ANIL TEXTORIUM PVT. LTD. vs RAJIV NIRANJANBHAI MEHTA

THIS Revision Petition has arisen out of the Order dated 21.11.1996 passed by the Gujarat State Commission in C.M.A. No. 13/95 in Complainant No. 13/95.

ONE Mr. Rajiv N. Mehta filed a Complaint No. 13/95 before the State Commission alleging deficiency in service and unfair trade practices adopted by the Opposite Party in its Sales Promotion Scheme. The Complainant stated that the Opposite Party invited members of general public to be a member on payment of the amount shown as holding members investment as against the particular item, but that member has to enrol new members for such sales scheme, that the member will get the refund of the amount paid by him only on enrolment of new members and the member will be given the ordered item free of charge on priority basis. The complainant alleged various flaws in the scheme and unfair trade practice. The Complainant submitted that the Opposite Party had registered as many as 1200 members under their sales promotion scheme which is the subject matter of the dispute in the complaint. It was pleaded that the names and addresses of the members under the scheme are very much necessary to pass final orders in the complaint but those particulars are in exclusive possession of the Opposite Party. The Complainant has moved an application for directions for production of certain documents invoking the provisions of Section 13(4) of the Consumer Protection Act, 1986. The Complainant later moved an application praying that he may be permitted to prosecute the complaint under Order 1 Rule 8 of the Code of Civil Procedure read with Section 13 of the Consumer Protection Act in a representative capacity for the benefit of the persons/members who are similarly situated and interested in the scheme. That application was strongly opposed on behalf of the Opposite Party. The State Commission by the impugned Order expressed that having regard to the averments made in the complaint and the documents relating to the scheme filed along with the complaint and taking into consideration the facts and circumstances of the case, it was evident that several persons would be interested in the dispute raised in the complaint. The State Commission permitted the Complainant under Order 1 Rule 8 to prosecute the complaint for and on behalf of the persons who are similarly situated or similarly interested in the dispute raised in the complaint. It was also observed that the names of the persons who are interested are not known to the Complainant and therefore, their number is also unascertainable and that it is for this reason not practical to serve these persons with notices personally as required by Sub-Rule (2) of Rule 8 of Order 1. The State Commission directed that public advertisement of the complaint would be published in the daily newspaper ''Gujarat Samachar'' at the expense of the Complainant as required by said Sub-Rule (2) of Rule 8 of Order 1.

BEING aggrieved of the Order passed by the State Commission, the Opposite Party has filed this Revision Petition challenging the permission granted to the Complainant under Order 1 Rule 8 of the C.P.C. We had heard Mr. Huzefa Ahmadi, Advocate for the Petitioner and Mr. Rajiv V. Mehta who appeared in person and have also gone through the records.

THE procedure for disposing of the complaint is laid down in section 13 of the Act. The general rule is that all persons interested in a consumer dispute are to be joined as party to it so that matter involved may finally be adjudicated upon between them. The Complainant has been defined in Section 2(1)(b) of the Act. The Complainant means (i) a consumer or (ii) any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force or (iii) the Central Govt. or any State Govt., who or which makes a complaint or (iv) one or more consumers, where there are numerous consumers having the same interest. The last part of the definition was inserted by Amendment Act of 1993 (Act 50 of 1993). For the purpose of disposal of the complaint, powers are vested in the Consumer Fora as are vested in Civil Court under the Code of Civil Procedure while trying a suit in respect of the specified matters in sub-section (4) of Section 13. Order 1 Rule 8 of the Code of Civil Procedure was not included therein. Subsequently, sub-section (6) of Section 13 of the Act was inserted with effect from 18.6.1993 by Act 50 of 1993 reading as follows : "Where the complainant is a consumer referred to in sub-clause (iv) of clause (b) of sub-section (1) of Section 2, the provisions of Rule 8 of Order 1 of the First Schedule to the Code of Civil Procedure, 1908 shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon."

As a result of this amendment where the Complainants are "one or more consumers, where there are numerous consumers having the same interest", it is permissible to invoke the provisions of Rule 8 of Order 1 of the Code of the Civil Procedure. It is apposite to notice the underlying principle. The principle admitted in all Courts/Tribunals/Quasi-judicial Authorities upon questions affecting the suitor''s person and his liberty and his property is that the rights of no man shall be decided unless he himself is present. Therefore, all persons having an interest in the subject matter are to be made parties in a suit or other proceedings but the provisions of Order 1 Rule 8 of the Code of Civil Procedure has carved out an exception. It provides that where a number of persons are similarly interested in a suit, one or more of them can with the permission of the Court or on a direction given by the Court, sue or be sued on behalf of themselves and others. The provisions of this Rule have been included in the Code in public interest to avoid multiplicity of litigation and to facilitate the decision on questions in which a large number of persons are interested, without recourse to the ordinary procedure. These provisions are meant for the benefit and protection of the persons who have the same interest as one who has filed the suit. The exception is adopted by the Courts to avoid inconvenience, because if all persons interested are made parties, there would be considerable delay and justice would be hampered. The Courts have, however, taken the view that the procedure pertaining to representative suits is inapplicable to actions of debt, to money claims or to liabilities in contract or in tort. The Courts have also taken the view that the nature of the claim - whether it is a suit for declaration of right or an injunction or action for money on contract or on tort - are matters which should be considered whether the suit could be filed under the simplified procedure under Order 1 Rule 8 of the Code of Civil Procedure. It is the existence of a sufficient community of interest among the persons on whose behalf or against whom the suit is instituted that should be the governing factor in deciding as to whether the procedure provided in the representative suit should be adopted or not. But no representative action lies where the sole relief sought is damages because they have to be proved separately in each case.

