Therefore, it follows from the aforesaid authoritative pronouncement of the Humble Supreme Court that the care must be taken to ensure that necessary party is before the Court, be it a Plaintiff or Defendant, otherwise, the suit or the proceedings will have to fail. 26. The contention of the counsel for the Respondents that in case of Singhai Lal Chand Jain (dead) v. Rashtriya Swayamsewak Sangh, Panna and Ors. MANU/SC/0323/1996 : (1996) 3 SCC 149,the Supreme Court has taken a view that the decree passed in the suit will not be a nullity on the ground of mere not seeking a permission of the Court under Order I Rule 8 of the Civil Procedure Code and, therefore, in the instant case also merely because no permission is taken from the Court to institute the suit in the representative capacity, would not nullify the decree, is not acceptable. From the reading of the facts in case of Singhai (supra), eviction suit filed against the Respondent and represented by the Manager, the President who was practicing Advocate, and also member, and all the three were prosecuting the suit. Therefore, in that case eviction suit was filed against the registered body through its Manager, President and member and all the three persons were competent to file the suit. Therefore, in the facts of that case, the Hon'ble Supreme Court had taken that view. However, in the instant case, admittedly the Respondent No. 1 is unregistered. It is not registered Society or Trust etc. Therefore, it was open for all 262 members to institute the suit. The 5 Plaintiffs who instituted and prosecuted the suit have not prosecuted the suit in representative capacity by taking the permission from the Court as contemplated under the provisions of Order I Rule 8 of the Civil Procedure Code. Therefore, the suit which was instituted by the Respondent No. 1 should have been filed by joining all its 262 members who were necessary parties to the suit. If at all the Respondent No. 1 wanted to file the representative suit, in that case, it was open for them to institute a representative suit by following the procedure prescribed under Order I Rule 8 of the Code of Civil Procedure Code. In the present case, the suit was instituted in the name of Mandal through its President and 5persons, who according to the Respondent No. 1are panchas of the Mandal. The defect in the institution of suit is fatal to the maintainability of the suit itself. Therefore, in my opinion, taking overall view of the matter, it will have to be concluded that the suit which was instituted by the Respondent No. 1 through its President and 5 other Plaintiffs who are alleged to be the panchas of the Mandal, was not maintainable in absence of joining all 262 members as party to the suit. I also find force in the arguments of the counsel for the applicants that, if at all the possession of the suit property is to be handed over, it will have to be handed over to the 5Plaintiffs who are no more. Since the institution of the suit itself suffers from non joinder of necessary parties and the defect in the institution of the suit is fatal to the maintainability of the suit, handing over possession to the individuals who stepped in the shoes of 5 original Plaintiffs who died during the pendency of the suit, would even cause damage and prejudice to the interest of the Respondent No. 1 itself. Therefore, though there are concurrent findings of the fact that the Respondent No. 1 is entitled to decree for bonafide requirement, the defect in the institution of the suit is fatal to the maintainability of the suit and, therefore, the suit should necessarily fail.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Civil Revision Application No. 202 of 2007
Decided On: 21.07.2011
Gorakh Hilal Patil and Smt. Shantabai Hilal Patil Vs. Parit Samaj Seva Mandal
Hon'ble Judges/Coram:
S.S. Shinde, J.
Citation: 2010(2) MHLJ 177
1. This revision application is directed against the judgment and order dated 21st September, 2007 passed by the Ad-hoc DistrictJudge-1, Dhule in Regular Civil Appeal No. 26/2006 dismissing the appeal and confirming the judgment and decree dated 7th February, 2006 passed by the C.J.J.D., Shirpur in RCS No. 263 of 1992. 2. The facts of the case, in brief, are as follows:
The Respondent No. 1 Parit Seva Samaj Mandal,Shirpur through its President and panchas filed R.C.S. No. 263 of 1992 against deceased HilalNatthu Patil -tenant, father of the presentPetitioner No. 1 and husband of Petitioner No. 2 in the Court of Jt. C.J.J.D., Shirpur for recovery of arrears of rent and possession of residential premises bearing CTS No. 1420 (for short, referred to as "the suit property"), on the ground of default and bona fide and reasonable use under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, referred to as the said Act). The trial Court on completion of the trial, decreed the suit vide judgment and decree dated 7th February, 2006 only on the ground of bona fide and reasonable use but refused decree on the ground of default. This judgment and decree came to be challenged by filing Regular Civil Appeal No. 26of 2006 before the Ad-hoc District Judge-1,Dhule, which was dismissed by the said Court after hearing the parties vide its judgment dated 21st September, 2007. Hence, the present civil revision application.
