Madras High Court
Latin Catholic Fishermen'S ... vs Leenus (Died) on 4 September, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
C.R.P.(MD)Nos.1951 & 1962 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 04.09.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
C.R.P.(MD)Nos.1951 & 1962 of 2021
and
C.M.P.(MD)Nos.2382 & 2392 of 2024
and
C.M.P.(MD)Nos.10555 & 10556 of 2021
Latin Catholic Fishermen's Educational Society,
Registration No.13/78,
Represented by its President Rev.Fr.Sylvester Morais,
St.Jude's College,
Thoothoor,
K.K.District. ... Petitioner / third party
(In Both C.R.Ps.)
Vs.
1.Leenus (died)
2.A.Xavier (died) ... Respondents / Plaintiffs
3.Rev.Fr.Joseph Justus (died)
S/o Marya Pauline Nevis,
(Camp) St.Mary's Church,
Colachel Post,
Colachel Village,
Kalkulam Taluk,
Kanyakumari District.
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C.R.P.(MD)Nos.1951 & 1962 of 2021
(Memo dated 20.11.2023 filed on 22.11.2023 is recorded
to the effect that R3 died and since he (Priesthood) claimed
right in respect of his membership, the question of impleading
his Lrs would not arise, vide order dated 23.11.2023 made
in CMP(MD)Nos.15920 to 15922, 15924, 15925 & 15927 of
2023 in C.R.P.(MD)Nos.1951 & 1962 of 2021 by KMSJ )
4.Ref.Fr.M.Stephen
S/o.Mudiappan,
(Camp) St.Mary's Church,
Colachel Post,
Colachel Village,
Kalkulam Taluk,
Kanyakumari District.
5.Registrar of Societies,
Marthandam Sub District,
Kuzhithurai.
6.The Director of College Education,
College Road,
Chennai.
7.The Joint Director of College Education,
Tirunelveli Region,
Tirunelveli-7.
8.Latin Catholic Fishermen Education Society,
(as claimed by 1st & 2nd Respondent)
Rep. by Secretary Rev.Fr.Stephen,
Residing at
(Camp) St.Mary's Church,
Colachel Post,
Colachel Village,
Kalkulam Taluk,
Kanyakumari District.
Rev.Fr.Xavier Alexander (Deceased) ... Respondents / Defendants 1 to 7
9.Amalorpavam
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C.R.P.(MD)Nos.1951 & 1962 of 2021
10.Shirly
11.Sholihaka
(Respondents 9 to 11 are residing at Manvalakurichi Post,
Chinnavilah, Kanyakumari District-629 252.
Respondents 9 to 11 are brought on record as LRs of the
deceased 1st respondent vide order dated 29.02.2024
made in C.M.P.(MD)Nos.15920, 15921 & 15922 of 2023
in C.R.P.(MD)No.1951 of 2021 by MSKJ)
12.Pushparith A Rajam
13.Alex Xavier Joe
14.A.X.Smith
(Respondents 12 to 14 are residing at 3/50, Vaniakudi Post,
Colachel Village, Kualkulam Taluk, Kanyakumari District.
Respondents 12 to 14 are brought on record as LRs of the deceased
2nd Respondent vide common order dated 04.04.2024 made in
C.M.P.(MD)Nos.3683 & 3689 of 2024 in C.R.P.(MD)Nos.1951
and 1962 of 2021 by LVGJ)
15.The Registrar,
Manomaniam Sundaranar University,
Tirunelveli.
16.The Tamil Nadu Government,
Represented by the Secretary,
Higher Education (Collegiate Department),
Chennai.
(15th & 16th Respondents are suo motu impleaded as
per order of this Court dated 18.04.2024 made in
C.R.P.(MD)No.1962 of 2021 by LVGJ.)
... Respondents
(In Both C.R.Ps.)
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C.R.P.(MD)Nos.1951 & 1962 of 2021
Common Prayer: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair order dated 16.08.2021 & 21.09.2021
in O.S.No.183 of 2011 on the file of the District Munsif Court, Eraniel.
