Madras High Court
S.Selvan vs Home Finders Estate Management on 7 April, 2010
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 7.4.2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.(PD) No.774 OF 2010 S.Selvan ... Petitioner vs. 1. Home Finders Estate Management Welfare Society Ramapuram Homefinders Estate 75/2, Valluvar Salai, Ramapuram Chennai 600 089 Rep. By its President R.Gopalakrishnan 2. Homefinders Housing Ltd., represented by its Chairman & MD K.S.Ramalingam ... Respondents This Civil Revision Petition filed against the order, dated 8.1.2010, made in I.A.No.10534 of 2009, in O.S.No.3986 of 2009, on the file of the VI Assistant City Civil Court, Chennai. For petitioner : Mr.T.K.Venkatraman For Respondents: Mr.Ashok Menon O R D E R
This Civil Revision Petition has been filed against the order, dated 8.1.2010, made in I.A.No.10534 of 2009, in O.S.No.3986 of 2009, on the file of the VI Assistant City Civil Court, Chennai.
2. The petitioner is the first defendant in the suit, in O.S.No.3986 of 2009, filed by the first respondent herein. The suit, in O.S.No.3986 of 2009, had been filed for a declaration, to declare the judgment and decree, dated 6.4.2009, passed in O.S.No.5677 of 2008, by the learned III Assistant Judge, City Civil Court, Chennai, is invalid, non est and not binding, either on the plaintiff society or on the owners and the residents of the Home Finders Estate, Valluvar Salai, Ramapuram, Chennai, and for a consequential injunction restraining the defendants and others from interfering, in any manner, with the functioning of the plaintiff Association in maintaining the complex of flats at the Home Finders Estate, on the strength of the exparte decree, dated 6.4.2009, passed in O.S.No.5677 of 2008 and for costs.
3. It has been stated that the suit, in O.S.No.5677 of 2008, had been filed by the petitioner, under Order 1 Rule 8 of the Civil Procedures Code, 1908, representing all the owners of the Home Finders Estate Complex, Ramapuram, Chennai. The said suit had been filed in a representative capacity to enforce the specific performance of the promises made by the defendant in the suit, the second respondent in the present Civil Revision Petition, in the agreement entered into with the owners of the flats in the Home Finders Estate Complex. Since, all the agreements have identical terms and conditions, it was found that the filing of a single suit would be sufficient to enforce the terms and conditions of the agreement.
4. It has been further stated that the second respondent had remained exparte in the suit, in O.S.No.5677 of 2008, even though due publication was made in the newspaper and the notice having been issued to the second respondent. Tom-Tom was also made, as per the orders of the Court. The procedures prescribed in Order 1 Rule 8 had been complied with and a decree had been passed by the III Assistant Judge, City Civil Court, Chennai, on 6.4.2009. The first respondent, had filed a suit, in O.S.No.3986 of 2009, on the file of the VI Assistant City Civil Court, Chennai, suppressing the facts stated above.
5. The first respondent had contended, in the said suit, that the second respondent Society had not been made as a party in the suit, in O.S.No.5677 of 2008, and as such, the exparte decree, dated 6.4.2009, passed in O.S.No.5677 of 2008, is not binding on the plaintiff society or on the owners and the residents of the Home Finders Estate Complex.
6. It had also been stated that the said decree is illegal and non est in the eye of law. In the interlocutory application filed along with the suit, in I.A.No.7574 of 2009, praying for a temporary injunction, the trial Court had ordered notice to be issued to the respondents therein.
7. It has been further stated that the suit filed by the first respondent, in O.S.No.3986 of 2009, is not maintainable in the eye of law, as the first respondent cannot file a fresh suit to agitate the issues, which have already been decided in an earlier suit. Therefore, the petitioner had filed an interlocutory application, in I.A.No.10534 of 2009, in O.S.No.3986 of 2009, praying for the rejection of the plaint filed in the said suit. However, the learned VI Assistant Judge, City Civil Court, Chennai, had dismissed the interlocutory application, by his order, dated 8.1.2010, on an erroneous appreciation of the law and the facts of the case. In such circumstances, the petitioner has preferred the present Civil Revision Petition before this Court, under Article 227 of the Constitution of India.
8. The learned counsel appearing on behalf of the petitioner had submitted that the order passed by the learned VI Assistant Judge, City Civil Court, Chennai, on 8.1.2010, in I.A.No.10534 of 2009, is unsustainable in law, as it has been passed ignoring the provisions of Order 1 rule 8 of the Civil Procedure Code, 1908. The learned judge had failed to appreciate the fact that the suit had been filed in a representative capacity representing all the owners and residents of the Home Finders Estate, Chennai, and as such the decree passed therein is binding on all the owners and residents of the Home Finders Estate, Chennai, including the first respondent herein. Order 1 Rule 8 of the Civil Procedure Code, 1908, lays down the procedures to be followed in filing a suit in a representative capacity.
9. It has been further stated that the learned Judge ought to have held that the first respondent cannot maintain the suit, in O.S.No.3986 of 2009, which had been filed to declare that the decree passed, in O.S.No.5677 of 2008, is non est in law and not binding on the owners and residents of the Home Finders Estate, Chennai. The learned Judge had erred in invoking the Apartment ownership Act in the present case, as it has no application in the facts and circumstances of the case.
