IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 OP(C).No. 2962 of 2011(O) ------------------------- OS.696/2010 of PRL.MUNSIFF COURT, ERNAKULAM .................... PETITIONER -------------------- 1. PENTA TOWER OWNERS ASSOCIATION, REP. BY ITS SECRETARY, JAIN THOMAS, S/O.THOMAS, AGED 36, BUSINESS, FLAT NO.3C, KALOOR RESIDENCY, KALOOR KADAVANTHRA ROAD, ERNAKULAM. 2. PRESIDENT, MUHAMMED ASHARAF, S/O.ABDUL KADER, AGED 52 YEARS, KESAVATHUPARAMBIL HOUSE, HOUSE NO.E SR A/C/1010, GOPURATHIL AVENUE, KEERTHI NAGAR, DESABHIMANI ROAD, KOCHI-26. BY ADV. SRI.BASIL MATHEW RESPONDENT(S): ------------------------- 1. PAUL PONMANI, AGED 66, SON OF LATE PORINJU, 44/488, PENTA TOWER, KALOOR, COCHIN-17. 2. AJAI PONMANI, AGED 29, SON OF PONMANI, 44/488, PENTA TOWER, KALOOR, COCHIN-17. 3. ANIL PONMANI, AGED 31, SON OF PONMANI, 44/488, PENTA TOWER, KALOOR, COCHIN-17. 4. MARY PONMANI, AGED 63, WIFE OF PONMANI, 44/488, PENTA TOWER, KALOOR, COCHIN-17. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2962 of 2011(O) ------------------------------------- APPENDIX ---------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE PLAINT IN O.S. 696 OF 2010 BFORE PRINCIPAL MUNSIFF COURT, ERNAKULAM. EXT.P2. COPY OF THE WRITTEN STATEMENT IN O.S. 696 OF 2010 EXT.P3. COPY OF THE PETITION FOR WITHDRAWING THE SUIT WITH LIBERTY TO FILE FRESH SUIT. EXT.P4. CERTIFIED COPY F THE ORDER DATED 20.08.2011 PASSED B7Y THE PRINCIPAL MUNSIFF COURT, ERNAKULAM. RESPONDENT'S EXHIBITS : NIL ---------------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2962 of 2011 --------------------------------------- Dated this 06th day of September, 2011 JUDGMENT Petitioner is a registered society and filed O.S.No.696 of 2010 in the Court of learned Principal Munsiff, Ernakulam. In that proceeding, petitioner is represented by its Secretary. Petitioner sought various reliefs against the respondent. On 26.07.2011, PW1 was examined and Exts.A1 to A12 and C1 were marked. On 09.08.2011 petitioner filed I.A.No.4974 of 2011 to withdraw the suit under Order XXIII, Rule 1(3) of the Code of Civil Procedure (for short, "the Code”) claiming that there is a formal defect in the suit in that as per the Memorandum of Association of petitioner, it (the society) could sue or be sued only through the Secretary and President of the Society but in the present case the society is represented only by the Secretary. The application was opposed. Learned Munsiff by Ext.P4, order found that the defect is not formal to entertain the application under Rule 1(3) of Order XXIII of the Code. Learned Munsiff also observed in paragraph 6 of the order that if the defect was that the President of the Society was not impleaded as a party in the suit, the said defect can very well be cured by amendment but no O.P(C).No.2962 of 2011 -: 2 :- such steps are taken. Holding so, the application was dismissed. That order is under challenge. 2. Learned counsel submitted that the original records of petitioner/society was traced only now and hence the delay in filing the application. It is also pointed out that the defect is of a formal nature and hence the application ought to have been allowed. 3. I am unable to accept the contention. For, if the Memorandum of Association of petitioner required the suit to be instituted only by the President and Secretary of that Association, it was a mandatory requirement which ought to have been complied. That defect is not formal but, fatal. This is discernible from the decision of this Court in Savariraj Pillai Vs. R.S.S Vistred and Co. (1990(1) KLT SN 47, Page 40). It is also seen that after I.A.No.4974 of 2011 was dismissed on 20.08.2011, petitioner filed I.A.No.5333 of 2011 for opportunity to cross examine DW1, that application was allowed on cost and on 01.09.2011 petitioner deposited the cost. In the above circumstance, I do not find reason to interfere with the impugned order. But it is open to the petitioner to move appropriate application to implead the President of the Society also as a party O.P(C).No.2962 of 2011 -: 3 :- to represent the society if petitioner is otherwise entitled to do so, in the light of the observation made by the learned Munsiff in paragraph 6 of the impugned order. If any such application is filed, learned Munsiff shall decide that application as provided under the law on its merit. With the above observation this original petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-