Mary Matha Education Society v. Sukumaran, Wilson and K. Santhi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH DAY OF OCTOBER 2012/20TH ASWINA 1934 OP(C).NO. 2833 OF 2012 (O) -------------------------CMA.59/2012 OF DISTRICT COURT, THIRUVANANTHAPURAM PETITIONER): ------------- MARY MATHA EDUCATION SOCIETY, REG. NO.T.284/97, RAJCOT, THYCAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN R.MURUGAN, B.SC. (ENGG.)F.I.E. THIRUVANANTHAPURAM - PIN 695 014. BY ADVS.SRI.R.S.KALKURA SRI.M.S.KALESH SMT.A.V.PRIYA SRI.V.VINAY MENON RESPONDENT(S): -------------- 1. SUKUMARAN, S/O. NARAYANAN NADAR, RESIDING AT PADMAVILASOM, PATHANKALLU, ATHIYANOOR, THIRUVANANTHAPURAM, PIN - 695 123. 2. WILSON, S/O. SHRI LASER NADAR, RESIDING AT AVIKUZHI, OLATHANNI, KADAVATTARAM, NEYYATTINKARA P.O., THIRUVANANTHAPURAM, PIN - 695 121. 3. K. SANTHI, D/O.ANNAMMAL, RESIDING AT AVIKUZHI, OLATHANNI, NEYYATTINKARA P.O., THIRUVANANTHAPURAM, PIN - 695 121. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR BY ADV. SRI.P.VISWANATHAN BY SENIOR ADVOCATE SRI.N.N.SUGUNAPALAN BY ADV. SRI.S.SUJIN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **O.P(C) NO.2833 OF 2012** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** EXHIBIT P1 TRUE COPY OF THE BYELAWS OF MARY MATHA EDUCATION SOCIETY REG. NO.284/1997 ALONG WITH THE REGISTRATION CERTIFICATE. EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 5.6.2008 ENTERED INTO BETWEEN THE ERSTWHILE GOVERNING BODY OF THE SOCIETY AND THE PRESENT CHAIRMAN R.MURUGAN. EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE MEETING OF THE GENERAL BODY OF THE SOCIETY HELD ON 05.06.2008. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 9.9.2008 ISSUED BY THE SOCIETY TO THE REGISTRAR OF SOCIETIES WITH THE ACKNOWLEDGMENT DATED 10.09.2008 OF REGISTRAR OF SOCIETIES. EXHIBIT P4(A) TRUE COPIES OF LIST OF GOVERNING BODY MEMBERS OF THE SOCIETY DATED 31.05.2009 CERTIFIED AND ISSUED BY THE REGISTRAR OF SOCIETIES, THIRUVANANTHAPURAM. EXHIBIT P4(B) TRUE COPIES OF LIST OF GOVERNING BODY MEMBERS OF THE SOCIETY DATED 31.05.2010 CERTIFIED AND ISSUED BY THE REGISTRAR OF SOCIETIES, THIRUVANANTHAPURAM. EXHIBIT P4(C) TRUE COPIES OF LIST OF GOVERNING BODY MEMBERS OF SOCIETY DATED 30.09.2011 CERTIFIED AND ISSUED BY THE REGISTRAR OF SOCIETIES, THIRUVANANTHAPURAM. EXHIBIT P5 TRUE COPY OF THE BEYLAW AMENDMENTS DATED 31.05.2009. EXHIBIT P6 TRUE COPY OF THE MINUTES DATED 19.11.2008 ISSUED BY THE PUBLIC INFORMATION OFFICE, UNIVERSITY OF KERALA. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 09.07.2009 ISSUED BY THE AICTE. EXHIBIT P8 THE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 02.08.2008 SIGNED BY R.MURUGAN AS CHAIRMAN WITH REPRESENTATIVES OF VARIOUS TRADE UNIONS BEFORE THE DISTRICT LABOUR OFFICER, TRIVANDRUM. EXHIBIT P9 TRUE COPY OF THE ORDER OF 2[ND] ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 30.09.2009 IN I.A. NO.3141 OF 2008 IN O.S. NO.485 OF 2009. EXHIBIT P10 TRUE COPY OF THE JUDGMENT OF SUB COURT, NEYYATTINKARA DATED 24.09.2011 IN C.M.A.NO.13 OF 2010. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 03.11.2009 IN I.A. NO.1877 OF 2009 IN O.S. NO.300 OF 2009 OF THE SUB COURT, NEYYATTINKARA. EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 01.03.2010 OF THE SUB COURT, NEYYATTINKARA IN O.S. NO.101 OF 2009. ## **O.P(C) NO.2833 OF 2012** EXHIBIT P13 TRUE COPY OF THE MINUTES DATED 16.5.2009 OF THE MEETING OF THE GOVERNING BODY OF THE SOCIETY HELD UNDER THE SUPERVISION OF THE ADVOCATE COMMISSIONER IN WP(C) NO.7334 AND 7936 OF 2009 EXHIBIT P14 TRUE COPY OF THE ADVOCATE NOTICE DATED 26.7.32008 EXHIBIT P15 TRUE COPY OF THE COMMON ORDER IN THE ABOVE IA NO.985 OF 2011, IA 985(a) OF 2011, I NO.986 OF 2011 AND IA 986(a) OF 2011 IN OS NO.200 OF 2011 OF THE SUB COURT, NEYYATTINKARA EXHIBIT P16 TRUE COPY OF THE IA NO.1402/2011 IN OS NO.55/2009 OF THE SUB COURT, NEYYATTINKARA EXHIBIT P17 TRUE COPY OF THE PLAINT IN OS NO.498/2009 OF MUNSIFF'S COURT, NEYYATTINKARA EXHIBIT P18 TRUE COPY OF THE JUDGMENT DATED 20.07.2009 IN OS NO.498/2009 OF THE MUNSIFF'S COURT, NEYYATTINKARA EXHIBIT P19 TRUE COPY OF THE AGREEMENT DATED 01.11.2006 IN FAVOUR OF VANAJA EXHIBIT