The Calcutta High Court on Tuesday allowed the restoration of a representative suit filed on behalf of Trinamool Congress (TMC) members against allegedly defamatory statements published (libel) in 2012 against the party’s leader, Mamata Banerjee.
A Division Bench allowed the substitution of TMC MP Mahua Moitra instead of former TMC member Mukul Roy as the lead plaintiff in the 2012 suit which was dismissed in 2018 for non-prosecution after Roy failed to lodge a writ of summons.
In allowing the substitution, and taking note of submissions that Roy had joined another political party (BJP) around the time the suit was dismissed, the Bench of Justices IP Mukerji and Md Nizamuddin said,
“We are of the opinion that once leave was granted to the original plaintiff to institute and prosecute the suit in a representative capacity, considering the principles of Order 1 Rule 8 of the Civil Procedure Code, the cause of action on which the suit was founded should not be allowed to die for the reason that in all likelihood, he is not interested to prosecute it.“
Appearing for Moitra, Senior Advocate SN Mookherjee pointed out that the dismissal of the suit for non-prosecution in 2018 and Roy’s joining another political party took place contemporaneously.
As such, Mookherjee argued that it was clear that Roy was not interested in pursuing the suit at the time or thereafter. Therefore, he prayed that Moitra, who was also challenging the 2018 dismissal in the form of an appeal, be substituted as plaintiff in the suit in her capacity as another TMC member.
The Court agreed with this submission, taking note that the single judge who dismissed the suit in 2018 appears to have not been apprised of Order 1, Rule 8 of the Code of Civil Procedure (CPC), which deals with representative suits.
Sub-clause 4 of Rule 8 states, inter alia, that no claim in a representative suit should be abandoned or withdrawn unless the Court has given, at the plaintiff’s expense, notice to all interested persons.
“The principle is that the representative plaintiff is not allowed to abandon the suit or withdraw from it or enter into any agreement or compromise unless notice of such intention is given to all the plaintiffs and consent is obtained from the Court,” the High Court explained.
The Bench further observed,
- The court has the power to restore the suit if sufficient cause is shown;
- The power to restore a suit dismissed on the ground of failure to take measures for lodging the summons or service thereof, if sufficient grounds are shown, also rests with the appeal court, if instead of making an application to set aside the decree dismissing the suit an appeal is preferred;
- A very substantial issue regarding the reputation of a dignitary is involved in the suit. It should be tested out on a proper trial.
The Court, therefore, allowed Moitra’s plea and also directed that advertisements on this development be published in the Times of India and the Anandabazar Patrika within six weeks. Further, the Court ordered that a fresh writ of summons be issued, and the amended plaint be served on all the defendants.