Representative suit

2023 MLD 77 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. I, R. 8Representative suitIssuance of noticeConditions precedent

Where there were numerous persons having the same interest in one suit, one or more of such persons might, with the permission of the Court, sue or be sued or may defend in such suit on behalf of or for the purpose of all persons so interested

Exception to said rule was that in all such cases, the Court should at the expense of the plaintiff give notice of the institution of such a suit to all persons either by personal service or where from the number of persons or any other cause such service is not personally practicable by public advertisement as the Court might direct

In the present case, apparently neither any application was ever filed under O. I, R. 8, C.P.C nor the persons, as mentioned in the Schedule to the plaint were ever served with any notice either personally or through publication

Issuance of notice upon the persons sought to be represented in such suits was mandatory

Suit was incompetent under its representative capacity and could only have proceeded independently on behalf of the applicant

Record showed that the title and the basis on which the ownership was being claimed and declaration had been sought was forged and fabricated

Admittedly, purported sellers of the property were never joined by the applicant

Contention of applicant that their joining was not necessary as sellers had no dispute with the applicant was incorrect

Merely saying that sellers had no issue with the applicant would not suffice

Record showed that sellers being aggrieved by the issuance of notices had also filed their own suit which was dismissed in default

In alternative, applicants had a case against those sellers for committing fraud and cheating by selling the property which was not owned by them with a clear title, but not against present respondents

Revision was dismissed.

2020 CLC 1325 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

O.I, R.8Representative suitRequirements

Where numerous persons had same interest in a suit land then one or more such persons with permission of the Court could file a representative suit

Plaintiffs had not sought permission from the Court for filing representative suit and not arrayed all the members of the tribe as party

Names of persons who had interest in the suit were to be mentioned in the list on behalf of plaintiffs

Plaintiffs, in the present suit, had neither mentioned the names of interested persons nor the list of such persons was attached with the plaint

Every person having interest in the suit land must be heard

Plaintiffs had agitated their grievance after more than forty years of settlement

No illegality or irregularity had been pointed out in the dismissal of suit

Revision was dismissed, in circumstances.

2019 CLC 1992 PESHAWAR-HIGH-COURT Judicial Precedent

O.I., R.8Representative suit

Requirements.

2019 CLC 1401 PESHAWAR-HIGH-COURT Judicial Precedent

O. I, Rr. 8, 9, 10 & S. 2 (2)Representative suitNon-joinder of necessary partyDismissal of suitScopePlaintiff filed suit in representative form which was dismissed due to non-joinder of necessary partyValidityDefinition of "decree" did not include dismissal of suit on account of mis-joinder or non-joinder of partiesNo suit was to be defeated due to mis-joinder or non-joinder of party

Court might deal with the matter in controversy so far as with regard to the right and interests of the parties actually before it

Trial Court was not to have dismissed the suit of plaintiff due to mis-joinder or non-joinder or impleading name of wrong plaintiff

Impugned orders passed by the Courts below were without jurisdiction which were set aside

Matter was remanded to the Trial Court with the direction to transpose the parties in view of O. I, R. 10, C.P.C.

Constitutional petition was allowed, in circumstances.

2017 YLR 107 PESHAWAR-HIGH-COURT Judicial Precedent

O. I, R. 8Representative suitConditions

Conditions for representative suit were that persons in the same must be numerous; they must be interested in the suit; permission of court should be obtained and notice must be given to the persons whom the same was sought to represent.

2017 YLR 107 PESHAWAR-HIGH-COURT Judicial Precedent

O. I, R. 8Qanun-e-Shahadat (10 of 1984), Arts. 77 & 118Representative suit"Serai" kind of landWajib-ul-Arz, entries ofCustom and convention, proof ofScope

No application was moved under O. I, R. 8, C.P.C. with the representative suit for passing an order by the court with regard to permission to sue on behalf of the persons so interested

No public advertisement or personal service had been effected of all the persons through notice shown in the list annexed with the plaint in respect of plaintiffs as well as defendants which was mandatory and without the same such persons could not be considered as party to the suit

Persons mentioned in the list interested in the suit would be presumed that they were not served which was fatal to the case

Permission of the court had to be obtained in representative suit and in case of failure the same could not be termed as representative suit

Format of the suit was not in line with law which was fatal to the case

Present suit could not be termed as representative suit

Initial burden was on the plaintiffs to prove the existence of custom and convention who desired the court as to any legal right or liability dependent upon existence of such facts

Person who had asserted facts must prove the existence of the same

Record was silent with regard to existence of custom and convention and plaintiffs had failed to prove the same

Burden of proof would lie on the person who would fail if no evidence had been produced

Facts had to be proved in order to get relief with regard to such facts

Basic law of evidence could not be bypassed due to existence of any custom or convention

Custom and convention could not be placed at higher pedestal to the law

No documentary evidence was on record with regard to the fact that property situated in village on the bank of river was "Serai" kind of land