For Petitioner : Mr.S.Ramesh
For Respondents : Mr.T.Amjad Khan
Government Advocate for R6, R7 & R16
: Mr.V.Sasikumar for R12 to R14
: Mr.S.Ramsundar Vijayaraj for R4 & R8
: Mr.V.Karthik Raja
for M/s.Ajmal Associates for R15
: R1 to R3-Died
: R5-service awaited
(both C.R.Ps) : R9 to R11 – batta due
COMMON ORDER
Heard both sides.
2. The case on hand pertains to the affairs of the Latin Catholic
Fishermen Educational Society. It is a society registered under Tamil Societies
Registration Act, 1975. One Leenus and A.Xavier filed O.S.No.183 of 2011 on
the file of the Principal District Munsif Court, Eraniel seeking declaration that
the election of the office bearers of the society in the general body meeting held
on 17.09.2021 is null and void. Permanent injunction was sought against the
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C.R.P.(MD)Nos.1951 & 1962 of 2021
official defendants from ratifying the said meeting. Interestingly, some
unusual features are evident on the very face of it. Both the plaintiffs namely
Leenus and Xavier were admittedly not the members of the society. The
persons shown as defendants were not the ones who were elected in the general
body meeting held on 17.09.2011. Neither Rev.Fr.Joseph Justus nor
Rev.Fr.M.Stephen were competent to represent the society from the year 2011
onwards. They were erstwhile office bearers. It is well settled that tenure of
any elected committee is 3 years as per Section 15 of the Tamil Nadu Societies
Registration Act, 1975. The suit ought to have been dismissed as infructuous
by the year 2014 if it did not warrant dismissal earlier on the ground of locus
standi. Be that as it may, in 2021, the court below appears to have invoked
Section 89 of the Code of Civil Procedure. The impugned orders read that the
members of the society appeared before the court on 23.04.2021 and that it was
decided to conduct a fresh election. A counsel by name Mr.John Xavier was
mandated to issue notice to the counsel on either side as well as the members of
the society and conduct election on 18.09.2021. The court below recorded that
on 18.09.2021, some 10 persons were elected as office bearers of the society.
O.S.No.183 of 2011 was thus disposed of on 21.09.2021 by recording the
developments. The judgment reads that Leenus (first plaintiff) was examined
as P.W.1. It now turns out that Leenus had passed away on 09.08.2020 itself.
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C.R.P.(MD)Nos.1951 & 1962 of 2021
When one of the plaintiffs had passed away, the said fact ought to have been
recorded and his legal heirs should have been brought on record. The suit itself
was disposed of on the basis of compromise. Compromise can be effected only
between the concerned parties to the lis. It has already been noted that the
plaintiffs were non-members. They could not have been parties to any
compromise involving the affairs of the registered society. That apart, the
defendants shown in the cause title were not competent to represent the society.
It appears that there is an internal dispute regarding the management of the
society. Therefore, Form 7 ought to have been called for. It is seen that the
forms filed by both the groups had not been accepted for filing by the District
Registrar of the Societies.
3. I fail to understand as to how Rev.Fr. Stephen could have represented
the society. This was not a matter in which Section 89 of C.P.C could have
been invoked at all. In fact, in Afcons Infrastructure Ltd., Vs. Cherian Varkey
[2010 (8) SCC 24], it was held that the stage at which the court should explore
whether the matter should be referred to the ADR method even after the
pleadings are completed and after framing the issues. It was also held that the
representative suits which involved the interest of number of persons who are
not before the Court are normally not considered to be suitable for ADR
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C.R.P.(MD)Nos.1951 & 1962 of 2021
methods having regard to their nature. The aforesaid decision squarely applies
to the case on hand.
4. The impugned decree has to be faulted primarily on the ground that it
is in the name of a dead person. It is not known if all the members of the
general body were put on notice. In any event, the court below could not have
on its own appointed an advocate commissioner for conducting the election in
the suit society.
5. Looked at from any angle, the procedure adopted by the court below
appears to be grossly in breach of the statutory provision. Though the revision
petitioner herein was shown as defendant in the suit, it was represented by a
person who was not competent to represent. The suit had been disposed of on
the basis of a conciliation report. The petitioner could not have availed remedy
under Section 96 of C.P.C. In this background, invocation of the supervisory
jurisdiction under Article 227 of the Constitution of India is very much in order.
