OP(C) No. 1952 of 2022, In the High Court of Kerala at Ernakulam

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 ``` ``` OP(C) NO. 1952 OF 2022 ``` ``` AGAINST THE ORDER DATED 25.07.2022 IN I.A.NO.01/2021 IN OP 139/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOLLAM. ``` ## `PETITIONERS/ PETITIONERS/ RESPONDENTS 2 TO 8:` ``` 1T. K MOHANAN AGED 68 YEARS S/O. THANKAPPAN PRESIDENT, JANATHA KUDIVELLA SHICHITWA SAMITHI, RESIDING AT MAINAGAM, KOLVILMUKKU, ELAMPATHOOR VILLAGE, KOLLAM DISTRICT, PIN – 691501 2SIVAPRASAD AGED 63 YEARS S/O RAMAN PILLAI VICE PRESIDENT, JANATHA KUDIVELLA SHICHITWA SAMITHI, RESIDING AT, AMMA NIKETHAN, KOVILMUKKU, ELAMPALLOOR VILLAGE, KOLLAM DISTRICT -, PIN – 691501 3SYAM KUMAR .G AGED 47 YEARS S/O GOPALAKRISHNAN PILLAI SECRETARY, JANATHA KUDIVELLA SHICHITWA SAMITHI, RESIDING AT KUZHIVILA KIZHAKATHIL, KOVILMUKKU, PERUMPUZHA, ELAMPALLOOR VILLAGE, KOLLAM DISTRICT, PIN – 691501 4NITHYANANDAN PILLAI AGED 67 YEARS S/O AYYAPPAN PILLAI, JOINT SECRETARY, JANATHA KUDIVELLA SHICHITWA SAMITHI, RESIDING AT GIREESH BHAVAN, KOVILMUKKU, PERUMPUZHA, KOLLAM, PIN – 691501 5N.BABU AGED 63 YEARS S/O NARAYANAN, TREASURER, JANATHA KUDIVELLA SHICHITWA SAMITHI, RESIDING AT VEENA BHAVAN, KOVILMUKKU, PERUMPUZHA, KOLLAM DISTRICT-, PIN – 691501 6AMBIKA KUMARI AGED 55 YEARS ``` ``` O.P.(C)No.1952/2022 ``` ``` -:2:- ``` ``` W/O VIJAKUMARAN , COMMITTEE MEMBER, JANATHA KUDIVELLA SHICHITWA SAMITHI, MURALI SADANAM, KOVILMUKKU, PERUMPUZHA, ELAMPALLOOR VILLAGE, KOLLAM DISTRICT-, PIN – 691501 ``` ``` 7SHAJAHAN AGED 54 YEARS S/O IBRAHIMKUTTY, COMMITTEE MEMBER, JANATHA KUDIVELLA SHICHITWA SAMITHI, RESIDING AT, KUNNUMPURATHU VEEDU, KOVILMUKKU, PERUMPUZHA, ELAMPALLOOR VILLAGE, KOLLAM DISTRICT-, PIN – 691501 ``` ``` BY ADVS.BHANU THILAK S.R.PRASANTH HARI SHANKAR PRASAD VISHNU.R SARUN K. IDICULA SREERAJ M.D. ``` ## `RESPONDENTS/ COUNTER PETITIONERS/ PETITIONERS:` ``` 1APPUKUTTAN UNNITHAN AGED 58 YEARS S/O RAGHAVAN, KRC BHAVANAM, KOVILMUKKU, PERUMPUZHA ELAMPALLOOR VILLAGE, KOLLAM DISTRICT-, PIN – 691501 ``` ``` 2GOPINATHAN UNNITHAN AGED 80 YEARS S/O KRISHNAN POTTI, RAGHAVA VILASOM, KOVILMUKKU, PERUMPUZHA P.O, ELAMPALLOOR VILLAGE, KOLLAM, PIN – 691501 ``` ``` 3RENJITH AGED 48 YEARS S/O. RAJENDRAN PILLAI, RAJ BHAVAN, KOVILMUKKU, PERUMPUZHA, ELAMPALLOOR, KOLLAM, PIN – 691501 ``` ``` 4SUBRAMANIAN AGED 56 YEARS S/O BALAKRISHNAN, NEDIYAVILA PUTHEN VEEDU, KOVILMUKKU, PERUMPUZHA, ELAMPALLOOR, KOLLAM, PIN – 691501 ``` ``` O.P.(C)No.1952/2022 ``` ``` -:3:- ``` ``` 5PRABHA AGED 60 YEARS S/O KUNJU PILLAI, PRABHA VILASAM, AGED 60 YEARS KOVILMUKKU, PERUMPUZHA, ELAMPALLOOR KOLLAM, PIN – 691501 ``` ``` 6SUJA AGED 39 YEARS W/O ANIL KUMAR, ATHUL BHAVAN, KOVILMUKKU, PERUMPUZHA, ELAMPALLOOR, KOLLAM, PIN – 691501 ``` ``` 7JAYASREE AGED 50 YEARS W/O ANIL KUMAR, RAGHAVA VILASOM, KOVILMUKKU, PERUMPUZHA, ELAMPALLOOR VILLAGE , KOLLAM DISTRICT, PIN – 691501 ``` ``` BY ADVS.SAJU J PANICKER KURIAN K JOSE(K/001510/2019) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.1952/2022 ``` ``` -:4:- ``` Dated this the 13[th] day of February, 2023 ## **J U D G M E N T** Aggrieved by Ext P5 order passed in I.A.No.1/2021 in O.P.No.139/2020 by the Court of the Additional District Judge-IV, Kollam, the respondents 2 to 8 before the court below have filed the original petition. The respondents before this Court are the petitioners. 2. The congealed facts, in a nutshell, are: - (i) The respondents have filed Ext P1 original petition against the respondents 2 to 8, for framing a scheme and for the proper management of the Janatha Kudivella Shuchithua Samithi, (Reg.No.Q 316/2003) under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955(in short, Act’). - (ii) On receipt of notice in original petition, the petitioners filed I.A.No.1/2021(Ext P2), under Section 9 of the Code of Civil Procedure,1908(in short ‘Code’), for the dismissal of Ext P1 ``` O.P.