Kerala High Court
P.N. Subramanian vs K. Rajappa Kaimal on 19 February, 2009
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
THURSDAY, THE 16TH DAY OF FEBRUARY 2012/27TH MAGHA 1933
OP(C).No. 1327 of 2011 (O)
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OS.366/2009 of I ADDL.M.C.,TRIVANDRUM
PETITIONERS:-
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1. P.N. SUBRAMANIAN, S/O NARAYANA NAMBOODIRI,
T.C. 5/1756, SYAMILI, M-10,
MURALI NAGAR, AMBALAMMUKKU,
PEROORKADA, THIRUVANANTHAPURAM.
2. M. SUDHAKARAN, S/O MADHAVAN,
RESIDING AT KARIKKUMUTTAM, MONVILA,
KULATHOOR, THIRUVANANTHAPURAM
BY ADVS.SRI.NAGARAJ NARAYANAN
SRI.RAJAN VELLOTH
SRI.SAIJO HASSAN
SRI.PRATHAP PILLAI
SRI.BENOJ C AUGUSTIN
SRI.A.G.GIRISH KUMAR
RESPONDENTS : -
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1. K. RAJAPPA KAIMAL, S/O KARUNAKARA PANICKER,
GENERAL SECRETARY, SWELS,
PANACHIMOODU LANE, PATTOM,
RESIDING AT AARABHI, T.C. 14/760,
CHETTIKUNNU, POTHUJANAM ROAD,
KUMARAPURAM, THIRUVANANTHAPURAM - 695 004.
2. KOSHY MAMMEN, S/O T.G. MAMMEN,
RESIDING AT T.C. 3/2722, PATTOM,
THIRUVANANTHAPURAM - 695 001.
3. SPACE ENGINEER'S WELFARE SOCIETY (SEWELS),
NO. 958/95, SEA, VSSC, ISRO P.O.,
THIRUVANANTHAPURAM, C/o. SARABHAI INSTITUTE OF SCIENCE
AND TECHNOLOGY, (SIST), VELLANAD P.O., PIN - 695 014
THIRUVANANTHAPURAM, REPRESENTED BY ITS GENERAL SECRETARY.
R1,3 BY SRI.G.S.REGHUNATH
R2 BY SRI.PIRAPPANCODE V.S.SUDHIR
R2 BY SRI.T.K.ANANDA KRISHNAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16-02-2012, ALONG WITH
CRP. 182/2011, OPC. 1336/2011, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C).No. 1327 of 2011 (O)
APPENDIX
PETITIONERS' EXHIBITS:
EXT P1 : COPY OF THE PLAINT IN O.S. NO. 366/2009 DATED 19.02.2009 OF
MUNSIFF'S COURT, THIRUVANANTHAPURAM.
EXT P2 : COPY OF THE REGISTERED BYE-LAW OF THE RESPONDENT SOCIETY.
EXT P3 : COPY OF THE ORDER IN CMA. 98/2008, 99/2008 AND 101/2008 OF THE
PRINCIPAL DISTRICT COURT, THIRUVANANTHAPURAM DATED 3.12.08.
EXT P4 : COPY OF THE JUDGMENT DATED 15.09.2010 IN W.P. (C) NO. 2104/09.
EXT P5 : COPY OF I.A. 566/2010 IN O.S. 366/2009 FILED BY THE RESPONDENTS
DATED 16.01.2010.
EXT P6 : COPY OF THE OBJECTION IN I.A. NO. 566/2010 IN O.S. 366/2009 FILED BY
THE 2nd PETITIONER DATED 15.3.2010.
EXT P7 : COPY OF THE COMMON ORDER OF THE MUNSIFF'S COURT IN IA.
566/2010 IN O.S. 366/2009 DATED 21.7.2010.
RESPONDENTS' EXHIBITS: NIL.
TRUE COPY
P.A. TO JUDGE
DMR/-
C.R
S.S.SATHEESACHANDRAN,J.
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O.P. (c) NO. 1327 of 2011,
O.P. (c) NO. 1336 OF 2011,
WITH C.R.P NO. 182 OF 2011
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Dated this the 16th day of February, 2012
JUDGMENT
Inter se disputes between the members of a Society, namely, Space Engineers Welfare Society, registered under the Travancore-Cochin Literacy Scientific and Charitable Societies Registration Act (Act 12 of 1955), have given rise to three suits, viz, O.S. No. 366/09, O.S. No. 444/09 and O.S. No. 891/08 on the file of the Additional Munsiff Court-I, Thiruvananthapuram.
2. O.S. No : 366/09 was filed by two persons claiming to be erstwhile members of the above society seeking for a declaration that the defendants in that suit who held and exercised official position in the management of the society do not possess core membership in such society as required under its bye laws, and for other reliefs. O.S. No : 444/09 was filed by O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 2 five persons, all of them claiming to be the founder members of the society, and in their suit they canvassed for a declaration that suspension of the first plaintiff and also expulsion of other plaintiffs from the membership of the first defendant society are illegal and abinitio void, and for other reliefs. The defendants in that suit were the society and also some others who are stated to be in management of the such society as its office bearers. O.S. No : 891/08 was filed by the plaintiffs therein representing the aforesaid society seeking for a declaration that a general body meeting purported to have been held by the defendants in that suit on a particular date was not binding on the plaintiffs and its members, and also, for injunction and other reliefs.