3. The learned Counsel for the Petitioners -original Defendants submitted that the trial Court has decreed the suit of the Respondents -Plaintiffs on the ground of bona fide and reasonable use. However, the ground of default in payment of rent has been rejected by the trial Court. The lower Appellate Court has also confirmed the decree of eviction on the ground of bona fide requirements.
4. The learned Counsel for the Petitioners further submitted that unregistered society or association of persons or a group of persons is not a legal entity which can institute a suit in its own name. Only a natural person or a juristic person can sue or be sued in its own name. The provisions of Section 36 of the Maharashtra Co-operative Societies Act, Section 34 of the Companies Act, Order 30 of the Civil Procedure Code are the illustrative instances of the provisions of law under which the status of a legal entity is conferred respectively on the Cooperative Society, registered company and the partnership firms. In his submission, the provisions of Section 6 of the Societies Registration Act, 1806 also confers such status on a society only after its registration. An unregistered society or an association of persons is not conferred with the status of legal entity under any statute. As such, an unregistered society cannot sue in its own name. The Counsel for Petitioners further submitted that in a Lusby or against an unregistered society, all the members are necessary parties. 5. In the submission of the learned Counsel for the Petitioners, undisputedly the suit property s of the ownership of one "Parit Samaj Salamander", as stated in paragraphs 1 and 2 of the plaint. Undisputedly, the Mandal is unregistered. Neither the Mandal is registered under the Societies Registration Act nor under the Cooperative Societies Act or as a Trust. It is claimed by the Plaintiff that the Mandal has around 262 members, vide para 16 of the trial Court's judgment. He further submitted that all the members of the Mandal were necessary parties to the suit and the only alternative is to institute a representative suit after following a procedure prescribed under Order 1 Rule 8 of the Code of Civil Procedure Code. In the present case, the suit was instituted in the name of Mandal itself and five other Plaintiffs who are alleged to be the panchas of Mandal. He, therefore, submitted that the suit so instituted suffers from non-joinder of necessary parties. The defect in the institution of the suit is fatal to the maintainability of the suit itself. It is submitted that an objection to the maintainability of the suit was raised by the Defendant vide para 2 of the written statement. However, despite the available opportunity the Plaintiffs chose not to cure the defect by joining all the members as parties or by following the procedure prescribed under Order 1Rule 8 of Code of Civil Procedure In support of his contention, the learned Counsel for the Petitioners place reliance on the following reported judgments:
i) S. Nesumany Ngar v. Nidalam Government High School, reported in MANU/TN/0243/1978 : AIR 1978 MAD 383; (Paras 2 and 3). ii) Tamil Nadu Technical Education Department Staff Cooperative House-Building Society v. The Secretary to Government, Housing & Urban Development, reported in (2010) 4 CTC 129 (DB); (para 12). iii) Gandha banik Mahasabha and Anr. v. Gandha banik Mahasabha, Bardhaman Sakha Samity and Anr. reported in (2010) 1 Chn 21 (DB); (para 5). iv) Sand Carriers Owners Association v. Board of Trusrrtees of Part of Calcutta, reported in MANU/WB/0027/1990 : AIR 1990 CAL 176; and v) Chief Conservator of Forest, Govt. of A.P. v. Collector and others, reported inMANU/SC/0153/2003 : 2003(3) SCC 472. (Para 12).
