Kerala High Court
Shanmughan vs Hindumatha Anthyopachara Seva Sangham on 17 June, 2025
RSA No.352 of 2017 1 2025:KER:42281
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 17TH DAY OF JUNE 2025 / 27TH JYAISHTA, 1947
RSA NO. 352 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 25.02.2017 IN AS NO.51
OF 2014 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR ARISING OUT OF
THE JUDGMENT AND DECREE DATED 31.03.2014 IN OS NO.272 OF 2010 OF
MUNSIFF COURT, NORTH PARAVUR
APPELLANTS/RESPONDENTS/PLAINTIFFS:
1 SHANMUGHAN
AGED 69 YEARS, S/O.KANNU, PATHRAKADAVU VEETTIL,
VALIYAPALLAMTHURUTH KARA, PARAVUR VILLAGE.
2 APPUKUTTAN
AGED 70 YEARS, S/O.KUCHUNNI, OLIYATHU VEETTIL,
VALIYAPALLAMTHURUTH KARA, PARAVUR VILLAGE.
BY ADVS.
SMT.JEENA JOSEPH
SRI.G.D.PANICKER
RESPONDENTS/APPELLANTS/DEFENDANTS :
1 HINDUMATHA ANTHYOPACHARA SEVA SANGHAM
VALIYAPALLAMTHURUTH KARA, PARAVUR VILLAGE,
REPRESENTED BY ITS PRESENT PRESIDENT C.G.ANEESH,
AGED 37 YEARS, S/O.GOKULAM, CHUNKATH,
VALIYAPALLAMTHURUTHU, CHENDAMANGALAM P.O.,
NORTH PARAVUR, ERNAKULAM DISTRICT.
2 HINDUMATHA ANTHYAPPACHARA SEVA SANGHAM
VALIYAPALLAMTHURUTH KARA, PARAVUR VILLAGE,
REPRESENTED BY ITS PRESENT PRESIDENT, PRATHAPAN,
AGED 51 YEARS, S/O.KRISHNAPILLAI, THANDASSERY VEETTIL,
VALIYAPALLAMTHURUTH KARA, PARAVUR VILLAGE.
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3 HINDUMATHA ANTHYAPPACHARA SEVA SANGHAM
VALIYAPALLAMTHURUTH KARA, PARAVUR VILLAGE,
REPRESENTED BY ITS SECRETARY, JIJIKUMAR, AGED 46 YEARS,
S/O.DIVAKARAN, MAZHUVANCHERRY, VALIYAPALLAMTHURUTH
KARA, PARAVUR VILLAGE.
BY ADV SRI.BABU CHERUKARA
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
5.6.2025, THE COURT ON 17.06.2025 DELIVERED THE FOLLOWING:
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EASWARAN S., J.
--------------------------------
R.S.A. No.352 of 2017
------------------------------------------
Dated this the 17th day of June, 2025
JUDGMENT
The plaintiffs in O.S. No.272 of 2010 on the files of the Munsiff
Court, North Paravur filed for a declaration and for damages are
the appellants herein.
2. The brief facts necessary for disposal of the appeal are as
follows:
The 1st defendant is an institution functioning at
Valiyapallamthuruth since 1966, and the plaintiffs are its
permanent members. The 1st defendant/institution has around 300
members and its aim is to give financial assistance in connection
with the occurrence of death in the family of its members and other
social benefits. The deposit scheme, Chitty and other projects are
its income. There is a written by-law, and altogether forty two (42)
general body meetings were conducted. Its financial year is 1 st
April to 31st March and the statement of accounts, audit reports,
and budget will be discussed in the annual general body meeting.
