11 May 2021
A while back Hon. Supreme Court pronounced a judgement in civil appeal 3526 of 2016.
Reference with application for permission to file case for numerous Consumers with same interest under consumer protection Act;
After a thorough discussion, In Para 26 it is said "For the above reasons, we hold that the application that was filed on behalf of the appellants purportedly under Section 12(1)(c) of the Act was not maintainable having regard to the frame of the complaint, the nature of the pleadings and the reliefs that were sought"
Supreme Court held that though styled as one under Section 12(1)(c) but still application was not maintainable because pleadings were not consistent with the provision of CP Act and Order 1 Rule 8 of CPC.
1. Can any one please share the format of application for permission to file case U/S 35(c) of CP Act 2019 for one or more consumers, consistent with the provision of CP Act and Order 1 Rule 8 of CPC.
2. Please also share your thoughts/tips to keep in mind while submitting application for permission under above provision.
11 May 2021
No specific format exist for an application u/o I Rule 8 CPC, Section 35(c) of CP Act, 2019 (earlier 12(1)(c) & 2(1) (b)(iv) of the CP Act, 1986. All the individual complainants has to sign the application and submit with affidavit authorising one of them for further proceeding for common relief as decided in Ambrish Kumar Shukla V. Ferrous Infrastructure Pvt Ltd.
11 May 2021
Facts ,cause of action and relief claimed by all petitioners must be identical and all petitioners should pray that particular petitioner is being authorised to represent them be allowed ,mentioned in application u/sec 35 ( c ) of C.P.Act and O 1 R 8 of CPC.
if everyone affected has to sign the complaint and submit the affidavits, then what is the entire purpose, it's still messy and extra documents.
On the other hands, lets assume 100 persons are affected and say 10 of then do not wish to pursue, does that mean remedy is not available to other 90 to file a complaint us 35 (c). (assuming everyone affected has to sign and submit affidavit). Won't the entire purpose of the very Act and provision be defeated?
11 May 2021
As per s 2(5)(v) of CP act, any person can file claim for other consumers also. Signature of all consumers not required. Only one or a few can file but for this a permission required. There is no any specific format but a smart drafting required to show that it is a Public Interest Litigation type case and every body known or not known if suffering should be provided relief. The application of permission should be drafted separately by stating that how the applicant represent the other consumers. (for example a gear box is defective in all cars then any one can seek order to get replaced it in all cars sold out by that company)
11 May 2021
Well said J K Agarwal ji, That's why i posted original question.
in quoted judgement above, Applicant tried to establish that grievance as well as relief sought are common among petitioners. They also specifically pleaded to present the complaint jointly.
in Application for permission title , pleadings were as follows
The title of the application is reproduced below: “APPLICATION ON BEHALF OF THE COMPLAINANTS U/S 12(1) (c) READ WITH 2(l)(b)(IV) OF THE CONSUMER PROTECTION ACT, 1986, SEEKING LEAVE OF THIS HON'BLE COMMISSION TO INSTITUTE THE PRESENT COMPLAINT JOINTLY.
“3. That the deficiencies of services, unfair trade practices and irregularities adopted by the Opposite Parties against the Complainants are identical in nature in and the complainants shall rely on common evidence and the issues raised and the relief sought is also common to all the complainants . It is submitted that under these facts and circumstances the Complainants have made the present application seeking permission for instituting the present complaint jointly, having commonality of interest.
4. That no prejudice shall be caused to the Opposite Party if the Complainants are allowed to institute the present complaint jointly however, grave loss and injury shall be caused to the Complainants if the present application is not allowed.
5. That the balance of convenience also lies in favour of the Complainants who have been suffering in the hands of the Opposite Party who has offered the possession of their respective flats with delay and in the garb of offering possession is now demanding illegal charges to the tune of seven to eight lacs per flat and is further resorting to illegal acts of giving possession of the respective flats to the complainants in absence of an occupancy certificate.” (emphasis supplied)
5 The relief sought in the application was in the following terms: “a) Allow present application and admit the present complaint of the Applicants which has been filed jointly with commonality of interest
Clearly they tried to paint that grievance and relief sought are similar and they also pleaded for permission to file complaint jointly.
However, What supreme court found distinct was that, first they highlighted the grievances of 24 persons only and, second they do not profess to possess the representative character.
Coming back to secondary question above, to possess a representative character, one must have to be a representative subsequently one must have assent to be representative whom he want to represent. How one can get assent from numerous complaints being several to become a representative. Some may or may not agree. On the other hand, as quoted by J K Agarwal ji, if sign of others are not required, then why application by even 24 person failed on the basis of hyper technicality of pleadings and on the warrant of representative character.
