IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 RSA.No. 1166 of 2008() ---------------------- AS.6/2002 of ADDL.SUB COURT, THALASSERY OS.206/1996 of MUNSIF COURT, KUTHUPARAMBA .................... APPELLANTS/RESPONDENTS 2 TO 10/DEFENDANTS 2 TO 10: ----------------------------------------------------------- 1. K.K.RAJEEVAN, S/O.GOPALAN, AGED 40 YEARS, PAZHASSI AMSOM, KAYANI DESOM. 2. C.K.DHARMARAJAN, S/O.GOVINDAN NAMBIAR, AGED 44 YEARS, PAZHASSI AMSOM, KAYANI DESOM. 3. K.P.SATHYAN, S/O.CHATHUKUTTY PANIKKER, AGED 43 YEARS, PAZHASSI AMSOM, KAYANI DESOM. 4. V.MADHUSOODHANAN, S/O.KUMARAN, AGED 47 YEARS, PAZHASSI AMSOM, KAYANI DESOM. 5. K.MOHANAN, S/O.KUNHUNDAN, AGED 42 YEARS, PAZHASSI AMSOM, KAYANI DESOM. 6. V.MANOHARAN, S/O.KUMARAN, AGED 44 YEARS, PAZHASSI AMSOM, KAYANI DESOM. 7. C.PADMANABHAN, S/O.PADMANABHAN NAMBIAR, AGED 42 YEARS, PAZHASSI AMSOM, KAYANI DESOM. 8. C.GANGADHARAN, S/O.GOVINDAN, AGED 47 YEARS, PAZHASSI AMSOM, KAYANI DESOM. 9. K.RAMESHAN, S/O.BALAN, AGED 39 YEARS, PAZHASSI AMSOM, KAYANI DESOM. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENTS/ APPELLANT AND R1/PLAINTIFF AND FIRST DEFENDANT: -------------------------------------------------------------- 1. T.V.GANGADHARAN NAMBIAR, S/O.SANKARAN NAMBIAR, AGED 74 YEARS, PENSIONER, PAZHASSI AMSOM, AND KAYANI DESOM, P.O.KAYANI, THALASSERI TALUK. 2. THE SECRETARY, JNANODAYAM VAYANASALA, PAZHASSI AMSOM, KAYANI DESOM, P.O.KAYANI, THALASSERI TALUK. ADV. SMT.PRABHA R.MENON FOR R1 SRI.M.KRISHNAKUMAR FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1166 of 2008 --------------------------------------- Dated this 09th day of March, 2010 JUDGMENT Admit. The following substantial questions of law are framed for a decision: (i) What is the consequence of failure of the plaintiff to carryout amendment in the plaint inspite of amendment of the cause title by the office consequent to impleadment of supplemental defendants 9.? Is the plaintiff who omitted or refused to carryout the amendment entitled to get decree against the supplemental defendants against whom no averment is made in the pleadings? (ii)Is it legal to grant a decree against members of a Society registered under Societies Registration Act, 1860, for the rent or damages for use and occupation of a building by the Society? (iii)Is it not necessary to plead and establish user of the plaint schedule building by supplemental defendants 2 to 10 for their personal purposes to obtain a decree against them personally? Is not the decree against supplemental defendant Nos.2 to 10 illegal for want of pleadings and evidence in that regard? R.S.A.No.1166 of 2008 2 (iv)Whether the liability of the 1st defendant society can be treated as a personal liability of supplemental defendants 2 to 10 who are impleaded being members of the society? 2. The second appeal arises at the instance of appellants/supplemental defendant Nos.2 to 10 who, as the learned counsel of appellants would put it are made liable for payment of damages for alleged unlawful use and occupation of a building occupied by the Society, by an amendment of the judgment and decree of the first appellate court. Respondent No.1/plaintiff instituted suit in the court of learned Munsiff, Kuthuparamba (O.S.No.206 of 1996) alleging that the building referred to in plaint B schedule and situated in plaint A schedule property belonged to him and the same was given to respondent No.2/original defendant on a licence arrangement. Later, respondent No.1 revoked that licence and sued respondent No.2 for eviction with recovery of damages for unlawful use and occupation of the building after revocation of the licence. Respondent No.2/original defendant resisted the suit contending that neither plaint A nor B schedule belonged to respondent No.1 and that the building was constructed utilizing funds of Jnanodayam Vayanasala, Pazhassi (for short, 'the Society' of which respondent No.2 is the Secretary). Prayer for recovery of damages was also resisted by respondent No.2. While the suit was pending respondent No.1/plaintiff R.S.A.No.1166 of 2008 3 filed I.A.No.2473 of 1997 to make the suit as one under Order 1 Rule 8 of the Code of Civil Procedure (for short, 'the Code') by making appropriate publication in that regard. That application was allowed. That was followed by I.A.No.3243 of 1998 for amendment of the plaint whereby paragraph 5A was incorporated making it clear that respondent No.1 has sought relief against respondent No.2 (Secretary of the Society) representing all members of that Society. Then came I.A.Nos.2075 and 2076 of 2000 for impleadment of appellants/supplemental defendant Nos.2 to 10, said to be members of the executive committee of the Society and consequential amendment of the plaint. The request in I.A.No.2076 of 2000 was to incorporate paragraph 5B in the plaint to state that since appellants/supplemental defendant Nos.2 to 10 are members of the Society in case they resisted the reliefs prayed for in the suit the same may be granted against them as well. The applications were allowed as per order dated 04-12-2000. Consequent to that, office of the trial court carried out impleadment of appellants in the cause title of the plaint as supplemental defendant Nos.2 to 10 but for some reason or other, respondent No.1 did not carry out amendment in the body of plaint as requested for and allowed as per order on I.A.No.2076 of 2000. Consequent to the impleadment of appellants as additional defendant Nos.2 to 10, summons were issued to them, appellant No.7/defendant No.8 contested the suit (answering the plaint as it stood without R.S.A.No.1166 of 2008 4 incorporating the amendment prayed for and allowed in I.A.No.2076 of 2000) raising the very same contentions raised by