In the 41st annual general body meeting held on 31.8.2008 presided
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over by one P.S. Sajeevan, the plaintiffs were elected as its
President and vice president respectively. Sri. Sajeevan was not
ready to hand over the charge to the new committee. Due to the
compulsion of the new committee members, the charge was
handed over and they took charge on 13.9.2008. During the tenure
of the administration of the defendants, they convened 19 meetings
and 144 decisions were taken and implemented. Due to the
financial stringency, the plaintiffs shortened the expenditure and
did the administration as per the bye laws. During the 42 nd annual
general body meeting on 13.9.2009 a notice was published in which
one Kacherippokkath Madhu's name was included in the list of
defaulters of loan. The said person filed a complaint before the
Judicial First Class Magistrate Court, North Paravur. One Santhosh
who was the clerk of the 1st defendant had misappropriated the
money and fabricated the statement of accounts and thereafter it
was found that the said Santhosh again executed an agreement on
15.4.2003 thereby acknowledging the liability and agreeing to pay
the amount. Due to various reasons, there occurred a scuffle in the
42nd general body meeting on 13.9.2009 and since the meeting
ended in turmoil, the plaintiffs resigned. But, certain members who
have been present constituted an enquiry commission and
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conducted an enquiry without inspecting the necessary documents.
Later, on the basis of the report, a general body meeting was held
on 27.9.2009 wherein the plaintiffs were disqualified for a period
of twelve (12) years. The decision, according to the plaintiffs, was
unlawful and irregular. Later, the plaint was amended by order
dated 7.4.2013 in I.A No.411 of 2012 wherein the decision of the
44th annual general body meeting held on 27.11.2011 was also
questioned. In the said meeting, it was decided that the plaintiffs
would be expelled from the primary membership of the 1 st
defendant for a period of fifteen (15) years. The defendant entered
appearance and contested the suit and contended that it is for the
general body to take a final decision as regards the continuance of
the plaintiffs. It was further contended that there were serious
allegations against the appellants and therefore they were
removed from the primary membership. The decision of the
general body was pursuant to a valid procedure and therefore
there is no violation of any of the rules of the bye-laws. On behalf
of the plaintiffs Exts.A1 to A16 were marked and Exts.B1 to B26
were marked on the side of the defendants. PW1 to PW3 were
examined on behalf of the plaintiff and DW1 and DW2 were
examined on behalf of the defendants. An advocate commissioner
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who was appointed for local inspection filed Ext.C1 report. On the
basis of the pleadings and evidence on record, the trial court
framed the following issues:
" 1) Whether plaintiffs are entitled to get a decree declaring
that the decision of general body meeting dated 27.9.2009
disqualifying plaintiffs from being elected to executive
committee to 1st defendant for a period of 12 years is void?
2) Whether plaintiffs are entitled to get a decree for
mandatory injunction as prayed for?
3) Whether plaintiffs are entitled to get a decree for
realization of Rs.35,000/- as damages from defendants?
4) What is the order as to interest?
5) Whether plaintiffs are entitled to get a decree declaring
that the decision of general body dated 27.11.2011
expelling plaintiffs from the primary membership of 1st
defendant for a period of 15 years is void?
6) Whether plaintiffs are entitled to get a decree declaring
that the decision of general body dated 27.11.2011 to
recover Rs.16,750/- from plaintiffs is void?
7) Whether plaintiffs are entitled to get a decree for
permanent prohibitory injunction as prayed for?
8) What is the order as to costs?"
3. The trial court, on consideration of the oral and
documentary evidence, came to the conclusion that the decision
of the general body on 27.11.2011 to expel the plaintiffs from the
primary membership is void and decreed the suit. It was also found
that disqualifying the plaintiffs from getting elected to the
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executive committee for a period of twelve (12) years from
27.9.2009 was also void. Aggrieved by the judgment and decree in
O.S. No.272 of 2010, the defendants preferred A.S. No.51 of 2014
before the Additional District Court, North Paravur. The first
appellate court, on consideration of the contentions of the
appellant, reversed the findings and found that the general body is
perfectly justified in initiating steps against the appellants, and
therefore, the trial court could not have decreed the suit, and
accordingly allowed the appeal. It is against the said finding that
the plaintiffs have approached this Court in the present appeal.
4. Heard Smt.Jeena Joseph, the learned counsel appearing
for the appellants and Smt. Babu Cherukara, the learned counsel
for the respondents.
