Kerala High Court
T.K.Sadanandan vs Sndp Yogam on 29 May, 2019
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 29TH DAY OF MAY 2019 / 8TH JYAISHTA, 1941
RSA.No. 1077 of 2009
AGAINST THE DECREE AND JUDGMENT IN AS 32/2002 of DISTRICT
COURT,PATHANAMTHITTA DATED 29-11-2008
AGAINST THE DECREE AND JUDGMENT IN OS 21/1987 of MUNSIFF'S
COURT ,PATHANAMTHITTA DATED 11-01-2002
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 T.K.SADANANDAN
THANNINIKUNNATHIL, MUTTATHUKONAM MURI,,
CHENEERKARA VILLAGE.
2 K.S.RAMESH BABU, S/O.SREEDARAN
VILAYIL HOUSE, MUTTATHUKONAM MURI,
CHENEERKARA VILLAGE.
BY ADV. SRI.K.JAGADEESCHANDRAN NAIR
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 SNDP YOGAM
REP. BY ITS GENERAL SECRETARY, OFFICE OF THE
SNDP YOGAM, KOLLAM.
2 THE DISTRICT EDUCATIONAL OFFICER
OFFICE OF THE D.E.O., PATHANAMTHITTA.
BY ADVS.
GOVERNMENT PLEADER SRI.K.P.MADHU FOR R2
SRI.A.N.RAJAN BABU FOR R1
SRI.P.GOPALAKRISHNAN (MVA) FOR R1
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
29.05.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RSA NO.1077/2009 2
JUDGMENT
Aggrieved by the concurrent finding rendered by the Trial Court (Munsiff's Court, Pathanamthitta) in O.S.NO.21/1987 and by the First Appellate Court (District Court, Pathanamthitta) in A.S.No.32/2002, the plaintiffs came up with this appeal.
2. The following substantial question of law raised at the time of admission of this appeal :
"(i). In view of the dismissal of C.R.P.No.886/1994 as not pressed is it open to the first respondent to plead that the suit is not maintainable by reason of the provision in Article 71 of the Articles of Association of the SNDP Yogam ?
(ii). Is Article 71 a valid arbitration clause under the Arbitration and Conciliation Act, 1996 ?
(iii). Can the provision in Article 71 of the Articles of Association of the company SNDP Yogam be treated as a valid arbitration agreement at all and is it binding on the SNDP Sakha Yogam which is an unincorporated association of members of the SNDP Yogam in case RSA NO.1077/2009 3 of dispute with the SNDP Yogam which is a company?
(iv). Is it not the duty of the first
respondent to apply for making a reference
under Section 8 of the Act failing which the first respondent is precluded from raising contention based on the arbitration clause ?
(v). What is the nature of the jural
relationship if any between first respondent
and the Muttathukonnam SNDP Sakha Yogam No.80 ?
(vi). In the light of Ext.P15(a) the constitution for the management of the school is not transfer of management effected in 1963 by the then Manager in favour of the first respondent invalid ?
(vii). As under Chapter III Rule 5 of the Kerala Education Rules there is no change of ownership involved in the said change of management is not first respondent bound to retransfer the right of management to the Muttathukonnam SNDP Sakha Yogam No.80 and its nominees ?
(viii). By the first respondent putting up additional structures in the school property does first respondent acquires any right to treat the right of management as an irrevocable licence given to it by the Sakha Yogam as held by lower appellate court especially as there is RSA NO.1077/2009 4 not a plea like that taken by the first respondent in the written statement ?"