HAVING regard to the principles enunciated by various Courts in adopting the procedure laid down in Order 1 Rule 8 of the Code of Civil Procedure, we may now refer to the provisions of the Act. The Preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted to provide for the protection of the interest of consumers. The Act aims to protect the interest of consumers, their economic interest as understood in commercial sense as a purchaser of goods and in the larger sense as user of services. The defects in the goods as defined in clause (f) of Section 2(1) and deficiency in service as defined in clause (g) give a cause of action to the consumer for which he can approach the Consumer Fora for reliefs provided under Section 14. The reliefs which can be granted by the Consumer Fora when it is satisfied that the goods complained of suffer from any one of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, are enumerated in Section 14 of the Act. The Consumer Fora can grant, as the word ''namely'' suggests one or more of the reliefs specified therein. The word ''namely'' restricts the grant of any other relief as enumerated there. No relief can be granted which is not specified in Section 14(1).

THE Complainants can be one or more consumers, where there are numerous consumers having the same interest. The interest must be common to them all or they must have a common grievance which they seek to get redressed. The sine qua non for applying under Section 2(1)(b)(iv) read with Section 13(6) is the existence of same interest. Community of interest is an essential condition precedent for bringing a complaint by more consumers than one. The definition clause does not restrict or fix any limit to the number of consumers who may join in a complaint when there is community of interest. Where all the consumers jointly interested are made parties to the complaint, it is not a representative complaint in the strict sense of the provisions of Order 1 Rule 8 and no permission is necessary. When there are identified consumers in the complaint, the trial of the complaint and grant of reliefs, if found entitled, would present no difficulty. The obtaining of a quasi judicial permission is an essential condition for binding those consumers other than those actually parties to the complaint. The Consumer Fora have to exercise a judicial discretion in granting permission to a Complainant to sue in a representative capacity having regard to the nature of the complaint and the reliefs sought. The right of the claim which they seek to establish in the complaint must be one which is common to them all and each individual among the body of the consumers must be interested in the complaint and for the relief sought. It is not our endeavour to lay down any hard and fast rule in a straight jacket as to in which cases the permission to sue in a representative capacity should be granted. The condition necessary for the maintainability of a representative complaint is that the consumers on whose behalf the complaint is instituted must have the same interest. The Consumer Fora should be guided by the principles laid down by the Supreme Court and High Courts in the exercise of quasi-judicial discretion while granting permission to a representative complaint.

ON the reliefs which could be granted is to remove the defects pointed out or to replace the goods with new goods with similar description while shall be free from any defect. Another relief that could be granted is to return to the Complainant the price or as the case may be, the charges paid by the Complainant. The Consumer Fora can also direct payment of such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the Opposite Party. The Complainant has, therefore, to establish that there was negligence on the part of the Opposite Party and as a consequence thereof loss and injury was suffered by the Complainant. These reliefs which the legislature intended for grant can only be to the consumers who are identified and who establish these facts of loss, injury and its quantum. Yet there may be cases when the only relief sought is to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them or not to offer the hazardous goods for sale or to withdraw the hazardous goods from being offered for sale. In such cases the interest may be common to all consumers and they may have a common grievance which they seek to redress in the complaint in a representative capacity. Yet there may be cases where the relief sought is to remove the defects or deficiencies in the services in question. In such cases the question would arise whether the defects or deficiencies in the services in question is common to them all and each individual among the numerous consumers is interested in the common grievance raised in the complaint.

THE State Commission in this case has mechanically drawn an inference that several persons would be interested in the dispute raised in the complaint and so granted the permission under Order 1 Rule 8 to prosecute the complaint. It is not a satisfactory adjudication for the exercise of quasi-judicial discretion to permit a representative complaint. The impugned orders are entitled to be set aside as they suffer from serious irregularities and illegalities in the exercise of jurisdiction. The Revision Petition is allowed, the impugned orders of the State Commission are set aside and the case remanded to the State Commission for de novo consideration of the question of the grant of permission for representative complaint. The will be no orders as to costs of these proceedings.