No one from the village had been produced to fortify the claim of plaintiffs

No date, time or year had been mentioned in the plaint with regard to the fact as to when river changed its course and plaintiffs reoccupied the suit property nor same had been fortified through evidence

Plaintiffs did not approach the settlement authority during settlement proceedings which continued for more than six years

Plaintiffs had not produced any tangible evidence to substantiate their claim or make out a case for grant of decree in their favour

Neither boundaries of suit property nor quantum of the same erosioned by the river or leftover had been mentioned in the plaint nor same had been fortified through evidence

Plaintiffs could not take benefit of the provisions of "Wajib-ul-Arz" as they had failed to prove their possession over the suit property prior to erosion of the same

Both the courts below had arrived at the conclusion in accordance with law

No infirmity had been pointed out in the impugned judgments and decree passed by the courts below

Revision was dismissed in circumstances.

2016 PLD 254 PESHAWAR-HIGH-COURT Judicial Precedent

O. I, R. 8Representative suitScope

When private persons were numerous having common interest in the suit then anyone or more with the permission of court might sue or defend the suit on behalf of all to protect the interest of interested parties subject to giving a notice to all the interested persons on the expenses of such persons with regard to institution or for defence of the suit.

2016 YLRN 30 PESHAWAR-HIGH-COURT Judicial Precedent

O. I, R. 8Suit for declarationShamilat deh landRepresentative suitShart Wajib ul ArzScopeDefendant was not owner of Shamilat deh land in questionWajib-ul-Arz carried presumption of correctnessNo specific portion in the Shamilat deh land could be alienatedBoth the courts below had rightly non-suited the plaintiff

No mis-reading or non-reading of evidence and jurisdictional defect nor any illegality or material irregularity had been pointed out in the impugned judgments

Revision was dismissed in circumstances.

2015 YLR 1688 Gilgit-Baltistan Chief Court Judicial Precedent

O. I, R.8Representative suitPlaintiffs filed suit against residents of "Kashmura" and 'Kashmura Gond' through their representatives

Representatives of 'Kashmura Gond' during trial proceedings of the suit, moved application praying for withdrawal from contesting the suit as representatives of defendants and prayed for allowing them for contesting the suit in their personal capacity, which application was allowed

Trial Court gave its judgment against which plaintiffs filed first appeal, and Appellate Court held that defendants were contesting the suit in their personal capacity

Contention of the plaintiffs was that writing of names of the defendants as representatives (of the defendants) in all order sheets, as well as in the judgment, had a binding effect on the parties as well as on the courts

Validity

Plaintiffs were wrong as they failed to cite any law or precedent-law in support thereof

Impugned order was speaking order, which did not suffer from any floating defect inviting interference of Chief Court

Order of the Trial/Appellate Court had attained finality and from date of said order said defendants were not representatives of the defendants and court could not force them to act as representatives

Soon after passing order by the Trial Court, plaintiffs were bound to move the Trial Court for re-arraying the defendants of the suit through their new representatives

Plaintiffs, as well as the Trial Court omitted to do so, resulting in writing of names of defendants as representatives of defendants

Use of the names of defendants as representatives of the defendants was not result of mistake or omission on the part of defendants, but same was result of omission or mistake on the part of plaintiffs or the Trial Court

Impugned order of appellate Court being correct, was upheld by the Chief Court.

2015 CLC 1312 Gilgit-Baltistan Chief Court Judicial Precedent

O. I, R. 8 & S.12(2)Representative suitCompromise and ex parte decreeScope

Compromise decree could be passed or a compromise could be made rule of the court only when all the parties to the suit had concurred to said compromise

Court had no power to give binding force to a compromise if any or few of the persons to a case or suit did not concur to any compromise when suit was of representative nature or character

Compromise decree and an ex parte decree on the basis of ex parte proceedings were quite different, two things and joining of the two were in contradiction of each other

Compromise decree would cover all the suit land and after decreeing the suit on the basis of compromise nothing would remain in the suit property for an ex parte decree

Ex parte decree passed against some of the defendants in representative suit was wrong practice

Compromise decree could not be treated operative against the defendants who were proceeded against ex parte

Trial Court had omitted to discuss the evidence of the parties while passing the impugned order

Appellate Court had failed to discuss all issues in the light of evidence of the parties

Omission of Appellate Court for not giving its findings on all issues was a material irregularity

Impugned orders were set aside and parties were directed to join trial proceedings of the suit from the stage where it was given up and Trial Court was directed to resume the trial of said suit from the same stage

Revision was accepted accordingly.

2015 CLC 1312 Gilgit-Baltistan Chief Court Judicial Precedent

O. I, R. 8Representative suitScope

Trial courts were bound to ascertain the capacity/powers of the representatives of the parties in representative cases.

2013 CLC 143 PESHAWAR-HIGH-COURT Judicial Precedent

O. XXIII, R. 1Representative suitWithdrawal of claim by some representatives in such suitEffect

Such withdrawal would not affect rights of whole tribe/village and other people (who had not withdrawn their claim).