P20 TRUE COPY OF THE ORDER DATED 29.,03.2011 IN EP NO.20/2010 IN OS NO.498/2009 ON THE FILE OF THE 1[ST] ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA EXHIBIT P21 TRUE COPY OF THE RELEVANT PORTIONS OF THE ACCOUNTS PERTAINING TO THE TAPPING OF RUBBER FIOR THE PERIOD 2.7.2011 TO 10.06.2012 EXHIBIT P22 TRUE COPY OF THE AGREEMENT DATED 10.08.2006 EXHIBIT P23 TRUE COPPY OF THE AUDITED ACCOUNTS OF THE PETITIONERS SOCIETY FOR THE PERIOD 2006-6007 EXHIBIT P24 TRUE COPY OF THE PLAINT OS NO.307/2012 ON THE FILE OF THE 2[ND] ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA EXHIBIT P25 TRUE COPY OF IA NO.2084/2012 IN OS 307/2012 ON THE FILE OF THE II ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA EXHIBIT P26 TRUE COPY OF THE OBJECTION FILED BY THE 2[ND] RESPONDENT IN OS NO.307OF 2012 ON THE FILE OF THE 2[ND] ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA EXHIBIT P27 TRUE COPY OF THE ORDER DATED 4.4.2012 IN IA NO.2084/2012 IN OS 307/2012 ON THE FILE OF THE II ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA EXHIBIT P28 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 6.7.2009 FILED BY THE 2[ND] RESPONDENT IN OS NO.485/2009 EXHIBIT P29 TRUE COPPY OF THE COMPLAINT DATED 15.5.2012 GIVEN TO THE VELLARADA POLICESTATION EXHIBIT P30 TRUE COPY OF THE CMA 14 OF 2012 DATED 21.5.2012 FILED BY THE PETITIONER BEFORE THE SUBORDINATE JUDGE'S COURT, NEYYATTINKARA ## **O.P(C) NO.2833 OF 2012** EXHIBIT P31 TRUE COPY OF THE JUDGMENT DATED 14.6.2012 IN OP(C) NO.1824 OF 2012 OF THIS COURTS EXHIBIT P32 TRUE COPY OF IA NO.719 OF 2012 IN CMA NO.14 OF 2012 DATED 21.5.2012 OF SUBORDINATE JUDGE'S COURT, NEYYATTINKARA EXHIBIT P33 TRUE COPY OF OBJECTION FILED BY THE 1[ST] RESPONDENT DATED 2.7.2012 IN IA NO.719/2012 IN CMA 14/2012 OF SUBORDINATE JUDGE'S COURT, NEYYATTINKARA EXHIBIT P34 TRUE COPY OF THE OBJECTION FILED BY THE 2[ND] RESPONDENT IN IA NO.719/2012 IN CMA NO.14/2012 OF SUBORDINATE JUDGE'S COURT, NEYYATTINKARA EXHIBIT P35 TRUE COPY OF THE IA NO.720/2012 IN CMA NO.14/2012 ON THE FILE OF SUB COURT, NEYYATTINKARA EXHIBIT P36 TRUE COPY OF IA NO.721/2012 DATED 21.5.2012 IN CMA NO.14/2012 ON THE FILE OF THE SUB COURT, NEYYATTINKARA EXHIBIT P37 TRUE COPY OF IA NO.721/2012 DATED 21.5.2012 IN CMA NO.14/2012 ON THE FILE OF THE SUB COURT, NEYYATTINKARA EXHIBIT P38 TRUE COPY OF THE OBJECTION DATED 26.6.2012 FILED BY THE 2[ND] RESPONDENT TO IA NO.775 OF 2012 IN CMA NO.14 OF 2012 ON THE FILE OF THE DISTRICT COURT, TRIVANDRUM. EXHIBIT P39 TRUE COPY OF IA NO.1771/2012 IN CMA NO.14/2012 ON THE FILE OF THE DISTRICT COURT, TRIVANDRUM EXHIBIT P40 TRUE COPY OF THE OBJECTION DATED 3.7.2012 FILED BY THE PETITIONER IN IA NO.1771/2012 OF DISTRICT COURT, TRIVANDRUM EXHIBIT P41 TRUE COPY OF THE JUDGMENT IN CMA NO.59/2012 DATED 4.8.2012 OF THE PRINCIPAL DISTRICT JUDGE, TRIVANDRUM EXHIBIT P42 TRUE COPY OF WP(C) NO.7334/2009 WITHOUT THE EXHIBITS EXHIBIT P43 TRUE COPY OF WP(C) NO.27850/2010 EXHIBIT P44 TRUE COPY OF THE COMMON JUDGMENT IN WP(C) NOS.2753 AND 3742/2010 DATED 20.10.2011 EXHIBIT P45 TRUE COPY OF THE CERTIFIED COPY OF THE MINUTES BOOK FOR THE PERIOD 31.07.1997 TO 27.10.2008 EXHIBIT P46 TRUE COPY of the PLAINT INOS NO.200/2011 OF THE SUB COURT, NEYYATTINKARA EXTHIBIT P47 TRUE COPY OF THE CERTIFICATE DATED 11.09.2012 ISSUED BY THE CHARTERED ACCOUNT M/S.SRINIVASA ACHARYA AND COMPANY RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C). No.2833 of 2012 -------------------------------------Dated this the 12[th] day of October, 2012.** ## **JUDGMENT** The 1[st] defendant in O.S.No.307 of 2012 of the II Additional Munsiff's Court, Neyyattinkara (claiming to be represented by one R.Murugan as its Chairman) is aggrieved by the order passed by the learned Munsiff on I.A.No.2084 of 2012, confirmed by the learned District Judge, Thiruvananthapuram in C.M.A.No.59 of 2012. Hence, this Original Petition under Article 227 of the Constitution. 