Sri Biraj Bhattacharya vs Indian Culture Centre And Athers

Sabyasachi Bhattacharyya, J.

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The second defendant in an eviction suit has preferred the instant revisional application against an order whereby the plaintiff/opposite party no. 1

was granted leave under Order I Rule 8 of the Code of Civil Procedure by the Court below at a belated stage. It is submitted by learned counsel for

the petitioner that the plaintiff, being the Indian Culture Centre, represented by its Secretary, Sri Kiran Mukherjee, instituted the suit at a juncture when

the plaintiff Society was unregistered. It is submitted on behalf of the petitioner that the suit proceeded up to a mature stage and only when the

evidence of both sides was complete and the suit was fixed for arguments, the plaintiff sought for a leave under Order I Rule 8 of the Code to

regularize the suit. It is further submitted that, since the suit was not maintainable at the inception at the instance of an unregistered Society, such

defect was incurable at a later stage by granting leave under Order I Rule 8 of the Code.

Learned counsel for the petitioner cites several judgments in support of his contention.

The first cited judgment was reported at (2017) 8 SCC 830 [S.N.D.P.Sakhayogam vs. Kerala Atmavidya Sangham and others], where it was held

that while granting leave under Order I Rule 8 of the Code of Civil Procedure to a registered Society seeking cancellation of a sale deed qua the suit

property by representing other organizations, the Court had to decide several material questions, namely (i) Whether the plaintiff, a juristic person i.e.,

“Societyâ€, was entitled to invoke the provisions of Order I Rule 8 of the Code for filing a suit in a representative capacity, i.e., whether the

expression “personâ€​ occurring in Rule 8 also includes “juristic personâ€​;

(ii) Whether the facts pleaded and the reliefs claimed in the plaint could be said to be in the nature of representative character; and

(iii) If the facts pleaded and the reliefs claimed in the plaint did not satisfy the requirement of Order I Rule 8 then whether such suit was capable of

being tried as a regular suit.

The next judgment cited by the learned counsel for the petitioner was reported at AIR 1978 Mad 383 [S. Nesamony Nadar vs. Nidalam

Government High School, Improvement Committee], where a learned Single Judge of the Madras High Court held inter alia that only one member of

the Society, whether he be the President or Secretary or something more than both, could maintain a suit on behalf of the Society. It was held by the

said Court that he could not. In the said suit, the President of one Nidalam Government High School Improvement Committee claimed to represent the

said committee. It was held that the committee was a mere association of some gentlemen for a special purpose- and the money in question belonged

to all members of the Committee and not to the President. Since the President was not given power of- attorney by other members, the suit by the

Pre-sident of the unregistered Society was not maintainable.

The next judgment cited on behalf of the petitioner was reported at AIR 2004 Bom 14 [Mathura Bhuvan Coop Hsg. Scty. Ltd. vs. The Official

Liquidator and another], where a learned Single Judge of the Bombay High Court held, in an oneparagraph judgment, that an unregistered

Cooperative Society could not sue in its proposed name or through its promoters / chief promoter without obtaining leave under Order I Rule 8 of the

Code of Civil Procedure.

Learned counsel for the petitioner next cited a judgment reported at 2002 SCC OnLine AP 798 [Hyderabad Cricket Association Gymkhana

Grounds, Secunderabad vs. Cambridge Cricket Club and another], where a learned Single Judge of the Andhra Pradesh High Court held inter alia that

an unincorporated body which had no existence in the eye of law could neither sue nor be sued.

By placing reliance on the aforesaid judgments, learned counsel for the petitioner argues that, in the present case, the suit was filed in the name of

the Indian Culture Centre, which was an unregistered Society and as such the suit was not maintainable in the eye of law. -

Since no individual member of the Society had sued in representative capacity from the inception, and even at the argument stage no amendment of

plaint was sought to convert the action to a representative suit, the suit, as framed, was not maintainable in the ey-e of law. As such, it was submitted,

the Court acted without jurisdiction in granting leave under Order I Rule 8 of the Code at a very belated stage to regularize such nonmaintainable suit,

there-by taking away rights already accrued in- favour of the defendants.

