DR.JUSTICE ANITA SUMANTH and THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR O.S.A.No.241 of 2022 and

2025:MHC:2124
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 31.07.2025
Pronounced on: 29.08.2025
CORAM :
THE HONOURABLE DR.JUSTICE ANITA SUMANTH and
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
O.S.A.No.241 of 2022 and C.M.P.No.1464 of 2025 and CMP.No.15467 of 2022
and CMP.No.8369 of 2023
Shri Edappadi K.Palanichami,
Joint Coordinator,
The All India Anna Dravida Munnetra Kazhagam,
No.226/275, Avvai Shanmugham Salai,
Royapettah, Chennai 600 014. .. Appellant
vs
1.Shri B.Ramkumar Adityan
2.Shri K.C.Suren Palanisamy
(The 1st and 2nd Respondents for themselves and on behalf of the Primary members of the All India Dravida Munnetra Kazhagam under Representative Capacity.)
3.The All India Anna Dravida Munnetra Kazhagam,
Represented by its Coordinator & Joint Coordinator
Shri O.Panneerselvam & Shri Edappadi K.Palanichami, No.226/275, Avvai Shanmugham Salai, Royapettah, Chennai 600 014.
4.Shri O.Panneerselvam, Coordinator,
The All India Anna Dravida Munnetra Kazhagam,
No.226/275, Avvai Shanmugham Salai,
Royapettah, Chennai 600 014.
5.Shri K.P.Munisamy, Deputy Coordinator,
The All India Anna Dravida Munnetra Kazhagam, No.226/275, Avvai Shanmugham Salai, Royapettah, Chennai 600 014.
6.Shri R.Vaithilingam, Deputy Coordinator,
The All India Anna Dravida Munnetra Kazhagam, No.226/275, Avvai Shanmugham Salai, Royapettah, Chennai 600 014.
7.Shri A.Tamil Magan Hssain,
Interim Presidium Chairman,
The All India Anna Dravida Munnetra Kazhagam, No.226/275, Avvai Shanmugham Salai, Royapettah, Chennai 600 014.
8.Shri C.Ponniyan,
Election Officer,
The All India Anna Dravida Munnetra Kazhagam, No.226/275, Avvai Shanmugham Salai, Royapettah, Chennai 600 014.
9.Shri Pollachi V.Jayaraman,
Election Officer,
The All India Anna Dravida Munnetra Kazhagam,
No.226/275, Avvai Shanmugham Salai,
Royapettah, Chennai 600 014. .. Respondents
Prayer: Appeal filed under Order XXXVI Rule 1 of the Madras High Court Original Side Rules read with Clause 15 of Letters Patent against the fair and decretal order passed in A.No.1204 of 2022 in C.S.(D)No.119663 of 2021 dated 26.04.2022, on the file of this Court, praying that the same may be set aside.
For Appellant : Mr.Vijay Narayan, Senior Counsel For Mr.E.Balamurugan
For Respondents : Mr.S.Mukunth, Senior Counsel
for Mr.J.Antony Jesus (for R1)
Mr.S.Sankar (for R2)
No Appearance(for R3, R5, R7, R8 & R9) Not ready in notice (for R6 & R7)
J U D G M E N T
Dr. ANITA SUMANTH.,J
This Original Side Appeal has been filed challenging the order passed by the learned single Judge in Application No.1204 of 2022 in C.S.Diary No.11966 of 2021, on 26.04.2022. The respondents were the applicants and plaintiffs in the Suit. The parties are referred to as per their rank in this appeal.
2. The Suit was filed seeking the following prayers:
a. For a Declaration that the Resolutions No.7, 10, 11 and 12 passed by the General Council on 12.09.2017 and the Special Resolution passed by the Executive Committee on 01.12.2021 and subsequent amendments made in the Original Constitution/the Rules and Regulation of the 1st Defendant Party is null and void and unconstitutional.
b. For a Declaration that the Intra Party Election Notifications dated 02.12.2021 for the post of the Coordinator and Joint Coordinator jointly and the posts of Party Village Branch
Administrators, Party Municipality Ward Administrators, Party
District Ward Administrators and Party Corporation Ward Administrators, subsequent Elections, declaration of the Results and implementation of the Results are void, unconstitutional and void ab initio.
c. Pass a Permanent Injunction restraining the 1st Defendant Party; to convene the General Council and Executive Committee, to pass and implement any Resolution of the General Council and Executive Committee without the General Secretary in the light of Rule.20(i) and Rule.20(vi) of the Original Constitution/the Rules and Regulations.
d. Pass a Permanent Injunction restraining the 1st Defendant Party; to assign the Administrative powers of the General
Secretary under Rule.19(iv), Rule.20(vi), Rule.20(iii), Rule.20(iv), Rule.20(vi), Rule.20(xiii), Rule.30, Rule 35 and Rule.45 to any other Existing and New post in the light of Rules.20(i) and Rule.20(vi) of the Original Constitution/the Rules and Regulations.
e. Pass a Mandatory Injunction directing the 1st Defendant Party to prepare the Voter List of the Primary Members as on 05.12.2016 subject to fulfilment of Rule 5(ii) and Rule.30 (v), to issue the Election Notification for the post of the General Secretary as per provisions of Rule.20(ii) and Rule.43, to permit to contest for the post of the General Secretary of those who are members of the Party for five years without any break as on 05.12.2016 as per Rule.30(v), to conduct Election for the post of General Secretary as per provisions of the rule 20(ii) and Rule.43 of the Original Constitution/the Rules and Regulations of the 1st Defendant Party which is in force as on 05.12.2016, the day of demise of the General Secretary Late.Dr.J.Jayalalithaa.
f. Grant such further or order relief or reliefs as this Hon’ble Court may deem fit and proper in the circumstances of the case and thus render Justice.
