Representative Suit - Process Under Order 1 Rule 8 CPC Not Mandatory At Appellate Stage Kerala HC

Overview

• The Three-Judge Bench of Kerala High Court comprising of Hon’ble Justices C. T. Ravikumar, V. Shircy, and K. Haripal held that the judgment passed in Radha K. S. vs. Sadasivan and Anr. was not correctly decided.
• The said judgment held that provisions under Order I Rule 8 of the Code of Civil Procedure are supposed to be complied with at the Appellate stage.
• In this reference, the Hon’ble Bench of Kerala High Court held that the publication of notice under Order I Rule 8 of the Code of Civil Procedure is not compulsory at the appellate stage of a representative suit.
• The matter which was before a Single Judge Bench was then referred the matter to the Division Bench who after endorsing the views of the single judge bench referred the matter to the Three-Judge Bench.
• Now, the question before the bench was “Is an appeal preferred against a decree passed in representative suit incompetent, without making a publication under sub-rule (2) of Rule 8 Order I of the Code of Civil Procedure?”

About the appeal

• In the appeal M. V. Narayan vs. Periyadan Narayanan Nair, it was noted by the High Court bench that the appeal was the continuation of the original suit.
• The Bench held that when an appeal is the continuation of the original suit proceedings and when the proceedings obtain the character of a representative suit, it is not necessary to follow the procedure intermittently.
• It was stated by the Hon’ble Bench that publication of notice under Order I Rule 8 of the Code of Civil Procedure is not a compulsory requirement and is discretionary.

What did the Judgment state

• Firstly, the judgment authored by Hon’ble Justice Haripal stated that publication of notice under the said provision at every stage of the proceeding is not a binding requirement.
• Secondly, the Judgment also stated the argument made by the counsel for respondents that when it is said that granting permission or issuing a direction is a matter of discretion, it cannot be said to be compulsory.
• After assessing the origin of the suit proceedings the court held that the original proceedings, appeal, and a second appeal cannot be kept in watertight compartments i.e. cannot be kept separated.
• The Hon’ble Court also held that when an appeal is a continuation of original suit proceedings, no fresh adjudication takes place. The matters that are already considered, in light of opposing contentions and findings are carried to the appellate court for the exercise of its higher wisdom.

Court’s Observation

• The Three-Judge Bench also observed that the permission granted by the trial court for the representative suit will not expire after trial.
• The Hon’ble Bench also observed that the Single Judge Bench cannot be questioned for referring to the Division Bench Judgment. Referring to the Supreme Court’s decision in the matter of Pradip Chandra Parija& Ors. Vs. Pramod Chandra Patnaik & Ors., the Bench held that the Single Judge Bench can doubt the correctness of the Division bench in exceptional situations.
• The Court in its Order observed that just because a publication is not made, it cannot be a ground to render the appeal incompetent.
• The Judges also made it clear that the Bench has not stated anything about foreclosing the power of the appellate court to direct publication of notice whenever the situation demands, depending upon the facts and situation of the case.

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