6. The learned Counsel further submitted that the suit property is, undisputedly owned by the society. However, the Plaintiffs instituted the suit for eviction of the Defendant, without any resolution by the society to terminate the tenancy or authorizing the Plaintiffs to institute the suit, which is who llyun sustainable. The Plaintiffs -Respondents also do not have any authority or locus to recover the possession of the suit property which belongs to"Parit Samaj Seva Mandal." He submitted that it would be unsafe and against the interest of the Mandal also to hand over the possession of the suit property to the Plaintiffs whose relation with the society is not established. 7. It is further submitted on behalf of the Petitioners that the Plaintiff Mandal could not prove the bona fide requirement. The suit for eviction on the ground of bona fide requirement was instituted on 19.12.1992, in the name of the Mandal through its alleged President Mr. Pandit Kapade and five other Plaintiffs, who were alleged to be the panchas of Parit Samaj. During the pendency of the suit, all the five Panchas passed away and no steps were taken to substitute any other members of the society for the deceased Plaintiffs. On 3.3.2005, one Ramesh Saindane filed examination-in-chief by way of affidavit claiming to be the President of the Plaintiff Mandal. The fact that Ramesh Saindane is related to the Plaintiff Mandal, in any manner, was disputed by the Defendant. There is no evidence at all on record to show any relation of this witness with the Plaintiff Mandal. Deposition of such a stranger cannot be considered at all for considering the bona fide requirement of the Plaintiff Mandal. On 28.8.2005, one Suresh Bhila Kuwar filed his examination in chief by way of affidavit and claimed himself to be the Secretary of the society. The learned Counsel for Petitioners submitted that though the witness stated that the suit premises are required by the society, his cross-examination revealed that the witness is unaware of any business of the society. This witness was not aware even about the size of the suit property or the source of acquisition of the property by the society. This witness denied that the suit property is received in gift by the society, which fact has been admitted by the earlier witness. 8. In the submission of the learned Counsel for the Petitioners, the Plaintiffs did not examine any witness who is proved to be the member swell as the office bearer of the society and also has knowledge about the business and activities of the society. In absence of any such witness examined by the Plaintiffs, it cannot be said that the Plaintiffs proved its bona fide requirement. He also submitted that it has come-on record that the Petitioners do not possess another premises for their accommodation. The suit premises are being used by the Petitioners for residence along with their family members. On the other hand, there is no evidence on record to show that the Plaintiff Mandal is involved in any systematic and regular activity. It is submitted that the Petitioners would be put to greater hardship in case decree for eviction is passed. The learned Counsel, therefore, prayed for quashing and setting aside the impugned judgmentand decree. 9. On the other hand, the learned Counsel for Respondents submitted that the suit was filed by the Respondent Mandal for eviction Under Section 12 and13(1)(g) of the Bombay Rent Act. The subject matter of the suit is C.S. No. 1420 situated at Shirpur let out to the Petitioners for residence since 1986 on rent of Rs. 100/-per month. The Petitioners committed default from 1.8.1989 till30.11.1992. On 6.7.1990 notice was issued terminating the tenancy of Petitioners and demanding the arrears of rent. The Respondent Mandal needed the premises for office, meeting, keeping record and residence for the Secretary. Petitioners could get house on rent. No hardship could be caused to the tenant. The suit was contested by the Petitioners on the grounds that it was not maintainable. The rent was exorbitant, the standard rent was sought to be fixed. The Petitioners were ready to deposit the arrears of rent. bona fide requirement of Mandal was challenged mainly on the ground that purpose was going to be changed. bona fide requirement was falsely shown. The Petitioners examined one witness whereas Respondents examined two witnesses. The trial Court decreed the suit on the ground of bona fide requirement but no suited on the ground of default. The suit washed to be maintainable by recording finding tithe Issue No. 9. The appeal preferred by the Petitioners / tenant came to be dismissed confirming the decree. 10. In his submissions, the learned Counsel for the Respondents submitted that the suit filed by the Respondents was maintainable. Both the Courts below have concurrently decided in favored the Respondents. Mandal is neither trust nor society. There is no statutory bar to file suit by an unregistered association or Mandal. The suit was filed by panch of the Mandal. It was representative suit filed on behalf of 262members. All members of the committee i.e. Panchas brought the suit. No evidence was placed on record that any member of the committee was left out and not joined. The tenant did not dispute the ownership. Rent was paid to the Plaintiff. Hence, the suit was tenable. 11. The learned Counsel for the Respondents further submitted that The suit cannot fail forwent of permission under Order 1 Rule 8 of Code of Civil Procedure The provision of Order 1 Rule 8 are enabling provisions and procedural in nature. The permission under Order 1 Rule 8(a) of Code of Civil Procedure is not mandatory. It is only directory clause. The Court has discretion under Sub-clause (b) to direct one or more persons to sue on behalf of all persons. No specific objection for want of permission was raised in trial Court or in appellate Court. Hence, the proceedings cannot be vitiated on the technical objection of want of permission. In its discretion under Sub-clause (b), the Respondents were directed to file the suit by necessary implication. In support of his submission, the learned Counsel for Respondents relied on the decision of Apex Court in the case of Kailas v. Nanhku reported in MANU/SC/0264/2005 : AIR 2005 SC 2441. 