Tuesday, 29 October 2019

Whether representative suit filed by secretary or officer bearer of unregistered society is maintainable?

All the said judgments indicate that the provisions of Order 1 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 1 Rule 8 of the Code. That is what was done precisely in the present case.

25. As such, the impugned order granting leave to the plaintiff/opposite party No. 1 to proceed with the suit under Order 1 Rule 8 of the Code of Civil Procedure was perfectly justified and suffers from no jurisdictional error at all.

IN THE HIGH COURT OF CALCUTTA

C.O. No. 2274 of 2018

Decided On: 08.08.2018

 Biraj Bhattacharya  Vs. Indian Culture Centre

Hon'ble Judges/Coram:
Sabyasachi Bhattacharyya, J.

Citation: AIR 2019(NOC) 246 Cal


1. 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.

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

3. The first cited judgment was reported at MANU/SC/1079/2017 : (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., "Society", 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 "person" occurring in Rule 8 also includes "juristic person";

(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.

4. The next judgment cited by the learned counsel for the petitioner was reported at MANU/TN/0243/1978 : 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 President of the unregistered Society was not maintainable.

5. The next judgment cited on behalf of the petitioner was reported at MANU/MH/0776/2003 : AIR 2004 Bom 14 [Mathura Bhuvan Co-op Hsg. Scty. Ltd. vs. The Official Liquidator and another], where a learned Single Judge of the Bombay High Court held, in an one-paragraph judgment, that an unregistered Co-operative 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.

6. Learned counsel for the petitioner next cited a judgment reported at MANU/AP/0913/2002 [Hyderabad Cricket Association Gymkhana Grounds, Secunderabad vs. Cambridge Cricket Club and another], whore 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.

7. 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.

8. 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 eye 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 non-maintainable suit, thereby taking away rights already accrued in favour of the defendants.

9. In controverting such arguments, learned counsel for the plaintiff/opposite party No. 1 submits that the plaintiff-Society 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 1977-78, a copy of which is annexed at page-67 of the instant revisional application.

10. It is submitted by learned counsel that subsequently such registration being not renewed, the plaintiff/opposite party No. 1 prayed for leave under Order 1 Rule 8 of the Code of Civil Procedure for abundant caution.

11. 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 Mukherjee". 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.

12. 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.

13. 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 1 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.

14. Learned counsel for the opposite party No. 1 cites a judgment reported at MANU/MP/0049/1973 : 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 1 Rule 8 to sue an unregistered Society or Committee through its office-bearers acting in a representative capacity, notwithstanding the fact that all the members of the Society were not impleaded in the suit.

15. Learned counsel next cites a judgment reported at MANU/BH/0045/1974 : 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.

16. The next judgment cited on behalf of the opposite party No. 1 was reported at MANU/SC/0117/1990 : 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 sub-serve 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.

17. Summing up, it was argued on behalf of the opposite party No. 1 that the Court below was justified in granting leave under Order 1 Rule 8 of the Code for the plaintiff to proceed in representative capacity.

18. Upon a consideration of the cited judgments and arguments of both sides, it appears that the plaintiff-Society, namely, Indian Culture Centre, was registered at the inception of the suit. During pendency of the suit, in view of non-renewal 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.

19. 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 non-renewal of registration of the Society:

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

Secondly, to pray for leave under Order 1 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.

20. The decision reported at MANU/SC/1079/2017 : (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 1 Rule 8 of the Code as a "person" as contemplated in the said provision. Such decision is not applicable to the present case at all.

21. In the judgment reported at MANU/TN/0243/1978 : 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 suit 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.

22. The judgment reported at MANU/MH/0776/2003 : AIR 2004 Bom 14 [Mathura Bhuvan Co-op. 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.

23. Lastly, the judgment reported at MANU/AP/0913/2002 [Hyderabad Cricket Association Gymkhana Grounds, Secunderabad vs. Cambridge Cricket Club and another] (supra) was only with regard to non-maintainability 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 MANU/MH/0117/1945 : 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 1 Rule 8 of the Code. Hence, the proposition, that a Secretary can sue on behalf of the Society with leave from Court under Order 1 Rule 8 of the Code was, in fact, reiterated in the said judgment.

24. 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 1 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 1 Rule 8 of the Code. That is what was done precisely in the present case.

25. As such, the impugned order granting leave to the plaintiff/opposite party No. 1 to proceed with the suit under Order 1 Rule 8 of the Code of Civil Procedure was perfectly justified and suffers from no jurisdictional error at all.

26. Accordingly, CO. 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 Howrah, District : Howrah in Title Suit No. 191 of 1984.

27. There will be no order as to costs.


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