In controverting such arguments, learned counsel for the plaintiff/opposite party no. 1 submits that the plaintiffSociety was a registered society at

the inception of the suit. In support of such contention, learned counsel places reliance on a Certificate of Registration of Societies for the year

197778, a copy of which is annexed at page 67 of the instant revisional application.

It is submitted by learned counsel that subsequently such registration being not renewed, the plaintiff/opposite party no. 1 prayed for leave under

Order I Rule 8 of the Code of Civil Procedure for abundant caution.

Learned counsel for the opposite party no. 1 points out that the suit, as framed, described Indian Culture Centre as the plaintiff, “being

represented by its Secretary, Sri Kiran Mukherjeeâ€. It is submitted that since the Secretary was already representing the Society, leave under Order

I Rule 8 of the Code could be granted at any stage to continue the suit in representative capacity.

Since the defect, if any, was not there at the inception of the suit in view of the Society being registered at that point of time, there could not be

any bar for the Trial Court to cure such defect even at a belated stage.

It is further submitted that the suit, as framed, was entirely directed at propounding the interest of the Society itself and not the individual interest

of either the Secretary or any other person. As such, no further amendment to the plaint was required to regularize the suit. It was also submitted on

behalf of the opposite party no. 1 that leave under Order I Rule 8 of the Code could be granted at any stage of the proceeding, since there was no

restriction in that regard in the- provision itself. He relies on the language of the said provision to bolster such submission.

Learned counsel for the opposite party no. 1 cites a judgment reported at AIR 1973 MP 216 [Saraf and Swarnkar Samiti Morar and others vs.

Munnal Lal and others], where it was held inter alia that permission could be granted under Order I Rule 8 to sue an unregistered Society or

Committee through its officebearers acting in a representative capacity, notwithstanding the fact that all the members of the Society were not

impleaded in the suit.

Learned counsel next cites a judgment reported at AIR 1974 Patna 158 [Saran Club vs. Chandradeo Theosophical Lodge], where it was held that

a suit filed by an unregistered association through its Secretary, though not properly constituted, could be allowed to proceed in representative

capacity.

The next judgment cited on behalf of the opposite party no. 1 was reported at AIR 1990 SC 642 [The Chairman, Tamil Nadu Housing Board,

Madras vs. T.N. Ganapathy], where the purpose of order I Rule 8 of the Code was indicated. It was held therein that the said provision was included

in the Code in public interest so as to avoid multiplicity of litigation. The condition necessary for application of the provisions was that the persons on

whose behalf the suit was being brought must have the same interest, in other words, either the interest must be common or they must have a

common grievance which they seek to get redressed. The object of Order I Rule 8 was held to be really to facilitate the decision of questions, in

which a large number of persons were interested, without recourse to the ordinary procedure. It was held that the provision must, therefore, receive

an interpretation which would subserve the object of its enactment. It was also held that there were no words in the Rule to limit its scope to any

particular category of suits or to exclude a suit in regard to a claim for money or for injunction.

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Summing up, it was argued on behalf of the opposite party no. 1 that the Cour-t below was justified in granting leave under Order I Rule 8 of the

Code for the plaintiff to proceed in representative capacity.

Upon a consideration of the cited judgments and arguments of both sides, it appears that the plaintiffSociety, namely, Indian Culture Centre, was

registered at the inception of the suit. During pendency of the suit, in view of nonrenewal of such registration, the Society became an unregistered

one in the eye of law. Such defect in the suit was of a technical nature and did not hit at the root of the Court’s jurisdiction to decide the suit.

