IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 22002 of 2010(O) -------------------------- OS.2/2008 of DISTRICT COURT,KOLLAM .................... PETITIONER(S): --------------- 1. SREE SUBRAHMANYA VILASAM KARAYOGAM, A SOCIETY REGISTERED UNDER TRAVANCORE COCHIN LITERARY SCIENTIFIC AND CHARITABLE SOCIETIES ACT WITH NO.104 HAVING ITS OFFICE AT CHERIYAZHEEKKAL, ALAPPAD, REPRESENTED BY ITS SECRETARY, KRISHANADAS, POOMKAVIL, ADINADU SOUTH, KATTIKADAVU.P.O, KARUNAGAPPALLY. 2. CHITHAMBARAM, PRESIDENT, SREE SUBRAHMANYA VILASAM KARAYOGAM NO.104, PANAYARA VEEDU, ALAPPADU MURI, ALUMKADAVU.P.O, KARUNAGAPPALLY. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT(S): --------------- 1. D.DEVADAS, HARI BHAVAN, ADINADU SOUTH, KATTIKADAVU, KULASEKHARAPURAM, KARUNAGAPPALLY 690518. 2. SUBRAHMANIYAN, KIZHAKKE VEEDU, ALAPPADU, CHERIYAZHEEKKAL.P.O, KARUNAGAPPALLY 690518. 3. RAVI, PULIMUGHAM, CHERIYAZHEEKKAL.P.O., KARUNAGAPPALLY 690 518. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.22002 of 2010 -------------------------------------- Dated this the 14th day of July, 2010. JUDGMENT Exts.P4 and P5, orders are under challenge at the instance of petitioners who are defendants in O.S.No.2 of 2008 of the court of learned District Judge, Kollam. That is a suit filed by respondents for settlement of a scheme for the society referred to therein. Petitioners/defendants even without filing written statement challenged maintainability of the suit on the ground that petitioners are shown to be branches of a larger society and hence suit against branches will not lie. Learned District Judge considered that contention and found that petitioner No.3/defendant No.3 is described in the plaint as a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act (for short, “the Act”) and that petitioners have not produced any document to show that petitioners are only branches of a larger society. Accordingly, that contention of petitioners was dispelled as per Ext.P4, order. Vide Ext.P5, respondents were permitted to sue in a representative capacity and to make necessary publication under Order I Rule 8(2) of the Code of Civil Procedure (for short, “the Code”). Hence this Writ Petition. Learned counsel for petitioners contend that apart from the point already urged before learned District Judge, the suit is not maintainable also for the reason that Section 25 of the Act has not been complied in that a minimum of 10% of members of the WP(C) No.22002/2010 2 society ought to have joined the suit as plaintiffs. Learned counsel has placed reliance on the decision of this Court in Abhaya v. Raheem ( 2005 (3) KLT 891). 2. It is seen that learned District Judge passed the impugned order on 15.07.2009 and the written statement was filed only on 30.07.2009. It is also to be noted that Ext.P4, dated 15.07.2009 is challenged in a Writ Petition filed on 13.07.2010. According to the learned counsel, delay is referable to Ext.P5, order on an application for leave for permission to sue in a representative capacity under Order I Rule 8(2) of the Code. But that is not a ground to delay challenging Ext.P4, order dated 15.07.2009. I have gone through Ext.P4, the order under challenge and on the point referred to therein ie., the contention that petitioners being branches of a larger society the suit is not maintainable I do not find reason to differ from the finding entered by the learned District Judge. 3. So far the contention based on Section 25 of the Act is concerned it is seen from Ext.P4, order that no such contention was urged or decided by the learned District Judge, either way. Hence it is not necessary for this Court to go into that contention at this stage. If any such contention is urged by petitioners in their written statement it is open to them to raise that contention before the learned District Judge at the appropriate stage. WP(C) No.22002/2010 3 4. So far as Ext.P5, order is concerned that has only granted permission to the respondents to sue in a representative capacity and effect necessary publication under Order I Rule 8(2) of the Code. On the facts and circumstances of the case, that order does not suffer any illegality requiring interference by this Court. Resultantly with the observation made above regarding right of petitioners to challenge maintainability of the suit on grounds other than decided by learned District Judge as per Ext.P4, order at the appropriate stage as provided under law, this Writ Petition is closed. THOMAS P.JOSEPH, Judge. cks