3. The respective defendants in the three suits entering appearance filed interlocutory applications in which, they raised preliminary objections questioning the entertainability of the suits against them. In O.S. No :444/09 O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 3 the defendants therein raised objections that a decision rendered in a previous suit in which some of the plaintiffs and defendants were parties barred the trial of the present suit under Section 11 of the Code of Civil Procedure. It was further contended by the defendants that the reliefs canvassed, most of them, fall within the sweep of Section 25 of the Act, and the disputes raised thereof could be entertained only by the competent Court, the District Court, on presentation of a proper petition with sufficient grounds thereof, and not by the Munsiff Court. A further contention was also taken that the suit filed in individual capacity by the plaintiffs was not entertainable and it should have been presented in a representative capacity seeking permission of the Court as envisaged under Order 1 Rule 8 of the Code of Civil Procedure. Leave of the Court was not obtained to institute the suit was yet another ground canvassed by the defendants to impeach the maintainability of the suit. Similarly, the defendants in O.S. No : 366/09 resisted that O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 4 suit setting forth a challenge over its maintainability contending that such defendants have been functioning as receivers appointed by the Court and, thus, discharging their functions as officer bearers of the Society. Suit filed without obtaining leave of the Court which appointed the aforesaid defendants as receivers was canvassed by them to assail its maintainability. So far as the suit numbered as O.S. No : 891/08 its entertainability was challenged by the defendants contending that it has been instituted without convening a general body of the Society and getting approval from such body by the majority of the members attending that meeting. According to them a suit of this nature cannot be instituted and prosecuted without sanction from general body of the Society.
4. The learned Munsiff after considering the interlocutory applications, hearing the counsel on both sides, disposed them under a common order. Under the aforesaid O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 5 common order the suit numbered as O.S. No : 444/09 was held to be not maintainable upholding the contentions raised by the defendants though not in its entirety but accepting the challenges that some of the reliefs canvassed are barred, as interdicted by Section 25 of the Act, and also on account of the decision rendered in a previous suit, barring the trial of the present suit by resjudicata. So far as the challenge canvassed over the maintainability of the suit, O.S. No.366/09, the learned Munsiff held that the plaintiffs in such suit ought to have obtained sanction from the Court which appointed the defendants as receivers before institution, but, the suit filed without obtaining such leave, on that ground, cannot be held to be not maintainable. However, it was ordered that, the plaintiffs in the suit have to obtain sanction from the court concerned before the trial of the case. Challenge against the maintainability of the suit O.S. No : 891/08 which was built upon the premise that without sanction obtained from the governing body the O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 6 plaintiffs in such suit could not sue on behalf of the Society, after looking into the bye laws of the Society and also materials produced, was turned down by the learned Munsiff.
5. Plaintiffs in O.S.No.366/09 have filed O.P. (c) No: 1327/11 against the order of the learned Munsiff that leave from the Court which appointed the defendants in that suit as receivers has to be obtained before trial of that case. Similarly, the plaintiffs in O.S. No : 444/09 have filed O.P. (c) No : 1327/2011 against the orders of the Munsiff holding that the suit filed by them was not maintainable, with the result of dismissing that suit. The defendants in O.S. No : 891/08 have filed the revision C.R.P. No : 182/11 impeaching the legality, propriety and correctness of the order passed by the learned Munsiff turning down the challenge raised by them over the maintainability of that suit for want of authorization from the governing body of the Society.
O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 7
6. I heard the counsel on both sides. Though the learned counsel appearing for the respective parties in the Original petitions and also the revision have argued elaborately touching upon various facets of the case presented in the three suits with reference to judicial precedents as well, after going through the common order passed by the learned Munsiff in all the three suits deciding the question of maintainability of such suits, I find that dilation over the grounds raised, and also canvassed for in the arguments by the respective counsel, is not at all called for, for disposing of these petitions. The most significant and perhaps decisive factor arising for consideration on the challenges raised over the common orders passed by the learned Munsiff in the three suits, undoubtedly, relates to the exercise of jurisdiction made in resolving the disputes projected over the maintainability of the suits on the basis of the interlocutory applications presented by rival sides. No O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 8 doubt even after entertaining a suit, if any of the circumstances covered by Rule 11 of Order 7 of the Code of Civil Procedure (for short the Code) has been satisfactorily made out then the court is fully empowered to reject the plaint already received on file. However, if the challenge set up is over the maintainability of the suit, cognisance of which could be taken by a Civil Court as covered under Section 9 of the Code, then the larger question would arise whether on the basis of interlocutory application alone a decision thereof could be entered into. The learned counsel appearing for the respondents in the original petitions relying on Vithal Bhai Pvt. Ltd. Vs. Union Bank of India (2005) 4 SCC 315 contended that an objection similar to that canvassed in the suits required to be raised without delay after appearance of the defendants in response to summons issued and if such objection touches upon the entertainability of the suit as barred by law over the jurisdiction of the court, nothing in the Code prevents the exercise of the authority of the Court O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 9 to have an enquiry thereof and pass appropriate orders, even for summarily rejecting the plaint. The facts involved in the reported decision relied by the learned counsel disclose that the objection raised against the entertainability of the suit was that it was premature. Dilating on that aspect the Apex Court has held thus:
"To be entitled to file a Civil suit the plaintiff must be entitled to a relief and the suit must be of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred (Vide Section 9 of Code of Civil Procedure, 1908). Section 3 of the Limitation Act, 1963 provides that a suit filed after the prescribed period of limitation, shall be dismissed without regard to the fact whether limitation has been set up as a defence or not. However, there is no such provision (and none brought to the notice of the Supreme Court at the bar in spite of a specific query in that regard having been raised) which mandates a premature suit being dismissed for this reason. The only relevant provision is the one contained in Rule 11 of Order 7 of the CPC which provides for a plaint being rejected where it does not disclose a cause of action. Though the plaint is not rejected, yet a suit may be dismissed if the Court on trial holds that the plaintiff was not entitled on the date of the institution of the suit to the relief sought for in the plaint".
