IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 FAO.No. 64 of 2011() ----------------------------- IA. 4093/2010 IN AS.395/2010 of DISTRICT COURT, THRISSUR .................... APPELLANT/RESPONDENTS 1,4 &5/RESPONDENTS 1,4&5 ------------------------------------------------------------------------------------- 1. CHALAKUDY N.S.S EDUCATIONAL, CULTURAL AND CHARITABLE SOCIETY,REG NO.254/2980 CHALAKUDY, REP BY ITS PRESENT PRESIDENT ADITYA VARMA RAJA. 2. C.P.JAYASANKAR, INDEEVARAM VEETIL, KOTHAKULANGARA VILLAGE,ALUVA TALUK. 3. PRAKASH KUMAR, JOINT SECRETARY S/O.CHITTIYETG VEETIL KUMARAN NAIR KIZHAKKECHALAKUDY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.RENJITH THAMPAN SMT.P.R.REENA RESPONDENT(S): PETITIONERS & RESPONDENTS 2 & 3/APPELLANT & -------------------------- RESPONDENTS 2 & 3 1. E.NARAYANA MENON, AGED 71 YEARS S/O.VAIRELI KRISHNAN NAIR, CHENATHUNADU,KIZHEKKE CHALAKUDY VILLAGE, THRISSUR DIST PIN 680 307. 2. GOVINDA PANICKER,AGED 80 YEARS, S/O.KALLARAKKAL VEETTIL KRISHNAN NAIR CHENATHUNADU,KIZHEKKE CHALAKUDY , THRISSUR DIST PIN 680 307. 3. AJITHKUMAR, AGED 43 YEARS S/O.KUZHIKKATTIL KOCHUNARAYANA MENON KIZHEKKE CHALAKUDY VILLAGE, THRISSUR DIST PIN 680 307. tss F.A.O. NO.64/2011 4. MOHANAN, S/O.POUKKATTU VEETTIL GOURIAMMA, NEAR MADATHAMPILLY TEMPLE KIZHEKKE CHALAKUDY VILLAGE, THRISSUR DIST PIN 680 307. 5. SADANANDAN, AGED 61 YEARS KUZHIKKATTU VEETTIL, KIZHEKKE CHALAKUDY VILLAGE, THRISSUR DIST PIN 680 307. 6. BALAKRISHNAN, AGED 68 YEARS S/O.THAPPATTU VEETTIL MADHAVI AMMA PADINJARE CHALAKUDY VILLAGE, THRISSUR DIST PIN 680 307. 7. ASHOKKUMAR,AGED 51 YEARS, S/O.MELEDATH VEETIL SANKARAN NAIR PADINJARE CHALAKUDY VILLAGE, THRISSUR DIST PIN 680 307. 8. THARANATHA MENON,AGED 85 YEARS S/O.POTTAYIL LAKSHMIKUTTYAMMA KURIACHIRA VILLAGE & DESOM, THRISSUR DISTRICT. 9. MADHAVA MENON, AGED 74 YEARS S/O.MULLASSERY VEETTIL PAPPIKUTTY AMMA POTTA VILLAGE, MUKUNDAPURAM TALUK. BY SMT.SUMATHI DANDAPANI, SENIOR ADVOCATE R1-3. 5-7 BY ADV. SRI.MILLU DANDAPANI SMT.K.V.BHADRAKUMARI THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/10/2011, THE COURT ON 27/10/2011 DELIVERED THE FOLLOWING: tss F.A.O. NO 64/2011 APPENDIX PETITIONER'S ANNEXURES AI:- COPY OF THE BYELAW OF THE PETITIONER SOCIETY. AII:- COPY OF THE LETTER DT.D 28.5.2002 ISSUED BY THE PETITIONER SOCIETY. AIII:- COPY OF THE LETTER DTD. 12.11.05 ISSUED BY THE PETITIONER SOCIETY. AIII(a):- COPY OF THE LETTER DTD. 18.5.2005 , ISSUED BY THE PETITIONER SOCIETY. AIII(b):- COPY OF THE LETTER DTD. 23.6.2004, ISSUED BY THE PETITIONER SOCIETY. AIII(c):- COPY OF THE LETTER DT.D 16.4.2004 ISSUED BY THE PETITIONER SOCIETY. AIII9d):- COPY OF THE LETTER DT.D 12.6.2003 ISSUED BY THE PETITIONER SOCIETY. AIII(e):- COPY OF THE LETTER DTD. 12.4.2033 ISSUED BY THE PETITIONER SOCIETY. AIV:- COPY OF THE FEE SCHEDULE OF THE CLASSES OF THE PETITIONER'S SCHOOL. AV:- COPY OF THE MINUTES OF THE MEETING DTD. 11.6.2008. A VI:- COPY OF THE PLAINT OS 442/2008 OF SUB COURT IRINJALAKUDA. A VII:- COPY OF THE ORDER IN IA. 2300/2008 IN OS. 442/2008 DTD 31.7.08. A VIII:- COPY OF THE JUDGMENT IN CMA. 131/2008 DTD. 13.10.08 OF THE IST ADDL. DISTRICT JUDGE OF THRISSUR. AIX:- COPY OF THE MINUTES DTD. 6.12.2008 OF THE DIRECTOR BOARD MEETING. AX:- COPY OF THE JUDGMENT IN OS. 442/2008 DTD. 30.10.2010 OF SUB COURT, IRINJALAKUDA. AXI:- COPY OF THE APPEAL MEMORANDUM AS. 395/2010 BEFORE THE DISTRICT COURT, THRISSUR. AXII:- COPY OF THE IA 4093/2010 IN AS. 395/2010. A XIII:- COPY OF THE APPLICATION, IA NO.59/2011 DTD. 5.1.2011. A XIV:- COPY OF THE OBJECTION FILED IN IA. 59/2011 IN AS. 395/2010. XV:- COPY OF THE INCOME AND EXPENDITURE ACCOUNT OF THE PETITIONER SOCIETY FOR THE YEAR ENDING UP TO 31.3.2007 AND 31.3.2008. tss F.A.O. NO.64/2011 RESPONDENT'S ANNEXURES E1(a):- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT, DTD. 21.11.2008 RENDERED IN WP(C) 30820/2008. R1(b):- COPY OF THE CERTIFICATE ISSUED BY THE PRINCIPAL C.K.M., N.S.S. SENIOR SECONDARY SCHOOL CHALAKKUDY TO HARIKRISHNAN P.O., VIDE NO.CKM/NSS DT.D 12.3.2010. R1(c):- COPY OF THE FEE SCHEDULE FOR THE PERIOD 2007-08 AND 2008-2009, REFERRED TO IN THE COUNTER AFFIDAVIT. R1(d):- COPY OF THE CERTIFICATE ISSUED BY THE PRINCIPAL C.K.M. NSS SENIOR SECONDARY SCHOOL, CHALAKKUDY TO HARIKRISHNAN P.M., VIDE NO.CKM/NSS DTD. 14.3.2011. TRUE COPY P.S. TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 64 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of October, 2011. JUDGMENT Aggrieved by the order in I.A.4093 of 2010 in A.S.395 of 2010, respondents 1, 4 and 5 before the lower appellate court has come up in appeal. They were also the defendants in the suit. Parties and facts are hereinafter referred to as they were available before the trial court. 