Madras High Court
J.M. Imran Khan vs G.R.Apparaj on 5 January, 2021
O.S.A Nos. 291 ad 292 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2021
CORAM :
THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN
AND
THE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALU
O.S.A. Nos. 291 and 292 of 2020
O.S.A. No. 291 of 2020:-
J.M. Imran Khan ... Appellant
-vs-
1. G.R.Apparaj,
President,
Chintadripet Fish & Perishable Products Traders Society,
No. 24, Arunachala Naicken Street,
Chintadripet,
Chennai - 600 002.
2. C.R.Kasthuri
3. Sarayou Basanth
4. B.Saaru Rupa
5. B.Hema Rupa ... Respondents
PRAYER:- Original Side Appeal filed under Order XXXVI Rule 2 of the
Original Side Rules read with Clause 15 of the Letters Patent, praying to set
aside the order dated 25.11.2019 made in A. No. 4630 of 2019 in C.S. No. 374
of 2017.
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O.S.A Nos. 291 ad 292 of 2020
O.S.A. No. 292 of 2020:-
J.M. Imran Khan ... Appellant
-vs-
1. G.R.Apparaj,
President,
Chintadripet Fish & Perishable Products Traders Society,
No. 24, Arunachala Naicken Street,
Chintadripet,
Chennai - 600 002.
2. N.Rajasekaran
3. B.Ganapathi
4. M.Mohammed Ali
5. P.Ramadoss
6. M.Shanmugam
7. G.R.Apparaj
8. M.C.Sekar
9. D.Jayachandran
10. K.Basker
11. S.Harikrishnan
12. M.C.Ravi
13. S.Anbarasan
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O.S.A Nos. 291 ad 292 of 2020
14. S.Balaji
15. K.M.Abdul Salam
16. K.R.Kalaimani
17. S.Kartick
18. D.Y.Mohammed Saliah
19. J.T.Jalal
20. M.C.Baskar
21. C.R.Kasthuri
22. Sarayou Bsanth
23. B.Saaru Rupa
24. B.Hema Rupa ... Respondents
PRAYER:- Original Side Appeal filed under Order XXXVI Rule 2 of the
Original Side Rules read with Clause 15 of the Letters Patent, praying to set
aside the order dated 21.11.2019 made in A. No. 4631 of 2019 in C.S. No. 374
of 2017.
For Appellant : Mr. S.R. Raghunanthan
for Mr. P.S.Amalraj (in both O.S.A.s)
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O.S.A Nos. 291 ad 292 of 2020
COMMON JUDGMENT
(Judgment of the Court was delivered by P.D. AUDIKESAVALU, J.,)
(through video conference)
The intra-court appeals in O.S.A. Nos. 291 and 292 of 2020 arise out of
the orders dated 25.11.2019 in Application Nos. 4630 and 4631 of 2017
respectively in C.S. No. 374 of 2017 passed by the Learned Judge on the
Original Side of this Court.
2. The parties are hereinafter referred to as per their description in C.S.
No. 374 of 2017 for the sake of clarity and convenience.
3. We have heard Mr. S.R.Raghunanthan, Learned Counsel appearing for
the Fifth Defendant and perused the materials placed on record, apart from the
pleadings of the parties.
4. The members of Chintadripet Fish and Perishable Products Traders
Society (hereinafter referred to as the 'Association' for short), which has been
registered under the Tamil Nadu Societies Registration Act, 1975, claim to be
in possession and enjoyment of the property measuring around 1880 square
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O.S.A Nos. 291 ad 292 of 2020
meters comprised in Survey No. 735/47 situated at Arunachala Naicken Street,
Chintadripet, Chennai - 600002, which originally belonged to one
C.R.B.Ramesh Babu. According to the Association, an agreement dated
06.05.1990 had been entered by it with the said C.R.B.Ramesh Babu in respect
of the manner in which the said property should be maintained and enjoyed. It
had been provided in clause 16 of the said agreement as follows:-
"in the event of the owners selling or attempting to further lease
out the property, the first right to purchase the same is given to
the Society"
The question of buying that property did not arise during the lifetime of the said
C.R.B.Ramesh Babu because he did not attempt to sell the same and the
individual members of the Association were paying rents to him. After the
death of the said C.R.B.Ramesh Babu and his son, viz., C.R.Basanth Babu, the
said property devolved upon C.R.Kasthuri (wife of C.R.B.Ramesh Babu),
Sarayou Basanth (wife of C.R.Basanth Babu) and B.Saaru Rupa and B.Hema
Rupa (daughters of C.R.Basanth Babu). On coming to know that the said
persons had executed an agreement with one J.M.Imran Khan for sale of an
extent of 3.87 grounds of the said property, the Association, viz., 'Chinthadripet
Fish and Perishable Products Traders Society, represented by its President', had
on 02.05.2017 instituted the suit in C.S. No. 374 of 2017 on the original side of
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O.S.A Nos. 291 ad 292 of 2020
this Court against the said persons, who have been arrayed as the First to
Fourth Defendants, for specifically enforcing clause 16 of the agreement dated
06.05.1990 by directing them to execute sale-deed in respect of that property in
favour of the Plaintiff and for permanent injunction restraining them or any
persons claiming through them from in any manner alienating or encumbering
the property to any third party or disturbing the peaceful possession and
enjoyment of the property by the Plaintiff and its members. Shortly thereafter,
the First to Fourth Defendants had executed a sale-deed dated 03.05.2017 in
favour of the said J.M.Imran Khan, which has been registered as Document No.
