S.N.D.P. Sakhayogam vs Kerala Atmavidya Sangham

S.N.D.P. Sakhayogam ….Appellant(s)

VERSUS

Kerala Atmavidya Sangham & Ors. …..Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) This appeal is filed by the first defendant

against the final judgment and order dated

27.01.2005 passed by the High Court of Kerala at

Ernakulam in S.A. No.299 of 1987 whereby the

appeal filed by the respondent-plaintiff was allowed

and the judgment and decree passed by the Courts Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2017.09.05 below were set aside and the defendants were given 16:55:49 IST Reason: 1 two months’ time to deliver the property to the

plaintiff failing which the plaintiff shall be entitled to

put the decree in execution.

2) In order to appreciate the controversy involved

in the suit, which has now travelled up to this

Court, it is necessary to state the relevant facts

infra.

3) The appellant herein is defendant No. 1

whereas respondent No. 1 is the plaintiff. So far as

respondent Nos. 2 to 8 are concerned, they were

made parties in appeal as legal representatives of

original defendant No. 2, who died pending this

appeal but later by order dated 14.01.2009 their

names were deleted from the array of the parties.

They are, therefore, no longer parties to the lis

arising in the case.

4) Respondent No. 1 (plaintiff) is a Society

registered as such under the Travancore Cochin

2 Literary Scientific and Charitable Societies Act

12/1955 (hereinafter referred to as “the Act”) having

their branches all over the State of Kerala. It is

claimed to be running charitable institutions all

over the State through their branches. It has its

own bye-laws to run the charitable institutions.

5) The appellant (defendant no 1) is alleged to be

another body of persons known as "Panoor 47 Atma

Vidya Sabha" having their place of working at a

place called "Panoor" in the State of Kerala whereas

defendant No. 2 was one Kunju Panikan Narayanan

(since dead). He was alleged to be President of

defendant No. 1 (appellant).

6) The dispute in this case relates to land bearing

Survey Number No. 991/1, situated in village

Thrikkunnapuzha, District Alappuzha as described

in detail with specifications in the Sale Deed,

registered as Document No. 399-dated

3 09.02.1978(Annexure-P) hereinafter referred to as

the "suit land".

7) Respondent No. 1 (plaintiff) filed a civil suit

(O.S. No. 213/1978) against the appellant herein

(defendant No.1) and one Kunju Panicken

Narayanan-defendant No. 2. The suit was for a

declaration that the sale deed (Document No.399)

dated 09.02.1978 executed by defendant No. 2 in

favour of defendant No. 1 in respect of the suit land

be cancelled as being void and bad in law.

8) It was, inter alia, averred in the plaint that

respondent No. 1 (plaintiff) had purchased the suit

land by registered sale deed (Document No.2904) in

the year 1951 for running their charitable activities

through defendant No. 1 which, according to them,

was their branch of which defendant No. 2 was the

President at all relevant time. It was alleged that the

suit land was purchased by respondent No. 1 being

4 the parent organization in the name of the appellant

(defendant No. 1) through defendant No. 2. It was

alleged that since the appellant (defendant No. 1),

after some time had stopped their activities due to

some reasons, all the properties stood in the name

of the appellant (defendant No. 1) was merged as

provided in the bye-laws with respondent No.

1(plaintiff), i.e., parent body. It was alleged that

defendant No. 2, who claimed to be the President of

defendant No.1, had no right, title and interest nor

had any authority to sell the suit land to anyone

much less to defendant No. 1 vide sale deed dated

09.02.1978. On these averments, the suit was filed

seeking declaration in the reliefs.

9) The appellant (defendant No.1) denied the

claim set up in the plaint and defended the sale

deed executed in their favour by defendant No. 2. It

was contended that the sale deed dated 09.02.1978

5 is legal and proper. According to defendant No.1,

both (plaintiff and defendant No. 1) were always

independent organizations having no connection

between them in any manner. Some more facts were

also averred in the written statement, which are not

necessary to mention here. The Trial Court framed

several issues on merits arising in the case.

10) The plaintiff (respondent No. 1) then applied

under Order 1 Rule 8 of the Code of Civil Procedure,

1908 (hereinafter referred to as “the Code”) and

sought permission of the Court to allow them to

prosecute the suit as a representative suit.

Defendant No. 1 (appellant) did not oppose the

prayer and hence sanction to prosecute the suit

seemed to have been granted to the plaintiff. (See-

Issue No. 1). Parties adduced evidence.

11) The Trial Court, by judgment/decree dated

21.08.1980 dismissed the suit. The plaintiff, felt

6 aggrieved, filed first appeal being A.S. No.77 of

1981 before the Additional District Judge,

Mavelikkara. The first Appellate Court, by

judgment/decree dated 02.09.1986, dismissed the

appeal and affirmed the judgment/decree of the

Trial Court. The plaintiff, felt aggrieved, filed Second

Appeal being S.A. No.299 of 1987 before the High

Court.

