CPC | Amendment To Class Action Consumer Complaint Can't Be Allowed Without Following Order 1 Rule 8(4): Delhi High Court

The Delhi High Court has recently held that in the case of a Class action Consumer Complaint, the amendments in the complaint cannot be allowed without following the mandate under Order 1 Rule 8(4) of CPC.

Allowing the petition against an order of the National Consumer Disputes Redressal Commission (NCDRC), Justice C. Hari Shankar observed:

"If at a later point of time, the complainant/complainants desires to abandon any part of the claim, Order I Rule 8(4) permits such abandonment provided, prior thereto, the Court issues notice, once again, to all persons so interested, i.e. all persons whose interest the original complaints purported to espouse, in the same manner as envisaged by Order I Rule 8 (2) i.e. either individually or, if that were not possible, by public advertisement."

The respondent and other complainants had instituted a Consumer Complaint against the petitioner Puri Construction Pvt. Ltd. before the NCDRC under Section 12(1)(c)1 read with Section 21 of the Consumer Protection Act, 1986 and Order I Rule 8 of the First Schedule to the Code of Civil Procedure, 1908 (CPC), as a representative class action complaint. It was clearly stated, in the complaint, that it was being filed for resolution and redressal of grievances of the 48 named complainants and also to address the common grievance of all the consumers affected by the price discrimination by the opposite party in the Aanand Vilas project.

It was alleged, in the complaint, that the application form provided to the complainants and other investors in the petitioner's project did not contain relevant or substantial information about the project or the time within which it would be completed and that the buyers/investors were coerced to pay several charges such as Preferential Location Charges (PLC), car parking, club furnishing charges and fire fighting charges, which found no place in the initial application form provided to them, which they had filled in and submitted. Moreover, though the complainants had paid 80-90 % of the payments demanded by the petitioner, the complainants were forced to honour all the allegedly illegal demands of the petitioner, and the petitioner was allotting identical flats to outsiders at nearly half the price at which they were allotted to the complainants.

It was submitted that the alleged acts constituted "unfair trade practices" within the meaning of Section 2(r)(1)(ix)4 of the Act, as the petitioner was effectively misappropriating the hard-earned money of the investors.

The Court referred to Section 2(1)(b)(iv) of the Act, which defines "complainant" as meaning "one or more consumers where there are numerous consumers having the same interest". It also referred to Brigade Enterprises v. Anil Kumar Virmani, where commonality of interest has been held by the Supreme Court to be the sine qua non for allowing an application under Section 12(1)(c) of the Act, to be filed by one or more consumers on behalf of others not individually impleaded.

The Court held that Section 12(1)(c) had been made applicable, mutatis mutandis, to the NCDRC, by Section 22(1) of the Act. Where, therefore, an application under Section 12(1)(c) stands allowed by the Consumer Forum, it amounts to lending, by the Consumer Forum, of its judicial imprimatur to the contention of the applicants/complainants before it that all persons whose cause the complainants seek to espouse are persons who are "so interested" in the complaint and the reliefs sought therein.

Therefore, it was held that the respondents being, thus, "complainants" as defined in Section 2(1)(b)(iv) of the Act, Order I Rule 8 of the CPC becomes applicable, mutatis mutandis, to the consumer complaint filed by the respondents, by operation of Section 13(6) of the Act.

Order 1 Rule 8(4)

The Court held that the interpretative principle to be applied to Order I Rule 8(4) is that the same expression, used in different provisions of a statutory instrument, is required to be accorded the same meaning unless the provision in question unmistakably points to a contrary intent. It noted,

"The applicability of this principle is augmented in a case where the expression figures in different parts of one statutory provision. Applying the above principle, the expression "so interested", figuring in the various clauses of Section 8(1) has to be accorded the same meaning in each clause. For that matter, in my opinion, the words also carry the same meaning as the words "so interested" as employed in Section 12(1)(c) of the Act, which is why Order I Rule 8 has, by Section 13(6) of the Act, been made applicable, mutatis mutandis, to class action complaints preferred under Section 12(1)(c)."

On this issue, the Court also referred to the case of Kesavananda Bharati v. State of Kerala, where it was held that,

"It is one of the accepted rules of construction that the Court should presume that ordinarily the legislature uses the same words in a statute to convey the same meaning. If different words are used in the same statute, it is reasonable to assume that, unless the context indicates, the legislature intended to convey different meanings by those words."

