IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 WP(C).No. 2753 of 2010(O) ------------------------- AGAINST THE ORDER DATED 11/12/2009 IN IA 1880/09 IN OS.150/2009 of SUB COURT,NEYYATTINKARA .................... PETITIONER: --------------- G.RAJARETNAM, RESIDING AT GRACE BUILDINGS, DOOR NO.25, 2ND FLOOR, M.C.NICHOLAS ROAD, CHEPPAT, CHENNAI. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENTS: --------------- 1. MARY MATHA EDUCATION SOCIETY, REG.NO.T-284/1997, REPRESENTED BY LAZAR NADAR WILSON, PALIYODE, DALUMUGHOM P.O., NEYYATTINKARA. 2. R.MURUKAN, MARY MATHA EDUCATION SOCIETY, RESIDING AT RAJCOT, THYCAUD, THIRUVANANTHAPURAM. ADV. R1I.A.RAJASIMHAN FOR R1 SRI.R.S.KALKURA FOR R1,2 SRI.M.S.KALESH FOR R1,2 SRI.HARISH GOPINATH FOR R1,2 SRI.V.VINAY MENON FOR R1,2 SMT.KVP.JAYALEKSHMY FOR R1,2 SRI.M.AJAY (IRUMPANAM) FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2011, ALONG WITH WPC NO. 3742 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2753 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE I.A.NO.1880/2009 FILED BY the SECOND RESPONDENT DTD 28.10.2009 EXT.P2 : COPY OF THE OBJECTION FILED BY THE PETITIONER DTD 09.11.2009 EXT.P3 : COPY OF THE ORDER IN I.A.NO.1880/2009 IN O.S.No.150/2009 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF NEYYATTINKARA DTD 11.12.2009 RESPONDENT'S EXHIBITS: EXT.R2(a) : COPY OF THE REGISTRATION CERTIFICATE OF MARY MATHA EDUCATION SOCIETY. EXT.R2(b) COPY OF the AGREEMENT DTD 05.02.2008 ENTERED INTO BETWEEN THE 2ND RESPONDENT AND THE THEN GOVERNING BODY MEMBERS OF the SOCIETY. EXT.R2(c) TRUE COPY OF the LETTER DTD 09.09.2008 ISSUED BY THE SOCIETY TO THE REGISTRAR OF SOCIETIES EXT.R2(d) TRUE COPY OF THE RESOLUTION ADOPTED BY THE GOVERNING BODY OF THE PETITIONER ON 05.06.2008 EXT.R2(e) TRUE COPY OF THE RESOLUTION ADOPTED BY THE GENERAL BODY OF THE PETITIONER ON 05.06.2008 EXT.R2(f) TRUE COPY OF THE RESOLUTION DTD.16.05.2009 OF THE GOVERNING BODY OF the SOCIETY EXT.R2(g) TRUE COPY OF THE ORDER IN I.A.NO.3141/2008 IN O.S.NO.485/2009 DTD 30.09.2009 OF the SUB COURT, NEYYATTINKARA EXT.R2(h) TRUE COPY OF the ORDER IN I.A.NO.760/2009 IN O.S.NO.101/2009 DTD.28.08.2009 OF the SUB COURT, NEYYATTINKARA EXT.R2(i) TRUE COPY OF THE JUDGMENT IN FAO 298/2009 DTD 13.11.2009 OF this HONOURABLE COURT EXT.R2(j) TRUE COPY OF the ORDER DTD 29.01.2010 IN SLA(CIVIL) NO.2201/2010 BEFORE the HONOURABLE SUPREME COURT OF INDIA EXT.R2(k) TRUE COPY OF THE LETTER DTD 03.10.2008 ISSUED BY THE PETITIONER TO THE 2ND RESPONDET EXT.R2(l) TRUE COPY OF the BOND DTD 09.05.2008 EXECUTED BY the 1ST RESPONDENT IN FAVOUR OF PETITIONER. //TRUE COPY// P.A. TO JUDGE THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).Nos.2753 and 3742 of 2010 --------------------------------------- Dated this 20th day of October, 2011 JUDGMENT Plaintiff in W.P(C).No.2753 of 2010 on the strength of Ext.R2(l) filed O.S.No.150 of 2009 in the Court of learned Sub Judge, Neyyattinkara for recovery of `.1,10,00,000/- with interest arraying M/s.Mary Matha Education Society, a society registered under the Travancore-Cochin Literary, Scientific & Charitable Societies Registration Act, 1955 (for short, "the Act”) as the sole defendant and mentioning in the plaint that the said society is to be represented by Lazar Nadar Wilson, its Chairman. It appears that the first respondent/defendant filed a statement in the trial court conceding the claim of plaintiff. At that stage the second respondent in W.P(C).No.2753 of 2010 claiming to be the Chairman of the first respondent, society filed I.A.No.1880 of 2009 seeking permission of the Court to represent the first respondent. That application was objected by petitioner (plaintiff) in W.P(C).No.2753 of 2010. Rejecting that objection the application was allowed by Ext.P3, order dated 11.12.2009. The said order is under challenge in W.P(C).No.2753 of 2010. Defendant in the suit, again represented by Lazar Nadar Wilson W.P(C).Nos.2753 and 3742 of 2010 -: 2 :- claiming to be its Chairman challenges the said order in W.P(C). No.3742 of 2010. 2. The parties are referred to as petitioner and respondents as in W.P(C).No.2753 of 2010 for convenience. 