2. Chalakudy N.S.S. Educational, Cultural and Charitable Society registered under Act 12 of 1955 runs a CBSE Higher Secondary School in the name and style C.Karunakara Menon Memorial N.S.S. Senior Secondary School. It is claimed that it is a prestigious institution and the school is being conducted efficiently. The Society has a bye-law and the Board of Directors is to manage the affairs of the Society. As per the bye-law, F.A.O.64/2011. 2 there has to be a General Council of 51 members and 15 members as Board of Directors. In effect the Director Board is the competent authority with respect to all matters connected with the administration of the Society and the function of the Council is one of superintendence and advice. 3. The Director Board of the Society decided to increase the salary of teaching and non-teaching staff of the School. That caused a financial burden on the school administration. It became necessary to consider the enhancement of fees. As per the decision of the Board of Directors dated 21.5.2008 it was felt that the students who belong to the family of karayogam who are recommended by the respective Presidents will be given fee concession. It is also decided that the admission fee of students should be increased by 50% and salary of non-teaching staff should be increased by 15%. When it was found that the financial burden on the school was heavy, it became necessary to have an enhancement of fees from the students. For that F.A.O.64/2011. 3 purpose a meeting of the Director Board was held on 11.6.2008. It is pointed out that respondents 1, 5, 6, 8 and 9 in this proceedings opposed the increase of fees while six others agreed to the enhancement. Two members expressed their opinion that they would abide by the decision of the majority. Another two members had sent letters approving the enhancement. Therefore, noticing that the majority supports enhancement of fees, it was decided to increase the fees by 15%. On the basis of the decision on 11.6.2008, a new fee schedule was published and the enhanced fee was being collected from June, 2008 onwards. 4. It is seen that some persons had filed original petition before the District Court, Thrissur under Section 24 of Act 12 of 1955 for framing a scheme for administration and management of the school. Concealing the said fact, certain persons, namely, respondents herein filed O.S.442 of 2008 before the Sub Court, Irinjalakuda after obtaining leave F.A.O.64/2011. 4 under Section 92 of the Code of Civil Procedure for various reliefs. Appellants before this court are the defendants in the said suit. 5. In the suit, the main prayers are i) to direct defendants 2 to 5 to submit accounts for the period March, 2005, to March, 2008 for scrutiny. Another prayer was to restrain defendants 2 to 5 from implementing the proposal for enhancement of fees, which is contrary to the decision of the Director Board. Further prayer was to restrain defendants 2 to 5 from taking any steps for enhancement of fees except abide by the decision already taken in the meetings held on 21.5.2088 and 11.6.2008. 6. The plaintiffs in O.S.442 of 2008 had moved an interlocutory application as I.A.300 of 2008 seeking interim reliefs. After hearing both sides, the trial court held that the first defendant in the suit is a public trust, but at the same time the petitioners are not entitled to get an interim F.A.O.64/2011. 5 injunction restraining defendants 2 to 5 from collecting enhanced fees. 7. The aggrieved plaintiffs took up the matter in appeal as C.M.A.131 of 2008. The appellate court set aside the order of the trial court regarding the collection of fees and granted an interim injunction restraining the respondents from collecting more fees from the students than that has been increased as per the decision of the Board of Directors dated 21.5.2008 till the disposal of the suit. That was challenged before this court in W.P.(C) No.30820 of 2008. By judgment dated 21.11.2008 the writ petition was disposed of as follows: “Resultantly, this Writ Petition is disposed of in the following lines: (i) Finding entered by the courts below that petitioner is a public trust and the consequent grant of leave under Section 92 of the Code are set aside. F.A.O.64/2011. 