2. Petitioner, the Mary Matha Education Society (for short, “the Society”) arrayed in O.S.No.307 of 2012 as the 1[st] defendant is a Society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (for short, “the Act”) in the year, 1997 and is running various educational institutions including the Mary Matha College of Engineering and Technology. The 1[st] respondent filed O.S.No.307 of 2012 claiming that the Society has leased out to him the right to conduct tapping of rubber trees in the suit property for consideration as per Ext.P22, agreement dated 10.08.2006. The Society received `25 lakhs by way of advance. The 1[st] respondent was allowed to take yield from the rubber trees for a period of 12 years and thereafter, cut and remove the rubber trees. Alleging that the Society represented by the 2[nd] respondent is causing obstruction to the 1[st] respondent 2 OP(C) No.2833/2012 acting in accordance with the agreement, the latter filed O.S.No.307 of 2012 seeking a decree for prohibitory injunction. He filed I.A.No.2084 of 2012 and obtained an order of temporary injunction in the same line. 3. At that time, the Society represented by R. Murugan (petitioner in the Original Petition) came into the picture claiming that the 2[nd] respondent was not the Chairman of the Society at the time of institution of the suit he, having been removed from that post and R. Murugan who represents the petitioner - Society in this proceeding being appointed in that post by a re-constitution of the governing council of the Society on 05.06.2008. According to the petitioner, the 2[nd] respondent has no right to represent the petitioner - Society in the suit. The petitioner - Society further contended that Ext.P22, agreement dated 10.08.2006 and O.S.No.307 of 2012 are the result of collusion between the respondents 1 and 2 intended to defeat the interest of the Society. 4. Contending so, with the leave of the court, petitioner - Society challenged the order on I.A.No.2084 of 2012 in the Sub Court, Neyyattinkara in C.M.A.No.14 of 2012. This Court by judgment dated 14.06.2012 in O.P.(C) No.1824 of 2012 directed transfer of that appeal to the District Court, Thiruvananthapuram. Accordingly that C.M.Appeal was transferred to the District Court, Thiruvananthapuram where it was re-numbered as C.M.A.No.59 of 2012. The learned District Judge confirmed the order on I.A.No.2084 of 2012 by judgment dated 04.08.2012 which is under challenge in this Original Petition. 3 OP(C) No.2833/2012 5. It is contended by the learned counsel for the petitioner that the various documents which petitioner had produced before the District Judge were not adverted to and instead, learned District Judge has referred to only some documents and confirmed the order on I.A.No.2084 of 2012. The learned counsel contends that even the admitted documents would show that at the time O.S.No.307 of 2012 was instituted, the 2[nd] respondent had nothing to do with the petitioner - Society of which R.Murugan is the Chairman. It is contended that if the court proceeds with the Society being represented by the 2[nd] respondent, there is possibility of collusion between the respondents 1 and 2 which would result in irreparable loss and injury to the petitioner - Society. The learned counsel has also a grievance that though it was very much contended before the learned District Judge that the 2[nd] respondent has no right to represent the Society as revealed by the various documents produced by the petitioner - Society in the C.M.Appeal, the said contention was also not taken into account for the reason that this Court in Ext.P44, judgment dated 20.10.2011 in W.P.(C) No.2753 of 2010 has issued certain directions regarding resolution of the dispute as to who is the Chairman of the petitioner - Society, in that suit. The learned counsel contends that O.S.No.150 of 2009 (which was the subject matter in W.P.