1235 of 2017 on the file of the Office of the Sub-Registrar, Periamet at
Chennai. The said J.M.Imran Khan was impleaded as the Fifth Defendant by
order dated 12.06.2017 in Application No. 3046 of 2017 passed in that suit.
The Fifth Defendant resisted that suit by filing Written Statement dated
16.07.2018 and also by way of application to reject the plaint in Application
No. 7144 of 2017 by contending that the suit filed by the Association was not
maintainable and the nature of rights sought to be enforced in that suit were not
for the Association but for its members who were not parties thereto. At that
stage, the application in Application No. 4630 of 2019 had been made to amend
the cause-title relating to the description of the Plaintiff as follows:-
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O.S.A Nos. 291 ad 292 of 2020
"G.R.Apparaj,
President,
Chinthadripet Fish and Perishable Products Traders Society,
No. 24, Arunachalam Street,
Chinthadripet,
Chennai - 600 002."
Another application in Application No. 4631 of 2019 was made to implead 19
members of the Association as the Second to Twentieth Plaintiffs in that suit.
Though the Fifth Defendant opposed both of those applications, the
amendments sought were ordered by order dated 25.11.2019 passed by the
Court. Aggrieved thereby, the Fifth Defendant has filed these appeals.
5. The primordial contention of the Learned Counsel for the Fifth
Defendant is that a society, whether registered or not, is not capable of
ownership of any property or of suing or being sued in its name as held by the
Hon'ble Supreme Court of India in Illachi Devi -vs- Jain Society, Protection of
Orphans India [(2003) 8 SCC 413], and as such, the applications for
amendments ought not to have been entertained. The same proposition of law,
which had been canvassed earlier, has been negatived by this Court in
S.Vetrivel -vs- Tamil Nadu Advocates Association [(2011) 4 MLJ 226], where
it has been succinctly explicated as follows:-
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O.S.A Nos. 291 ad 292 of 2020
"30. Section 20 of the Tamil Nadu Societies Registration Act,
1975, does not prohibit a Society from instituting any civil
proceeding for the redressal of the grievances of its members.
Sub Section (1) of Section 20 stipulates that the Committee or any
Officer of the registered Society authorised in this behalf by its
bye-laws may bring or defend or cause to be brought or defended
any action or other legal proceeding touching or concerning any
property, right or claim of the registered society and may sue or
be sued in respect of any such property, right or claim. It does
not mean that the right of a registered Society to institute a suit is
confined only to any property, right or claim of the registered
society and not to any property, right or claim of the members of
the society. The right or claim of the members of a registered
Society, if found to exist in a common platform, can always be
agitated by the Society on behalf of its members.
31. In Illachi Devi -vs- Jain Society, Protection of Orphans
India [2003 (8) SCC 413], the Supreme Court pointed out that
the mere fact of registration of a society under the Societies
Registration Act, will not make the said society distinct from an
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O.S.A Nos. 291 ad 292 of 2020
Association of persons. A Society is not a body corporate as is
the case in respect of a company registered under the Companies
Act, 1956. While a company enjoys an identity distinct from its
original shareholders, a Society is indistinguishable in some
aspects, from its own members. In the same decision, the
Supreme Court pointed out in paragraph 54 as follows:-
"54. Societies registered under the Societies Registration
Act, in the changed scenario play an important role in
society. They discharge various functions which are
beneficial to society. They run educational and other
institutions. They sometimes work in public interest and
act in aid of State functions. They have their own
accountability. They sometimes incur liabilities. Public
interest litigations filed by societies are galore."
Therefore, the contention that the suit is not maintainable at the
instance of a society, is unsustainable."
