IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.3.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.1765 and 1279 of 1998 A.Sarangan ... Appellant in S.A.No.1765 of 1998 ( Defendant No.1) A.Annadurai (since deceased) 1.Tmt.Thilagaathy 2.Selvi Amutha 3.Manoj Russel ... Appellants in S.A.No.1279 of 1998 (Appellants 2 to 4 1st Defendant) C.T.accepted vide order dated 20.8.1998 in C.M.P.No.11302 of 1998 vs. S.Vadivelu Mudaliar (Since deceased) 1.Nammalwarpet Co-op.Housing Society Ltd. 2.K.Doraikannu 3.M.Indrani 4.V.Narayanasamy 5.Corporation of Chennai, rep.by its Commissioner 6.M.M.D.A.rep.by its Secretary 7.Registrar, Co-op.Housing Society, Chennai-600 035 8.The Director, Town Planning 9.V.Mani 10.V.Sekar ... Respondents in S.A.No.1765 of 1998 (Respondents 1 to 9 Plaintiff Defendants 2 to 9) respondents 9 & 10 are the LRs of the deceased first respondent in A.S.No. 380 of 1988 C.T.accepted vide order dated 6.10.98 in C.M.P. No.13927 of 1998 S.Vadivelu Mudaliar (since deceased) https://hcservices.ecourts.gov.in/hcservices/ 1.V.Mani 2.V.Sekar 3.Nammalwarpet Co-op. Housing Society Ltd. 4.K.Doraikannu 5.M.Indrani 6.V.Narayanasamy 7.Corporation of Chennai, rep.by its Commissioner 8.M.M.D.A.rep.by its Secretary 9.Registrar, Co-op.Housing Society, Chennai-600 035 10.The Director, Town Planning .. Respondents in S.A.No.1279 of 1998 1st Respondents Plaintiff & Defendants 2 to 9) These second appeals are filed against the judgments and decrees dated 26.4.1991 and 26.1.1991 passed in A.S.Nos.380 and 381 of 1988 by the II Additional Judge, (VI Addl.Judge in-charge), City Civil Court, Chennai, confirming the judgement and decree dated 20.11.1986 passed in O.S.Nos.1276 and 1274 of 1983 by the XIV Asst.Judge, City Civil Court, Chennai. For Appellants : No Advocates appearance in both the Sides Mr.Sarangan-the appellant appeared in person in S.A.No.1765 of 1998 For Respondents : Mrs.Bhavani Subbarayan,Spl.G.P. For R7 and R8 in SA.1279 of 1998 For R5 & R6 in SA.1765 of 1998 COMMON JUDGMENT These second appeals are focussed by the original first defendant in the respective suits, animadverting upon the judgements and decrees dated 26.4.1991 and 26.1.1991 passed in A.S.Nos.380 and 381 of 1988 by the II Additional Judge, (VI Addl.Judge in-charge), City Civil Court, Chennai, confirming the judgements of the trial Court, namely, the XIV Asst.Judge, City Civil Court, Chennai, in O.S.Nos.1276 and 1274 of 1983, which were the suits filed for declaration and permanent injunction. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 2. Broadly but briefly, narratively but precisely, the relevant facts, which are absolutely necessary and germane for the disposal of these second appeals, could be portrayed thus in view of the fact that both the Courts below elaborately detailed and delineated the relevant facts in their respective judgements. (a) Vadivelu Mudaliar-the original plaintiff filed the two suits, namely, O.S.Nos.1276 and 1274 of 1983 so as to get declared the two sale deeds dated 8.12.1982, registered as Document Nos.1915 and 1916 of 1982, executed by defendants 2 to 5, on the direction of the 8th defendant, in favour of A.Sarangan and A.Annadurai and to grant permanent injunction restraining the first defendant from putting up any construction on the suit land described in the schedule given to the plaint and from causing any obstruction, hindrance or interruption on the suit land for free passage and usage as a public street and reading room as demarcated and set apart in the Sanctioned Layout LPH 15/62. (b) The defendants entered appearance and filed their written statements, raising the law point that the civil Court had got no jurisdiction to entertain the suit in view of the Co-operative Societies Act 1961(Act 53 of 1996) (hereinafter referred to as the 'Act' in short), apart from raising various other points. The lower Court decreed both the suits. Being aggrieved by the same, the appeals were filed by the first defendants in the respective suits for nothing but to be dismissed by the appellate Court, confirming the judgements and decrees of the lower Court. Being disconcerted and aggrieved by the judgements of both the Courts below, these second appeals are focussed on various grounds. 3. At the time of admitting the second appeal, namely, S.A.No.1765 of 1998, my learned predecessor framed the following substantial questions of law: "1. Whether the lower appellate Court was right in deciding that the civil Court has jurisdiction to entertain the suit and to go into the affairs of the co-operative Society in view of Section 73 of the Tamil Nadu Co- operative Societies Act? 2. Whether the lower appellate Court is right in deciding that the suit is maintainable, whereas Section 91 C.P.C.is not complied with? 3.Whether the plaintiff who has nothing to do with the co-operative Society has locus-standi to question the affairs of the co-operative Society?" https://hcservices.ecourts.gov.in/hcservices/ 4. In S.A.No.1279 of 1998, my learned predecessor, apart from having framed the above substantial questions of law as framed in S.A.No.1765 of 1998, additionally framed the following substantial question of law also: "Whether a Co-operative Society has a right to change the character of the plots earmarked for some common purpose when the said common purposes ceased to exist and pass resolutions to deal with them differently?" 