3. But none of these questions would arise in this appeal as the cause of action for the suit was subsequently became non est due to the decision taken by the plaintiff Sakha Yogam. The cause of action for the suit stated to be Ext.A13 resolution/minutes passed by the plaintiff for instituting a suit against the SNDP Yogam in a representative capacity by the president and secretary of the plaintiff Sakha Yogam. Later on the plaintiff Sakha Yogam passed a resolution to withdraw the suit and elected new president and secretary thereby the representative locus standi vested with the earlier president and secretary to institute and proceed with the suit was taken away. But the then president and secretary overlooking the resolution passed by the plaintiff Sakha to withdraw the suit and election of new president and secretary, proceeded with the suit without any authority either as president or as secretary. PW1 had admitted passing of a resolution on 20.10.1991 by the general body of plaintiff Sakha Yogam and election of new office bearers as president and secretary. RSA NO.1077/2009 5 The newly elected president and secretary were authorised to withdraw the suit based on the resolution. It is so unfortunate and unheard of that even after the resolution dated 20.10.1991 for withdrawing the suit and election of new president and secretary, the former president and secretary proceeded with the suit overlooking the provisions contained in the Code of Civil Procedure especially Order XXIII C.P.C. In the said circumstance, the following questions also taken up for consideration :-
1) Whether it is permissible for the
earlier office bearers namely the then
president and secretary to proceed with the suit ignoring the resolution passed by the plaintiff SNDP Sakha Yogam to withdraw the suit through its general body ? Are they not bound by the general body decision in the matter of proceeding with the suit ?
2) What is the locus standi of the earlier office bearers namely the president and secretary to proceed with the suit which was filed in a representative capacity based on a resolution passed by the plaintiff Sakha Yogam, after their removal from the office by electing new president and secretary ?
Whether it will not take away their authority RSA NO.1077/2009 6 to represent the plaintiff Sakha Yogam in the suit ?
3) When there is no relief sought to
vindicate any personal rights by the then
president and secretary, is it permissible to proceed with the suit in their personal capacity after termination of authority to represent the plaintiff Sakha Yogam?
4) Whether it is permissible to remove the plaintiff from the party array of the suit, when the suit was filed in a representative capacity based on a resolution of the plaintiff Sakha Yogam and what would be the legal effect of subsequent resolution passed by the general body of the plaintiff Sakha Yogam ?
5) Is it permissible to substitute the
persons who had represented the original
plaintiff and to proceed with the suit in their personal capacity, when the original plaintiff was permitted to withdraw the suit ? Is it not amount to substitution of a personal suit in the place of a representative suit ? What would be the legal position when there is no relief sought to vindicate any personal right ?
6) In the absence of a subsisting cause of action to vindicate a personal right, is it RSA NO.1077/2009 7 permissible to substitute the person who had instituted the suit in a representative capacity, when the suit was withdrawn by the original plaintiff ?
7) When the suit based on the question of administration of a school by plaintiff SNDP Sakha Yogam and its office bearers and reliefs were sought solely on that behalf, can a decree be passed or a suit be maintained without the juncture of plaintiff SNDP Sakha Yogam as a party to the suit after its withdrawal by the original plaintiff Sakha Yogam and what would be the legal effect of a decree passed on the SNDP Sakha Yogam or its office bearers and whether it will bind on them ?
4. In fact, the former president and secretary after their removal from the office of president and secretary of plaintiff Sakha Yogam by the general body by electing new president and secretary will not have any authority to proceed with the suit in a representative capacity representing the original plaintiff especially when the general body which is the ultimate authority of the plaintiff had taken a decision to withdraw the suit and RSA NO.1077/2009 8 elected new president and secretary to represent the plaintiff Sakha. It is also not permissible to convert a representative suit by substituting a personal suit by permitting the former president and secretary to proceed with the suit in their personal capacity especially when there is no relief sought in the suit to vindicate any personal right. No suit can be maintained with respect to a dispute in between the plaintiff and the defendant after withdrawal of the suit/removal of original plaintiff from the party array of the suit unless the said plaintiff was subsequently impleaded in the suit as a party. The non- incorporation of personal relief though the former president and secretary were permitted to proceed with the suit would not result in any effective decree and no effective decree can be passed either in favour of original plaintiff or against the original plaintiff without arraying them in the party array of the suit. The former president and secretary overlooked the decision taken by the general body that the suit need not be proceeded further and authorised the newly elected president and secretary to withdraw the suit. There is no relief in the suit and no amendment was made in RSA NO.1077/2009 9 the suit after its withdrawal so as to change it as a personal suit and no relief was sought either to declare the decision taken by the plaintiff sakha to withdraw the suit as not binding on and no declaration sought in that behalf. No challenge was raised regarding the termination of representative capacity of former president and secretary and election of new president and secretary. Instead of withdrawing the suit, they had opted to proceed with the suit under the guise that they were the president and secretary of the plaintiff Sakha Yogam and sought permission to proceed with the suit in their personal capacity overlooking the provisions contained in the C.P.C.