12. It is further submitted on behalf of Respondents that the permission under Order 1 Rule 8 of Code of Civil Procedure to file suit by unregistered associations not the condition precedent or mandatory. To substantiate his submission, the learned Counsel for the Respondents placed reliance on a reported judgment in case of Sanghai Lal Chand Jain v. Rashtriya Swayamsewak Sangh, Panna MANU/SC/0323/1996 : 1996(3) SCC149. He further submitted that unless a case is made out by Petitioners that interest of the Mandal was not properly represented, suit was collusive or decree was obtained by negligence, it is not permissible to quash the said decree. No grievance on above grounds was made by the Petitioners or any third party before the trial Court. Hence, the decree based upon the concurrent findings of the facts cannot be upset. 13. The learned Counsel for the Respondents vehemently submitted that the decree does not suffer from the vice of non-joinder of necessary party. The remaining members of the Mandal aren't necessary party. There is no evidence on record to demonstrate that the controversy between the parties could not be decided effectively for the absence of those remaining members or any third party. O.1 R.9 of C.P.C.provides that a suit should not be defeated by reason of non-joinder of party. O.1 R.10(2) of the Code of Civil Procedure empowers the Court to direct any person to be added who ought to have been joined. He submitted that intention of legislature mislaid down in the reported judgment in case of Deckhand Constructions v. Board of Trustees of the Port of Formulae and another [2006 (0) Boom C.R.62]. He, therefore, submitted that the present suit cannot fail for non-joinder of parties. Neither an objection was raised by the Defendant in the trial Court, nor the Plaintiff was directed to add a party. Therefore, the decree cannot be reversed in view of the provisions of Section 99 of the Code of Civil Procedure He submitted that no prejudice has been caused to the Petitioners by filing the suit by few persons of Mandal or for non-joinder of remaining members. The parties were given due opportunity of hearing and the findings rerecorded on the basis of material brought on record. Hence the decree cannot be vitiated on technical plea of non-joinder of party and forwent of permission of Court under O.1 R.8 of Code of Civil Procedure 14. It is further submitted that the suit on the ground of bona fide requirement is tenable. Section 25 does not operate bar to maintain the suit. The purpose is not changed. The landlord wants the premises for residence of Secretary another non residential purposes. A landlord can demand the premises for any other purpose than the one for which it was let out to tenant. The absolute ownership and liberty of owner cannot be restricted by compelling him to claim possession for the purpose for which it was let out. Section 25 contemplates a situation when the Act came into operation i.e. 31.3.1998. If the premises were let out for residence on the date of commencement of the Act then only Section 25is attracted. In support of this submission, the learned Counsel placed reliance on the reported judgment in the case of Kantilla v. Saijarabai 2002 (Suppl.2) Boom. C.R. 25. 15. The learned Counsel further submitted that the Respondents are entitled to decree for bonfire requirement and there is concurrent finding of fact on this issue. In support of his submission that it is sufficient for the landlord to assert that suit premises are reasonably undone fide required by him and onus is on the tenant to show that suit premises are neither reasonably nor bona fide required by the landlord, the learned Counsel for Respondents relied on the decision in case of Shankar Bhairoba Vadangekar since deceased though L. Rs. v. Ganpati Appa Gatare since deceased through L.Rs. , reported in MANU/MH/0328/2001 : 2001(4) Bom.C.R. 806. Further relying on the decision in the case of Balwant P. Doshi v. Shantaben Dhirajlal Shah and Anr, reported in MANU/MH/0537/2002 : 2003 (2) Bom.C.R. 190, he submitted that Courts cannot ordinarily doubt bona fid need of landlord. He further submitted that decree on bonfire requirement cannot be faulted on the interpretation of words "own occupation or residential purpose". `Occupation' is interpreted to be not only residential purpose but also any non residential activity involving on-commercial purposes. In support of this submission, he relied on the decision in case of Umed Singh v. Arya Samaj Sewa Sadan [MANU/SC/2954/2006 : (2006)5 SCC437. Relying on the decision in the case of Dwarkaprasad v. Niranjan and Anr. 2003 (5) Bom. C.R. 649, he submitted that liberal approach needs to be adopted while interpreting the words of Section 13(1)(g) of the said Act. The learned Counsel further submitted that the Respondents would suffer more hardship than the Petitioners. No evidence is brought on record by the Petitioners to show that it was impossible to secure accommodation. The Petitioners are liable for eviction. Inaction on the part of the tenant to search for alternate premises this-entitled him to protect the possession as held in the case of SulochanabaiKashinath Gujar v. Krishnabai Dhaniram Ugvekar and Ors. MANU/MH/0416/2001 : 2001 (4) Bom.C.R. 789. Lastly, relying on the reported judgment in the case of Rajaram Keshav Dhobi and Anr. v. Narayan Jairam Marathe 2011(1) Bom.C.R. 679,the learned Counsel for Respondents submitted that the scope of the revision is very limited and re-appreciation of evidence is not permissible. All errors cannot be corrected. 16. I have heard the learned Counsel for the Petitioners and Respondents at length, perused the impugned judgments of the Courts below as also the reported judgments referred and relied upon by the learned Counsel for the parties. 17. The question which falls for consideration before this Court in the present application is whether the Respondent No. 1 i.e. Parit SamajSeva Mandal, not registered society or association of persons or a group of persons or not registered under the Societies Registration Act nor under the Cooperative Societies Act oars a Trust, can institute a suit in its own name through its President and 4 panchas,though there are 262 members of the said Mandal, without following procedure under Order I Rule 8 of the Code of Civil Procedure and in absence of any resolution by all members authorizing 5 panchas to institute such suit ? Before going to the factual matrix and issues raised in the present Civil Revision Application, at this juncture, it would be appropriate to reproduce herein below the provisions of Sections 6 and 36 of the Maharashtra Cooperative Societies Act, Section34 of the Companies Act and Order XXX of the Civil Procedure Code, which would provide illustrative instances of the provisions of law under which the status of the legal entity is conferred respectively on the Cooperative Society, registered Company and the partnership firms.