The said decision has been affirmed in appeal by the Division Bench of this
Court in S.Vetrivel -vs- Gini Manuel [(2011) 2 LW 790]. While concurring
with the aforesaid views expressed, it is noticed from the plaint in C.S. No. 374
of 2017 that it has been signed and verified at the time of presentation by
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O.S.A Nos. 291 ad 292 of 2020
G.R.Apparaj as the President of the Association on whose behalf the suit has
been instituted. In paragraph 4 of the affidavit filed in support of the
applications for amendment, it has been averred as follows:-
"4. I humbly submit that I have already filed the bye-laws as
suit documents. Clause (h) of the bye-law of the Plaintiff
Association is extracted below:-
vr;) tHf;F:-
r';fj;jpd; rhu;g; hf tHf;F bjhLf;f ntz;LkhdhYk; my;yJ
gpwu; r';fj;jpd; kPJ tHf;F bjhLj;jhnyh r';fj;jpd; jiytupd;
bgaupnyna tHf;Ffs; nkw;bfhs;sg;gLk;
Clause (s) (4) of the bye-law of the plaintiff Association is also
extracted below:-
v!;) 4) jiytu; r';fj;jpw;fhf Kd;dpdW
; bray;gLjy;.
tHf;fhLjy; kw;Wk; midj;J fhupa';fisa[k; elj;j ntz;Lk;
As per the bye-laws of the plaintiff Association I am entitled to
sue on behalf of the plaintiff Association."
Section 20 of the Tamil Nadu Societies Registration Act, 1975, reads as
follows:-
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"20. Legal proceedings by or against registered societies:-
(1) The committee or any officer of the registered society
authorized in this behalf by its bye-laws may bring or defend or
cause to be brought or defended any action or other legal
proceeding touching or concerning any property, right or claim
of the registered society and may sue or be sued in respect of any
such property, right or claim.
(2) Any action or other legal proceeding shall not abate or be
discontinued by the death, resignation or removal from office of
any officer of the registered society."
It has been prescribed in Rule 9 of Order I of the Code of Civil Procedure,
1908, as follows:-
"9. Mis-joinder and non-joinder:-
No suit shall be defeated by reason of the mis-joinder or
non-joinder of parties, and the Court may in every suit deal with
the matter in controversy so far as regards the rights and
interests of the parties actually before it:
Provided that nothing in this rule shall apply to
non-joinder of a necessary party."
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O.S.A Nos. 291 ad 292 of 2020
In this factual backdrop viz-a-viz the relevant legal provisions, it is beyond any
pale of doubt that the amendments made to the plaint are necessary for the
purpose of determining the real questions in controversy between the parties for
effectual and complete adjudication of the suit satisfying the requirement of
Rule 10 of Order I and Rule 17 of Order VI of the Code of Civil Procedure,
1908, which do not require any interference.
6. Yet another plea raised by the Learned Counsel for the Fifth Defendant is
that in respect of a suit for enforcement of a right of pre-emption, in terms of
Article 97 of the Schedule to the Limitation Act, 1963, the period of limitation
of one year has to be computed from the date of taking physical possession by
the purchaser of the property or if it does not involve such dispossession, the
date of registration of such sale, and the amendments, which have been sought
after the lapse of the said period, ought not to have been entertained. As Section
21 of the Limitation Act, 1963, exhaustively deals with the effect of
substituting or adding a new plaintiff, which would govern the rights of the
parties in the suit, it would be pre-mature at this stage of the litigation to dwell
into that aspect of the matter. Suffice to observe here that the issue of
limitation, which is a mixed question of law and fact, has to be agitated by the
parties with reference to their respective pleadings in that regard at the time of
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O.S.A Nos. 291 ad 292 of 2020
final decision in the suit. Since the Fifth Defendant is entitled, as of right, to
file additional written statement pursuant to the amendments made in the suit
by the impugned orders, there cannot be any prejudice caused to him and he is
not precluded from working out his rights in accordance with law.
7. Learned Counsel for the Fifth Defendant lastly made a submission that
some of the members of the Association, who have been added as Plaintiffs,
have entered into fresh lease agreements with the Fifth Defendant which would
amount to forfeiture of right to enforce any pre-emption for purchase of the
property. As rightly held by the Learned Judge in the impugned orders, that is
also a matter to be decided in the suit on the basis of pleadings and evidence
adduced by the parties for the same.
In the upshot, these appeals, which do not deserve admission, are
dismissed. No costs.
(N.K.K., J.) (P.D.A., J.)
05.01.2021
vjt
Index: Yes
Note: Issue order copy by 11.01.2021.
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O.S.A Nos. 291 ad 292 of 2020
To
The Sub-Assistant Registrar (O.S.),
High Court of Madras,
Chennai.
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O.S.A Nos. 291 ad 292 of 2020
N. KIRUBAKARAN, J.
and
P.D. AUDIKESAVALU, J.
vjt
O.S.A. Nos. 291 and 292 of 2020
05.01.2021
https://www.mhc.tn.gov.in/judis/