(C) No.2753 of 2010) is being dragged on and no decision has so far been arrived at as to whether the 2[nd] respondent had any right to represent the petitioner - Society after 05.06.2008. It is submitted that the 2[nd] respondent and other persons interested in the matter are taking advantage of Ext.P44, judgment of this Court by producing the same before various authorities to contend that the question as to who exactly is the Chairman of the petitioner - 4 OP(C) No.2833/2012 Society is yet to be resolved and hence R.Murugan who represents the petitioner - Society in this proceeding cannot be accepted as Chairman of that Society. The order of injunction passed by the learned Additional Munsiff and confirmed by the learned District Judge concerns the yield being taken from the rubber trees in about 12 acres and by the time the suit is disposed of finally, the entire yield would be taken by the 2[nd] respondent and that would leave the petitioner – Society in difficult situation, even unable to realise the amount from the 1[st] respondent even if the dispute is ultimately decided in favour of the petitioner - Society. It is contended that Ext.P22, agreement is disputed by the petitioner - Society. It is also contended that no amount, said to be received by the 2[nd] respondent is accounted in the accounts of the petitioner - Society. It is therefore prayed that interference is required with Ext.P41, judgment. Learned counsel has also a request that notwithstanding the direction contained in Ext.P44, judgment, a direction may be issued to the learned Additional Munsiff, Neyyattinkara who is trying O.S.No.307 of 2012 to decide in that suit as to who is entitled to represent the petitioner - Society. 6. The learned counsel for the 1[st] respondent submitted that it is not very much in dispute that at the time Ext.P22, agreement was executed between the 1[st] respondent and the petitioner - Society, the 2[nd] respondent was the Chairman and hence the 1[st] respondent is entitled to reap the benefits of the agreement, he having already shelled out `25 lakhs by way of advance and having invested huge amount for collecting latex from the rubber trees in the 12 acres referred to in Ext.P22, agreement. It is argued that the time fixed as per 5 OP(C) No.2833/2012 Ext.P22, agreement is only 12 years and if any order of injunction is granted, it would amount to the time running out for no fault of the 1[st] respondent. Hence it is prayed that no interference is required with the order on I.A.No.2084 of 2012 as confirmed by the learned District Judge in C.M.A.No.59 of 2012. 7. The learned Senior Advocate who appeared for the 2[nd] respondent has contended that the allegation regarding removal of the 2[nd] respondent and appointment of R.Murugan as Chairman on 05.06.2008 is not correct and the truth of that contention is yet to be decided by the court concerned. Therefore, at this stage this Court may not proceed as if R.Murugan is the Chairman of the petitioner - Society, it is argued. 8. O.S.No.150 of 2009 of the Sub Court, Neyyattinkara is a suit filed by the plaintiff therein (who is not a party in this proceeding) for recovery of about Rupees one crore with interest on the allegation that the said amount was advanced to the petitioner – Society, then represented by the 2[nd] respondent. Going by the submission of the learned counsel for petitioner, it would appear that the 2[nd] respondent has filed written statement in O.S.No.150 of 2009 on behalf of the petitioner – Society admitting the transaction. At that stage, petitioner – Society represented by R.Murugan entered appearance in O.S.No.150 of 2009 and filed an application to implead it as additional defendant to resist the suit. Learned Sub Judge, Neyyattinkara (where O.S.No.150 of 2009 is pending) passed order on that application (I.A.No.1880 of 2009). The plaintiff in O.S.No.150 of 2009 challenged that order in this Court in W.P.(C) No.2753 6 OP(C) No.2833/2012 of 2010. The 2[nd] respondent also came up in challenge of the order on I.A.No.1880 of 2009 with W.P.