid, and this is really the main object for which it has beenbrought.”
Representative actions in England are governed by Order 16, R. 9,which is as follows : —
“ Where there are aumerous persons having the same interest in;one cause or matter one or more of such persons may sue or be suedor may be authorised by the Court or a Judge to defend in such causeor matter, on behalf or for the benefit of all persons so interested.”
The permission or the Court is therefore not required in order to sue,but authorisation is required to defend. In this connection it is ofinterest to observe the principles which have been followed by Judges inauthorising persons t.o defend in a representative capacity under the rule.In Wilson v. Church3, Jessel M.R. refused to allow the defendant todefend ir a representative capacity on the ground that there, was noevidence that he represented anyone, but himself. As the Master of theSoils said, he cannot be “a representative without a constituency ”.-In Fraser v. Cooper, Hall and Co.* the plaintiff, a bondholder of a RailwayCompany, sued “ on behalf of himself and all the bondholders of thecompany other than the defendant B, ” but did not obtain an orderunder Order 16., Rule 9, that B, should be sued as representing allbondholders who dissented from the plaintiff’s claim. One of the bond-holders took out a summons whereby he stated that neither .the plaintiffnor the defendant B, properly represented the interests of himself andcertain other bondholders, and applied to be made a defendant. The-
1A. 1. R. Patna 418.
215 Bombay 309.
{1878) 9 C. D. 552.{1882) 21 C. D. 718.
561
HOWARD C. J.—Caroline Soysa and Lady Ratwalie
applicant was joined as a defendant in a representative capacity because-it appears that he represented bondholders who dissented from theplaintiff's view. In Morgan’s Brewery Company v. Crossbill1 a Company-proposing to issue new preference shares ranking pari passu with itsexisting shares served on one of its preference shareholders (sued on behalfof himself and the other preference shareholders) an originating summonsfor the determination of certain questions with reference to the proposedissue, arising on the construction of the Articles of Association. Buckley
J.refused to appoint the defendant to represent the preference share-holders unless a meeting of them was first called and nominated the-defendant to represent them. Prom these cases it would appear that,in ojrder to obtain authorisation to defend in a representative capacity,,the applicant has only to satisfy the Judge that he does represent a class-that dissents from the view of the plaintiff.
English cases on the interpretation of Order 11., ft. 1, are also helpfulin regard to the manner in which the Judge should exercise his discretionin allowing the service out of the jurisdiction of a writ of summons.In Call v. Oppenheim2 the plaintiff, upon an ex parte application, obtainedleave to serve the defendant with a writ out of the jurisdiction, where-upon the defendant took out a summons to rescind the order for service,oh the ground that the claim had been determined by a foreign judgment,and that the matter was res judicata. It was held by the Court of Appealthat as there was sufficient doubt as to the effect of the foreign judgment,and therefore a question of law which might be reasonably argued,the service of the writ must be allowed. Again in Burt and others v.Bo-wen and others3 when the plaintiffs were trying to make out a case-against two foreign defendants, Lord Coleridge held, on an applicationto set aside an order of the Judge giving leave to serve the writ out of thejurisdiction, that it was not necessary to enter into the question of themerits which would be the question at the trial. This question was fartoo serious to be decided against the plaintiff summarily upon an applica-tion as to service or notice of the writ. In Badische Arulin TJnd SodaFabrik p_. Henry Johnson & Co. and Basle Chemical Works, Bindschedler*•the Court of Appeal held that leave to serve the writ out of the jurisdictionshould be granted where a prima facie case of a sale within the jurisdiction'had been shown.
As I have already indicated, the proceedings by which the respondentswere brought before the Court were ultra vires. But even on the assump-tion that they were in order, I am of opinion that the learned Judge-has not correctly applied the law as formulated in the various cases towhich I have invited attention. At pages 95—96 in his judgment he-states as follows : —
“ In. this case it is abundantly clear from what I have set out alreadythat there is a real- dispute between the parties as to whether thepetitioners or the respondents are the members proper of the Samithiya;but what is more—and this concerns the Court in a special degree
* 8 Times L- It- 28.