3. There are 2 plaintiffs and since they intended to represent the primary members of the All India Anna Dravida Munnetra Kazhagam (AIADMK) in a representative capacity, leave was sought to be obtained in terms of Order I Rule 8 of the Code of Civil Procedure, 1908 (CPC) and Order III Rule 2 of the Madras High Court Original Side Rules (OS Rules).
4. The procedure set out for seeking leave will be presently gone into in detail. For the purpose of setting the stage for this order, suffice it to say that an affidavit was filed seeking leave to sue against the appellant/D3- Shri.Edappadi K.Palanichami, R3/D1 – AIADMK, R4/D2 – Shri.O.Paneerselvam and other respondents (R5 to R9)/defendants – D4 to D8.
5. On 18.03.2022, R1 was directed to serve respondents by effecting paper publication in one issue of Tamil daily ‘Dhinamalar’ and in one issue of English daily ‘The Hindu’, privately too. The matter was directed to be listed on 13.04.2022 for filing proof of service.
6. Notice was taken by the learned counsel for R1. A counter had been filed by the appellant, who assailed the maintainability of the application seeking leave to sue, contending that the respondents are not the members of the AIADMK, and raising various other objections as well.
7. The matter was taken up for hearing on 26.04.2022 and ordered, permitting R1 to sue against the defendants in a representative capacity under Order I Rule 8 of CPC representing the interests of the primary members of the AIADMK, in the interests of justice and equity. The Registry was directed to take the suit on file, if it were otherwise in order. It is as against that order dated 26.04.2022 that the present appeal has been filed.
8. Mr.Vijay Narayan, learned Senior Counsel appearing for Mr.E.Balamurugan, learned counsel on record for the appellant would, at the outset, take us through the Constitution of the AIADMK in detail particularly Rule 19 setting out the composition of the Party, Rule 20, dealing with the General Secretary and her role, Rule 20-A dealing with Co-ordinator and Joint Co-ordinator and Rule 43, the power to make amendments to the Constitution, though without altering the basic structure of the Constitution. There were amendments made to some of the Rules on 12.09.2017 that were reversed in part on 07.09.2022.
9. Learned Senior Counsel would submit that the suit is itself infructuous as on date. Taking us through the prayers in the suit that have extracted in paragraph 2 supra, he points out that the relief sought for by the respondents have been more or less achieved by virtue of subsequent resolutions passed by the General Council of the Party on
11.07.2022.
10. The grievance of the respondents related to certain declarations that had been made and resolutions that had been passed at the General Council meeting on 12.09.2017, as well as Special Resolution passed by the Executive Committee on 01.12.2021 and the Intra Party Election Notification dated 02.12.2021. Those resolutions had been reversed in a General Council Meeting held on 11.07.2022 and the Appellant would argue that the grievance of the respondents does not survive any further.
11. Mr.Mukunth, learned Senior Counsel appearing for Mr.J.Antony Jesus, learned counsel on record for R1 and Mr.S.Sankar, learned counsel for R2 would however not agree that the suit has become infructuous in full as, according to them, some portion of the cause of action remains, to be tried and adjudicated upon by the Court.
12. On an appreciation of the prayers, we find that certain resolutions that had been passed by the General Council on 12.09.2017 and the Special Resolution passed by the Executive Committee on 01.12.2021 as well as consequential amendments made to the original constitution of the AIADMK had been reversed on 11.07.2022 and hence, with that reversal, some suit prayers of the respondents do stand assuaged. However, the other prayers, (b), (c), (d) and (e) would subsist, and they would have to stand the test of trial.
13. The parties also agree, after some hearing, that the entire suit has not been rendered infructuous and hence that point is not pursued any further. We hence restrict ourselves in this order, to decide the legality or otherwise of order dated 26.04.2022, as against which, the present appeal has been filed.
14. In pursuit of the prayer that the suit has itself become infructuous, learned Senior Counsel had referred to two decisions passed by the Division Benches of this Court in O.S.A.No. 68 to 78 of 2023 dated 25.08.2023 and in A.S.Nos.337, 338 and 339 of 2022 dated 05.12.2023 as well as an order passed by the Supreme Court in S.L.P.(C) Nos. 141 – 143 of 2024 dated on 19.01.2024. In view of our conclusion to the effect that the parties will restrict themselves in this appeal to the legality of order dated 26.04.2022, reference to aforesaid decisions need detain us no longer.
15. Mr.Narayan would first take us through the scheme of Order I
Rule 8 of the CPC and Order III Rule 2 of the OS Rules. The procedure, where one person may sue or defend on behalf of all in the same interest, requires an affidavit to be filed by the person seeking such leave, supported by an affidavit setting out details of the persons sought to be represented, including their addresses and nature of the cause espoused by the Plaintiff on their behalf.
16. Order I Rule 8 (1)(b) of CPC says that if such a procedure is has been followed, the Court may grant permission directing that the persons who seek leave may sue, or be sued or may defend such suit on behalf of, or for the benefit of all persons interested. Once such permission is granted, then, the Court shall give notice of the institution of such a suit to all persons either by personal service or public advertisements, as the Court may direct. According to the Appellant, such permission has to be granted by the Court on proper application of mind and it is only once the permission is granted and publication effected, can the litigation be pursued in a representative capacity.
17. Taking forward the argument that the respondents are not even members of the AIADMK, he points to the identity card produced by the members which has long expired. He states that a different membership card, avowedly renewed, was produced only at the time of hearing of the application, on the basis of which the Court, has proceeded to assume that they are members of the party.
18. He points out that the primary membership of the party is in the region of 2,10,00,000 (approx.) and the respondents cannot, legitimately, claim to represent all 2,10,00,000 members.