5. At the hearing Mr.Sarangan-the appellant in S.A.1765 of 1998 appeared and argued the matter and Mrs.Bhavani Subbarayan, the learned Special Government Pleader appeared and argued the matters on behalf of respondents 7 and 8 in S.A.No.1279 of 1998 and respondents 5 & 6 in S.A.No.1765g of 1998. Whereas, others remained absent, despite printing their names in the cause list. 6. Substantial question of Law (i) in both the appeals: A plain poring over and perusal of the relevant records would unambiguously and unequivocally, unassailably and indubitably highlight and spotlight the fact that the original plaintiff Vadivelu Mudaliar claims to have purchased a plot bearing No.2, Reddy Colony, Ramalingapuram, Madras-12 from one Sabapathi Mudaliar, who was a member of Nammalwarpet Co-operative Housing Society Ltd; which earlier sold the said plot bearing No.2 in favour of Sabapathi Mudaliar. Wherefore, it is crystal clear that Vadivelu Mudaliar filed the suit mainly based on the fact that he stepped into the shoes of Sabapathi Mudaliar, who was the member of the Co-operative Society. The grievance of the original plaintiff was that along with the sale deed, executed by the Co-operative Society in favour of Sabapathi Mudaliar and similar such members of the Society, a detailed layout plan was found enclosed, which contemplated the area provided for recreation and other purposes, namely, play ground, Library and such like; on the contrary, throwing to winds all those stipulations, contemplating amenities to the members of the Society, who purchased the plot from the Co-operative Society, the said Society converted those areas earmarked for public purposes and amenities into plots and sold the same to the first defendants in the suits. Accordingly, he focussed the suits as against the defendants. 7. The crucial point which arises for adjudication under substantial question of law (i) is as to whether the suit as framed and filed before the civil Court is tenable in view of Section 73 of the Tamil Nadu Co-operative Societies Act, 1961. 8. The lower Court at paragraph 40 of its judgement, in a most unsatisfactory manner, simply observed as though the prayer in the https://hcservices.ecourts.gov.in/hcservices/ suit is not against the Registrar of Co-operative Society and hence, the suit was maintainable. Instead of deciding the relevant issues concerning civil Court's jurisdiction, in view of the embargo as contained under Section 73 of the Act, the lower Court simply dilly- dallied and shilly-shallied with the issue and decided without au fait with law and au courant with facts involved in those suits, warranting interference by this Court. 9. The appellate Court's approach concerning the said issue is in no way better than the lower Court for the reason that it simply remarked as though the lower Court decided the relevant issue relating to Section 73 of the Act based on precedents. 10. A plain reading of the order of the lower Court would reveal and evince that the precedents relied on by the lower Court are all relating to path way disputes as well as disputes relating to an individual and Municipality and there is nothing to indicate that any precedent applicable to Section 73 of the Act was relied on by the lower Court. Hence, both the Courts below committed serious error of law in not deciding this legal issue in proper perspective. It is therefore just and necessary to extract here under Section 73 of the said Act. "73. (1) If any dispute touching the constitution of the committee or the management or the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society) arises- (a) among members, past members and persons claiming through members, past members and deceased members, or (b) between a member, past member or person claiming through a member, past member or deceased member and society, its committee or any officer, agent or servant of the society, or (c) between the society or its committee and any past committee, any officer, agent or servant, or any past officer, past agent or past servant, or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased servant of the society, or (d) between the society and any other registered society, such dispute shall be referred to the Registrar for decision. https://hcservices.ecourts.gov.in/hcservices/ Explanation – For the purposes of this section, a dispute shall include- (i) a claim by a registered society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member whether such debt or demand be admitted or not, and (ii) a claim by a registered society against a member, past member or the nominee, heir or legal representative of a deceased member for the delivery of possession to the society of land or other immovable property resumed by it for breach of the conditions of assignment or allotment of such land or other immovable property." 11. A bare perusal of the said Section would highlight and spotlight the fact that if there is any dispute between the member or a person claiming under a member and the Co-operative Society concerned, such a dispute should be referred to the Registrar for decision. In this connection, the second appellant cited the decision of this Court rendered by me earlier reported in 2008-4- L.W.251 – 1.M.M.V.ALAGAPPAN 2.M.M.V.BNARAYANAN VS. 1.KARAIKUDI CO- OPERATIVE HOUSING BUILDING SOCIETY LTD., REP.BY ITS SPECIAL OFFICER, KARAIKUDI, 2.B.AZHAKUSUNDARAM, REP.BY HIS POWER OF ATTORNEY AGENT B.GOVINDARAJAN. Certain excerpts from it would run thus:- "13. During the pendency of the second appeal, it so happened that in compliance with the direction of the first appellate Court, the plaintiffs got the matter processed under Section 90 of the Tamil Nadu Co-operative Societies Act and it appears, the authority concerned decided the matter in favour of the plaintiffs holding that the cancellation of the sale deed effected by the first respondent, the Co-operative Society, was illegal and as such, recognised the right of the plaintiffs' vendor C.T.Azhagia Sundaram. 