(1896) 1 Ch 25.
1 (1902) 1 Ch 898.
* 1 Times L. It. 622.
562
3fOWAKI} C. J.—Caroline Soysa and Lady Ralwatte.
is whether the petitioners, respondents or any of them can claim tocontinue the identity and the life of the Samithiya that was in existence-'in 1931.
Without going at all into the difficult question whether the petitioners,respondents or any of them can be regarded as continuing the identityof the Samithiya, it is tolerably clear from a reading of section 16 of theCivil Procedure Code that the question whether the petitioners and theothers mentioned in list “A ” or whether the respondents constitutethe members of the Association is one which does not fall within itsambit and is one that cannot be adjudicated upon in these proceedings.The effect of acceding to the application of the petitioners would beto recognise them as members of the Samithiya at least implidtlly,for it is on this footing alone that they can be permitted to representthe general body of members. If in fact they be not members of theAssociation, then the result would be, if an order he made in theirfavour in terms of their application that the action instituted by themwould be binding on the real members of the Association and tend totake away or prejudice their rights. The representation order wouldindeed have the effect of conferring on the petitioners inter alia theright to compromise the suit which they propose to institute and anysuch compromise would be binding upon the true and proper membersof the Society who would thereafter be debarred from instituting anaction on the same cause of action against the defendant—see Krishnq-machariar v. Chinnammal1. It is therefore of the utmost importancethat before the petitioners can be given permission, their assertionthat they are members of the Association must be established to thesatisfaction of the Court.”
Then follows a long inquiry into the history of the Association withreference to various meetings and the validity of such meetings. Thelearned Judge then holds that neither the petitioners nor the respondentswere members of the Association. If the respondents were not membersof the Association it is difficult to comprehend how they were ever allowedto become parties and put forward objections. It seems to me that thelearned Judge in the face of the decisions to which T have invited attentionhas on an application for a summons decided the case on its merits.In coming to the decision that the plaintiffs could not be given leave tosue under section 16 of the Civil Procedure Code, the learned Judgeappears to have been guided by the case of Hadji Saheed Hameed Lebbev. Mohamed Caderpillai Marakayar2. I am of opinion that this case isvery much in point, but it seems to me that the learned Judge hasmisunderstood the implications of this decision. Alter citing theprinciples outlined in this case the learned Judge says—
“ Applying these principles it is manifest that the application for arepresentation order on behalf of those in list A ’ is one on behalf ofone section of the body and is one that cannot be entertained for asecond suit will and can lie at the instance of those named in list B ’
This deduction is wholly contrary to the decision in the case which was
1 24 M. L. J. 192.
» A. I. R. 1925 Madras 985.
HOWARD C.J.—Caroline Soysa and Lady Ralwaite.
663
cited as will he seen from the following extracts from the judgment ofSrinivasa Iyengar J. on pages 985—986 : —
“ The contention on behalf of the defendant is twofold. It is stated'that there is a large body of worshippers who have not agreed with theplaintiffs either in the institution of the suit or in the proceedingsthat led up to it, and that, therefore, it cannot be stated that all theworshippers at this mosque have the same interest. It seems tome that, if the construction ofthe termsof O. 1R. 8C.P.C. should be
that it is only where all themembersof thebodyare of the same
opinion with regard to the litigation as the plaintiffs that the rule shouldbe applied, then the provision contained in the rule would be practic-ally useless. Most of the cases that come up before Courts in whichthe provision contained in this rule is invoked are cases of templesor mosques in which we know that there are always two factions, one-opposed to the other. If itshould bestatedthatthis rule should
be applied only in cases where the whole bodyis ofthe same opinion:
then, it follows that the rule cannot be applied to such cases at all
I believe the true principle underlying this rule is that the suitshould in form be constituted into a representative suit merely toprevent the defendant being vexed and molested, as he may wellbe, by similar suits by other persons of the body. For the applica-tion of this principle it is really unnecessary to determine whetheror not all the members of the hody on whose behalf the suit is soughtto be instituted are of the same opinion.. The order only means thisythat all the members of the body on whose behalf the suit would,,on the passing of the order, be constituted into a representative suit,would be prevented thereafter from instituting any proceedings on thecause of action alleged in the plaint; and such body being an in-definite body and the order being given only to sue in respect of allpersons having the same interest, the order would have the effectonly of preventing multiplicity of suits and would not be calculatedin any manner or to any extent to prejudice the rights of any of theworshippers or of the defendant ”.