19. He also assails the procedure followed by the learned Judge, since the permission to sue in representative capacity as well as publication have been ordered on the same day, i.e., on 18.03.2022. Order I Rule 8 of CPC requires permission to be obtained by the applicant first and the process of publication thereafter. That apart, the affidavit filed by the respondents does not satisfy any of the conditions under Order III Rule 2 of the OS Rules and hence permission could not legitimately have been granted by the Court on the strength of that
affidavit.
20. In summary, the respondents are thus not entitled to sue in a representative capacity and can at best, and if at all, pursue the suit only as a private cause. He relies on the following judgements:
(i) V.Krishna Aiyar V.Pachaiyappa Chetti and Ors.
(ii) Surendra Kumar BAsu V. The District Board of Nadia and anr.
(iii) The Corporation of Madras V. S.A. Khan and others
(iv) Kodia Goundar and another V. Velandi Goundar and others
(v) The Correspondent –cum- Secretary, Scott Christian College,
Nagercoil and Village, Agasteeswaram Taluk, Kanyakumari
District V. Dr.M.MOhankani and another
(vi) Entire Members of ‘Maniyani’ Community of Karivellur
Village Vs. Periyadan Narayanan Nair and Others
(vii) Kusasan Samal and others V. Chandramani Pradhan (dead) after him Panchei Bewa and Others
(viii) O.Panneerselvam V. All India Anna Dravida Munnetra
Kazhagam and others
(ix) All India Anna Dravida Munnetra Kazhagam and another v.
All India Anna Dravida Munnetra Kazhagam (Puratchi Thalaivi
Amma) and others
(x) R.Vaithilingam v. All India Anna Dravida Munnetra Kazhagam and others
21. Mr.Mukunth would first assail the maintainability of the appeal, relying on a decision of the Full Bench of the Kerala High Court in M.V.Narayanan and others v. Periyadan Narayanan Nair and
others . Learned senior counsel relies particularly on paragraph 18, the contents of which he interprets to say that no appeal is contemplated as against an order refusing permission or direction under Order I Rule 8 of CPC. He also relies on a decision of the Division Bench of this Court in
Dr.A.Seshadri and others v. Church of South India and others .
22. Objecting to the argument on maintainability, Mr.Narayan would point out that the present appeal has been filed, not under the provisions of the CPC, but invoking Letters Patent granted to this Court. He relies on the judgment in the case of Shah Babulal Khimji v. Jayaben
D.Kania and Another , rendered by the three Hon’ble Judges of the
Supreme Court.
23. On merits, Mr.Mukunth would adopt the arguments of Mr.S.Sankar, learned counsel for R2, that we advert to now. Mr.Sankar would first submit that he is a loyal member of the party, holding a valid identity card. On this aspect, we would prefer not to render any finding, as undoubtedly, this would be one of the issues that would be framed by the Court for decision. Any observation made in this regard, at this juncture, may thus stand in the way of the parties.
24. Mr.Sankar would also take us through the constitution of the
AIADMK and the prayers in the suit, reiterating that some portions of the prayers survive today, even after the meeting on 11.07.2022. He would argue that the procedure as required under Order I Rule 8 of CPC and Order III Rule 2 of OS Rules have been scrupulously adhered to. The respondents have filed an affidavit as required under Order III Rule 2 of the OS Rules and the Court had also issued notice by way of publication in both English and regional languages.
25. He takes us through the notice published and draws our attention to the findings of the learned Judge to the effect that no objections have been received till the date of order. Hence, the conclusion of the learned Judge to the effect that the suit had been filed by the respondents for themselves and on behalf of the members in common interest, was correct and brooked no intervention. He relies on the following citations.
(i)Ramjas Foundation and another v. Union of India and others
(ii)K.R.S.Kaladevi and others v. M.Mayandi Servai and others
(iii)Dr.Vimal Sukumar v. D.Lawrence and others
(iv)Nilgiri District Janatha Party v. A.Rahim and others
(v)Sailappan v. Subramanian and others
26. We have heard all learned counsel attentively and have also studied the cases cited by them.
27. We first advert to the objection on maintainability. The entirety of this argument is premised on the decision of the Full Bench of the Kerala High Court in the case of M.V.Narayanan (supra). That was a matter where the issue framed for decision was ‘is an appeal preferred against a decree passed in a Representative Suit incompetent, without making a further publication under sub-rule (2) of Rule 8 of Order I of the Code of Civil Procedure’.
28. An Original Suit had been instituted before the Munsif’s Court, Payyannur and some parties were impleaded in the suit in a representative capacity to plead the cause of entire members of the Maniyani and Navudiya communities of Karivellur village. As against the decree in the Original Suit, Appeals had been filed and one of the points urged in the appeals was that the procedure under Order I Rule 8 of the CPC had not been followed before the lower Court. It was hence urged that the appeals were incompetent.
29. It is in that context that the Court has made the observations at paragraphs 18 to 20 of the CTC report, extracted below:
‘18.Order refusing leave under Sections 91 & 92,
C.P.C. is an appealable one whereas Appeal or Revision is
not contemplated against an Order granting or refusing permission or direction under Order 1, Rule 8, C.P.C.
19.If permission seeking leave under Sections 91 & 92, C.P.C. is declined, the matter ends there and such a Suit cannot see the light of the day. As noticed earlier, a relief similar to one under Section 91, C.P.C. can be claimed de hors the aid of the provision also. On the other hand, even if permission or direction sought under Order 1, Rule 8, C.P.C. is declined, still the Suit can be proceeded with, the difference being, then the Decree passed in such a Suit will bind only the parties to the suit and it will not obtain a Representative character.
20.In the case of Order 1, Rule 8, C.P.C., even without an Application, permission can be granted or direction can be issued suo motu by the Court, if situation so warrants.’