6. Conditions of registration (1) No society, other than a federal society, shall be registered under this Act, unless it consists of at least ten persons or such higher number of persons as the Registrar may, having regard to the objects and economic viability of a society and development of the co-operative movement, determine from time to time for a class of societies each of such persons being a member of a different family, who are qualified to be members under this Act, and who reside in the area of operation of the society; Provided that, a lift irrigation society consisting of less than ten but of five or more such persons maybe registered under this Act. Provided further that, the condition regarding residence of the members in the area of operation of the society shall not apply for registration of the society, being the co-operative credit structure entity. (2) No society with unlimited liability shall be registered, unless all persons forming the society reside in the same town or village, or in the same group of villages. (2A) No crop protection society shall be registered, unless the Registrars satisfied, after such inquiry, ashes thinks necessary, that a draft of the proposal made by the society for protecting the crops, structures, machinery, agricultural implements and other equipment such as those used for pumping water on the land, was duly published for inviting all owners of lands likely to be affectedly the proposal and all other persons likely to be interested in the said lands to join the proposal or to send their objections or suggestions and that the objections and suggestions received, if any, have been duly considered by the society and that the owners in possession of not less than 66 per cent in the aggregate of the lands included in the proposal have given their consent in writing to the making of the proposal and that the proposal made is feasible. For this purpose, the society shall submit to the Registrar: (a) a plan showing the area covered by the proposal and the surrounding lands as shown in the map or maps of the village or villages affected; (b) an extract from the record frights duly certified showing the names of the owners of the lands and the areas of the lands included in the proposal. (c) statements of such of the owners of the lands as consented to the making of the proposal signed by owners before two witnesses; (d) a detailed estimate of the castoff implementing the proposal; (e) a detailed statement showing how the cost is proposed to be met. When such society is registered, the cost of implementing the proposal shall be met wholly or in part by contribution to be levied by the society from each owner of the land included in the proposal, including any such owner who may have refused to become a member of the society. The owner of every land included in the proposal shall also be primarily (3) No federal society shall be registered unless it has at least five societies as its members. (4) Nothing in this Act shall be deemed to affect the registration of any society made before the commencement of this Act. (5) The word 'limited' or' unlimited' shall be the last word in the name of every society with limited or unlimited liability, as the case may be, which is registered or deemed to be registered under this Act. liable for the payment of the contribution livable from time to time in respect of such land. Explanation:-For the purposes of this section and Section 8 the expression "member of a family" means wife, husband, father, mother, sonar unmarried daughter. ... 36. Societies to be bodies corporate The registration of a society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to acquit, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all such things as are necessary for the purpose for which it is constituted.
Section 34, Companies Act
34. (1) On the registration of the memorandum of a company, the Registrar shall certify under his hand that the company is incorporated and, in the case of a limited company, that the company is limited. (2) From the date of incorporation mentioned in the certificate of incorporation, such of the subscribers of the memorandum another persons, as may from time to time be members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the functions of an incorporated company, and having perpetual succession and common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act. Order XXX, Code of Civil Procedure Code: Order XXX. Suits by or against firms and persons carrying on business in names other than their own: 1. Suing of partners in name affirm.--(1) Any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm if any of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manners the Court may direct. (2) Where persons sue or are sued as partners in the name of their firm under Sub-rule (1), it shall, in thecae of any pleading or other document required by or under this Code to be signed, verified or certified by the Plaintiff or the Defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons.