10. It has been further stated that the trial Court had erred in ignoring the fact that the case of the first respondent is that the plaintiff society has a right to maintain the flats and that the said issue had been decided in the previous suit. The learned Judge had failed to appreciate the fact that the suit filed is barred by res judicata. As one of the owners of the flats in Home Finders Estate Complex, the first respondent cannot have any independent right to take up the issue regarding maintenance. The observations and findings of the learned Judge that the Association has a separate identity and an independent right from the owners of the flats cannot be held to be correct in law. The Association had been formed by the owners and the residents only for the convenient functioning and discharging of its duties. It cannot have an independent right or an interest contrary to that of the owners and the residents. The owners and the residents can, collectively, entrust the work of maintenance to any person of their choice, including the builder of the apartments. The Apartments Ownership Act had been enacted for the benefits of the owners and the residents of the apartment. Its provisions cannot be interpreted to arrive at a conclusion contrary to their rights and interests. Therefore, the trial Court ought to have held that the suit, in O.S.No.3986 of 2009, is not maintainable. As such, the plaint in the said suit ought to have been rejected, as prayed for by the petitioner, in I.A.No.10534 of 2009.
11. Per contra, the learned counsel appearing on behalf of the first respondent had submitted that the plaintiff in O.S.No.3986 of 2009, is a registered society for which election had been held, on 6.4.2008, and it had started functioning, from 13.4.2008. The main objectives of the plaintiff society are to administrator the common maintenance of the complex, effectively and to maintain all the common amenities thereon, to promote the welfare of the apartment residents, in general and to protect their interests in the matter of provisions of civic amenities, in particular and to arrange for cultural activities in order to maintain a healthy environment. The society was also entrusted with the responsibility of instituting and presenting awards to the children of the members for their meritorious performances in the field of education, sports and culture.
12. the learned counsel appearing on behalf of the first respondent had further submitted that after the plaintiff Association took charge of the maintenance of the flats in the Home Finders Estate, it has come to know that several acts of omission and commission had been committed by K.S.Ramalingam, the chairman and Managing Director of Home Finders Housing Limited, the second defendant in the suit, and the second respondent in the present Civil Revision Petition. Thereafter, a notice had been issued to K.S.Ramalingam, on 3.8.2008, asking him to reply to the charges leveled against him. No reply had been sent by K.S.Ramalingam, to the said notice, sent on 3.8.2008. However, on 1.5.2009, a circular had been sent by him addressed to the flat owners and residents of Home Finders Estate, referring to a decree said to have been passed in O.S.No.5677 of 2008. In the said circular, it had also been stated that the second respondent was taking over the common maintenance of Home Finders Estate consequent to the decree passed in the said suit.
13. It had also been stated that the suit had been initiated and prosecuted on behalf of all flats owners. There was also a threat issued in the said circular that if there was any default in the payment by the flats owners, it would adversely affect the maintenance of the flats of such defaulters. In such circumstances, the first respondent had filed the suit, in O.S.No.3986 of 2009, praying for a decree to declare the judgment and decree passed, in O.S.No.5677 of 2008, dated 6.4.2009, as invalid and non est in the eye of law.
14. It had also been stated that the second respondent in the present Civil Revision Petition had instigated the first defendant in the suit, in O.S.No.3986 of 2009, to file a fresh suit, in O.S.No.5677 of 2008, claiming that he was filing the said suit in a representative capacity, representing the residents and owners of Home Finders Apartment only with the mala fide intention of defeating the interests of the owners and the residents of Home Finders Estate Complex.
15. The learned counsel appearing for the petitioner had relied on the decision of the Supreme Court, in CHURCH OF NORTH INDIA Vs. LAVAJIBHAI RATANJIBHAI (2005) 10 SCC 760 to state that a society registered under the societies registration act, 1860, is not a juristic person.
16. The learned counsel appearing on behalf of the first respondent had relied on the following decisions in support of his contentions:-
16.1. In WIPRO LIMITED Vs. OUSHADHA CHANDRIKA AYURVEDIC INDIA (P) LIMITED (2008 (3) CTC 724) it has been held that, "for the purpose of deciding an application to reject a plaint, under Order 7 Rule 11 (a) and (b) of the Civil Procedure Code, 1908, the averments made in the plaint filed in the suit are germane and the plea taken by the defendant in the written statement would be wholly irrelevant at that stage".
16.2. In VIJAYALAKSHMI Vs. VAIYANAPERUMAL (2002) 1 M.L.J. 811) it has been held that "a plaint cannot be rejected, if it described a reasonable cause of action. A reasonable cause of action is said to mean a cause of action with some chances of success only when the allegations in the pleadings are considered. But so long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out".
17. At this stage of the hearing of the Civil Revision Petition, the learned counsel appearing for the first respondent had submitted that the suit, in O.S.No.3986 of 2009, is ripe for trial. The said suit is posted in the list for hearing, on 5.4.2010. He had also submitted that the maintainability of the suit can also be raised as an issue in the said suit. Since, there are triable issues in the suit, the request of the petitioner, to reject the plaint, cannot be sustained.
18. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to interfere with the order, dated 8.1.2010, made in I.A.No.10534 of 2009, in O.S.No.3986 of 2009. There is nothing shown on behalf of the petitioner to grant the reliefs, as prayed for in the present Civil Revision Petition. If there are triable issues in the suit, in O.S.No.3986 of 2009, the request of the petitioner, to reject the plaint in the said suit, cannot be accepted. It would be open to the petitioner to raise the issue of maintainability of the suit, in O.S.No.3986 of 2009, as an issue in the said suit, in accordance with law, if so advised. It is also made clear that the learned VI Assistant Judge, City Civil Court, Chennai, shall consider the said issue, in the suit in O.S.No.3986 of 2009, if it arises for his consideration and pass appropriate orders thereon, on merits and in accordance with law, without reference to the observations made in its order, dated 8.1.2010, made in I.A.No.10534 of 2009. Accordingly, the Civil Revision petition stands dismissed, with the above observations. No costs. Consequently, connected M.P.No.1 of 2010 is closed.
lan To:
VI Assistant City Civil Court, Chennai