5. While the appeal was admitted on 31.5.2017, this Court
framed the following questions of law.
"1. Has the General Body the power to go beyond the
provisions of the bye-law to expel a member permanently?
2. Has the General Body the power to expel a member
from the Society without complying with the principles of
natural justice?"
6. Smt. Jeena Joseph, the learned counsel for the appellants
would point out that since the decision of the 42 nd general body
meeting disqualifying the appellants from contesting the election
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was only for a period of twelve (12) years and that due to effluence
of time the said period has expired, no useful purpose would be
served on adjudicating the aforesaid issue. However, she submits
that inasmuch as the decision of the 44 th general body meeting is
concerned, the same still holds the field, especially since the
general body could not have decided to expel the plaintiff from the
primary membership for a period of 15 years. The said decision is
without any authority since, inasmuch as the provisions of the bye-
law are silent regarding the power of the general body to expel the
members from the primary membership. Viewed in the above
perspective, the findings of the trial court was perfectly correct,
and that the first appellate court erred in allowing the appeal by
reversing the judgment of the trial court.
7. Per contra, Sri. Babu Cherukara, the learned counsel for
the respondents would contend that the judgment of the first
appellate court does not suffer from any arbitrariness or infirmity.
The first appellate court had rightly appreciated the contentions of
the appellant and had found that the plaintiffs were not entitled to
the reliefs, and accordingly had come to the correct conclusion by
allowing the appeal. Therefore, no substantial questions of law
arise for consideration, and hence he prayed for dismissal of the
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appeal.
8. I have considered the rival submissions raised across the
Bar and have perused the judgments of the trial court as well as
the first appellate court and the records.
9. The question that falls for consideration is whether, the
general body has the power to go beyond the provisions of the by-
law to expel a member permanently. In order to appreciate the
aforesaid question which has been framed by this Court while
admitting the appeal, one needs to note the relevant provisions of
the bye-law. The entire text of the bye-law which has been
produced as Ext.A1 would show that there is no power vested with
the general body for expelling a member from the primary
membership. Of course, clause 13(1) of the by-law provides that
the general body would have the power to consider all such matters
which affect the functioning of the society that has been placed for
consideration before it. This necessarily requires an agenda to be
framed prior to the convening of the general body meeting.
10. It is trite law that, insofar as the meetings to be convened
in respect of an unregistered association, there should be a specific
set of by-laws governing the procedure prescribed for the
convening of such meetings. The general body of such associations
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would be the paramount body insofar as the functioning of such
associations is concerned. Though the above would be stated as a
general proposition of law, it cannot be taken as sacrosanct insofar
as each and every association is concerned. When the association
is governed by a particular set of rules and regulations in the form
of a bye-law, whether it is registered or unregistered, the
association has to adhere to the clauses in the by-law. In the
aforementioned facts, when the power of the association, namely
the 1st defendant, is tested, it can be clearly seen that the
association will have to frame a particular agenda to be placed
before the general body in order to arrive at a final decision.
11. The argument of the learned counsel for the 1 st defendant
is that the plaintiffs have acted against the interest of the
association. Even assuming so, the 1st defendant association ought
to have put the plaintiffs on specific notice as regards the
allegation. In the present case, the allegation against the plaintiffs
is in the form of a report of the subcommittee. It is admitted that ,
the report of the subcommittee was not given to the plaintiffs.
Further, the consequential action based on the decision of the
subcommittee was not the agenda before the convening of the 42 nd
general body meeting or the 44th general body meeting.
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12. Viewed in the above perspective, this Court cannot find
force in the contention of the learned counsel for the 1st defendant
that the general body has got every authority to decide on the
question of the continuation of the plaintiffs in the primary
membership of the society.
13. It is further contended that based on Ext.B14 minutes of
the general body, the decision to expel the plaintiffs was taken. I
have carefully perused Ext.B14, which is the minutes book. Ext.B14
is only a drawing of the minutes by the President and Secretary.