18. In the present case, undisputedly, the Respondent No. 1 i.e. Mandal is unregistered. It is not registered either under the Societies Registration Act or under the Maharashtra Co operative Societies Act or as a Trust. The Respondent No. 1 claimed before the court below that the Mandal has around 262 members. It is also not in dispute that the suit property is of the ownership of Respondent No. 18. In the present case, the suit was instituted in the name of Mandal through President and five other Plaintiffs who are alleged to be the panchas offhanded. 19. The revision applicants herein raised the objection to the maintainability of the suit in their written statement before the Civil Judge, Junior Division, Shirpur, District Dhule. It is denied by the original Defendants i.e. the revision applicants herein that Pundit Krishna Kapade is President of the Respondent No. 1Mandal and Plaintiff Nos. 1 to 5 are members of the said Mandal. It was further stated that, the said Plaintiffs are not entitled to file the suit. The Respondent No. 1 Mandal is not registered and, therefore, suit instituted by Respondent No. 1 is not maintainable. However, the Civil Judge, Junior Division, Shirpur held that the suit is maintainable and it is not necessary that such Mandal should be registered; even unregistered society/ Mandalay file the suit. 20. It is the contention of the revision applicants that, the Respondent No. 1 is not registered society or trust and, therefore, fiat all the Respondent No. 1 wanted to file suit, all the 262 members of the said Mandal should have instituted the suit. From the perusal of the record available and from the submissions of the parties, it is not in dispute that no permission of the Court was sought by the Respondent No. 1 to prosecute the suit in the representative capacity. Even the court hasn't made such exercise after institution of the suit to call upon the Respondent No. 1 to follow the procedure under Order I Rule 8 of the Civil Procedure Code. Therefore, the suit which was instituted by the Respondent No. 1 was only by Plaintiffs No. 1 to 5, who claim to be pinches said Mandal, were not authorized by passing any resolution by the said Samaj Seva Mandal to prosecute the said suit. The counsel for Respondent No. 1 is also not able to bring tithe notice of this Court that any resolution was passed by the Respondent No. 1 herein authorizing the original Plaintiffs No. 1 to 5 to prosecute the suit on behalf of the Respondent No. 1. Therefore, the admitted position is that the Respondent No. 1 Parit Salamander is unregistered. There are around 262members of the said Parit Seva Mandal and all262 members have not joined party to the suit. In spite of specific objection raised by the applicants herein, who are original Defendants in the suit, that no such suit can be instituted by unregistered Mandal and the 5persons who have instituted the suit are not authorized to do so, and nothing has been placed on record to show that they are the authorized representatives of the Respondent No. 1. Both the courts have negated the contention of the applicants herein that the Respondent No. 1 is not entitled to sue and further the 5 members out of 262 members cannot institute the suit and prosecute the suit since no procedure under Order I Rule 8 of the Civil Procedure Code to file the suit in the representative capacity has been undergone or followed by the Respondents or the courts below. In the afore-stated facts and background, in my opinion, the point raised by the applicants that the Respondent No. 1 being an unregistered Mandal, is not a legal entity and cannot institute a suit in its own name and only a natural person or a juristic person can sue or to be sued in his own name goes to the root of the matter and, therefore, merely because concurrent findings of facts are recorded by the courts below that the Respondent No. 1 was in bonfire need of the suit premises and therefore this Court may not interfere in provisional jurisdiction, is liable to be rejected. 21. The Calcutta High Court, in the case of Sand Carrier's Owners' Union and Ors. v. Board of Trustees for the Port of Calcutta and Ors. MANU/WB/0027/1990 : AIR 1990 Cal 176, has held:
Representative action or class action may be initiated by any members of the class affected by any order or action or inaction on the part of the Government and/or authorities and in such abase a large number of persons of the same class may be affected by any action and in such case any one member of that class can file writ application and can prosecute the same as representative application after obtaining leave of the Court and in such case, the principle laid down in Order 1 Rule 8 is followed by which after the notice is issued pursuant to the order of the Court, any members of the class who are affected by such order may join in such writ application as a Petitioner and that the Court grants such leave and the members of that classier bound by such decisions. This is permitted by law to avoid multiplicity of proceedings and in such case any decision taken in such case binds the members of class.
