IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).No. 4720 of 2010(O) ------------------------- MISCELLANEOUS OP.3/2009 of MUNSIFF COURT, VAIKOM .................... PETITIONER(S): --------------- 1. AUGUSTINE, S/O.VARKEY, AKKAMATTATHIL, MARANGOLI.P.O, MARANGOLI KARA, NJEEZHOOR VILLAGE, VAIKOM THALUK. 2. MARANGOLI GRAMA VIKASANA SAMITHY, MARANGOLI.P.O, NJEEZHOOR VILLAGE, REPRESENTED BY SECRETARY, AUGUSTINE, S/O.VARKEY, AKKAMATTATHIL, MARANGOLI.P.O, MARANGOLI KARA, NJEEZHOOR VILLAGE, VAIKOM THALUK.(IMPLEADED AS ADDL.5TH DEFENDANT HENCE IT MADE AS A PARTY). BY ADV. SRI.MANUEL KACHIRAMATTAM SMT.MERRY GEORGE SRI.K.C.THOMAS (PALA) RESPONDENT(S): --------------- 1. RAGHAVAN, AGED 57 YEARS, S/O.NARAYANAN, MANIMALAKUNNEL(H), MARANGOLI.P.O, MARANGOLI KARA, NJEEZHOOR VILLAGE, VAIKOM THALUK. 2. SCARIA MATHEW, S/O.MATHEW, KUTHIRAVELIL (H), MARANGOLI KARA, NJEEZHOOR VILLAGE, VAIKOM THALUK. 3. JOSE, S/O.JOSEPH, MAMPALLY (H), ELANJI.P.O, ALAPURAM KARA, ELANJI VILLAGE. 4. JEEMON, S/O.SIMEN, PUTHUSSERRIL (H), MONIPPALLY.P.O, MONIPPILLY KARA, MONIPPILLY VILLAGE. WP(C) NO.4720/2010 2 5. JINU AUGUSTINE, S/O.AUGUSTINE, VENGATHANATHU (H), THIRUMARADY.P.O, THIRUVAMARADY VILLAGE. ADV. SRI.PETER ISAAC FOR R1-2 SRI.ABEESH JOSE FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.4720/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF MISCELLANEOUS O.P. NO.3/2009 IN THE COURT OF MUNSIFF, VAIKOM EXT.P2 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST PETITIONER IN MISCELLANEOUS O.P. NO.3/2009 IN THE COURT OF MUNSIFF, VAIKOM EXT.P3 TRUE PHOTOCOPY OF THE ORDER DATED 30.10.2009 IN MISCELLANEOUS O.P.NO.3/2009 PASSED BY MUNSIFF COURT, VAIKOM EXT.P4 TRUE PHOTOCOPY OF THE PLAINT IN OS NO.225/2009 ON THE FILES OF MUNSIFF COURT, VAIKOM EXT.P5 TRUE PHOTOCOPY OF THE AMENDED BYE LAW OF THE 2ND PETITIONER SOCIETY EXT.P6 TRUE PHOTOCOPY OF THE ELEVANT PAGES OF THE MINUTES OF THE SOCIETY DATED 9.10.2003, 24.12.2007 AND 7.1.2008 EXT.P7 TRUE PHOTOCOPY OF THE AMENDED BYE LAW OF THE 2ND PETITIONER SOCIETY DATED 9.5.2008 EXT.P8 TRUE PHOTOCOPY OF THE FINAL REPORT IN FIR NO.81/08 OF KADUTHURITHY POLICE STATION. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE RESOLUTION ALONG WITH MEMORANDUM OF ASSOCIATION AND BYE LAWS DATED 2.4.1993 EXT.R1(b) TRUE COPY OF THE WITNESS LIST DATED 1.2.2010 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.4720 of 2010 -------------------------------------- Dated this the 19th day of May, 2010. JUDGMENT Respondent Nos.1 and 2/plaintiffs claimed that they being residents of Njeezhoor Village are members and beneficiaries of petitioner No.2, a samithy registered in the year 1983. According to them, in the year 1984 the samithy purchased 25 cents of land for its purposes but the society has been defunct since one year after purchase of the said property. According to respondent Nos.1 and 2, in the year 2008 they approached petitioner No.1 who was the secretary of the samithy (petitioner No.2) during 1998 for starting an anganwadi in the said 25 cents and learnt that the said property has been assigned to respondent Nos.3 and 4 in the years 2003 and 2008, respectively by petitioner No.1. According to respondent Nos.1 and 2, the assignment is illegal and unauthorised and does not bind petitioner No.2, the samithy. Accordingly they filed Miscellaneous O.P.No.3 of 2009 in the court of learned Munsiff, Vaikom for cancellation of the assignment deeds in favour of respondent Nos.3 and 4 and other reliefs. A petition was filed under Section 91 of the Code of Civil Procedure (for short, “the Code”) seeking leave of the court to institute the suit. Learned Munsiff granted leave after hearing the parties. That is under challenge in this Writ Petition. According to the learned counsel for petitioners (Defendant No.1 and additional defendant No.5), respondent Nos.1 and 2 have no locus standi to institute the suit since they are not members of the society. WP(C) No.4720/2010 2 Petitioners denied the allegation that the assignment of property of the samithy was illegal and unauthorised. According to them, the secretary was authorised by general body of the samithy to dispose of the property. Learned counsel for respondent Nos.1 and 2 submitted that the prayer in this Writ Petition cannot be entertained in view of the averments in the plaint. 2. Now, what is required to be considered is the averments in the plaint (Ext.P4). According to respondent Nos.1 and 2, they are members ad beneficiaries of the samithy. If that be so acquisition by the samithy (petitioner No.2) is for the benefit of its members. If there is any unauthorised assignment of property belonging to the samithy it is well within the power of its members to assail such assignment ofcourse on behalf of the samithy (petitioner No.2). Though initially the samithy (petitioner No.2) was not made a party to the suit it has now been impleaded as additional defendant No.5. Even otherwise respondent Nos.1 and 2 in their capacity as members and beneficiaries of petitioner No.2, samithy (as they claim) have a direct interest in the matter and hence, even without the leave of court under Section 91 of the Code they are entitled to file a suit. The contention urged by petitioners as to the authority of WP(C) No.4720/2010 3 petitioner No.1 to sell the property of samithy (petitioner No.2) is not a matter required to be considered in this proceeding. That is a matter which the trial court has to consider. I do not find any merit in this Writ Petition. This Writ Petition is accordingly dismissed. THOMAS P.JOSEPH, Judge. cks