(C) No.3742 of 2010. This Court disposed of W.P. (C) Nos.2753 of 2010 and 3742 of 2010 by Ext.P44, judgment dated 20.10.2011 whereby the order on I.A.No.1880 of 2009 was set aside and that application was remitted to the learned Sub Judge, Neyyattinkara for fresh decision in the light of the directions made in the judgment. I am told that I.A.No.1880 of 2009 has not so far been disposed of. 9. One question that the learned Additional Munsiff, Neyyattinkara in O.S.No.307 of 2012 and the learned Sub Judge, Neyyattinkara in O.S.No.150 of 2009 have to decide is as to the competency of the 2[nd] respondent or, R.Murugan to represent the petitioner – Society as its Chairman. Though, the learned counsel on both sides are confident that the issue will be decided only one way, I do not think that the possibility of divergent decisions on the that issue being arrived at by the two courts should be ruled out. I must anticipate that possibility. If that happens, controversy will still continue. Therefore, it is appropriate that the issue regarding competency of the 2[nd] respondent or, R.Murugan to represent the petitioner – Society in the suits is decided by the same court. 10. No doubt, the two suits are now pending in different courts and the other issues involved in the suits are also different. The parties to the suits are not exactly the same as the plaintiffs are different. But, that need not deter the court from consolidating the two suits in the same court. I am empowered 7 OP(C) No.2833/2012 in that view by the decision in **Prem Lala Nahata v. Chandi Prasad (2007 (1) KLT 910)** . There, in paragraph 16, dealing with the power of the court to consolidate different suits, the Supreme Court observed: “The main purpose of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or causes pending in the court and it appears to the court that some common question of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits. (See Halsbury's Laws of England, Volume 37, paragraph 69). If there is power in the court to consolidate different suits on the basis that it should be desirable to make an order consolidating them or on the basis that some common questions of law or fact arise for decision in them, it cannot certainly be postulated that the trying of a suit 8 OP(C) No.2833/2012 defective for misjoinder of parties or causes of action is something that is barred by law. The power to consolidate recognised in the court obviously gives rise to the position that mere misjoinder of parties or causes of action is not something that creates an obstruction even at the threshold for the entertaining of the suit.” 11. Having heard the learned counsel on both sides on the issue as to who among the 2[nd] respondent and R.Murugan is entitled to represent the petitioner - Society, I am inclined to think that it is a common question of law and/or fact arising in both the suits. It is desirable that the question is decided by the same court. 12. Now back to the question as to whether interference is required with the order on I.A.No.2084 of 2012 as confirmed by the learned District Judge in C.M.A.No.59 of 2012, I referred to the various contentions the parties have raised. According to the learned counsel for the petitioner - Society, the various documents which were not considered by the learned District Judge bear ample testimony for the contention that by reconstitution of the governing council of the Society on 05.06.2008, the 2[nd] respondent was removed from the post of the Chairman and R.Murugan was appointed in that post. It is contended that if that be so, the 2[nd] respondent has no right to represent the petitioner – Society in O.S.No.307 of 2012. It is also argued by the learned 9 OP(C) No.2833/2012 counsel that Ext.P22, agreement based on which the 2[nd] respondent is now engaged in collection of latex from the rubber trees in the suit property is the result of collusion between the respondents 1 and 2. 13. The question regarding validity of Ext.P22, agreement being a matter which the trial court has to decide after recording the evidence, it is inappropriate to decide that question in this Original Petition or make any observation regarding that as that may have a bearing on the decision to be taken by the trial court. In such situation the appropriate course is to leave that question to be decided by the trial court. 