It is admitted position in the present case that, all the 262 members are not joined as party to the suit. There was no authorization letter authorizing the 5 persons to institute the suit. No any resolution by Respondent No. 1 whatsoever is placed on record to show that the 5 panchas are authorized toile such suit. 22. The contention of the counsel for the Respondents herein that the provisions under Order I Rule 8 of the Code of Civil Procedure are procedural in nature, those are directory and not mandatory and, therefore, merely because such procedure has not been followed, this Court may not interfere in the concurrent findings of facts, is required to be rejected. All the members, i.e. 262 members of the Respondent No. 1 should have instituted the suit being unregistered Mandal. In case such course is not adopted, it was for the Respondent No. 1 to take aid of Order I Rule 8 of the Code of Civil Procedure and file a representative suit. The provisions of Order I Rule 8 read thus:
8. One person may sue or defend on behalf of all in same interest.-- (1) Where there are numerous persons having the same interesting one suit, -- (a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. (2) The Court shall, in every case where a permission or direction is given under Sub-rule (1), at the Plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or another cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court tube made a party to such suit. (4) No part of the claim in any such suit shall be abandoned under Sub-rule (1), and no such suit shall be withdrawn under sub-rule (3) of Rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order, unless the Court has given, at the Plaintiff's expense, notice to all persons so interested in the manner specified in Sub-rule (2). (5) Where any person suing or defending in any such suit doesn't proceed with due diligence in the suit or defense, the Court may substitute in his place another person having the same interest in the suit. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as thecae may be. Explanation.--For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as thecae may be." It is also brought to the notice of this Court that, during the pendency of the proceeding before the Court below, all Plaintiffs died, however, their legal representatives were not brought on record. The two persons who stepped in to prosecute the suit further, who were also not authorized by the Respondent No. 1 to represent the suit. However, that is a different matter, but the basic point which goes to the root of the matter is that the Respondent No. 1 being an unregistered Mandal, if wanted to file the suit, its 262 members ought to have joined as party to the suit. It was open for the Respondent No. 1 to seek permission from the Court to file the representative suit. 23. The Humble Supreme Court in the case of Illicit Devil (dead) by L.Rs. and Ors. v. Jain Society, Protection of Orphans India and Ors. MANU/SC/0767/2003 : (2003) 8 SCC 413), held that, A society registered under the Societies Registration Act is not a body corporate as its the case in respect of a company registered under the Companies Act. In that view of the matter, a society registered under the Societies Registration Act is not a juristic person. The law for the purpose of grant of probate or Letter of Administration recognizes only a juristic person and not a mere conglomeration of persons or a body which doesn't have any statutory recognition as juristic person. Moreover, the Society, whether registered or unregistered, neither cane prosecuted in criminal Court nor is incapable of ownership of any property or of suing or being sued in its own name. Para Nos. 21, 22 and 23 of the said judgment are reproduced as under: "21. A society registered under the Societies Registration Act is not a body corporate as it is the case in respect of a company registered under the Companies Act. In that view of the matter, society registered under the Societies Registration Act is not juristic person. The law for the purpose of grant of a probate or Letter of Administration recognizes only a juristic person and not ampere conglomeration of persons or abode which does not have any statutory recognition as a juristic person. 22. It is well known that there exist certain salient differences between a society registered under the Societies Registration Act, on the one hand, and a company corporate, on the other, principal amongst which is that a company is juristic person by virtue of being a body corporate, whereas the society, even when it is registered, is not possessed of these characteristics. Moreover, society whether registered or unregistered, may not be prosecuted in a criminal court, nor is incapable of ownership of any property or of suing or being sued in its own name. 23. Although admittedly, registered society is endowed within existence separate from that obits members for certain purposes, that is not to say that it is a legal person for the purposes of Sections 223 and 236 of the Act. Whereas a company can be regarded as having a complete legal personality, the same is not possible for a society, whose existence is closely connected, and even contingent, upon the persons who originally formed it. Inasmuch as a company enjoys an identity distinct from its original shareholders, whereas the society's undistinguishable, in some aspects, from its own members, that would qualify as a material distinction, which prevents societies from obtaining Letter of Administration.
24. In another case, in the case of Chief Conservator of Forests, Govt. of A.P. v. Collector and Ors. MANU/SC/0153/2003 : (2003) 3 SCC 472, the Humble Supreme Court, in para 12, held:
12. It needs to be noted here theta legal entity - a natural person or an artificial person - can sue or be sued in his/ its own name in court of law or a tribunal. It is not merely a procedural formality but is essentially matter of substance and considerable significance. That is why there are special provisions in the Constitution and the Code of Civil Procedure as to how the Central Government or the Government of a State may sue or bested. So also there are special provisions in regard to other juristic persons specifying as to how they can sue or be sued. In giving description of a party twill be useful to remember the distinction between misdescriptionor misnomer of a party andmisjoinder or non-joinder of a party suing or being sued. In thecae of misdescription of a party, the court may at any stage of the suit/ proceedings permit correction of the cause-title so that the party before the court is correctly described; however, amide scription of a party will not be fatal to the maintainability of the suit/ proceedings. Though Rule9 of Order I Code of Civil Procedure mandates that no suit shall be defeated by reason of the mis joinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party. Therefore, care must betaken to ensure that the necessary party is before the court, be it a Plaintiff or a Defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order I Code of Civil Procedure provides remedy when a suit is filed in the name of the wrong Plaintiff and empowers the court to strike out any party improperly joined or to in plead a necessary party at any stage of the proceedings.