30. Much has been made of the aforesaid observations. We are, however, of the view that the above observations have to be seen in context and cannot lead to a conclusion that no appeal is contemplated as against an order granting or refusing permission under Order I Rule 8 of the CPC, as a general proposition.
31. As rightly pointed out by the appellant, the High Court of Kerala was not created by Letters Patent and does not have original jurisdiction. It is in those circumstances that the Court had observed that Order I Rule 8 of the CPC stipulates a set of procedural requirement and it would not be the end of the road, if those conditions had not been complied with at the first instance. The defects that may have arisen in the procedure are curable and as the Court says in paragraph 20, even if there had been no application by a private party, a direction may be given by the Court suo motu in an appropriate situation for the parties to litigate in representative capacity.
32. The observations of the Full Bench in M.V.Narayanan’s case thus would not adversely impact the maintainability of the present appeal. This Original Side Appeal has been filed invoking Clause 15 of the Letters Patent, which is entitled ‘Appeal from the Courts of Original Jurisdiction to the High Court in its appellate jurisdiction’. Clause 15 reads as follows:
‘15. Appeal from the Courts of Original Jurisdiction to the High Courts in its appellate jurisdiction. – And We do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Sec. 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Sec. 108 of the Government of India Act, and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Sec. 108 of the Government of India Act made (on or after the 1st day of February, 1929), in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council as hereinafter provided.’
33. The powers under Clause 15 are wide and a specific distinction has also been noted by the Supreme Court in the case of Shah Babulal Khimji (supra), which was concerned with the scope and ambit of the word ‘judgment’ appearing in Clause 15 of the Letters Patent of the
Bombay High Court and corresponding clauses in Letters Patent of other High Courts. This judgment thus fundamentally touches upon the amplitude of Clause 15 of the Madras High Court Letters Patent as well.
34. One of the questions that came up for hearing related to the kinds of judgments that would be subject to appeal under Clause 15. The Court says that judgments can be of three kinds, final judgment, preliminary judgment and intermediary or interlocutory judgment.
35. The present order falls under the third category. Here again, they make a distinction between those orders which may touch upon procedural matters, such as granting of adjournments and others which would affect a valuable right of the defendant. In the event that an order touches upon a valuable right, that would be a case where the order would be appealable before a higher Court. Paragraph 115 is relevant and may be usefully extracted below:
‘115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the Trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.’
36. Seen in light of the discussion and conclusions in the case of
Shah Babulal Khimji (supra), the maintainability of the present Original Side Appeal cannot be assailed. In fact, the Bench at paragraph 120, had illustrated 15 categories of matters, as against which an appeal will lie. Though no specific reference has been made to a decision under Order I Rule 8 of the CPC, the Bench, at paragraph 122, makes it clear that the list is only illustrative and not exhaustive, in the following terms:
‘122. We have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well-nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a strait-jacket. We, however, hope and trust that by and large the controversy raging for about a century on the connotation of the term ‘judgment’ would have now been settled and a few cases which may have been left out, would undoubtedly be decided by the court concerned in the light of the tests, observations and principles enunciated by us.’
37. The decision in Dr.A.Seshadri (supra), where this Court has said that a Suit without permission under Order I Rule 8 is not a nullity also does not advance the case of the respondents any further.
38. In light of the authoritative pronouncement in the case of Shah Babulal Khimji (supra), we do not find any merit in respect of the issue on maintainability as raised by the respondents and their submissions on this score are rejected.
39. Now we come to the merits of the matter. AIADMK was founded on 17.10.1972 to promote and implement the ideals of Late Dr.Anna for establishing a classless, casteless, nationalist, rationalist, socialist society through democratic process within the framework of the Constitution of India. Rule 19 related to the composition of General
Council of AIADMK and stated that it shall comprise of Chairman, General Secretary, Deputy General Secretaries and others.
40. On 12.09.2017, Rule 19 was amended to state that the General
Council shall consist of Chairman, Coordinator, Joint Coordinator, Deputy Coordinators and others. On 11.07.2022, the post of Coordinator and Joint Coordinator were abolished and the position reverted to pre 12.09.2017 position bringing back the General Secretary and Deputy General Secretary into the General Council.
41. Rule 20 deals with General Secretary, responsible for the entire administration of the party. Puratchi Thalavi Dr.J.Jayalalitha was the General Secretary of the party for long years and with her passing on 05.12.2016 an amendment was brought into bye laws on 12.09.2017 that the Hon’ble Former Chief Minister shall be the ‘eternal General
Secretary of the party and no person shall be
elected/appointed/nominated to that post. The Post of General Secretary stands abolished.’
42. In the meeting held on 11.07.2022, Rule 20 itself stood deleted. Rule 20-A had been brought in, in the amendment on 12.09.2017 providing for a Coordinator and Joint Coordinator who were to be part of the General Council as per Rule 19 of the Bye laws. In the amendment on 11.07.2022, Rule 20-A was amended and in place of the words ‘Coordinator’ and ‘Joint Coordinator’, the word ‘General
Secretary’ was to be inserted. Thus, on and with effect from 11.07.2022,
Rule 20-A deals with General Secretary and his powers.
43. Rule 43 deals with amendments, and prior to 12.09.2017 read as follows:
‘43.AMENDMENTS
The General Council will have powers to frame, amend or delete any of the rules of the Party Constitution. But the Rule that the General Secretary should be elected only by all the Primary members of the Party cannot be changed or amended since it forms the basic structure of the Party.’
After amendment on 12.09.2017, Rule 43 reads as follows:
‘43.AMENDMENTS
The General Council will have powers to frame, amend or delete any of the rules of the Party Constitution.