5. The general body meeting held on 20.10.1991 had elected new president and secretary, one V.K.Ratnakara Panicker and P.B.Rajendran. It is admitted by PW1. He had also admitted that a decision was taken by the general body to withdraw the suit. An application was also filed in C.M.A.No.35/1990 for substituting the newly elected President and Secretary as the persons representing the plaintiff SNDP branch. The permission sought to withdraw the appeal in C.M.A.No.35/1990 was not allowed, against RSA NO.1077/2009 10 which C.R.P.No.323/1992 was filed before this court and this court permitted the earlier president and secretary to proceed with the suit and removed the SNDP Sakha ( the original plaintiff) from the party array of the suit and directed to rename the cause title of the suit "In Muttathukonam SNDP Sakha Yogam No.80". I am afraid the Division Bench of this Court had not taken into consideration the fact that the original plaintiff Muttathukonam SNDP Sakha Yogam was removed from the party array of the suit by allowing withdrawal. If that be so, I am at a loss to understand what is the jurisdiction vested with the courts to decide a matter under the cause title of "In Muttathukonam S.N.D.P Sakha Yogam No.80" when Muttathukonam S.N.D.P Sakha Yogam No.80 ( the original plaintiff ) was removed from the party array of the suit by permitting withdrawal of the suit by the original plaintiff. They have not been made as a co-defendant or party to the suit subsequently. But the Division Bench of this Court in C.R.P.No.323/1992 had directed to proceed with the suit in the cause title of " In Muttathukonam Sakha Yogam No.80". I am afraid whether it is a suo motu proceedings initiated RSA NO.1077/2009 11 by this court without the juncture of Muttathukonam Sakha Yogam No.80, the original plaintiff, who had withdrawn the suit. In C.R.P.No.323/1992, the Division Bench of this Court permitted the then president and secretary to proceed with the suit in their personal capacity. No cause of action was either alleged or made mention to vindicate any personal right and no relief was sought in that behalf. In short, I am afraid directions were issued in C.R.P.No.323/1992 to proceed with the suit and adjudicate the dispute between the original plaintiff, the S.N.D.P. Sakha and the defendant, the S.N.D.P. Yogam after permitting withdrawal of the suit by the original plaintiff and without directing the original plaintiff to be impleaded as a co- defendant in the suit. Even in the case of permitting to implead the original plaintiff as a co-defendant in the suit after the withdrawal of the suit by the original plaintiff, there is no provision for adjudicating a dispute between the defendants ( original defendant and co-defendant) in a suit filed solely for that purpose. The basic requirement of maintaining a suit is the cause of action for the plaintiff either in a representative capacity or in a personal RSA NO.1077/2009 12 capacity. When there is no cause of action to vindicate any personal right, no permission can be granted to proceed with the suit by the former president and secretary in their personal capacity. It is not clear how the court can exercise its jurisdiction in the matter of a dispute pertaining to the administration of S.N.D.P.Sakha Yogam ( the original plaintiff) without making the original plaintiff in the party array of the suit after its withdrawal by the original plaintiff.
6. It is quite impermissible to substitute a suit originally filed in a representative capacity representing the original plaintiff S.N.D.P. Sakha as a suit for vindicating personal right and there is no provision anywhere in the C.P.C. to substitute a representative suit by a personal suit.