25. Therefore, it follows from the aforesaid authoritative pronouncement of the Humble Supreme Court that the care must be taken to ensure that necessary party is before the Court, be it a Plaintiff or Defendant, otherwise, the suit or the proceedings will have to fail. 26. The contention of the counsel for the Respondents that in case of Singhai Lal Chand Jain (dead) v. Rashtriya Swayamsewak Sangh, Panna and Ors. MANU/SC/0323/1996 : (1996) 3 SCC 149,the Supreme Court has taken a view that the decree passed in the suit will not be a nullity on the ground of mere not seeking a permission of the Court under Order I Rule 8 of the Civil Procedure Code and, therefore, in the instant case also merely because no permission is taken from the Court to institute the suit in the representative capacity, would not nullify the decree, is not acceptable. From the reading of the facts in case of Singhai (supra), eviction suit filed against the Respondent and represented by the Manager, the President who was practicing Advocate, and also member, and all the three were prosecuting the suit. Therefore, in that case eviction suit was filed against the registered body through its Manager, President and member and all the three persons were competent to file the suit. Therefore, in the facts of that case, the Hon'ble Supreme Court had taken that view. However, in the instant case, admittedly the Respondent No. 1 is unregistered. It is not registered Society or Trust etc. Therefore, it was open for all 262 members to institute the suit. The 5 Plaintiffs who instituted and prosecuted the suit have not prosecuted the suit in representative capacity by taking the permission from the Court as contemplated under the provisions of Order I Rule 8 of the Civil Procedure Code. Therefore, the suit which was instituted by the Respondent No. 1 should have been filed by joining all its 262 members who were necessary parties to the suit. If at all the Respondent No. 1 wanted to file the representative suit, in that case, it was open for them to institute a representative suit by following the procedure prescribed under Order I Rule 8 of the Code of Civil Procedure Code. In the present case, the suit was instituted in the name of Mandal through its President and 5persons, who according to the Respondent No. 1are panchas of the Mandal. The defect in the institution of suit is fatal to the maintainability of the suit itself. Therefore, in my opinion, taking overall view of the matter, it will have to be concluded that the suit which was instituted by the Respondent No. 1 through its President and 5 other Plaintiffs who are alleged to be the panchas of the Mandal, was not maintainable in absence of joining all 262 members as party to the suit. I also find force in the arguments of the counsel for the applicants that, if at all the possession of the suit property is to be handed over, it will have to be handed over to the 5Plaintiffs who are no more. Since the institution of the suit itself suffers from non joinder of necessary parties and the defect in the institution of the suit is fatal to the maintainability of the suit, handing over possession to the individuals who stepped in the shoes of 5 original Plaintiffs who died during the pendency of the suit, would even cause damage and prejudice to the interest of the Respondent No. 1 itself. Therefore, though there are concurrent findings of the fact that the Respondent No. 1 is entitled to decree for bonafide requirement, the defect in the institution of the suit is fatal to the maintainability of the suit and, therefore, the suit should necessarily fail. In the instant case, the trial Court has neither exercised the discretion under Order I Rule 8(1)(b) of the Civil Procedure Code to direct one or more persons to sue on behalf of all persons, north Plaintiffs sought such permission by way of filing application to exercise such discretion. A specific objection was raised by the original Defendants for maintainability of the suit. Therefore, taking overall view of the matter, in my opinion, the judgments and orders passed by the courts below are not sustainable. Therefore, having been concluded that the suit was not maintainable, all further proceeding son merits and decree passed thereafter are of nullity. 27. In the result, the judgment and order dated 21/9/2007, passed by learned Ad-hoc District Judge-1, Dhule in Regular Civil Appeal No. 26/2006 and the judgment and order dated7/2/2006, passed by learned Civil Judge, Junior Division, Shirpur in Regular Civil Suit No. 263/1992 are quashed and set aside. However, it is clarified that the RespondentNo. 1 is not precluded from instituting fresh suit in accordance with law and as contemplated under Order I Rule 8 of the Code of Civil Procedure Code, oral 262 members can file the suit if they so desire. It is needless to mention that if such fresh suit is filed by the Respondent No. 1, the concerned Court will keep in mind the time spent by the Respondent No. 1 in prosecuting the suit, appeal and proceedings before this Court. The Civil Revision Application is allowed to above extent and stands disposed of. Rule made absolute in above terms. Civil Application, if any, stands disposed of in view of disposal of the Civil Revision Application. Record and proceedings be sent back to the concerned Court forthwith.
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