Ext.B14 does not reflect the unanimous decision of the members
inasmuch as none of the members, who were present in the so-
called meeting have affixed their signature. Therefore, the
irresistible conclusion is that Ext.B14 has been prepared solely to
defeat the rights of the plaintiffs. Still further, the manner in which
Ext.B14 minutes has been drawn up is required to be commended
by this Court. A perusal of Ext.B14 would show that the minutes of
the 44th general body has been drawn immediately after the 42 nd
general body meeting ended. Therefore, this Court has every
reason to disbelieve the contents of Ext.B14.
14. A reading of the judgment of the trial court would clearly
depict the manner in which the trial court had correctly
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approached the issue and considered the rival contentions raised
by the parties. Admittedly, no evidence was put on record to show
that before taking the decision, the plaintiffs were heard by the
general body. Therefore, the trial court correctly held that the
general body could not have expelled the plaintiffs from the
primary membership for a period of 15 years. Therefore, answering
the 1st question of law framed by this Court, it is held that the
general body has no power to go beyond the provisions of the bye
law to expel a member permanently.
15. As regards the second question as to whether the general
body has the power to expel a member from the society without
complying with the principles of natural justice, no further
elaboration on the subject is required. As stated above, the power
of the general body is enshrined under clause 13, which is
extracted as under:
13. പ ൊതുയ ൊഗവും അധികൊരൊവകൊശങ്ങളും
1) സുംഘത്തിപെ രമൊധികൊര സഭ പ ൊതുയ ൊഗും ആകുന്നു.
സുംഘത്തിപെ പ്രവർത്തനങ്ങപെ ആകമൊനും നി ന്ത്രിക്കുന്നതിനും
സുംഘപത്ത സുംബന്ധിക്കുന്ന ഏതു വിഷ ങ്ങെിലും തീരുമൊനങ്ങൾ
എടുക്കുന്നതിനും റദ്ദു പെയ്യുന്നതിനും മറ്റുമുള്ള പൂർണ്ണ അധികൊരും
പ ൊതുയ ൊഗത്തിന് ഉണ്ടൊ ിരിക്കുും. പ ൊതുയ ൊഗത്തിപെ
രമൊധികൊരപത്ത യെൊദ്യും പെയ്യുവൊൻ ൊപതൊരൊൾക്കുും
RSA No.352 of 2017 13 2025:KER:42281
അധികൊരമില്ലൊത്തതൊകുന്നു. ഈ നി മൊവലി ിപല മറ്റു വകുപ്പുകൾ
അനസരിച്ച് വയക്തികൾയകൊ ഭരണസമിതിയകൊ ലഭിയേകൊവന്ന എല്ലൊ
അധികൊരങ്ങളും അവകൊശങ്ങളും ഈ വകുപ്പിന് വിയധ മൊ ിരിക്കുും .
2. വൊർഷിക പ ൊതുയ ൊഗും വർഷത്തിൽ ഒരു പ്രൊവശയും
കൂയേണ്ടതൊകുന്നു. പ ൊതുയ ൊഗും കൂടുന്നതിനള്ള സ്ഥലവും സമ വും
തി തിയും കൊരയ രി ൊേിയും കൊണിച്ഛ് പ ൊതുയ ൊഗ തി തിക് 7
ദ്ിവസത്തിന മുൻ ് എല്ലൊ അുംഗങ്ങൾക്കുും യരഖൊമൂലും യനൊട്ടീസ്
പകൊടുത്തിരികണും.
3) സുംഘത്തിപെ പ്രവർത്തനപത്ത കൊരയമൊ ി ബൊധിക്കുന്ന എപെങ്കിലും
വിഷ പത്തക്കുറിച്ഛ് ആയലൊെിയകണ്ടതുണ്ട് എന്ന് ഭരണസമിതിക്
യതൊന്നുന്ന അവസരത്തിൽ അേി െിര പ ൊതുയ ൊഗും
വിെിച്ചയെർക്കുന്നതിന് പസക്രട്ടറി ചുമതലപപ്പട്ടിരിക്കുന്നു. ആ തിയലക്
ചുരുങ്ങി ത് 3 ദ്ിവസും മുമ്പ് എല്ലൊ അുംഗങ്ങൾക്കുും യനൊട്ടീസ്
പകൊടുത്തിരിയകണ്ടതൊകുന്നു . ഇകൊരയത്തിൽ പസക്രട്ടറി വല്ല ഉയ ക്ഷയും
കൊണിക്കുന്ന ക്ഷും പ്രസിഡെിന് യ ൊഗും വിെിച്ചയെർക്കുവൊൻ
അധികൊരും ഉണ്ടൊ ിരിക്കുന്നതൊണ് .