The object of conferring supervisory jurisdiction on the High Court is to ensure
that the courts below act within their bounds. In this case, I clearly find that the
court below had acted in breach of the statutory procedure and had not even
taken note of the fact that the first plaintiff had passed away. If the matter was
proposed to be disposed of on the basis of compromise, the plaintiffs ought to
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C.R.P.(MD)Nos.1951 & 1962 of 2021
have been directed to be appear in person. The suit itself deserved burial as
infructuous. An infructuous suit was kept alive for several years and thereafter
a force of a compromise was arrived at and the suit was disposed of on that
basis. The impugned Judgment and decree is set aside.
6. But the matter cannot rest there. When the civil revision petitions
were listed for hearing on 31.01.2022, the following order was passed:-
“ The revisions arise out of the interim and final Judgment passed by
the learned District Munsif, Eraniel on the basis of a Compromise. The
Revision Petitioner is a third party who claims to be in management of the
respondent society. Their contention is that although the party had made
allegations against the office bearers which also includes the petitioner
Rev.Fr.Sylvester Morais, President of the petitioner Society and 8 others,
these persons have not been made a party to the proceedings. Thereafter the
plaintiffs and persons totally unconnected with the management, who were
made parties to this proceedings by the plaintiff, entered into a compromise
and a Judgment and Decree has come to be passed on the basis of their
compromise.
2. When the revision had come up for admission, the persons who
have now been declared elected by virtue of this impugned Judgment and
who are the contesting respondents had entered appearance. After hearing
both the parties this Court was of the opinion that an Administrator should be
appointed till the disposal of these revisions where serious allegations of
fraud, collusion and suppression had been alleged by the Revision Petitioner.
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C.R.P.(MD)Nos.1951 & 1962 of 2021
The Jurisdiction of this Court has been invoked for the aforesaid reasons. If
these Revision Petitions are allowed then all actions taken by the persons
who now claim to be in management would be void and in view of the
impugned judgment persons who claim that they continue in management
are unable to manage the Society. It was in these circumstances that this
Court had decided to appoint an Administrator as an interim measure till the
disposal of these Civil Revision Petitions and both parties have agreed to the
nomination of Hon'ble Justice N.Kirubakaran, retired Judge of this Court as
the Administrator of the petitioner/8th respondent Society.
3. The Administrator shall take over the management and
administration of the Society and all institutions coming under the control
and management of the Society. He shall have the assistance of
Mr.S.D.S.Philip, Advocate, Address: No.276, New Additional Law Chamber,
Madras High Court, Chennai-104, Mobile No.9444451299 and Enrollment
No.1579/1992. The parties have also agreed that considering the anomaly in
the bye-laws, the Administrator shall endeavour to amend the bye-laws,
taking inputs from both the parties and thereafter place the same before the
General Body for its approval.”
7. It is seen that the byelaws of the society are not in tune with the
statutory scheme governing the Tamil Nadu Societies Registration Act. The
society is also running an aided educational institution. There is a serious
power tussle between the rival factions. That is why, the above order was
passed by this Court. The said order is made absolute. The Hon'ble
Administrator is requested to convene the general body, effect appropriate
amendments in the byelaws and also the conduct the election so that the elected
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C.R.P.(MD)Nos.1951 & 1962 of 2021
body takes charge. The Hon'ble Administrator will endeavor to conclude the
same as expeditiously as possible.
8. Both the civil revision petitions are allowed. Consequently, connected
miscellaneous petitions are closed.
04.09.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
rmi
To:
1.The District Munsif Court, Eraniel.
2.The Director of College Education,
College Road,
Chennai.
3.The Joint Director of College Education,
Tirunelveli Region,
Tirunelveli-7.
4.The Secretary,
Higher Education (Collegiate Department),
Chennai.
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C.R.P.(MD)Nos.1951 & 1962 of 2021
G.R.SWAMINATHAN, J.
rmi
C.R.P.(MD)Nos.1951 & 1962 of 2021
04.09.2024
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