7. The direction issued by this court in C.R.P.No.323/1992 is as follows :
"1) The name of the 1st plaintiff and the name of the 1st appellant in the C.M.A. is deleted from the plaint as well as all other proceedings in O.S.No.21 of 1987, Munsiff's Court, Pathanamthitta and in C.M.A.No.35 of 1990 and other proceedings in District Court, RSA NO.1077/2009 13 Pathanamthitta respectively. It is directed that the said plaint and all other proceedings and the said appeal and all other proceedings will be titled as "In Muttathukonam S.N.D.P.Sakha Yogam No.80.
2) The 2nd plaintiff in the suit will be
shown as the 1st plaintiff and the 3 rd
plaintiff will be shown as the 2 nd plaintiff.
3) Respondents 1 and 2 herein are impleaded as additional respondents 3 and 4 in C.M.A.No.35 of 1990, District Court, Pathanamthitta. In case the matter is referred for arbitration, they may get themselves impleaded in the arbitration proceedings.
4) In case the appeal is allowed/ the
suit is to be proceeded with after the
disposal of the C.M.Appeal, the revision
petitioners herein will amend the plaint as well as the reliefs in the suit showing the name of Muttathukonam S.N.D.P. Sakha Yogam No.80 wherever the words "1st plaintiff" are used. Other suitable amendments should also be made so as to make the plaint to conform to the directions in this order."
8. I am afraid the above said direction were issued not in accordance with the provisions contained in the Code RSA NO.1077/2009 14 of Civil Procedure. It is not clear under what capacity this court has substituted the former president and secretary in the place of original plaintiff Muttathukonam SNDP Sakha Yogam No.80 when there is no cause of action to vindicate a personal right either by the president or by the secretary and no relief was sought in that behalf. Substituting the person who represented the original plaintiff in the place of original plaintiff and removal of original plaintiff from the suit itself is impermissible as the suit must be based on a specific cause of action. No specific cause of action to vindicate a personal right either included or sought any relief in that behalf in the suit. It is the settled law that no suit or proceedings can be initiated and no relief can be granted against any legal person either animate or inanimate without affording a right of hearing by making them as a party to the proceedings. The original plaintiff Muttathukonam SNDP Sakha Yogam NO.80 removed from the party array of the suit and nobody was permitted to represent the Muttathukonam SNDP Sakha Yogam No.80 in the suit after the removal of original plaintiff. But the suit matter is pertaining to administration of Muttathukonam SNDP Sakha RSA NO.1077/2009 15 Yogam No.80 for which permission was granted to proceed with the suit by the former president and secretary in their personal capacity without having the original plaintiff SNDP Sakha Yogam in the party array of the suit. The entire proceedings would stand as thus vitiated due to non- impleadment of original plaintiff who had withdrawn the suit and subsequently removed from the party array.
9. When the suit was instituted by the original plaintiff with leave under Order I Rule 8 C.P.C., the parties as well as the courts are bound by sub-rule 4 and 5 to Rule 8 of Order I C.P.C. In C.R.P.No.323/1992, the Division Bench of this Court had not adverted to sub rule 4 or 5 while deleting the original plaintiff from the party array of the suit and by permitting the persons who were representing the original plaintiff to proceed with the suit in their personal capacity. No personal cause of action to vindicate any personal right either raised or set up in the suit. The suit was filed in a representative capacity based on a resolution of the Sakha Yogam. If that be so, it is not permissible to permit the persons representing the plaintiff to proceed with the suit after termination of RSA NO.1077/2009 16 their representative capacity.
10. By allowing substitution of parties, the court must satisfy itself the existence of/survival of a cause of action for the suit to the person sought to be substituted in the place of original plaintiff in relation to the relief sought in the suit. The reliefs sought in the suit are the following :
"A. It may be declared that the right of management of the Muttathukonam S.N.D.P. High School and L.P.School is vested in the Muttathukonam S.N.D.P.Sakha Yogam and its nominees.
B. The first defendant may be directed by a mandatory injunction to retransfer the right of management of the said school to the Muttathukonam S.N.D.P.Sakha Yogam and to its President as its representative and in the alternative this Honourable Court may execute a transfer of management form for and on behalf of the first defendant and in favour of the President of the Muttathukonam S.N.D.P.Sakha Yogam.