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Moreover, in the present context, no further amendment of the plaint was necessary since the Society was already represented by its Secretary,

Sri Kiran Mukherjee, and the suit, as framed, entirely canvassed the cause of the Society and its members. The suit evidently was in the interest of the

Society which was common with that of its Secretary, who was representing the Society and acting in the interest of the Society. As held in the cited

judgments, two courses were open to the plaintiff in order to avoid the technical defect of maintaining the suit despite nonrenewal of registration of

the Society:

First, to implead all members of the Society as plaintiffs;

Secondly, to pray for leave under Order I Rule 8 of the Code to proceed with the suit in representative capacity.

Since the second course was adopted by the plaintiff/opposite party no. 1, which was permitted by the Trial Court, the Trial Court could not be said to

have committed any jurisdictional error.

The decision reported at (2017) 8 SCC 830 [S.N.D.P. Sakhayogam vs. Kerala Atmavidya Sangham and others] (supra) cited by the petitioner,

was on an entirely different footing where the plaintiff, being a juristic person, itself sought to file the suit in representative capacity, propounding the

interest of other organizations. The primary question which arose there was, as to whether such a juristic person was entitled to claim leave under

Order I Rule 8 of the Code as a “personâ€​ as contemplated in the said provision. Such decision is not applicable to the present case at all.

In the judgment reported at AIR 1978 Mad 383 [S. Nesamony Nadar vs. Nidalam Government High School, Improvement Committee] (supra),

the Court held that the President of the Society could not represent a committee, which was a mere association of some gentlemen for a special

purpose. Such facts do not tally with the present case, where the su-it was filed for the interest of the Society, by the Society, represented by its

Secretary. The additional feature of the present case is that the Society was registered at inception and only failed to renew its registration during

pendency of the suit, thereby giving rise to a merely technical defect.

The judgment reported at AIR 2004 Bom 14 [Mathura Bhuvan Coop. Hsg. Scty. Ltd. vs. The Official Liquidator and another] (supra) only held

that an unincorporated association could not sue in its proposed- name without obtaining leave under Order I Rule 8 of the Code of Civil Procedure.

Since in the present case such leave was sought for by the plaintiff/opposite party no. 1, the said judgment is also not applicable to the present case.

Lastly, the judgment reported at 2002 SCC Online AP 798 [Hyderabad Cricket Association Gymkhana Grounds, Secunderabad vs. Cambridge

Cricket Club and another] (supra) was only with regard to nonmaintainability of a suit at the instance of an unregistered Society or association. No

question as to grant of leave under Order I Rule 8 of the Code of Civil Procedure was discussed at all in such judgment. In fact, in a judgment quoted

in the citation in question, being reported at AIR 1946 Bom 516 [Satyavart Sidhantalankar vs. Arya Samaj, Bom], it was held that an unregistered

Society could not sue or be sued except in the name of all the members of the association or in the name of the Secretary or other members of the

governing body on their own behalf and on behalf of the other members of the association under the provisions of Order I Rule 8 of the Code. Hence,

the proposition, that a Secretary can sue on behalf of the Society with leave from Court under Order I Rule 8 of the Code was, in fact, reiterated in

the said judgment.

On the other hand, the judgments cited on behalf of the opposite party no. 1 are apt in the present context. All the said judgments indicate that the

provisions of Order I Rule 8 of the Code are intended to avoid multiplicity of litigation and ought to be given a liberal construction. The best way for an

unregistered Society to maintain a suit, in fact, as indicated in such judgment, would be for the Secretary or its office bearer(s) to sue in a

representative capacity on behalf of the Society, upon seeking permission under Order I Rule 8 of the Code. That is what was done precisely in the

present case.

As such, the impugned order granting leave to the plaintiff/opposite party no. 1 to proceed with the suit under Order I Rule 8 of the Code of Civil

Procedure was perfectly justified and suffers from no jurisdictional error at all.

Accordingly, C.O. No. 2274 of 2018 is dismissed, thereby affirming the impugned order dated June 8, 2018 passed by the Civil Judge (Junior

Division), Third Court at Howarh, District: Howrah in Title Suit No. 191 of 1984.

There will be no order as to costs.