respondent No.2/original defendant. Trial court negatived the contention of appellant No.7/defendant No.8 and respondent No.2/original defendant as to title over the building (plaint B schedule) and gave a decree for eviction of respondent No.2/original defendant from that building. No decree for recovery of damages was granted. No relief was also granted against appellants/supplemental defendant Nos.2 to 10. As both sides were aggrieved, respondent No.1 took up the matter in appeal as A.S.No.6 of 2002 against dismissal of the suit for recovery of damages while respondent No.2 and the appellants filed A.S.No.13 of 2002 against the decree for eviction. As it happened A.S.No.13 of 2002 was dismissed for default and thus decree for eviction became final. A.S.No.6 of 2002 was allowed on 05-07-2003 and respondent No.1/plaintiff was allowed to recover damages at the rate of Rs.20/- per day from “respondent/defendant” for unauthorised use and occupation of the building. Satisfied with that decree respondent No.1 launched proceeding in execution and sought to proceed against appellant No.7/defendant No.8 for recovery of damages. He resisted execution on the ground that there is no decree passed against him for recovery of damages. Accepting that contention executing court dismissed the execution petition. Thereafter respondent No.1 filed I.A.No.3017 of 2005 in A.S.No.6 of 2002 (in the first appellate court ) for correction of R.S.A.No.1166 of 2008 5 judgment and decree in A.S.No.6 of 2002 since according to respondent No.1 there was a clerical error in the judgment and decree in that as against the expression “respondents/defendants” the expression “respondent/defendant” was used. That application was allowed by the first appellate court by a non speaking order, “allowed”according to the learned counsel for appellants without even serving notice of the application on the appellants. Appellants challenged that order in this court in C.R.P.No.750 of 2006 and by order dated 11-01-2007 the order under challenge was set aside and that application was remitted to the first appellate court to be disposed of on merit. Thereafter after hearing both sides first appellate court allowed the application correcting the expression “respondent/defendant” in the operative portion of its judgment and decree as “respondents/defendants”. Appellants challenged that order in this court in C.R.P.No.812 of 2007 but that revision petition was closed permitting appellants to take up all their contentions regarding legality and correctness of the impugned order in this second appeal which had by then been preferred by the appellants challenging the amended judgment and decree of the first appellate court. That is how the second appeal is now before me. It is contended by learned counsel for appellants that first appellate court was not correct legally or factually in allowing I.A.No.3017 of 2005 it did not involve any clerical error as contended by respondent No.1/plaintiff and instead, it R.S.A.No.1166 of 2008 6 was a case where there was no averments in the plaint to make appellants liable for payment of damages. It is also contended by learned counsel that in so far as I.A.No.2076 of 2000 filed by respondent No.1 in the trial court for amendment of the plaint to incorporate paragraph 5B as per which appellants were attempted to be roped in having been allowed and the amendment having not been carried out by respondent No.1/plaintiff within the time (two weeks) granted by the trial court, it was not permissible for the first appellate court to allow I.A.No.3017 of 2005. Learned counsel has placed reliance on the decision in Gomathi Amma Vs. Meenakshi Amma (1994(1) KLT 315). Further argument is that at any rate, going by section 8 of the Societies Registration Act (for short, 'the Act'), the court could not have amended the judgment and decree making appellants personally liable to pay damages for the Society using the building even after revocation of the license. It is argued that judgment and decree of the first appellate court (as amended) to the extent it concerned appellants are not sustainable under law and hence is liable to be set aside. In response, it is contended by learned counsel for respondent No.1/plaintiff that it was within the power of the first appellate court, notwithstanding that the amendment was allowed by the trial court as per order on I.A.No.2076 of 2000 and that amendment was not carried out within the time specified, to allow amendment when first appellate court was satisfied that the R.S.A.No.1166 of 2008 7 expression “respondent/defendant” appearing in its judgment and decree was only a clerical error. According to the learned counsel what was in the mind of the first appellate court while disposing of A.S.No.6 of 2002 was to make appellants/supplemental defendant Nos.2 to 10 who were also respondents in A.S.No.6 of 2002 to make liable for payment of the damages for use and occupation of the building. In that situation, it is argued by learned counsel that there is no reason to interfere with the judgment and decree of the first appellate court. 