IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 RSA.No. 715 of 2011() --------------------- AS.171/2007 of III ADDL. DISTRICT COURT, KOLLAM OS.109/2003 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/PLAINTIFF --------------------------------------- C. LATHIKA, D/O. JANU, HEAD MISTRESS & MANAGER, GURUJYOTHI MODEL SCHOOL, NEDUNGOLAM.P.O., KOLLAM, RESIDING AT SAROJ GANGA, NEDUNGOLAM, MEENADU CHERRY, PARAVOOR VILLAGE, KOLLAM TALUK. BY ADV. SRI.G.BHAGAVAT SINGH RESPONDENT(S): DEFENDANTS & 2ND PLAINTIFF ----------------------------------------- 1. CHATHANNOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, CHATHANNOOR.P.O., KOLLAM. 2. THE SECRETARY, CHATHANNOOR GRAMA PANCHAYAT, CHATHANNOOR.P.O., KOLLAM. 3. S. SADASIVAN, S/O. SANKARAN, FARMER, RESIDING AT SANDHYA NIVAS, OZHUKUPARA HARIJAN COLONY, CHIRAKKARA VILLAGE, KOLLAM TALUK. BY ADV NISHIL FOR R3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.715 of 2011 ............................................ DATED THIS THE 27th DAY OF OCTOBER, 2011 JUDGMENT First plaintiff in O.S.109 of 2003 on the file of Principal Sub Court, Kollam is the appellant. Respondents 1 and 2 are defendants 1 and 2 and third respondent, the second plaintiff. Suit was instituted by the two plaintiffs, appellant claiming to be the Headmistress and Manager of Gurujyothi Model School and third respondent contending that he is the representative of the parents of students belonging to Scheduled Caste and Scheduled Tribe admitted in the school during the academic year 1999- 2000. Suit was instituted seeking a decree for declaration that the school of the plaintiffs is entitled to continue the scheme for Scheduled Caste and Scheduled Tribe students providing better nursery and primary education till the defendants legally take a decision to stop the scheme after obtaining appropriate sanction from the Government. The case of plaintiffs was that the Gurujyothi Model School was functioning under the control of the appellant and the school was elected by the Government for RSA 715/2011 2 implementing better nursery and primary education scheme and the scheme was formerly implemented by the State from 1995 onwards. Later it was handed over to local bodies from the academic year 1999-2000. Scheduled Caste and Scheduled Tribe Department based on government decision and District Development Officer issued a circular to all local bodies including the first respondent directing him to implement the scheme with effect from the academic year 1999-2000 and to provide adequate funds in the budget for effecting implementation. It was contended that respondents 1 and 2 did not take steps to implement the scheme. Appellant as Manager of the school filed a representation before the second respondent for granting sanction stating that number of students are admitted to various classes on the assurance to bear the whole expenses by the management for effective implementation of the scheme. They were also informed that except with the sanction, the scheme cannot be continued. It was contended that as per the decision of the first respondent, second respondent Secretary issued sanction. Accordingly school authorities admitted 26 students in various classes. As per the directions of respondents 1 and 2, the RSA 715/2011 3 sub committee for education visited the school thrice and were satisfied about the proper implementation. It is contended that the managing committee of the first respondent has taken a decision to disburse the project amount in three instalments. Second respondent delayed the payment. Third respondent filed O.P.11006 of 2000 before this court to quash the resolution of the panchayat and for a direction to the panchayat to issue the balance of Rs.26000/- immediately. The writ petition was disposed directing the panchayat to consider Exts.P4 and P5 stated in the petition. Thereafter, the members of the panchayat visited the house of the students studying in the school, under the scheme and threatened them against continuing studies in the school. Despite the direction of the High Court, respondents 1 and 2 have not taken decision to disburse Rs.26000/-. It is in such circumstances, the suit was instituted. 2. Respondents 1 and 2 resisted the suit contending that the plaintiffs are not authorised to institute the suit and therefore the suit is not maintainable. It was contended that management of the school is vested with Sree Narayana Charitable and Educational Society and one Mr.Gangadharan is its President and RSA 715/2011 4 as the society was not impleaded, a decree cannot be granted as sought for. It was also contended that third respondent is not a representative of the parents of the students of the school and though O.P.18468 of 2001, O.P.7690 of 2001 and O.P.11006 of 2000 were filed before the High Court, plaintiffs are not entitled to the decree sought for. 3. Learned Sub Judge on the evidence dismissed the suit holding that plaintiffs are not competent to institute the suit as the suit is not by the society but by the Headmistress claiming to be the Manager. On merits, first plaintiff challenged the decree and judgment before District Court, Kollam in A.S.171 of 2007. Learned Additional District Judge on re-appreciation of the evidence confirmed the findings of learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that courts below did not consider Ext.A22 Memorandum of Association, which establishes that Secretary is the manager of the school and appellant was the third signatory to the Memorandum of Association and subsequently, she was elected as the Secretary of the Association RSA 715/2011 5 in 2000 and in such circumstances, though it was not specifically pleaded in the plaint, the suit was instituted by the Secretary itself for and on behalf of the society. Learned counsel argued that I.A.2943 of 2005 was filed before the learned Sub Judge to correct the cause title, showing appellant representing the society and learned Sub Judge was not justified in dismissing the application. Learned counsel also argued that in any case, as the suit was not instituted by the appellant for her own benefit but for the welfare and benefit of the school, dismissal of the suit is not sustainable. Learned counsel also submitted that an application is filed in the second appeal to amend the plaint making it clear that appellant is the Secretary competent to institute the suit representing the society and in such circumstances, appeal is to be admitted. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The suit was instituted by two plaintiffs, appellant being the first plaintiff described herself as the Manager and Headmistress of the school. The third respondent, the second plaintiff, was described as the representative of the parents of the Scheduled Caste and RSA 715/2011 6 Scheduled Tribe students. Defendants specifically contended that management of the school vests with the Sree Narayana Charitable and Educational Society with registration No.2583/94 and therefore the suit instituted by the Manager and Headmistress of the school is not sustainable. Fact that management of the school vests with the Sree Narayana Charitable and Educational Society is admitted. By filing I.A.2943 of 2005, appellant admitted that suit is in fact not by the Manager and Headmistress, but the Headmistress and the Manager representing the society. When the management of the school vests with Sree Narayana Charitable and Educational Society, the suit could only be instituted by the society. Though an application to amend the cause title to show that appellant is representing the society was filed before the trial court, the plaint does not show contain any averment either that appellant is the Secretary of the society or that the suit is instituted for and on behalf of the society or as the Manager of the school, appellant is competent to represent the society. In such circumstances, courts below rightly found that the suit is not maintainable. When the suit itself is not maintainable and in spite of the RSA 715/2011 7 objection taken to the maintainability of the suit in the written statement contending that the suit could be instituted only by the society, plaintiffs did not take steps before the trial court to implead the society or to clarify that the suit is instituted by the society through appellant, dismissal of the suit as not maintainable is perfectly correct. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk