Parayakattu Nalukulangara Devaswom vs Padmanabhan Harshan and Others

Kader, J.—Defendants 1 to 4 in O. Section No. 596/1981, a suit for injunction, are the revision Petitioners. The said suit was instituted by the 1st Respondent herein in his capacity as a member of the Parayakkattu Nalukulangara Devaswom praying for the issue of an injunction restraining the Defendants from convening a General Body meeting of the Devaswom on 7th December 1982 on the ground that it is illegal and opposed to the provisions of the bye-law and also for issue of a commission to convene the general body in accordance with the provisions of the bye-law of the Devaswom.

Defendants 1 to 4, the revision Petitioners herein, who are respectively the President, the Vice President, the Manager and the Treasurer of the Parayakattu Nalukulangara Devaswom, herein after referred to as the Devaswom, filed a joint written statement resisting the suit mainly contending that the suit is not maintainable in view of the specific provisions in Act 12 of 1955.

Additional Defendants 5 to 8 filed written statements supporting the Plaintiff.

Several issues were framed on the basis of the pleadings in the suit and issues Nos. 1 to 3 were heard as preliminary point at the instance of the revision Petitioners herein. The following were those issues:--(1) Is the suit not maintainable? (2) Is the suit bad, for absence of Order I, Rule 8 publication (3) Is the suit not maintainable for want of proceedings under Act 12 of 1955.

All the three issues were heard preliminarily as they related to matters affecting the jurisdiction of the court After hearing both sides the learned Munsiff found that the provisions in Act 12 of 1955 relied on were insufficient to oust the jurisdiction of the civil court and the suit is maintainable and is not bad for want of publication under Order I, Rule 8.

Sri Venkatarama Iyer; the learned Advocate appearing for the revision Petitioners strongly assailing the order of the court below urged the following points in support of the revision. (1) The Devaswom in question is an unincorporated body which has no personality in the eye of law and therefore no proceeding can be instituted in a civil court. (2) There are specific provisions in Act 12 of 1955 enabling members of the Society to institute suits and none of the provisions in Act 12 of 1955 contemplate filing of a suit by an individual. (3) the Plaintiff in the case under the guise of a suit for injunction is really seeking a change of administration for which there is a specific provision and a suit of this nature is expressly barred u/s 25 of Act 12 of 1955.

At the time of the argument counsel appearing for both sides produced the bye-laws of the Devaswom which was registered under Act 12 of 1955, and placed reliance on the same and the provisions in Act 12 of 1955.

The Devaswom in question is a society admittedly registered u/s 5 of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (Act XII of 1955), for short ''the Act''. The very basis of the argument of the counsel for the Petitioners is that the Devaswom is an unincorporated body. By virtue of the provision in Section 9 of the Act, the Devaswom 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. There is a proviso to this Section which states 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. u/s 6 of the Societies Registration Act, 1860, where the members form themselves into an association and register the same under this Act and authorise a person or persons to sue to recover its property, a suit can be brought by that person or those persons to recover its society which has been registered under the Societies Registration Act, 1860 itself enjoys the status of a legal entity apart from the members constituting it. Although such a society may not be a body corporate, a registered society can be sued in its own name and can have its own property and can employ its own servants. Such a society has its own identity, personality or entity. A society when registered comes into existence as a registered society and can have properties of its own although legal title for the properties may vest in the Trustee or Board of Governors-Here the equitable title was in the society. The question as to what exactly is the legal character of a society registered under the Societies Registration Act, 1860 came up for consideration before a Division Bench of the Patna High Court in K.C. Thomas v. R.L. Cadeock AIR 1970 Pat and the Judgment in the said case was rendered by Untwalia, J. as he then was. After referring to and considering several decisions with reference to relevant decisions of the English Court under Friendly Societies Act or the Trade Union Act, the Division Bench held that "the gist of those decisions is that a society registered under the Act is not body corporate or a corporation having a distinct legal entity from the members constituting it in the sense a company incorporated under the Indian Companies Act has or a society registered under the Co-operative Societies Act has, yet it has its own identity, personality or entity which, for all purposes is not identical with that of the members constituting it". Therefore there is no merit in the contention of the counsel for the Petitioner that the Devaswom being an unincorporated body, cannot sue or be sued.

The bye-laws, as stated earlier, have been registered under the Act. Certain rights are conferred by those bye-laws on the members of the society. The powers and duties of the Managing Board and other officers also have been dealt with in the bye-laws which also state how arid when a General Body or a special meeting has to be convened. When the right conferred on a member of the Society under the bye-laws is infringed or is sought to be infringed or where he reasonably apprehends that his right will be infringed, he can certainly approach a civil court to get his right established, provided the jurisdiction of the civil court is not ousted either expressly or impliedly by the provisions in the Act.