3. In the plaint as originally presented, it is not disputed, relief was sought for and the averments were also directed against respondent No.2/original defendant. It is consequent to allowing I.A.No.2075 of 2004 for impleadment of appellants that respondent No.1 wanted the plaint to be amended as prayed for in I.A.No.2076 of 2000 to incorporate paragraph 5B in the plaint to make the appellants also liable for payment of damages. Indisputably the amendment as prayed for and allowed in I.A.No.2076 of 2000, was not carried out withing the time specified under Order VI Rule 18 of the Code when the amendment is not carried out within the time specified or when no time is specified within 14 days of the order, amendment shall not be carried out unless the time is extended by this court. Interpreting that provision this court said in Gomathi Amma's case (supra) that in such situation appellate court cannot extent time to carry out R.S.A.No.1166 of 2008 8 amendment ordered by the trial court. But that does not take away power of first appellate court to allow amendment (prayed for in the trial court, allowed but not carried out) if applied for, as appellate court possesses the same power as the trial court to allow amendment of pleadings. But in this case what happened is that instead of seeking amendment of plaint when the appeal was pending in the first appellate court, respondent No.1 sought amendment of operative portion of the judgment and decree first appellate court disposing of A.S.No.6 of 2002 holding “respondent/defendant” liable for payment of damages. That amendment could only be made under section 152 of the Code. In the first appellate court there was no amendment of plaint sought for or allowed. Hence the plaint averments stood as it was originally filed (against respondent No.2 alone). Hence the plaint answered by appellant No.7/defendant No.8 in his written statement consequent to impleadment of appellants as per order on I.A.No.2075 of 2000 was in answer to the plaint as originally stood and not to the plaint incorporating amendment as requested for and allowed in I.A.No.2076 of 2000. It is contended by learned counsel for appellants that even in I.A.No.2076 of 2000, there was no relief sought for personally against the appellants. Whatever that may be, the amendment sought for, be it against the appellants personally or in their official capacity as members of the Society was not carried out and concededly no issue also was framed as to the liability of R.S.A.No.1166 of 2008 9 appellants, personally or officially. It is in the above circumstances that trial court refused to grant relief against the appellants. When A.S.No.6 of 2002 was disposed of by the first appellate court relief was granted only against “respondent/defendant” which suited the averments and relief sought for in the plaint (which was only against respondent No.2/original defendant). There was no possibility of the first appellate court holding appellants also liable for payment of damages by its judgment and decree in A.S.No.6 of 2002. In that situation the first appellate court could not have amended its judgment and decree to hold appellants also liable for payment of damages. It could not be said that the expression “respondent/defendant” which appeared in the judgment and decree of the first appellate court in A.S.No.6 of 2002 was a clerical error, slip or omission against the expression “respondents/defendants”. I am inclined to think that first appellate court was not legally correct in allowing I.A.No.3017 of 2005 and correcting its judgment and decree to make the expression “respondent/defendant” read as “respondents/defendants”, the result of which is that appellants are made liable for payment of damages. In the circumstances, order allowing I.A.No.3017 of 2005 cannot be sustained, is liable to be set aside and I do so. 4. Once that is done judgment and decree as it stands is only against respondent No.2/original defendant. Now the next question is whether appellants could have been made liable for payment of R.S.A.No.1166 of 2008 10 damages for alleged unauthorised use and occupation of the premises. Reliance is placed by learned counsel for appellant on section 8 of the Act. I think, it is not necessary for me in this second appeal to decide that issue since the question regarding liability of appellants had not been considered by the trial court on the strength of amendment sought for and allowed in I.A.No.2076 of 2000. The question whether section 8 of the Act relied on by learned counsel for appellants created a total bar against initiating suit against the appellants or, it only related to enforcement of the decree that may be obtained against them is a matter which the trial court has to decide at the appropriate stage. Therefore the issue regarding liability of the appellants and whether as prayed for by respondent No.1 in I.A.No.2076 of 2000 a decree could be granted against the appellants is left open for consideration by the trial court. The substantial questions of law framed above are answered accordingly. 5. In the light of my finding on substantial question No.1 framed above judgment and decree of the courts below to the extent it concerned the appellants cannot stand and are liable to be set aside. Resultantly, the second appeal succeeds. Judgment and decree of the courts below to the extent it concerned appellants/supplemental defendant Nos.2 to 10 are set aside and the case to the extent it concerned the appellants is remitted to the trial court for fresh decision. It will be open, if so advised and law provides so, for R.S.A.No.1166 of 2008 11 respondent No.1/plaintiff either to seek fresh amendment of the plaint as regards alleged liability of appellants or seek extension of time to carry out amendment already allowed as per order on I.A.No.2076 of 2000. I make it clear that in case respondent No.1 choses to file fresh application for amendment of the plaint (if it is permissible under law) to incorporate averments/reliefs against the appellants it will be open to the appellants to resist such application on all grounds available to them including limitation if any. Parties shall appear in the trial court on 05-04-2010. Registry shall send the records of the case to the trial court forthwith. No cost. THOMAS P JOSEPH, JUDGE Sbna/