14. At the same time, I must take into account the interest of the petitioner – Society as well as the 1[st] respondent. Ext.P22, agreement is disputed by the petitioner – Society. According to the 1[st] respondent, he has advanced a sum of `25 lakhs pursuant to Ext.P22, agreement and has invested huge amount to collect the latex. At this stage, I cannot forget the contention of the petitioner - Society represented by R.Murugan that no amount allegedly received by the 2[nd] respondent pursuant to Ext.P22, agreement is accounted in the accounts of the Society. It is further contended by the learned counsel for the petitioner that it is not based on any resolution adopted by the governing council that the 2[nd] respondent allegedly entered into Ext.P22, agreement with the 1[st] respondent. I leave all these matters to be decided by the trial court. But, the interest of the petitioner - Society represented by R.Murugan and of the 1[st] respondent has to be protected. 10 OP(C) No.2833/2012 15. Learned counsel for the petitioner submitted that the petitioner is prepared to furnish security for the loss that may be caused to the 1[st] respondent on account of not collecting yield from the rubber trees if ultimately the suit is decided in favour of the 1[st] respondent. A similar offer is made by the 1[st] respondent also. 16. Having heard the learned counsel on both sides, I am inclined to think that the appropriate course is and it is just and convenient to appoint a party - receiver for the suit property. There also, the petitioner - Society represented by R.Murugan and the 1[st] respondent have rival claims. But, I must notice the admitted fact that the suit property belongs to the Society and the 1[st] respondent has only a claim to collect yield and remove the rubber trees. In that view of the matter I am convinced and satisfied that it is expedient to appoint the petitioner - Society (claimed to be represented by R.Murugan) as the party - receiver for the suit property and collect yield from the rubber trees but, subject to conditions. 17. I referred to the necessity to decide the issue as to the competence of R.Murugan or the 2[nd] respondent to represent the Society by the same court. As it now stands, O.S.No.307 of 2012 is pending in the II Additional Munsiff's Court, Neyyattinkara while O.S.No.150 of 2009 is pending in the Sub Court, Neyyattinkara. Since the plaintiff in O.S.No.150 of 2009 is not before me, I cannot order a consolidation of the suits or decide that question. But, the parties in O.S.No.307 of 2012 are before me. Hence, invoking the power under Sec.24 11 OP(C) No.2833/2012 of the Code of Civil Procedure, I can order withdrawal of O.S.No.307 of 2012 from the II Additional Munsiff's Court, Neyyattinkara and transfer the same to the Sub Court, Neyyattinkara where O.S.No.150 of 2009 is pending. It is open to the learned Sub Judge, Neyyattinkara to decide on the question of joint trial of the two suits having regard to the common issue involved in both the suits atleast concerning the competence of R.Murugan or the 2[nd] respondent to represent the petitioner - Society and in the light of the decision of the Supreme Court referred supra, after hearing the parties to the suits. 18. In the light of what I have stated above, the order on I.A.No.2084 of 2012 in O.S.No.307 of 2012 confirmed by the learned District Judge, Thiruvananthapuram in C.M.A.No.59 of 2012 is liable to be set aside and in supersession of the said order/judgment, fresh directions are to be issued. ## Resultantly, this Original Petition is disposed of as under: In supersession of the order on I.A.No.2084 of 2012 in O.S.No.307 of 2012 of the II Additional Munsiff's Court, Neyyattinkara and the judgment in C.M.A.No.59 of 2012 of the District Court, Thiruvananthapuram, I.A.No.2084 of 2012 in O.S.No.307 of 2012 is disposed of as under: 12 OP(C) No.2833/2012 (i) The petitioner - Society (claimed to be represented by R.Murugan) is appointed as party - receiver for the suit property and collect yield from the rubber trees in the said property until disposal of the suit subject to the following terms and conditions: (a) The party - receiver (petitioner - Society herein) shall assume possession of the suit property on and from 1[st] November, 2012. (b) Petitioner shall collect yield from the rubber trees in the suit property but shall not cut and remove the rubber trees. (c) Petitioner shall render proper accounts in the Sub Court, Neyyattinkara (to which court O.S.No.307 of 2012 is being transferred) for the yield collected and the net income received, every month. Such accounts shall be furnished without fail on or before the 10[th] of each succeeding month. (d) The net value of the yield collected thereby shall be deposited in the Sub Court, Neyyattinkara on or before the 10[th] of each succeeding month. Such deposit shall be made along with the account being furnished in the said court. 