6 (ii) This Writ Petition to the extent it concerned the grant of temporary injunction as per Ext.P6, judgment is dismissed.” 8. As disclosed from the records, it seems that there was a Director Board meeting held on 6.12.2008, wherein the issue regarding the enhancement of fees of the students again came up for consideration. The plaintiffs in the suit had also participated in the same. But they refrained from expressing their opinion as the suit was pending. The other members agreed to the proposal and took a decision to enhance the fees and accordingly that was implemented. That resulted in a petition under Order 39 Rule 2A being filed by the plaintiffs against the defendants in the trial court. The trial court after framing issues and after taking evidence disposed of the suit. Even though the petition under Order 39 Rule 2A of the Code of Civil Procedure is usually tried along with the suit, the F.A.O.64/2011. 7 procedure is to pass independent orders in the petition and in the suit. But instead the trial court passed a decree as follows: “In the result, suit is decreed partly with costs and D2 to 5 are to be detained in civil prison for a day for the wilful disobedience of Ext.A6 order.” 9. Both plaintiffs as well as defendants 2 to 5 filed appeals against the respective portions which went against them. The appeal filed by the plaintiffs was numbered as A.S. 395 of 2010. In the said appeal, they moved interlocutory application as I.A.4093 of 2010 for interim injunction restraining the defendants from collecting fees contrary to the decision taken in the Board meeting held on 21.5.2008 and 11.6.2008. It appears that an ex parte order of injunction was granted and thereafter the matter was heard. By order dated 29.1.2011 the ex parte interim order F.A.O.64/2011. 8 was made absolute. It is the said order that is assailed in this appeal. 10. Learned counsel appearing for the appellants submitted that the lower appellate court while discussing the issue that arose for consideration in I.A.4039 of 2010 has gone far beyond the scope of the suit and has created a case which none of the parties had. Learned counsel pointed out that the grievance of the plaintiffs in the suit was regarding the enhancement of fees by 15% relating to the students which according to the them was contrary to the decision taken on 21.5.2008. According to the plaintiffs there was no proper decision taken in the meeting held on 11.6.2008. They had no case that the Board of Directors had no authority to take a decision to enhance the fees. Learned counsel referred to a series of documents which would indicate that in the past the Board of Directors had taken decisions to enhance the fees. According to the learned counsel, it was nobody's case that the approval and F.A.O.64/2011. 9 concurrence of the General Council was necessary to implement the decision regarding the enhancement of fees. Nobody had a case that the enhancement of the fees is against the CBSE affiliation bye-laws. These matters were not agitated in the plaint and even the plaintiffs did not have such a case as would be clear from a reading of the plaint. Learned counsel fairly conceded that in all fairness when the decision was taken in the meeting held on 6.12.2008 to enhance the fees, in the light of the order passed in the interlocutory application in the suit, the matter should have been brought to the notice of the court and orders obtained. But however, according to learned counsel, the lower appellate court has taken into consideration totally irrelevant matters and which were not subject matter of dispute between the parties. Nowhere in the plaint or in the memorandum of appeal it is averred that the decision to enhance the fees can be implemented only with the approval and concurrence of the General Council and that F.A.O.64/2011. 10 the present decision is contrary to CBSE affiliation bye-laws. The only case was that the defendants in the suit were circumventing the orders of the courts passed at the interlocutory stage in the suit and that should not be permitted. The specific case put forward at the appellate stage was that the defendants should not be permitted to enhance the fees in pursuance to the decision said to have been taken in the meeting held on 11.6.2008. Learned counsel went on to point out that the reasons given by the lower appellate court to grant an order in favour of the respondents is clearly unsustainable in law. 11. Learned counsel appearing for the respondents on the other hand vehemently tried to support the order on the basis that there was an interim order restraining the defendants from enhancing the fees till the disposal of the suit, they ought not to have convened a meeting on 6.12.2008 and go ahead with the enhancement of the fees. It is also pointed out that the claim made by the F.A.O.64/2011. 