The deleted portion was restored to Rule 43 in the amendment on 11.07.2022.
44. The respondents had filed the Civil Suit seeking various prayers as extracted elsewhere in this order. Had they pursued the suit as a private matter, there would have been no necessity for this Original Side Appeal. However, since the suit was portrayed as a representative suit, it was filed with a draft plaint and an affidavit purporting to be one in satisfaction of the requirement under Order III Rule 2 of the OS Rules.
45. The procedure for obtaining leave to sue in a representative capacity is one that emerges on a harmonious construction of both Order
I Rule 8 CPC and Order III Rule 2 of the OS Rules, extracted below:
Order I Rule 8 of Code of Civil Procedure
‘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.
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3) of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff’s expense, notice to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation.- For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whom behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.]’ Order III Rule 2 of Madras High Court Original Side Rules
‘Suits by or against numerous persons.
Applications to sue on behalf of numerous persons.
(2) An application under Order I, Rule 8 of the Code, shall be supported by an affidavit stating the number or approximate number of the parties, and the places where they respectively reside; that they have all the same interest in the subject-matter of the suit, and the nature of the said interest; and the best means of giving notice of the institution of the suit to the said parties, and the probable cost thereof. If the application is made before suit, it shall be entitled as in Rule 1 of this Order mentioned, and shall be accompanied by the plaint, or a copy thereof.
If leave is granted, the plaint shall state that the plaintiff sues on behalf of himself and all other persons interested in the subject-matter of the suit, or sues the defendant as representing all persons so interested; and the summons to the defendant shall contain the notice set forth in Form No.10.
If the application is made by a defendant, notice thereof shall be given to all parties to the suit; and, if permission is granted, the plaint shall be amended by inserting a statement that the defendant is, with the leave of the Court, sued as the representative of all persons interested in the subject matter of the suit.’
46. Affidavit dated 23.12.2021 has been filed in A.No.1204 of 2022 by R1 and the relevant portion of that affidavit is extracted below in the interests of testing its compliance with the requirements of Order
III Rule 2 of the OS Rules:
I B.Ramkumar Adityan S/o. Mr. R. Balakrishna
Adityan & Mrs. Selvarathi, Hindu aged 48 years, residing at
No. 563. Thoothukudi Road, Virapandianpattinam,
Tiruchendur Taluk – 628 216 now temporarily come over to Chennai for the purpose of filing above said Civil Suit do hereby solemnly affirm and sincerely state as under: 1. I am the 1st Petitioner /1st Plaintiff herein in the above Civil Suit. I am filing this affidavit on my behalf and on behalf of the 2nd Petitioner/ the 2nd Plaintiff herein and as such I am well acquainted with the facts and circumstances of the case and as such I am competent to swear this affidavit.
. . . .
4. I respectfully submit that after sudden demise of our Former General Secretary Hon’ble Dr. J.Jayalalithaa, on
05.12.2016, the Party top functionaries instead of organising Election to elect a new General Secretary as per Rule 20 (ii) of the Original Constitution/ the Rules and Regulations, conducted a Emergency General Council on 29.12.2016 which appointed Smt.V.K.Sasikala as interim General Secretary and assigned all powers of the General Secretary.
5. I respectfully submit that afterwards, the 2nd Respondent/2nd Defendant claimed himself having majority support in party cadres as against Smt.V.K.Sasikala.
. . . .
7. I respectfully submit that the General Council dated
12.09.2017 totally passed 12 Resolutions. Of which Resolutions No. 7, 10, 11 and 12 which were ultra vires to the Original Constitution of our Party Original Constitution/the Rules and Regulations under the Rule.20
(ii), 43 and 45. This resolution created new posts in our
Party viz. Coordinator, Joint Coordinator and Deputy Coordinator, and assigned posts to the 2nd,3rd, 4th and 5th Respondents herein.
8. . . . .
There is a continuous demand among Party members to elect the General Secretary by the Primary Members.
9. I respectfully submit that the Executive Council of the 1st
Respondent/ the 1st Defendant Party on 01.12.2021 passed a Special Resolution and amended the Party Constitution to elect the Coordinator and Joint Coordinator jointly, elected by the basic members by a single vote. Further stated, the General Council has the power to pass – edit – remove the byelaw of the party. However, the election of the Party Coordinator and Joint Coordinator posts which have been created, reflecting the basic sentiment of this byelaw can only be done by the basic members of the party and it is not righteous to change or correct. The Coordinator and Joint Coordinator have absolute power to relax or exclude any Rule of the above stated Rules of the byelaw which came to force immediately from 01.12.2021 and it was decided in the Executive Committee meeting that the approval will be taken in the next meeting of the General Council.
10. I respectfully submit that the amendments made in the 1st Respondent/ the 1st Defendant Party Constitution violated the rights of the Primary Members, disturbed basic structure of the Original Party Constitution/the Rules and Regulation and against wish of the Party founder Dr.M.G.Ramachandran and ultra vires to the spirit of the provisions of the Section.29.A of the Representation of the People Act’1951.
11. I respectfully submit that in the Special Resolution passed in the Executive Committee Meeting dated 01.12.2022 reads “Accordingly, after studying the demands of the basic party members, hearing the opinions of the members in the Executive Committee meeting, the following of the party were proposed”. Coordinator and Joint Coordinator will be elected by the basic members of the Party. Prior to Executive Committee Meeting dated 01.12.2022, after amendment in the 1st Respondent/ the 1st Defendant Party on 12.09.2017, the Coordinator and Joint Coordinator Post created and announced, the Coordinator and Joint Coordinator will be elected by the members of the General Council jointly. All the Primary Members like Single Leadership. They don’t like present dual leadership. Lakhs of the Primary members wish to restore the Original Constitution/ the Rules and Regulation.