Clause (a) of Order I Rule 8 (1) states that "where numerous persons are having the same interest in one suit one or more of such persons may, with the permission of this Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested". The Court noted that, all persons whose cause the suit seeks to espouse, as persons ordering commonality order interest, are persons "so interested" within the meaning of Order I Rule 8 (1)(a).

Order I Rule 8 (2)

Order I Rule 8(2) requires the Court, in every case where permission to file a class action suit is granted under Order I Rule 8(1) to, at the plaintiff's expense, give notice of the institution of the suit, to all persons so interested either by personal service or, if that is not possible, by public advertisement. Therefore, the Court noted that clearly, the words "all persons so interested" refers back to the expression "so interested" as employed in Order I Rule 8 (1)(a). That is to say, all persons whose interest the complainant, filing a class action complaint under Section 12 (1)(c) of the Act, purports to espouse, are persons "so interested" within the meaning of Order I Rule 8(1)(a) and, equally, therefore, Order I Rule 8 (2).

It stated that Order I Rule 8(3) does not even employ the expression "interested". What it states is that any person on whose behalf, or for whose benefit, a suit is instituted under Order I Rule 8 (1) may apply to the Court to be made a party to the suit. In other words, it is open to any of the persons whose interest the plaintiff under Order I Rule 8 (1) (a) purports to espouse to apply to become a party to the suit individually. It was held that this does not, by any principle of interpretation, restrict the ambit of the expression "so interested" as employed in Order I Rule 8(1)(a) or Order I Rule 8 (2), to the persons who so apply under Order I Rule 8 (3) alone. It noted,

"The intent of Order I Rule 8 (3) is obvious. It is to ensure that, even though the representative suit under Order I Rule 8 (1)(a) espouses the interest of a large number of persons having commonality of interest, if any of such person or persons desires to individually espouse her or his cause before the Court, she or he may apply individually to do so under Order I Rule 8(3) by being made individually a party to the suit. This provision can, therefore, have no impact whatsoever on the understanding of the expression "so interested" as employed in the other clauses of Order I Rule 8, including Order I Rule 8 (4)."

Order I Rule 8(4)

On Order I Rule 8 (4), the Court held that the provision unequivocally prohibits abandonment of any part of the claim in any such suit. Therefore, any suit instituted in terms of Order I Rule 8 (1) – to abandoned unless the Court has given, at the plaintiff 's expense, notice to all persons so interested, in the manner specified in Order I Rule 8 (2).

The Court held that applying the provisions of Order I Rule 8 mutatis mutandis to the Act, if one or more consumers desire to file a representative consumer complaint, espousing the cause of a large number of persons having a commonality of interest, under Section 12(1)(c) of the Act, they would have to apply under the said provision for permission to file a representative complaint. Then the Court would give notice to all persons so interested, i.e. all persons whose common interest the complaint purports to espouse, either individually or by way of public advertisement.

Judgement

In the instant case, the Court held that the amendment application was not filed after notice to all the persons on whose behalf consumer complaint was filed, and neither was it espoused by all the then-existing complainants, including those who had responded to the notice issued by the learned NCDRC. The exercise having not been undertaken in the present case, the Court held that the NCDRC has erred in allowing the respondent's application for amendment of Consumer Complaint 335/2017 by abandoning the relief of possession claimed.

It was held that the opinion of the NCDRC could not sustain as it was not open to the NCDRC to opine that there was no necessity of issuing a public notice before allowing the amendment of the complaint since the amendment of the complaint sought to abandon the relief of possession originally urged.

Moreover, for the NCDRC to hold that the amendment could initially be allowed and, after that, a public notice issued, as would enable persons who were interested in the relief sought in the original complaint to apply to the Consumer Forum individually and follow their independent remedies was found to be wholly opposed to Order I Rule 8 of the CPC and, consequently, to Section 13(6) of the Act. It was observed,

"Where Order I Rule 8(4) expressly requires prior notice to "all persons so interested" in the class action complaint, that requirement cannot be substituted by first allowing the complaint to be amended by abandoning part of the relief sought and, thereafter, issuing a public notice to the persons on whose behalf the complaint was filed. That would amount to placing the cart before the horse."

Case Title: Puri Constructions Ltd v. Shailesh Gupta & Ors.

Citation: 2022 LiveLaw (Del) 829

Click Here To Read The Order