11 defendants that heavy financial burden is caused on the school by the enhancement of the salary of the teaching and non-teaching staff is baseless. It is pointed out that certain statistics have been given which would show that the Society is gaining profit. Therefore there was no justification for increasing the fees. 12. After having heard counsel and after having gone through the paper book submitted by the appellants, it is felt that the order of the lower appellate court is clearly unsustainable. On going through the plaint, it can be seen that the grievance of the plaintiffs were two fold. i) that the accounts were not being properly maintained and ii) that the fees that is to be collected from the students shall not be enhanced to 15% contrary to the decision taken in the Director Board meeting held on 21.5.2008 and 11.6.2008. Nowhere in the plaint it is stated that the enhancement of fees, even if it is approved by the Director Board can be F.A.O.64/2011. 12 implemented only with the approval or sanction of the counsel or any other body. 13. The court below has referred to Ext.B3 which is the affiliation bye-law of the CBSE and holds that every school shall be controlled by the Society. Clause 21 says, according to the lower court, that the Society or Trust shall have control over the school managing committee and shall approve the tuition fee and annual charges etc., of the school. The court therefore goes on to hold that the Director Board cannot take any independent decision and it needs the approval of the higher authorities. At the risk of repetition, one may notice that the plaintiffs did not have such a case. It is true that in the interlocutory application filed before the lower appellate court, the appellants seems to have raised these issues for consideration. The court below ought to have seen that the plea so raised has no foundation in the plaint or in the issues raised by the court below. It is also significant to notice that the reasons now F.A.O.64/2011. 13 given to grant an interlocutory order in favour of the petitioners before the lower appellate court did not find a place in the appeal memorandum also. The interlocutory order has been passed on the basis of matters neither pleaded and regarding which the defendants in the suit had no occasion to reply. 14. The sole issue at the interlocutory stage before the lower appellate court was whether during the pendency of the appeal contrary to the decisions taken in the meetings held on 21.5.2008 and 11.6.2008 based on the decision said to have been taken on 6.12.2008 which is during the pendency of the suit, the Director Board could enhance the tuition fee of the students by 15%. The issue as to whether the procedure that has to be followed by the Society in running the school is in violation of the CBSE bye-laws or whether the Council envisaged under the bye-laws alone had the authority to approve and sanction the enhancement of fees were not matters in issue. F.A.O.64/2011. 14 15. The trial court had dismissed the suit on the ground that in the light of the fact a C.M.A. is pending before the District Court for framing a scheme, nothing remains to be considered in the suit. It was that decree that was challenged before the lower appellate court. 16. It is pointed out by the learned counsel for the appellantd that in pursuance to the decision taken on 12.6.2008 fee has been enhanced and enhanced fee has been collected. 17. Whether that is proper or not is not germane for consideration in this proceedings. Whatever that be, the order passed by the court below in I.A.4093 of 2010 is clearly unsustainable. Accordingly this appeal is allowed and the impugned order is set aside and the lower appellate court is directed to dispose of the appeal as expeditiously as possible and at any rate within a period of six months from the date of receipt of a copy of this judgment untramelled by F.A.O.64/2011. 15 any observation made by this court while disposing of this appeal. P. BHAVADASAN, JUDGE sb.