13 OP(C) No.2833/2012 (e) The 1[st] respondent, without prejudice to the contentions both sides have raised in the suit is permitted to withdraw the net value of yield deposited in the Sub Court, Neyyattinkara at such intervals as he wishes provided that he furnishes sufficient security to the satisfaction of the learned Sub Judge for the amount being withdrawn. (f) To avoid intermittent furnishing of security, it is made clear that it is open to the learned Sub Judge, Neyyattinkara to appoint an Advocate Commissioner, at the expense of the petitioner - Society to assess the possible yield from the rubber trees per month and the net value of the yield so that, the learned Sub Judge can direct the 1[st] respondent to furnish security for a lumpsum amount for a particular period taking into account the possible net income that would be derived during such period. On ascertaining the net value of the yield through the Advocate Commissioner and based on the account that is being furnished by the petitioner - Society every month, if the learned Sub Judge, Neyyattinkara finds any excess or deficit in the net income deposited, it will be open to the learned Sub Judge to issue necessary direction to the 1[st] respondent in the matter of furnishing security/additional security (g) Petitioner shall not, during the time this order stands, entering into any agreement with third parties for collection of yield in any manner whatsoever or alienate the suit property. 14 OP(C) No.2833/2012 (h) The question as to who is entitled to the net value of the yield being deposited by the petitioner in the court will depend upon the result of the suit. If ultimately, the petitioner is found to be the successor, it will be open to the learned Sub Judge to permit the petitioner realise the amount withdrawn by the 1[st] respondent from the security furnished and other assets of the 1[st] respondent. If on the other hand, the learned Sub Judge while disposing of the suits finds that the 1[st] respondent is entitled to any further amount from the petitioner - Society, it will be open to the learned Sub Judge to make a provision for that also and enable the 1[st] respondent realise such amount from the petitioner. (i) It is made clear that it will be open to the 1[st] respondent at all reasonable times to enter the suit property and watch collection of the yield therefrom but, without causing any obstruction to the petitioner - Society collecting the yield. (j) Depending on the decision the learned Sub Judge, Neyyattinkara will take as to the possession (if any) of the suit property claimed by the parties, the learned Sub Judge may issue necessary direction to the Receiver in the matter of handing over the possession. (k) O.S.No.307 of 2012 is withdrawn from the II Additional Munsiff's Court, Neyyanttinka and transferred to the Sub Court, Neyyattinkara for trial and disposal. 15 OP(C) No.2833/2012 (l) The question whether O.S.No.307 of 2012 being transferred to the Sub Court, Neyyattinkara and O.S.No.150 of 2009 pending before in that court are to be tried jointly shall be decided by the learned Sub Judge after hearing all the parties in the suits, in the light of the decision referred supra. (m) The learned Sub Judge, Neyyattinkara is directed to dispose of the suits as early as possible, giving it top priority. (ii) In case any further direction or modification of the above terms and conditions as circumstances may warrant is required, it is open to the parties to approach the Sub Court, Neyyattinkara All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**