C. The first defendant may be restrained by a perpetual injunction from exercising the rights of management of the said school and in interfering in any manner with the Muttathukonam S.N.D.P.Sakha Yogam exercise of the rights of management whatsoever.
D. The second defendant may be directed to accept the Muttathukonam S.N.D.P.Sakha Yogam as the Educational Agency entitled to the management of the Muttathukonam North S.N.D.P. High School and subject to the Kerala Education Act and Kerala Education RSA NO.1077/2009 17 Rules to approve the President of the Muttathukonam S.N.D.P. Sakha Yogam as the Manager of the said school.
E. All costs of this suit may be directed to be paid to the plaintiffs by the contesting defendants.
F. Any other incidental and ancillary relief as may be appropriate to the facts may also be granted."
11. No relief was sought to vindicate any personal right of the former president and secretary in their personal capacity and hence it is not permissible to permit them to proceed with the suit in their individual capacity. The relief sought are pertaining to plaintiff Sakha Yogam and its administration and plaintiff Sakha Yogam has not been made as a party to the suit after the removal of original plaintiff from the party array of the suit. None of the reliefs sought in the plaint can be adjudicated without the juncture of plaintiff Sakha Yogam and if any decree is passed it would not bind on the plaintiff Sakha Yogam. In short, no enforceable or executable decree can be passed without making the SNDP Sakha Yogam in the party array of the suit. Further, no permission can be granted to implead the S.N.D.P.Sakha Yogam as a co-defendant in the suit as the suit will not stand to adjudicate the dispute in RSA NO.1077/2009 18 between the defendants. All the reliefs sought in the plaint is really a dispute between the S.N.D.P. Sakha ( original plaintiff) and the S.N.D.P. Yogam ( the original defendant). A dispute between the defendants can be adjudicated only when it is necessary to adjudicate the dispute with the plaintiff and not otherwise or in an interpleader suit under Order XXXV C.P.C. The suit and the proceedings would be a futile exercise and not capable of giving a valid and an executable decree after its withdrawal by the original plaintiff and the decree if any that can be passed in the suit would not bind on the plaintiff Sakha Yogam or its members/office bearers unless they have been made as a party to the suit. A reference for arbitration in the suit would also be a futile exercise as it would not bind on the original plaintiff Sakha who had withdrawn the suit by removing from the party array of the suit. This would show the mischievous intention on the part of former president and secretary to proceed with the suit ignoring all settled legal position and provisions contained in the Code of Civil Procedure.
12. There is no provision anywhere in the C.P.C. Or RSA NO.1077/2009 19 Civil Rules of Practice to maintain a suit with cause title as " In Muttathukonam SNDP Sakha Yogam No.80". Without making Muttathukonam SNDP Sakha Yogam No.80 as a party to the suit, nothing can be adjudicated in the matter of Muttathukonam S.N.D.P. Sakha Yogam No.80 and no order can be passed either for reference to arbitration or otherwise.
13. Neither the former president nor the former secretary have any local standi to proceed further with the suit and hence the suit can only be dismissed based on the subsequent resolution and election of new president and secretary of plaintiff Sakha Yogam. They cannot maintain any appeal either before the first appellate court or before this court as their locus standi to represent the original plaintiff Sakha Yogam had been terminated by the general body of the Sakha and they cannot maintain the suit as there is nothing to vindicate any personal right in the suit.
14. In the said circumstances, it is not necessary to refer the various decisions submitted by the appellant touching the authority of the court in reference to arbitration and the procedure to be adopted by the court.
15. The suit and the appeal are really misuse of RSA NO.1077/2009 20 process of this court. None of the questions raised at the time of admission of appeal or any other substantial question involved in the appeal and hence the appeal fails, dismissed with costs of respondents from appellant Nos. 1 and 2.
In the result, the appeal is dismissed with costs of respondents from appellant Nos. 1 and 2.
Sd/-
P.SOMARAJAN, JUDGE sv