4) സുംഘത്തിപെ ഉയേശയങ്ങൾയകൊ സുംഘും വക സവത്തുകൾയകൊ
സുംഘത്തിപെ ആദ്ൊ ത്തിയനൊ നിലനില്പിയനൊ ഹൊനികരമൊ ി
പ്രവർത്തിക്കുകയ ൊ പ്രവർത്തിപ്പിക്കുകയ ൊ പെയ്തിട്ടുള്ളതൊ ഏപതൊരു
അുംഗയത്തയും അുംഗതവത്തിൽ നിന്നുും നീകും പെയ്യുന്നതിയനൊ
ഇവർപകതിപര എപെങ്കിലും നി മ നേ േികൾ സവീകരിക്കുന്നതിയനൊ
പ ൊതുയ ൊഗത്തിന് അധികൊരമുണ്ടൊ ിരിക്കുന്നതൊണ് .
5) സുംഘത്തിയെതൊ എല്ലൊ മീറ്ിുംഗുകളും വിെിച്ചയെർയകണ്ടതൊ
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ചുമതല പസക്രട്ടറിയയേതൊകുന്നു . ഏപതങ്കിലും സൊഹെരയത്തിൽ
പസക്രട്ടറി കമ്മിറ്ിയ ൊ പ ൊതുയ ൊഗയമൊ വിെിച്ചയെർകൊതിരിക്കുകയ ൊ
അതിന് വിസമ്മതിക്കുകയ ൊ പെ ്തൊൽ പ്രസിഡെിയനൊ ,
പ്രസിഡെിപെ അഭൊവത്തിൽ വവസ് പ്രസിഡെിയനൊ പ്രസിഡെ്
ചുമതലപപ്പടുത്തുന്ന ഏപതങ്കിലും കമ്മിറ്ി അുംഗത്തിയനൊ പ ൊതുയ ൊഗും
വിെിച്ചയെർക്കുവൊൻ അധികൊരും ഉണ്ടൊ ിരിക്കുന്നതൊണ് .
16. A reading of subclause 3 of section 13 would specifically
show that if any such act affects the administration of the
association, the executive committee can call for and convene an
extraordinary general body. Therefore, read with sub-clauses 1 and
3, the executive committee has every power to call for the meeting
of the general body. It is trite law that even if the general body has
the power to decide the questions affecting the administration of
the association, the same has to conform to the rigour of natural
justice. The principles of natural justice need no further
elaboration. It is now settled law that no person can be contemned
unheard. In the present case, it has come out in evidence that the
44th annual general body meeting held on 27.11.2011 had expelled
the petitioners without issuing a notice to them and calling for their
objections to the proposal. As stated above, even the drawing of
the minutes of the general body meeting on 27.11.2011 itself is
under a serious cloud. Read in cumulative with the entire facts, this
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Court is persuaded to hold that the judgment of the first appellate
court interfering with the well-reasoned judgment of the trial court
was clearly unwarranted and uncalled for. The First Appellate
Court did not appreciate the evidence of law in the correct
perspective. Thus the same requires to be interfered in the
exercise of the powers under Section 100 of the Code of Civil
Procedure.
Accordingly, this appeal is allowed by reversing the judgment
and decree in A.S. No.51 of 2014 on the files of the Additional
District Judge, North Paravur and restoring the judgment and
decree in O.S. No.272 of 2010 on the files of the Munsiff Court,
North Paravur. The appellants are also entitled to the costs of these
proceedings.
Sd/-
EASWARAN S.
JUDGE
NS