3. Learned Senior Advocate appearing for petitioner has attacked Ext.P3, order on three grounds – that the second respondent could not have on the face of the allegation petitioner has made in the plaint come on record as Chairman of the first respondent/defendant, that in I.A.No.1880 of 2009 the second respondent has not impleaded Lazar Nadar Wilson as a party so that, he did not get opportunity to contest the claim of the second respondent as Chairman of the first respondent/defendant and that at any rate, what the learned Sub Judge has relied on to pass Ext.P3, order is an interlocutory order on I.A.No.760 of 2009 in O.S.No.101 of 2009 which is not conclusive or binding even between the second respondent and Lazar Nadar Wilson. It is therefore contended that for the said reasons Ext.P3, order is liable to be set aside. Learned Senior Advocate also submitted that petitioner being the master of the suit, wants a decree only against the first respondent/defendant represented by Lazar Nadar Wilson as its chairman and that whatever defect the W.P(C).Nos.2753 and 3742 of 2010 -: 3 :- decree may have, petitioner is prepared and willing to face it in the course of the execution proceeding. 4. Learned counsel for the second respondent would contend that petitioner has no locus standi to contend that second respondent is not the Chairman of the first respondent in view of Ext.R2(k). According to the learned counsel, it is conceded by petitioner in the said letter that it is the second respondent who is the Chairman of the first respondent. Learned counsel pointed out that petitioner is none other than the father- in-law of the son of Lazar Nadar Wilson and that Ext.R2(l) itself is a result of concoction. The attempt of petitioner and Lazar Nadar Wilson is to make unlawful gain by getting a decree against the first respondent not represented by its real Chairman. It is submitted by learned counsel that during the pendency of the suit, properties of the first respondent was placed under attachment. It is further submitted by the learned counsel that the order on I.A.No.760 of 2009 in O.S.No.101 of 2009 relied on by the learned Munsiff to pass Ext.P3, order was confirmed by this Court in F.A.O.No.298 of 2009 against which the Supreme Court refused to interfere in the special leave petition (Ext.(R2 (i)). It is contended that after disposal of the special leave W.P(C).Nos.2753 and 3742 of 2010 -: 4 :- petition, Lazar Nadar Wilson tried his hand by seeking a review of the judgment in F.A.O.No.298 of 2009 and failed. 5. Learned counsel for the first respondent/defendant represented by Lazar Nadar Wilson supplemented the arguments of learned Senior Advocate and contended that Lazar Nadar Wilson was not given opportunity to contest I.A.No.1880 of 2009 though a copy of that application was given to the said Lazar Nadar Wilson . 6. It appears from I.A.No.1880 of 2009 that the said application was filed under Sec.10 of the Act which deals with abatement of suits of the category mentioned in the said Act. That provision only states that no suit or proceeding by or against a society in any civil court shall abate or discontinue by reason of the person by or, against whom such suit or proceedings shall have been brought or continued dying or ceasing to fill the character in the name whereof he shall have sued or been sued but the same suit or proceedings shall be continued in the name of or against the successors of such person. But, I am not very much concerned by the label given to the application. 