K. Sathyan vs Bhaskaran Kallankandy and Others

_**OP(C).687/21**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943** **OP(C) NO. 687 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OS 142/2018 OF MUNSIFF COURT, THALASSERY, KANNUR** ## **PETITIONER/S:** K.SATHYAN AGED 52 YEARS S/O. BALAN, ADVOCATE, PRESIDENT OF SREE GNANODAYA YOGAM, SREE JAGANATHANATH TEMPLE, (A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, 1860, THALASSERY, P.O. TEMPLEGATE, KANNUR DISTRICT 670 102. BY ADVS. R.SURENDRAN KUM.S.MAYUKHA ## **RESPONDENT/S:** 1 BHASKARAN KALLANKANDY AGED 77 YEARS RETIRED TEACHER, RESIDING AT SURABI P.O. TEMPLE, GATE, 670 102, THALASSERY. 2 ANAND RAJ, AGED 64 YEARS S/O. MADHAVAN, ACCOUNTANT, RESIDING A T RAMALAYAM, NEAR MANOLIKAVU P.O. TEMPLE GATE. 670 102 THALASSERY. 3 CHANDRAN PATTERI, AGED 51 YEARS S/O. DAMODARAN, PAINTER, RESIDING A T SRE PADMAM, P.O. PULIANAMBRAM, 670 675, VIA PERINGATHUR. 4 K.P. RATHEESH BABU, _**OP(C).687/21**_ 2 AGED 62 YEARS S/O. LATE ACHUTHAN, TAILOR RESIDING A T REESHMA, MANOLIKAVU ROAD P.O. TEMPLE GATE, 670 102 THALASSERY. BY ADVS. SMT.TISSY ROSE K CHERIYAN SMT.KEERTHANA.V THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.6.2021, THE COURT ON 02.07.2021 DELIVERED THE FOLLOWING: _**OP(C).687/21**_ 3 ## **V.G.ARUN, J. ----------------------------------------------O.P(C).No.687 of 2021 ----------------------------------------------Dated this the 2[nd] day of July, 2021** ## **JUDGMENT** The petitioner claims to be the President of Sree Gnanodaya Yogam, a Society registered under the Societies Registration Act, 1960 (for short, 'the Society) and in that capacity, the second defendant in O.S.No.142 of 2018 pending on the files of the Munsiff's Court, Thalassery. The suit was filed by the respondents against the Society and its then President, for a declaration that no election to the Society shall be conducted on the basis of the existing unupdated voters' list and that any election conducted without updated voters' list will be illegal and against the stipulations in the bye-laws of the Society. The further prayer was for permanent prohibitory injunction restraining the defendants or persons appointed by them from conducting election to the Director Board of the Society on the basis of the existing voters' list and without updating the list. In the absence of any interim injunction restraining conduct of election, the election to the Director Board of the Society was conducted on 24.6.2018 and from among the newly elected Directors, the _**OP(C).687/21**_ 4 petitioner was elected as the President of the Society. After being elected as President, the petitioner filed written statement in his capacity as the second defendant. He also filed an interlocutory application requiring the court to direct the plaintiffs to invoke the provisions under Order I Rule 8 of CPC. 2. According to the petitioner, there are more than 8000 members in the Society and the suit was filed by only four members. Since the public at large is interested in the affairs of the Society, all persons should be put on notice, as mandated under Order I Rule 8 CPC. The prayer was opposed by the plaintiffs on the premise that, being a registered Society with limited members, it is not necessary to invoke Order I Rule 8 and that the attempt of the petitioner was only to protract the proceedings. By Exhibit P5, the learned Magistrate dismissed the interlocutory application finding that as per Section 6 of the Societies Registration Act, a Society can be sued in its own capacity and the decisions in such a suit shall be binding on all members of the Society. The Court also found that the Society enjoys the status of a legal entity and is sufficiently capable of protecting the interest of its members and hence, there is no requirement for invoking Order I Rule 8. 3. Sri.R.Surendran, learned counsel for the petitioner assailed _**OP(C).687/21**_ 5 the impugned order, firstly on the ground that a Society registered under the Societies Registration Act is not a legal entity. In support of this contention, reliance is placed on the decision of the Honourable Supreme Court in _**Illachi Devi (D) by LRs and Others v. James Society and Others**_ [(2003) 8 SCC 413], wherein it is held that a Society registered under the Societies Registration Act is not a body corporate and hence, not a juristic person. According to the learned Counsel, since the Society is not a juristic person Order I Rule 8 is applicable, as the outcome of the suit will effect the rights of individual members. 4. Smt.Tissy Rose K. Cherian, learned counsel for the respondent, questioned the petitioner's claim of being the President of the Society and consequently, his right to contest the suit as the 2[nd] defendant. Referring to Clause 5 of Exhibit R1(b) Byelaws, it is contended that only persons who comply with the requirement under the said clause are entitled for membership in the Society. As such, the Society is having only a specified number of members and hence, the contention of there being numerous persons interested in the suit, is without substance. It is pointed out that as per Clause 13 of the Byelaws, all suits pertaining to the Society are to be filed and defended by the President. As the petitioner claims to be the _**OP(C).687/21**_ 6 President, the demand for invocation of Order I Rule 8 will only go to show that he does not represent the interest of all the members. Learned Counsel relied on the decision in _**Sukumaran v Kadakavoor O.A Devaswom**_ [1989 (1) KLT 341]. 