12) By judgment/decree dated 29.05.1995, the

High Court allowed the appeal and decreed the suit.

13) Defendant No. 1, felt aggrieved, filed special

leave petition (SLP(c) No.24439 of 1995) before this

Court. This Court by order dated 30.10.2003 after

granting leave, allowed the appeal, set aside the

order of the High Court and remanded the case to

the High Court for deciding the second appeal

afresh. This Court remanded the case to the High

Court essentially on the ground that it was noticed

7 that the High Court allowed the second appeal

without framing any substantial question(s) of law

arising in the case.

14) On remand, the High Court framed three

substantial questions and, by impugned order

27.01.2005, again allowed the appeal and decreed

the plaintiff's suit. Against this order, defendant No.

1 felt aggrieved and filed this appeal by way of

special leave before this Court.

15) We have heard Mr. Jayanth Muth Raj, learned

counsel, for the appellant and Mr. C.S. Rajan,

learned senior counsel for the respondents.

16) Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal and while setting

aside all the judgment/decrees of the Courts below

remand the case to the Trial Court for disposal of

the suit afresh.

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17) In our considered opinion, one question, which

goes to the root of the case affecting the very

jurisdiction of the Court to try the suit, was not

taken note and if taken note of, it was not decided

in its proper perspective by any of the Courts below.

May be due to the reason, instead of raising the

objection, the defendant appears to have conceded

it.

18) Be that as it may, in our considered view, the

issue of jurisdiction which goes to the root of the

case, if found involved has to be tried at any stage of

the proceedings once brought to the notice of the

Court.

19) As mentioned above, the plaintiff had sought

permission to prosecute the suit by taking recourse

to the provisions of Order 1 Rule 8 of the Code. In

other words, the plaintiff treated their suit to be in

the nature of a "representative suit" within the

9 meaning of Order 1 Rule 8 and, therefore, applied to

the Trial Court under Rule 8 of the Code seeking

permission to prosecute the suit in the

representative capacity. This permission appears to

have been granted to the plaintiff by the Trial Court

(see discussion on issue No. 1) without any

objection from the side of the defendants and,

therefore, Issue No.1 was answered in plaintiff’s

favour.

20) This is how issue no 1 was answered by the

Trial Court:

“Issue No.1:- This is not pressed by the defendant’s counsel as sanction was obtained by the Plaintiff from Court to file the suit in a representative capacity under or Rule 8 C.P.C.”

21) In our considered opinion, while deciding Issue

No. 1, the Trial Court was expected to decide several

material questions, namely, whether the plaintiff,

who is a juristic person, i.e., “Society" is entitled to

10 invoke the provisions of Order 1 Rule 8 of the Code

for filing a suit in a "representative capacity“. In

other words, the Trial Court should have examined

the question as to whether the expression "person"

occurring in Rule 8 also includes “juristic person".

22) Secondly, if the plaintiff is held entitled to file

such suit, whether the facts pleaded and the reliefs

claimed in the plaint can be said to be in the nature

of representative character so as to satisfy the

ingredients of Order 1 Rule 8 of the Code which are

meant essentially for the benefit of public at large

for grant of any relief and lastly, if the facts pleaded

and the reliefs claimed in the plaint do not satisfy

the requirements of Order 1 Rule 8 of the Code for

grant of relief to the public at large then whether

such suit is capable of being tried as a regular suit

on behalf of the plaintiff for granting reliefs in their

personal capacity because the suit relates to

11 ownership of land, namely, who is the owner of the

suit land.

23) Since there was neither any discussion much

less finding on any of the aforesaid issues by any of

the Courts below though these questions directly

and substantially arose in the case (Issue No. 1), we

are of the considered opinion that it would be just

and proper and in the interest of justice to remand

the case to the Trial Court to answer these issues

and then decide the suit depending upon the

answer in accordance with law.

24) In the light of foregoing discussion, the appeal

succeeds and is allowed. Impugned order,

judgment/decree passed by the first Appellate Court

and the Trial Court are set aside.

25) The suit is restored to its file for trial to answer

the aforementioned issues and then decide it in

accordance with law.

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26) We have not expressed any opinion on any of

the issues on their respective merits, therefore, the

Trial Court would decide the issues uninfluenced by

any of our observations made herein.

27) Parties to appear before the Trial Court on

03.10.2017 to enable the Trial Court to decide the

suit as directed within one year as an outer limit.

………...................................J. [R.K. AGRAWAL]

…...

……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

September 05, 2017

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