Now I shall deal with the other two points raised on behalf of the Petitioners. I have already pointed out that there is provision in the Act itself which enables the Society to sue or be sued. Counsel for the Petitioners relied on Sections 19 and 25 of the Act and contended that in view of the provisions in Section 25, the present suit filed before the Munsiff is barred; that in view of the provisions therein District Court alone has got jurisdiction to entertain a suit instituted by a member of the society; that even if the Plaintiff has any grievance against the Managing Body of the Devaswom, he ought to have approached the Registrar and requested him to examine whether the General Body sought to be restrained by an injunction in the suit was convened illegally as alleged. Section 19 deals with the power of the Government and that of the Registrar or any other officer authorised by the Government to call for accounts and other books of the society. The Government can "call upon the governing body of any society to submit periodically accounts of income and expenditure and of the assets and liabilities of the society". There is nothing in the Section which shows or indicates that for redressal of a complaint of violation of the bye-laws, a member of the society has to approach the Government or the Registrar. Section 25 reads:-

(1) When an application is made by the Government or ten per cent of the members on the rolls of a society to the District Court "Within the jurisdiction of which the society is registered, the court may, after equiry and on being satisfied that it is just and enquitable, pass any of the following orders:

(a) removing the existing governing body and appointing a fresh governing body; or

(b) framing a scheme for the better and efficient management of the society; or

(c) dissolving the society.

(2) Where the application under Sub-section (1) is by the members of the society, the applicant shall deposit in court along with the application, the sum of one hundred rupees in cash as security for costs.

A reading of this Section clearly shows that an application under this Section can be filed only by ten per cent of the members on the rolls of the society and that has to be filed to the District Court within the jurisdiction of which the society is registered. This Section makes it further clear that on such application the District Court can interfere only in respect of three matters, viz., (a) removing the existing governing body and appointing a fresh governing body; or {b) framing a scheme for the better and efficient management of the society; or (c) dissolving the society. This is a provision which enables only certain persons to do certain matters for certain limited purposes. There is nothing in the Section which either expressly or impliedly shows or indicates that under this Section the District Court can interfere with the convening of a General Body or conducting of elections or even convening of a Special General Body. There is also nothing in this Section which either expressly or impliedly ousts the jurisdiction of a civil court, particularly in matters relating to convening of General Body or conducting of elections. As stated earlier, this Section only confines to matters expressly stated therein. A similar case came up for consideration before the Madras High Court in The Managing Committee of the Sengunthar Education Board Vs. S.A. Periswami and Another, . There Srinivasan J. of the Madras High Court dealt with Section 13 of the Societies Registration. Act which is similar to the provisions in Section 25 of the Act. The provisions in Section 13 of the Societies Registration Act and Section 25 of the Act are almost identical. It was held in The Managing Committee of the Sengunthar Education Board Vs. S.A. Periswami and Another, that merely because there was internal dissension in the Society, it cannot be said that it is a question of jurisdiction; and that Section 13 of the Societies Registration Act has no application to a case where a society is not dissolved and therefore the District Munsiff Court has jurisdiction. At the fag end of the argument the counsel for the revision Petitioner also contended that by virtue of Clause (h) of Section 41 of the Specific Relief Act the present suit is dot maintainable as the Plaintiff could approach the Registrar u/s 19 for an efficacious remedy in this respect. It is true that Section 41 states that an injunction cannot be granted:

(a) * * *

(b) * * *

(c) * * *

(d) * * *

(e) * * *

(f) * * *

(g) * * *

(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of mist;

(i) * * *

(j) * * *

I have already referred to Section 19. That Section does not refer to at all, convening of General Body meetings or conducting of elections. That refers only to certain limited matters stated therein. It cannot be said that the Plaintiff 1st Respondent has got an efficacious remedy in respect of the matter in dispute u/s 19.

A Full Bench of the Allahabad High Court in Raja Ram Verma Vs. State of U.P. and Others, interpreting Section 9 of the CPC held that implied exclusion of the jurisdiction of the Civil Court cannot be inferred from the mere fact of the existence of a statutory tribunal which may give the same relief as may, be had in the civil Court, nor is the cognizance of a suit by the Civil Court, to be regarded as barred merely because another statutory proceeding for the object to be gained by a suit is available. There must be something in the provisions of the statute constituting such tribunal or providing for such proceeding to clearly rule out the remedy of a suit in Civil Court.

On a careful perusal of, the relevant provisions relied on by the counsel for the Petitioner, nothing of that kind to exclude the jurisdiction of the Civil Court in the matter of entertaining of a suit for injuction to enforce right conferred under the bye-law on a member of the Society either expressly or impliedly, is seen.

The question of jurisdiction has to be primarily and essentially determined with reference to the allegations and averments in the plaint at this stage. It has been alleged in the plaint that the revision Petitioners have convened a General Body in violation of the provisions in the bye-laws, and fraud of the right of the members of the Society. These allegations may or may not be true. It is a matter to be considered at the time of trial, and it is not proper for this Court to go into the merits of these allegations. On the fact and in the circumstances of the case, there is nothing in the provisions of Act 12 of 1955 which either expressly or impliedly prevents or bars a member of the Devaswom to file a suit before the Munsiff''s Court in order to enforce the legal right conferred on a member of the Devaswom by the bye-laws registered under the Act alleging violation of those bye-laws or ousting jurisdiction of a Civil Court to entertain such a suit. This revision therefore fails and is hereby dismissed, in the circumstances without costs.