(C)No.1952/2022 ``` ``` -:5:- ``` petition, on the ground that it is not maintainable. (iii) Petitioners contended in Ext P2 application that the first respondent society have 200 consumers, out of whom 92 are members on the rolls of the society. Section 25 of the Act stipulates that an application seeking reliefs under the Act has to be filed by at least 10% of the members of the society. Since only seven members have filed Ext P1 petition, the same is hit by Section 25 of the Act. The respondents objected to Ext P2 application by filing Ext P3 written objection. - (iv) The court below, by the impugned Ext P5 order, dismissed Ext P2 application. - (v) Ext P5 is ex facie erroneous and unsustainable in law. Hence, the original petition. 3. Heard; Smt. Bhanu Thilak, the learned counsel appearing for the petitioner and Sri. Saju J Panicker, the learned counsel appearing for the ``` O.P.(C)No.1952/2022 ``` ``` -:6:- ``` respondents 1 to 5 and 7. 4. The short point is, whether there is any illegality in Ext P5 order?. 5. The respondents have filed Ext P1 petition as per the provision of the Act to frame a scheme for the better and efficient management of the society. 6. On receipt of summons, the petitioners filed Ext P2 application, inter alia, contending that Ext P1 petition is not maintainable because there is an infraction of Section 25 of the Act, since Ext P1 is signed and filed only by seven members of the society. 7. Section 25 of the Act specifically stipulates that at least 10% of the members have to file the petition under the Act. 8. According to the petitioners, the society has 200 consumers of whom, 92 are members on its rolls. Thus, at least 10 members have to sign Ext P1 original petition. ``` O.P.(C)No.1952/2022 ``` ``` -:7:- ``` 9. The application was opposed by the respondents, inter alia, contending that, as on the date of instituting of Ext P1 petition, the society had only 58 members. Ext P1 petition is signed by seven members, which is sufficient compliance of Section 25 of the Act. 10. The court below, after adverting to the rival pleadings in Exts P2 and P3, arrived at the conclusion that the dispute as regards the members of the society, is a matter that can only be decided after the trial and does not fall within the purview of Order 14 of the Code, especially, in view of the law laid down by the Hon’ble Supreme Court in **Major S.S. Khanna v. Brigadier F.J. Dillon** [AIR 1964 SC 497]. 11. I have reconsidered the pleadings and materials on record. Going by the rival contentions in Exts P2 application and P3 counter affidavit, I endorse the view of the court below that the dispute raised in Ext P2 application is a matter to be decided after trial and ``` O.P.(C)No.1952/2022 ``` ``` -:8:- ``` not as a preliminary issue under Order 14 of the Code. Thus, I confirm Ext P5 order passed by the court below, which does not warrant any interference under Article 227 of the Constitution of India. The original petition is devoid of any merits and is consequentially dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/13.02.23 //True copy/ P.A.To Judge ``` O.P.(C)No.1952/2022 ``` ``` -:9:- ``` ## `APPENDIX` ``` PETITIONER EXHIBITS EXHIBIT. P1 ``` ``` TRUE COPY OF THE PETITION DATED 09-09-2020 IN O.P NO. 139/2020 FILED BEFORE THE IVTH ADDITIONAL DISTRICT COURT, KOLLAM ``` ``` EXHIBIT. P2TRUE COPY OF I.A NO. 1/2021 IN O.P NO. 139/2020 FILED BEFORE THE ADDITIONAL DISTRICT JUDGE-IV, KOLLAM ``` ``` EXHIBIT. P3TRUE COPY OF THE OBJECTION DATED 04-01-2021 IN I.A 1 OF 2021 IN O.S NO. 139/2020 ``` ``` EXHIBIT. P4TRUE COPY OF IA 3/2021 IN OP 139/2020 FILED BEFORE THE ADDITIONAL DISTRICT JUDGE-IV, KOLLAM ``` ``` EXHIBIT. P5TRUE COPY OF THE ORDER DATED 25-07-2022 IN I.A NO.1/2021 IN O.P NO. 139/2020 OF THE ADDITIONAL DISTRICT JUDGE-IV, KOLLAM ``` ``` EXHIBIT. P6TRUE COPY OF THE CONSUMER LIST AND MEMBERSHIP LIST ``` ``` RESPONDENTS’ EXHIBITS: NIL ```