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Singhai Lal Chand Jain (Dead) v. Rashtriya Swayamsewak Sangh, Panna And Others
Factual and Procedural Background
The appellant filed Civil Suit No. 1-A of 1987 before the District Judge, Panna (Madhya Pradesh) seeking eviction of the Rashtriya Swayamsewak Sangh (RSS) from certain premises. The RSS was sued through three office-bearers—the Manager (Gorelal Soni), the President (Shiv Behari Srivastava, Advocate) and a member (Ram Kripal Chaubey, Headmaster). The appellant alleged that the Sangh had been given only temporary occupation but refused to vacate; the defendants asserted that the Raja of Panna had permanently authorised their possession.
The trial court dismissed the suit, accepting the RSS defence. On appeal (FA No. 70 of 1981) the High Court decreed ejectment on 31-10-1986. A Special Leave Petition (SLP (C) No. 2751 of 1987) filed by the three RSS representatives was dismissed by the Supreme Court on 15-7-1987.
During execution, RSS representatives objected that the Sangh, being an unregistered association of numerous members, had not been sued with leave under Order 1 Rule 8 of the Code of Civil Procedure (CPC); hence, they contended, the decree was a nullity. The executing court and, in revision, the Madhya Pradesh High Court upheld this objection, holding the decree inexecutable. The present appeal by special leave challenges that High Court order dated 16-7-1991 (CR No. 476 of 1988).
Legal Issues Presented
- Whether absence of formal permission under Order 1 Rule 8 CPC rendered the ejectment decree a nullity when the RSS was sued through some of its office-bearers.
- Whether Explanation VI to Section 11 CPC (res judicata) binds all RSS members to the decree, thereby barring objections in execution.
Arguments of the Parties
Appellant's Arguments
- The three RSS office-bearers diligently defended the suit up to the Supreme Court; the litigation was neither collusive nor negligent.
- Even without formal Order 1 Rule 8 permission, the suit was substantially representative; hence every Sangh member is bound by the decree.
- The High Court erred in treating the decree as a nullity and in refusing execution.
Respondents' Arguments
- Permission under Order 1 Rule 8 CPC is mandatory for representative suits; its absence renders the decree void.
- The nullity of the decree can be raised at any stage, including execution; therefore execution is not maintainable.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Surayya Begum v. Mohd. Usman, (1991) 3 SCC 114 | Scope of Explanation VI to Section 11 CPC; representative litigation binds non-parties if conducted bona fide. | Relied on to affirm that bona fide representation of a collective interest precludes later challenges by other members. |
| Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao, AIR 1937 PC 1 | Mandatory nature of res judicata; avoidance only on grounds of fraud or collusion. | Cited to underscore that mere negligence cannot defeat res judicata; no fraud or collusion being shown, decree stands. |
Court's Reasoning and Analysis
The Court emphasised that procedural rules serve substantive justice. It noted that the RSS was sued through its President, Manager and a member, who jointly filed a written statement, contested the case at trial, pursued an unsuccessful first appeal, and carried a Special Leave Petition to the Supreme Court argued by eminent counsel. This history demonstrated bona fide and adequate representation of the Sangh.
Although no formal leave under Order 1 Rule 8 was obtained, clause (b) of that rule permits one or more persons to be sued on behalf of all others. Given the actual conduct of the litigation, the Court treated the suit as falling within this provision.
Turning to res judicata, the Court invoked Section 11 CPC and Explanation VI: parties litigating bona fide on a common right bind all interested persons. Because the Sangh’s representatives had litigated in good faith and no collusion or negligence was shown, all members were deemed to claim under them. Consequently, objections in execution were barred.
Surayya Begum was applied to reaffirm that representative litigation binds non-parties absent collusion, while the Privy Council decision in Talluri Venkata Seshayya established that only fraud or collusion—not mere procedural omission—can vitiate res judicata. The High Court’s view that the decree was null for want of Order 1 Rule 8 permission was therefore incorrect.
Holding and Implications
Appeal Allowed. The respondents must deliver vacant possession within six months; failing which, the decree may be executed with police assistance. No costs were awarded.
Implications: The decision affirms that a decree obtained against some office-bearers of an unincorporated association binds all members if the litigation was bona fide, even without formal Order 1 Rule 8 permission. It reinforces the breadth of Explanation VI to Section 11 CPC and limits challenges to decrees at the execution stage.
Order
1. Leave granted.
2. Heard learned counsel on both sides.
3. This appeal by special leave arises from the judgment and order dated 16-7-1991 made in CR No. 476 of 1988 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.
4. The facts are fairly not in dispute. The appellant laid Civil Suit No. 1-A of 1987 in the Court of District Judge, Panna in Madhya Pradesh for eviction of Rashtriya Swayamsewak Sangh through its Manager, Shri Gorelal Soni, its President, Shri Shiv Behari Srivastava, Advocate and the Headmaster 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 to remain in possession. Appropriate issues were framed and after adduction of evidence and consideration thereof, the trial court upheld the plea of the respondents and dismissed the suit. In FA No. 70 of 1981, the High Court by an order and judgment dated 31-10-1986 allowed the appeal and decreed the suit for ejectment. All the three filed SLP (C) No. 2751 of 1987 in this Court and by order dated 15-7-1987 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 the 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.
5. 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.
6. 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.
7. 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.”
8. Procedure is the handmaid to substantive justice. The suit was laid against the Sangh represented by the Manager, Mr Gorelal Soni, the President, Shiv Behari Srivastava, a practising advocate and also a member who is no other than a headmaster 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 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 a member of the Sangh who was no other than a headmaster 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.
9. 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 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.”
10. Therefore, the respondents now claim under the same title in the previous suit and thereby they are bound by the decree. The doctrine of res judicata 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 from raising objections on behalf of the Sangh by filing the objections.
11. In Surayya Begum v. Mohd. Usman (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 unknown. A karta of a Joint Hindu Family has always been recognised as a representative of the other members of the Joint Hindu Family, and so has been a 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 thereby 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 case (1991) 3 SCC 114 is of this class while Renu Sharma appeal belongs to the first category.”
12. The Privy Council in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao AIR 1937 PC 1 had held thus:
“The provisions of Section 11 of the Code are mandatory and the ordinary litigant, who claims under one of the parties to the former suit, can only avoid its provisions by taking advantage of Section 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 Exception 6 to Section 11 being present, the section lays down a condition that the persons must be litigating bona fide and the fulfilment of this condition is necessary for the applicability of the section.”
13. 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.
14. 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 have the decree executed through the assistance of the police. No costs.
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