18. The point for consideration in this writ petition is as to whether the writ would lie in the wake of effective remedy of filing appeal before the Tribunal is contemplated under the Act. 38. The learned counsel for the writ petitioner would submit that since the writ petition is being dismissed on the ground that without exhausting the remedy available under Section 152 of the Act, by approaching the Tribunal, the writ petitioner may be given liberty to approach the Tribunal excluding the time taken for prosecuting this writ petition. https://hcservices.ecourts.gov.in/hcservices/ 39. I am of the considered view that such a submission could be acceded to an accordingly, the writ petitioner is at liberty to approach the Tribunal excluding the time taken for prosecuting this writ petition. However, in the event of any appeal filed before the Tribunal, the Tribunal has to see to it that it is disposing of the same within a period of two months from the date of filing of the appeal." In my considered opinion the said decision cited supra is squarely applicable to the facts and circumstances of this case. 12. To the risk of repetition, without being tautologous, I would like to point out that the entire cause of action rests on the following averments in the plaint filed by Vadivelu Mudaliar. "6. The plaintiff states that Nammalwarpet Co- operative House Site Society Ltd., No.X404 (regd) has covenanted with all its Members in all the registered Sale Deeds made in favour of its members including the plaintiff's Vendor K.N.Sabapathy Mudaliar that they convey, grant and sell, transfer and assign the aid property marked specifically in the sanctioned Layout Plan together with all trees, Common ways, water courses, lights, sewers, rights, liabilities, privileges and easements in anywise appertaining thereto or be appurtenant thereto and all the Estate, Right, Title and Interest in the said land and property and further covenanted inter alia that the purchaser shall and may at all times hereafter quietly and peaceably possess and enjoy the said property without any let or hindrance or interruption, claim or demand from or by the vendors or any person or persons claiming under or in trust for them."(emphasis supplied) 13. Pellucidly and palpably, plainly and as clear as day, the plaintiff claimed right only under the sale deed executed by the Co- operative Society in favour of his vendor Sabapathy Mudaliar, who in turn executed the sale deed in favour of the plaintiff. It is the specific contention of Vadivelu Mudaliar that the Co-opeative Society violated its terms and conditions of sale and it is therefore clear that such a dispute is covered under Section 73 of the Act and the only remedy open for him was to approach the forum contemplated under the Co-operative Societies Act. As such, this substantial question of law is answered in favour of the second appellant and both the Courts below committed serious error of law in adjudging the issue. On that point itself the judgements and decrees of both the Courts below should be set aside and both the suits should be dismissed. https://hcservices.ecourts.gov.in/hcservices/ Substantial Question of Law (ii): 14. In view of my discussion supra it is clear that Section 91 of C.P.C.cannot be pressed into service at all. Section 91 of C.P.C.is extracted here under for ready reference: "Sec.91 Public nuisances – (1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted" Here mere converting of certain areas earmarked for amenities by the Co-operrative Society cannot be termed as nuisance and absolutely there is nothing in the evidence also to highlight the same. In such a case the attempt to press into service Section 91 of C.P.C., in my considered opinion, is not tenable. Substantial Question of Law (iii): 15. In view of my discussion under substantial question of law (i), it is apparent and incontrovertible that Vadivelu Mudaliar, being the purchaser of the property from Sabapathy Mudaliar, was entitled to invoke Section 73 of the Act. The contention on the side of the defendants that Sabapathy Mudaliar did not have had right to alienate the plot allotted to him is de hors the issue and if at all the Co-operative Society had any right to cancel such allotment in favour of Sabapathy Mudaliar, consequent upon such transfer in favour of the plaintiff, it was for the Co-operative Society to initiate action. As such in view of Section 73 of the Act, as interpreted supra, Vadivelu Mudaliar has got the right to raise the dispute also. Substantial Question of Law (iv) in S.A.No.1279 of 1998: 16. In view of my discussion supra it is clear that this substantial question of law would not arise because the civil Court had no right at all to decide the factual issues and in such a case this Court, while exercising its power as a second appellate Court cannot delve deep into those factual aspects and render judgement thereon. 17. In the result, the judgements and decrees of both the Courts below are set aside by allowing these second appeals and consequently, both the suits are dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ Msk To 1.The II Additional Judge, (VI Addl.Judge in-charge), City Civil Court, Chennai 2. The XIV Asst.Judge, City Civil Court, Chennai 3. The Registrar,City Civil Court, Chennai. 4. The Section Officer, V.R.Section, High Court, Chennai. + 1 CC to Government Pleader,SR.7580 + 3 CC to Mr.A.Kothandaraman,Advocate,SR.7658 S.A.Nos.1765 and 1279 of 1998 BV(CO) EM/23.3.09 https://hcservices.ecourts.gov.in/hcservices/