I understand the answer by Agarwal ji that smart drafting is required hence my original question.
What i am unable to follow properly, why above quoted application failed on technicality and what were they supposed to do or write in application. Most of all, i am unable to comprehend requirement representative character and feasibility to fulfil in where there are large number of complainants.
12 May 2021
There may be so many reasons of failure of application but i confirm that it is pleading which require smartness. Here i would like to describe that if a litigation is for benefit of specified persons (like 24 flat holders of a building) then it is Not a public interest litigation and it may required (i) consent of each or (ii) separate claim by all and consolidated after filing or (iii) a permission under Section 35 with signature of all applicants but authorizing only one to conduct the case of all and to sign for all. But the same litigation is for benefit of all residents of a colony or the building (may be they are countable and they are 24) only one person can file claim even without consent or signature of anybody else. He just to mention that there are Numerous beneficiaries and sufferers. It is a public interest litigation. The matter is same but drafting is different. The procedure also different, in case of Public Interest Litigation you shall have to follow the provisions of CPC like publication and advertisement of petition in public etc In such a case order 22 CPC not applicable and you can not withdraw the case without specific order of court. No ex-parte applicable in PIL.
12 May 2021
As opined by the experts I agree and opine that there is no specific format for filing the joint complaint. Experts above suggested that individual complainant has to file their affidavit along with the main complainant expressing their grievances and if all the grievances are similar then they may be considered as common cause for all complainants in that single application. Thus on the basis of the supreme court judgment you had furnished above, you can redraft the complaint as per the directions and provisions of law in this regard with the help of an expert lawyer practicing in this field.
12 May 2021
12 May 2021
Thank you T Kalaiselvan ji, i am no way connected to that particular quoted case, that was purely academic curiosity on the judgement. it was delivered in 2020 so i was just reading it.
as you again quoted and some other experts as well, that it is necessary for all to submit affidavit from all. but it is impossible to get affidavit from all. as an example quoted by one of the expert above, a gear box is defective in all cars then any one can seek order to get replaced it in all cars sold out by that company. clearly in this scenario there will be thousands of consumers who will be affects. it is not only impossible but totally counter intuitive for the very purpose the provision.
Hence i totally agree with @J K Agarwal ji . there is no provision in the act which requires affidavit from all the complaints. only one person is enough to litigate. he does not necessarily have to get affidavits from other to file along with complaint.
But what i am most curious about is the specific objection raised by hon court that they do not posses a representative character. What does this exactly mean in this particular context. BTW complainant did had affidavit from numerous persons in above case.
Second thing Act does not say 'all', it does say 'numerous'. clearly legislator understand that it is impossible that everyone would wish to press claim. However from all the affected, numerous may be willing to do the same. thus the provision.
15 May 2021
In my understanding, a joint petition needs to be distinguished from a public interest petition. The former, though pleadings are common, needs to be supported by individual affidavits.
16 May 2021
16 May 2021
Absoluterly @ P. Venu ji. Not only Joint petition and public interest litigation are different but even there is distinction between Joint petition and representative suit.
Firstly Public interest petition can not be filed on private interest on the other hand Joint petition and representative suit may be filed for private interest of more than one individuals.
Joint petition; order one rule 1 and rule 3, join petition can be made if relief sought arise from same act or transaction, or when similar question of law or fact would arise. Joint petition can not be filed by 1 single person. All the parsons should be a party thus requires affidavits from all.
on the other hand representative suits; order 1 rule 8 when one or more persons have similar interest. in representative suit cause of action may be different/separate. Representative suit may be filed by 1 single person. All person need not to be party, instead a notice have to be issued, so if anyone desirous, may become a party. But even a single person can file a representative suit.
Section 35 (c) of consumer protection Act 2019 deals with representative suit corresponding to order 1 rule 8 and not to a joint petition.
25 May 2021
First of all in a consumer complaint to be filed jointly by many complainant together in a single complaint, it must be noted that each and every litigant/complainant has to express his grievance which should be supported by an affidavit to authenticate his complaint. Moreover each individual may be desirous of different relief even though the cause of action would be the same. Hence a consolidated complaint may not be maintainable if the prayers are not consistent to the complaint. Please remember that it is a relief sought by ah and every complainant and cannot seek a common order. This is not a public interest litigation that the petition is filed for a common cause without any particular relief to any particular individual.