12. I respectfully submit that hence we filed this Civil Suit for ourselves and on behalf of the members of the 1st Respondent/ the 1st Defendant under the Representative Capacity in order to ensure strict adherence of the provisions of the 1st Respondent/ the 1st Defendant Party Original Constitution by all the members including the Defendants. Hence, to safeguard the rights of the Primary Members, to fulfil the interest of the Primary Members of the 1st Respondent/ the 1st Defendant Party, It is necessary to file this Civil Suit to sue against the defendants in a Representative capacity under Order 1 Rule 8 of C.P.C. and Section 151 of CPC, representing the interest of several others, similarly situated in the interest of Justice and equity.
Therefore, it is most respectfully prayed that this Hon’ble Court may graciously pleased to grant leave to sue against the defendants in a Representative capacity under Order 1 Rule 8 of C.P.C., representing the interest of the primary members of the 1st Respondent/1st Defendant Party, similarly situated, in the interest of Justice and equity and thus render Justice.
47. Order III Rule 2 of OS Rules requires an affidavit to be filed by the person claiming to sue in representative capacity with the following particulars (i) the number or approximate number of parties who he claims to represent, (ii) the places where those parties reside, (iii) an averment that they all have same interest in the subject matter of the suit, (iv) what the nature of the said interest is, (v) the best means to give notice of the institution of the suit to those parties and (vi) the probable cost involved.
48. On a careful perusal of the affidavit extracted above, we do not find that it satisfies any of the parameters as required under the Rules, for the following reasons
(i) The petitioner should set out the number or at least approximate number of the parties who he claims to represent. That detail is absent in the affidavit.
(ii) Having not provided the primary particulars about the names, the question of setting out their address does not arise. It is reiterated that neither the names nor addresses of the parties claimed to be represented are set out.
(iii) There is a general averment to the effect that the suit is filed ‘to safeguard the rights of the primary members, to fulfil the interests of the primary members of the first respondent/first defendant party’. However, there is no averment to the effect that all those, who have claimed to be represented, agree or acquiesce to the stand that has put forth by the respondent.
(iv) The nature of the relief claimed by the respondents is set out but what the interest of other parties is, is absent. This is a critical feature of the affidavit and is the basis upon which the decision to issue notice should be taken by the Court. The parties must be consensus ad idem on the cause of action in the suit and if no identity in cause is averred by the petitioner, then the entire substratum of the endeavour fails.
(v) The best means of giving notice for institution of suit is also not mentioned and neither is the probable cost thereof.
49. Order III Rule 2 of O.S. Rules says that such an affidavit must support an application under Order I Rule 8 of CPC seeking leave. We find the affidavit totally lacking in respect of the particulars to be provided under the affidavit.
50. The application has come up for admission on 18.03.2022 when the learned Judge has directed the counsel for the petitioner to effect paper publication in one issue of Tamil Daily, Dhinamalar and one issue of English Daily, The Hindu, ordering private notice as well. The matter was directed to be listed on 13.04.2022 for filing proof of service.
51. We are of the considered view that the flaw has occurred at this stage. Order I Rule 8 of CPC grants leave to one person to sue or defend on behalf of several persons holding the same interest. The leave to sue or defend must be only with the permission of the Court. Such permission of the Court can be granted only after due verification of the justification provided by that party for suing in a representative capacity. Such justification would flow from the procedure under Order III Rule 2 of the O.S.Rules, in particular the affidavit that is to be filed containing the details set out under the aforesaid Rule.
52. It is only on a careful verification thereof that the Court can come to a conclusion that the petitioner has justified the request for suing or defending in a representative capacity. If the Court is of the opinion that the affidavit is bereft of particulars set out in Order III Rule 2 of O.S. Rules, as in the present case, it is open for the Court at its discretion to permit the petitioner make good the defects/lacunae/deficiencies or take a decision that no case has been made whatsoever for suing in a representative capacity and closing the request on the ground of noncompliance with the ingredients of Order III Rule 2 of O.S. Rules.
53. It is however mandatory that attention be bestowed on the accompanying affidavit as it is only that affidavit that will inform the Court as to the justification or otherwise of the request to sue in a representative capacity. Having perused the affidavit filed, we are of the view that no cause or justification has been made out, as even the primary details, such as the names of the persons who are to be set out, have not been furnished. Had the Court taken note of the affidavit, we believe that the Court would have come to a same conclusion as we have. However, the impugned order does not indicate that the Court has taken note of the affidavit and consequently the defects therein.
54. The learned Judge has recorded at paragraph 14 the contention of the appellants that the respondents are not members of AIADMK and that the procedure under Order I Rule 8 of CPC read with Order III Rule 2 of O.S. Rules has not been followed.
55. As far as the former contention is concerned, the learned Judge has permitted them to produce renewal membership cards before the Court and has admitted the same though, without any affidavit of admission or pleadings in support of those new documents. Having done so, the learned Judge has arrived at a conclusion that the respondents are primary members of the political party. We believe that such a finding is pre-mature.
56. As regards the procedure to be followed, the Court notes its earlier order dated 18.03.2022 for paper publication and private notice and at paragraphs 23 and 24 states as follows:
23. This Court by order dated 18.03.2022, directed the applicants/plaintiffs to effect paper publication in both daily in Tamil and English dailies viz., Dina Malar and The Hindu respectively and Private notice was also permitted.
24. As per order of this Court, the applicants/plaintiffs have made the paper publication to invite objections from the other members of the first respondent political party in order to maintain the Suit. None of the members of the first respondent political party and general public have raised any objections till date. Therefore, it is evidently clear that the applicants/plaintiffs have filed the Suit for themselves and on behalf of the members of the common interest.’