5. A perusal of the impugned order shows that the application for invoking Order I Rule 8 is dismissed primarily for the reason that the 1st defendant enjoys the status of a legal entity, capable of suing and of being sued in its own name and sufficiently capable of protecting the interest of its members. The trial court has relied on the following decisions in support of the proposition; _**Sree Narayana Dharma Samajam v. Mohandas**_ [2005 KHC 999], _**Kerala Hindi Prachar Sabha Thycaud and Others v. R.Joseph and Others**_ [2010(4) KHC 591] and _**Prem Kumar P.N and Others**_ [2018 KHC 117]. 6. I find substance in contention of the learned counsel for the petitioner that, merely by reason of the Society being registered under the Societies Registration Act, it will not be a body corporate. In _**Illachi Devi**_ the Honourable Supreme Court held as under; **“** _**21.** A society registered under the Societies Registration Act is not a body corporate as is the case in respect of a company registered under the Companies Act. In that view of the matter, a society registered under_ _**OP(C).687/21**_ 7 _the Societies Registration Act is not a juristic person. The law for the purpose of grant of a probate or Letter of Administration recognises only a juristic person and not a mere conglomeration of persons or a body which does not have any statutory recognition as a juristic person.”_ 7. Accepting that the 1[st] defendant is not a body corporate, what is the impact of Sections 6,7 and 8 of the Societies Registration Act and Clause 13 of Exhibit R1(b) Byelaws of the Society is the question to be considered. The answer lies in Sections 6, 7 and 8 of the Societies Registration Act, 1860 extracted hereunder; “ _6._ _**Suits by and against societies.-** Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion:_ _Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant._ _7._ _**Suits not to abate.-** No suit or proceeding in any Civil Court shall abate or discontinue by reason of the person, by or against whom such suit or proceedings shall have been brought or continued, dying or ceasing to fill the character in the name whereof he shall have sued or been sued, but the_ _**OP(C).687/21**_ 8 _same suit or proceeding shall be continued in the name of or against the successor of such person._ _8._ _**Enforcement of judgment against society.-** If a judgment shall be recovered against the person or officer named on behalf of the society, such judgment shall not be put in force against the property, movable or immovable, or against the body of such person or officer, but against the property of the society._ _The application for execution shall set forth the judgment, the fact of the party against whom it shall have been recovered having sued or having been sued, as the case may be, on behalf of the society only, and shall require to have the judgment enforced against the property of the society.”_ 8. The decisions cited in the impugned judgment were rendered on an interpretation of almost identical provisions in the TravancoreCochin (Literary, Scientific and Charitable) Societies Act. The consistent view taken is that, though Societies do not become body corporates by reason of their registration under the Act, a decree in a suit or civil proceedings will be binding on the society and not on its members and hence, there is no necessity for invoking Order I Rule 8 CPC. I am in respectful agreement with the dictum laid down in those decisions. Moreover, as per Clause 13 of the Byelaws, the President represents the Society and its members. The petitioner, who claims to be the President, cannot therefore seek invocation of Order I Rule _**OP(C).687/21**_ 9 8 of CPC, for safeguarding the interest of the members. 9. The object of Order 1 Rule 8 is to avoid multiplicity of litigation and the principal requirement to bring a suit within that rule is the sameness of interest of the numerous persons on whose behalf or for whose benefit the suit is instituted. Therefore, the essential question to be looked into by the Court, while considering whether leave under the rule should be granted or not is regarding sufficient community of interest to justify the adoption of the procedure provided under the rule. As far as the instant case is concerned, in the absence of any member, other than the petitioner, having raised objection against the conduct of election, the Court cannot presume sameness of interest among the members, so as to invoke Order I Rule 8. For the aforementioned reasons, the challenge against Exhibit P6 order fails. Consequently, the original petition is dismissed. Sd/- **V.G.ARUN, JUDGE** _vgs_ _**OP(C).687/21**_ 10 ## **APPENDIX OF OP(C) 687/2021** PETITIONER ANNEXURE - EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO. 142 OF 2018 ON THE FILE OF THE MUNSIFF COURT, THALASSERY. - EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 11.06.2018 IN OPC NO. 1426 OF 2018 OF THE HONOURABLE HIGH COURT OF KERALA. - EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT NO. 2 IN O.S. NO. 142 OF 2018 ON THE FILE OF THE MUNSIFF COURT, THALASSERY. EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A. NO. 7 OF 2021 I O.S. NO. 142 OF 2018 ON THE FILE OF THE MUNSIFF COURT, THALASSERY. EXHIBIT P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT NO. 1 IN I.A. NO. 7 OF 2021 IN O.S. NO. 142 OF 2018 ON THE FILE OF THE MUNSIFF COURT, THALASSERY. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 8.3.2021 PASSED IN I.A. NO. 7 OF 2021 IN O.S. NO. 142 OF 2018 ON THE FILE OF THE MUNSIFF COURT, THALASSERY.