O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 10 Dilating over the issue presented in that case the Apex Court has observed that any challenge over the institution of the suit as premature has to be raised at the earliest point of time. That cannot be taken as a proposition laid to hold that wherever maintainability of a suit is challenged it has to be canvassed even before the defendant set forth his challenges by filing the written statement in answer to the plaint. Of course, if the defendant has any challenge which comes within the sweep of Rule 11 of Order 7 of the Code it can be raised preliminarily and orders of the court could be invited for rejection of the plaint. But so far challenges canvassed otherwise, which require adjudication by the Court with reference to materials or not, even if they tend to the maintainability of the suit as barred by law, still, the Court cannot bypass the procedure laid down by the Code. Simply because the defendants have raised challenges over the suit claims as barred by law or resjudicata producing some materials in support thereof, the Court is not O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 11 expected to nor it is to embark upon an enquiry on the maintainability of the suit, that too, such question being raised on an interlocutory application, and more so when it called for adjudication of the disputes raised over facts and law. None of the counsel appearing for the parties in the above petitions and the revision has canvassed before me that the issue of maintainability raised in the three suits could be decided only on the basis of the plaint in the respective suits. I do take note that the learned counsel for the respondents in the original petitions has pointed out that in the plaint in O.S. No : 366/09 many of the reliefs canvassed would squarely come within the sweep of Section 25 of the Act and as such at the preliminary stage itself the Court is competent to pass an order to strike off such pleadings and also the reliefs thereto in such suit, and that order would amount to only rejection of the plaint in relation to such reliefs alone. In the present case the propriety of how the plaint in such suit is to be considered or dealt with O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 12 need not be considered now, as the learned Munsiff has decided the question of maintainability referred to above and passed orders dismissing that suit on the basis of the challenges raised by the opposite parties in their interlocutory application. In the suit which has been entertained by the Court on the pointing out by the defendants that some among the reliefs canvassed, and also allegations thereto, could not be adjudicated by that court it cannot be stated for the time being that the suit is not maintainable. What is involved in the all three suits, no doubt are civil disputes calling for adjudication by the competent Court. Whether there is interdiction under Section 25 of the Act in entertaining any such suit is a matter to be gone into if a plea thereof is raised by filing a written statement setting forth such a challenge. On settling of the issues in the suit, after both parties have presented their pleadings, if the suit could be disposed of on any preliminary issue subject to the limitations prescribed thereof under Sub O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 13 rule (2) of Rule 2 of Order XIV of the Code, the Court can consider it and pass appropriate orders. Needless to point out such adjudication on any challenge as a preliminary issue in the suit could be proceeded with and decided only if it relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being enforce. Whatever be the challenge over the maintainability of the suit if it has to be decided on mixed questions of fact and law, necessarily, such an issue cast over the maintainability requires to be considered at the trial with the other issues. At any rate the procedure followed by the Munsiff in deciding the maintainability of the suit on the basis of the interlocutory applications presented by the rival parties and dismissing one among the suits holding it as not maintainable, and also deciding such question on the other two suits, was totally erroneous, egregiously faulty and unsustainable. All questions raised by the rival sides in the three suits over the maintainability of the suits are left open to be decided at the O.P. (c) NO. 1327/2011, O.P. (c) NO. 1336/2011 WITH C.R.P NO. 182/2011 14 appropriate stage. The common order passed by the learned Munsiff impugned in the original petitions and also in the revision are set aside. O.S. No : 444/09 which had been dismissed on the basis of the finding over maintainability entered under the common orders shall be restored to file, proceeded with and disposed in accordance with law. Parties are directed to appear before the Court below on 15.03.2012.
Original petitions and revision are disposed as indicated above.
Send a copy of the order to the Munsiff Court concerned forthwith.
S.S.SATHEESACHANDRAN JUDGE.
DMR/-