Again in Nadar and others v. Nana and others1 the principle laid down .was to the same effect as will be seen from the headnote which is asfollow’s: —
“ Although a caste is of a quasi corporate nature and can hold propertyas a person, O. 1, R. 8, is wide enough to cover suits by caste members^for decision of questions affecting them, inter se and in respect of casteproperty.
Although plaintiffs admit that caste affairs are decided by a majorityof the caste members, yet the plaintiffs need not have obtained, as acondition precedent to their bringing the suit, the consent of themajority of the caste members.
Per Napier J.—It may be that the plaintiffs, if they are unable to=prove that they have got the support of the majority of the caste:
i A. I. R. 192 (Madras 683. )
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^HOWARD C. J.—Caroline Soysa and Lady Matioatte.
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members, cannot succeed in getting the relief which they seek. Butthere is no reason to introduce the condition precedent to the filing ofthe suit.
R. 8 is applicable to cases where one person seeks to represent anumber of other persons who agree with him in the contention whichhe has raised in the suit as to the rights of the various members of the■community.
The sole object of this section is to provide a simple means bywhich as many persons as possible, who are members of the samecommunity or are equally interested in certain affairs, can be broughttogether and a judgment can be given which will bind them allThe appellants put forward their claim as representing a certain nufhber-of tbe original members of the Association. In putting forward thisclaim they maintained that at -the time of filing the action they and theyalone were entitled to represent the Association. This is a questionwhich dealt with the merits of the action and could not be decided on anapplication for a writ of summons. If the plaintiffs are unsuccessful inregard to this question, their action fails. The only questions that•should have been considered by the Judge at this stage was whether theplaintiffs- represented a class of persons with the same interest in the suit■and whether there was a prima facie case. The plaintiffs claimed torepresent a certain numher of the original members of the Association.They make no claim on behalf of the members who dissent from that view.There was a dispute between the appellants and certain other originalmembers of the Association. Such other members had, so it was claimed,lost their rights. The plaintiffs claimed an account from the Manager.If they prove this claim to be the sole members of the Association, theyare entitledtosuchan account and alsothe right todetermine the
•managershipofthedefendant. Theorderto sue beinggiven only in
respect of the appellants will have the effect of preventing multiplicityof suits and' will not be calculative in any manner or to any extent toprejudice the rights of any of the dissentient members or of the defendantsI think the learned Judge’s decision on point (7) was correct. Thequestion as to whether the action should be instituted under section 101■of the Trusts Ordinance did not arise at this stage.
Tor the reasons I have given the appeal is allowed, the order of theDistrict Court set aside, and the original application of the appellants tosue allowed. Notice of institution of action under section 16 is to befurther published. I have given careful consideration to the questionof costs The original formal application of the appellants was faultyinasmuch asitprayed for notice of“ theapplication ”instead of the
“ institutionoftheaction ,J. Thisdefecthas been ingreat measure
responsible for the procedure subsequently followed. Moreover although'the draft plaint and petition made it clear that the proceedings 'werebeing instituted on behalf of certain members of the Association, theapplication for leave purported to be on behalf of the Association. Forthese reasons I am of opinion there should be no order as to costs.
ivb Kretser J.—I agree.
Appeal allowed.