57. The issuance of notice on 18.03.2022 itself, is, in our view, pre-mature. Such notice ought to have been directed only once the Court was convinced that the affidavit filed by the respondents aligned with the ingredients of Order III Rule 2 of O.S.Rules.
58. At the risk of repetition, we note that this has not been done
and the affidavit which we have perused does not contain the required particulars. Neither ‘members’ nor ‘common interest’ has been made out in the affidavit filed by the respondents and it was not for the Court to have arrived at a conclusion that the members and the petitioners have a common interest, in the absence of any such justification provided on that account by the petitioners.
59. Pursuant to notice that was ordered on 18.03.2022, notice has, in fact, been taken only on the respondents in the application. Hence even at that stage, no notice had been taken to all the primary members whom the respondents claim to represent and the factum of notice to them is solely on the strength of the publication taken. Based on this, the Court goes on to say in the impugned order, that there have been no objections raised.
60. No doubt, the judgments of the Courts have taken the view that in a case where it is not practical, bearing in mind the largeness of numbers of the parties and other valid reasons, publication will be seen to be an effective mode of inviting objections from the parties who the petitioners claim to represent. (See Nilgiri District Janatha Party ). However, that is only if the primary ingredients of Order III Rule 2 of
O.S. Rules are seen to have been satisfied.
61. We have examined the affidavit filed by the Respondents threadbare in the paragraphs supra finding the same wanting acutely, and non-compliant with the requirements of the O.S.Rules. The deficiencies are not merely cosmetic, but fundamental to the maintainability of the application itself.
62. The requirements for disclosure of the metrics set out in Order III Rule 2 of the O.S.Rules flow from Order VIII Rule 1 of the CPC and while they stipulate a Rule of procedure, it is only a strict implementation of that procedure that will legitimize and maintain an action in representative capacity. If not strictly implemented and followed, such joint action cannot be sustained and fails.
63. The persons who the respondents claim to represent must hence be a demarcated body of persons whose attributes such as name and address must be known and furnished before the Court. There must also be an averment in the affidavit to the effect that those identified parties align with the cause espoused by the petitioner and the cause itself must be outlined. If it is only in a situation where these aspects have been properly set out by way of affidavit, to the satisfaction of the Court, can publication be ordered, failing which the publication effected can have absolutely no meaning or purpose.
64. In the vacate stay application, also styled as counter to OSA, the respondents justify the position that notice was issued only to the respondents set out in the application and not to the larger body of persons whose cause they seek to espouse.
65. Thus there appears to be a primary misconception on the scope and ambit of Order I Rule 8 of CPC and Order III Rule 2 of O.S. Rules. The purpose of the explanatory affidavit is to ensure that those persons who are sought to be drawn into the litigation, are aware of the fact that such a litigation is on-going and have the opportunity to either joint cause or disengage from the proceedings. The knowledge on their part, is an important incident of the representative suit.
66. As a consequence, order dated 18.03.2022 is itself incorrect as such notice ought not to have been issued upon the strength of the defective affidavit filed by the respondents. In conclusion, we are of the view that the impugned order has not taken into account the procedure set out under Order I Rule 8 of the CPC read with Order III Rule 2 of the O.S. Rules in a proper manner and ought not to have granted leave.
67. We find support for our conclusion from judgements cited by the Appellants. The Division Bench of this Court in the case of V.Krishna Aiyar , that considered the construction of Order I Rule 8 CPC to say that, in some cases one person or a few persons should be allowed to represent all persons interested in a suit. Such a provision would be an exception to a general rule that all persons interested should normally be made parties to a suit. The Court says that such permission assumes that the plaintiff has a right to sue and that he may represent the whole body of persons whom he seeks to represent.
68. To quote, the Bench states at paragraph . . ,
3………….. The rule says : ” Where there are numerous persons having the same interest in one suit, one person may sue on behalf of all persons so interested. ” The ” one person” indicated in the rule is the person who has an interest common to himself and the body whom he professes to represent. The community of interest between him and the others of the class is the pre-requisite necessary to the end proposed. It is not any person that may sue on behalf of a class, but it is that person who has an interest which is the same as that possessed by the whole body of persons. ” Given a common interest and a common grievance, a representative suit is in order if the relief sought is in its nature beneficial to all whom the plaintiff proposes to represent. ” Judgment of Lord Macnaghten in Bedford, Duke of v. Ellis (1901) AC 1. If this condition is found wanting, if the plaintiff turns out not to be a member of the class on whose behalf he professed to institute the suit, I am of the opinion that the suit is wrongly constituted. The permission to sue is given by the Court on the assumption that the plaintiff is a member of the class and if the assumption is shown to be wrong the suit is not a representative suit and no member of the class is constructively a party to it. On the assumption, therefore, that the plaintiff in the present suit is not a creditor of the insolvent, Order I, Rule 8 has no application.
69. We also find support from the decision of the Full Bench of the Kerala High Court in Entire Members of ‘Maniyani’ Community of
Karivellur Village , particularly paragraph 34 reading thus:
34. The power to grant permission to the parties either to sue or be sued in a representative capacity is conferred on the court and the said power is required to be exercised after being satisfied as to whether the subject matter of the suit concerns the interest of numerous persons or not. The court will have to apply its mind and grant permission. It is not an empty formality. A suit cannot become a representative suit merely because some positive averments are made in the plaint stating that it is filed on a representative capacity. Permission of the court under Rule 8 is mandatory.
70. At the time of admission, the appellants had obtained a stay of operation of the impugned order on 12.09.2022 and as a result a petition to vacate stay had been filed by the respondents. There are detailed averments therein relating to various factual aspects including the issue of membership cards, which would determine whether the respondents are members of the party entitled to continue the Suit at all. Since those aspects would no doubt be framed as issues to be adjudicated upon in the Suit, we desist from stating anything further in that regard.