7. In the present case there is a contest between the second respondent and Lazar Nadar Wilson as to who is the W.P(C).Nos.2753 and 3742 of 2010 -: 5 :- Chairman of the first respondent/defendant entitled to represent it. I am not very much impressed by the argument advanced by learned Senior Advocate that notwithstanding the claim made by the second respondent as Chairman of first respondent, having learned about pendency of the suit for recovery of a huge amount from the first respondent, he should have sat back and allowed the first respondent to suffer a decree and then try to resist execution of the decree against the first respondent in execution. I am inclined to think that if the second respondent was the Chairman of first respondent and not Lazar Nadar Wilson, it was within his right and nay, the responsibility to inform the Court that he is the person competent, entitled and authorised to represent first respondent and seek permission of the Court to defend the suit on behalf of the first respondent. If Lazar Nadar Wilson were not the Chairman, he could not represent the first respondent and petitioner could not walk off with a decree against the first respondent represented by a person not entitled, authorised and competent to do so and ask the person really entitled, authorised and competent to meet the decree in execution. I am also not inclined to think that in such situation the trial court is helpless in the matter of bringing the person W.P(C).Nos.2753 and 3742 of 2010 -: 6 :- entitled, authorised and competent to represent the first respondent on record to represent the first respondent. 8. But, the question is, who among Lazar Nadar Wilson or the second respondent is entitled to represent the second respondent. I do not forget that the second respondent is relying on Ext.R2(k), copy of a letter dated 03.10.2008 said to be addressed by the petitioner to the second respondent where, reference is made to the agreement dated 05.06.2008 (said to be) executed between the second respondent and the members of the first respondent. It is also stated in the said letter that the second respondent is admitted as a member and also made the Chairman of the first respondent because he has given an undertaking in the agreement dated 05.06.2008. 9. Ext.R2(k) prima facie, may bind the petitioner but not Lazar Nadar Wilson who still claims to be the Chairman of the first respondent. 10. Though several documents are produced by the second respondent in W.P(C).No.2753 of 2010 to buttress his claim as Chairman of the first respondent, those documents were not produced before the learned Sub Judge and pressed into service. On the other hand Ext.P3, order shows that the only W.P(C).Nos.2753 and 3742 of 2010 -: 7 :- document placed before the learned Sub Judge is the certified copy of order on I.A.No.760 of 2009 in O.S.No.101 of 2009. No doubt, that order was confirmed by this Court in F.A.O.No.298 of 2009 and Supreme Court refused to interfere in the special leave petition as seen from Ext.R2(i). But the said suit remains to be disposed of. The second respondent could have produced his other evidence also before the learned Sub Judge. 11. It is also relevant to note that though a copy of I.A.No.1880 of 2009 is given to Lazar Nadar Wilson, he is not made a party in that application. He must get an opportunity to meet the claim of the second respondent. In the light of what I have stated above, I am inclined to think that Ext.P3, order has to go and I.A.No.1880 of 2009 has to be remitted to the learned Sub Judge for fresh decision. It will be open to the second respondent to implead Lazar Nadar Wilson also as a party in I.A.No.1880 of 2009. Both sides could adduce their evidence in the matter so that the trial court could pass appropriate order on I.A.No.1880 of 2009 as to who should represent the first respondent/defendant. In the light of the above discussion, these writ petitions are allowed and Ext.P3, order is set aside. I.A.No.1880 of 2009 is W.P(C).Nos.2753 and 3742 of 2010 -: 8 :- remitted to the trial court for fresh decision. The second respondent shall implead Lazar Nadar Wilson also as a party to I.A.No.1880 of 2009. Parties will get opportunity to produce their evidence in support of the claim as to who should represent the first respondent as its Chairman. Based on such evidence trial court shall decide the question. Learned Sub Judge shall expedite his proceeding since the suit is of the year 2009, the claim made is for a sum of more than Rupees One Crore and properties of the first respondent are placed under attachment. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-