71. In the vacate stay petition there are also allegations made to the effect that the plaint filed by the appellant before the Court is false and fabricated. We have heard the parties on this point. What appears to have transpired is that the plaint that was served on the appellants was the unamended plaint that had accompanied A.No.1204 of 2022. Thereafter, the respondents appear to have amended the plaint and filed the fair plaint before the Court after grant of leave.
72. A comparison of the two plaints filed at Diary stage i.e., C.S.D.No. 119663 of 2021 and in C.S.102 of 2022, once amended, indicate the following differences:-
Comparison of Plaints in C.S.No.102 of 2022 (C.S.D.No.119663 of 2021)
Paragraph Plaint in
C.S.D.No.119663 of 2021 served upon the appellant at the stage of
O.1 R.8
No. of pages :39 Plaint in
C.S.No.102 of 2022
No. of pages: 49
Verification at Pg.39 MISSING INCLUDED
List of Documents under O VII R
14(1) at Pg.40 MISSING INCLUDED
List of Documents under O VII R MISSING INCLUDED
14(2) at Pg.45
Memo of Valuation at Pg.46 MISSING INCLUDED
Counsel for
Plaintiffs signature at Pg.47 MISSING INCLUDED
State of Address under O VI R 14A MISSING INCLUDED
Verification paragraph at Pg.49 MISSING INCLUDED
Plaintiffs and
Counsel for
Plaintiffs signatures at Pg.49 MISSING INCLUDED
73. In light of the aforesaid which is an admitted position that flows from the records, we find the allegation of falsification of the plaint to be factually incorrect.
74. In Dr.Vimal Sukumar , the Supreme Court considered whether suits filed without obtaining leave under Order I Rule 8 CPC are maintainable, stating as follows:-
62. This Court is of the considered opinion that the position of law regarding the applicability of Order 1 Rule 8 of CPC is well settled. Order 1 Rule 8 CPC does not prescribe any stage at which the application can be filed.5 While it is not a mandatory pre- condition for the institution of a suit or for the granting of interim relief, it is a procedural requirement that cannot be disregarded altogether which bears upon the binding nature of any orders issued. Therefore, while the absence of Order 1 Rule 8 is a curable defect, its compliance remains crucial to ensure the enforceability and representative effect of the orders passed. Leave under Order 1 Rule 8 may be obtained at any stage of the proceedings; however, it is emphasized that until such leave is formally granted, the orders passed from these proceedings may not be considered binding upon the entirety of the membership of the CSI.
75. The settled position is that permission under the said Rule can be sought and obtained at any stage of the proceedings subject to proper procedure being followed (See Nilgiri District Janatha Party ).
76. Once permission is given in the manner envisaged under Order I Rule 8 (1) and (2), Sub-rule (3) states that any person on whose behalf the suit is instituted or defended, may apply to the Court to be made a party to the suit. Sub-rule (4) states that no part of the claim shall be abandoned and no suit pursued in representative capacity shall be withdrawn. No agreement, compromise or satisfaction shall be recorded unless notice has been taken to those persons interested in the subject matter of the suit in a manner similar to that provided under Sub-rule (2). This means that such notice is intended to draw the attention of the persons who are sought to be made part of the cause of action.
77. This is the reason why the affidavit under Order III Rule 2 of the O.S. Rules stipulates various particulars to pinpoint or identify the individuals who are to be made part of the cause of action. Then again, Sub-rule (5) states that where the main plaintiff does not proceed with due diligence in the suit or in defence of the same, his place may be substituted by the Court by any other person who has the same interest in the suit.
78. In the present case, assuming that the respondents/plaintiffs abandon the suit, the Court would be unaware as to who the other parties are who may be substituted in their place, as no particulars have been furnished. The decree, under Sub-rule (6) is to be binding on all persons on whose behalf or whose benefit the suit is instituted. This again is on the premise that those persons know about the nature of suit and subject matter and they have acquiesced to join in that cause of action or defence.
79. In the present case, none of the primary members have been named and hence one is unaware as to whether at all they are aware of the suit or have agreed to join hands with the respondents/plaintiffs. Hence the purpose of Order I Rule 8 has been given a total go-by in the present case.
80. The cases cited by the respondents are found to be distinguishable, both on facts and law, but, in the interests of completion of narration, are now discussed. The judgment in Ramjas Foundation and another , relates to the principle that a person who does not come to Court with clean hands is not entitled to be heard on the merits of his grievance. This principle does not apply to the present case as there has been no false statement by the appellants. Hence this decision is
irrelevant.
81. The decision of the Division Bench in the case of
K.R.S.Kaladevi and others is on the principles of Order I Rule 8 of
CPC, which we have adverted to in detail relying on the judgments in the Supreme Court and the provisions themselves.
82. In light of the discussion as above, impugned order dated 26.04.2022 is set aside and this Original Side Appeal is allowed. Needless to say the respondents/plaintiffs are at liberty to pursue the suit in their individual capacity, should they so desire. No costs. Connected Miscellaneous Petition in C.M.P.No.15467 of 2022 is closed. CMP No.8369 of 2023 filed by the R1 seeking to vacate the stay granted on
12.09.2022 is closed and CMP No.1464 of 2025, also filed by R1 seeking to dismiss the appeal with costs is dismissed.
[A.S.M., J] [N.S., J]
29.08.2025
Index:Yes
Speaking Order
Neutral Citation:Yes
Sl 
DR. ANITA SUMANTH.,J. and N.SENTHILKUMAR. ,J.
sl
O.S.A.No.241 of 2022 and C.M.P.No.1464 of 2025 and CMP.No.15467 of 2022 and CMP.No.8369 of 2023
29.08.2025