Braja Kishore Mohanty & Others vs Nilachal Saraswat Sangha & Others
2022 Latest Caselaw 4860 Ori

      IN THE HIGH COURT OF ORISSA, CUTTACK

                      R.S.A. No.254 OF 2004
In the matter of an appeal under Section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 02.04.2004
and 12.04.2004 respectively passed by the learned 1st Addl.
District Judge, Cuttack in R.F.A. No.9 of 2003.
                                  -----------------

Braja Kishore Mohanty & others .... Appellants

-Versus-

Nilachal Saraswat Sangha & others .... Respondents

R.S.A. No.255 OF 2004 In the matter of an appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 02.04.2004 and 12.04.2004 respectively passed by the learned 1st Addl. District Judge, Cuttack in R.F.A. No.5 of 2003.

-----------------

Braja Kishore Mohanty & others .... Appellants

-Versus-

Nilachal Saraswat Sangha & others .... Respondents

-------------------------------------------------------------------------------------------- Advocate(s) who appeared in both the cases through Hybrid mode:

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For Appellants - M/s. S.S. Rao, B. Muduli, B.K. Mohanty, Advocates M/s. B. Mishra, B. Pujari, B. Muduli, K.K. Mishra, S.S. Tripathy, Advocates

For Respondents - M/s. N.K. Sahu, S. Das, B.S.Panigrahi, S. Misra, Advocates M/s. S.P. Mishra, P.K. Mohapatra, S. Dash, B. Mohanty, Advocates M/s. Jagannath Patnaik, S. Pattnaik, A.K. Mishra-2, Advocates

// 2 //

PRESENT:-

THE HON'BLE SHRI JUSTICE SATRUGHANA PUJAHARI

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Date of judgment:- 20.09.2022

S. PUJAHARI, J. This defendants are the appellants in both

the appeals against the common judgment dated

02.04.2004 passed by the First Additional District Judge,

Cuttack in RFA No.5 of 2003 and RFA No.9 of 2003. Both

the appeals were filed challenging the judgment and decree

dated 23.12.2002 and 06.01.2003 respectively passed in

T.S. No.376 of 1989 by the learned Additional Civil Judge

(Senior Division), Cuttack whereby the learned Civil Judge

decreed the suit in part. The Plaintiffs-Appellants herein

had preferred RFA No.5 of 2003 whereas the Defendants

had preferred RFA No.9 of 2003. The learned 1st Additional

District Judge by a common judgment disposed of both the

appeals whereby RFA No.5 of 2003 was allowed and RFA

No.9 of 2003 was dismissed. Hence, both these second

appeals were heard together and are being disposed of by

this common judgment.

2. The Respondent-Plaintiff No.1 (Nilachal

Saraswata Sangha, Puri) known as Kendra Sangha being

// 3 //

represented by it's the then Secretary Late Raghunath Pati

and Cuttack Saraswata Sangha a Branch of Nilachala

Saraswata Sangha, Puri (Plaintiff No.2) being represented

by its Secretary Late Anatha Bandhu Pradhan and the

President of Kendra Sangha (Plaintiff No.3) jointly filed Title

Suit No.376 of 1989 in the Court of the Civil Judge (Senior

Division), Cuttack claiming the following reliefs:-

"(a) Let it be declared that defendant No.1 has no legal authority or right to sing or issue the Parichaya Patra (Identity Card) as President of the Sakha Sangha, Plaintiff No.2, nor he can do any act or interference in the smooth management and Seva Puja, Nitikantis of the Plaintiff No.2, Sakha Sangha, on his capacity as either the President or the member of the Sakha Sangh, Plaintiff No.2;

(b) Let it be further declared that the defendant No.1 or anybody following him, are authorized to use the rubber stamp, seal of Late Durga Charan Mohanty as Parichalaka of the Sangha in any correspondence with the members of the plaintiff No.1 and Plaintiff No.2, Sangha or in the Parichaya Patra issued to the alleged members and further that the use of the seal/ rubber stamp of late Durga Charan Mohanty is without any authority and not recognizable by plaintiff No.1 or 2;

// 4 //

(c) Let it be further declare that defendant No.1 to 21 or any other persons who have been granted the Parichaya Patra under the signature of defendant No.1 as president with seal of Late parichalaka Durga Charan Mohanty cannot be said to be valid members of either the plaintiff No.1 or plaintiff No.2, Sangha and anything done by the defendant or their followers having the said Parichaya Patra under the signature of defendant No.1 as President should be held to be unauthorized and without the sanction of plaintiff No.1 or plaintiff No.2 and would be treated as illegal interference in the management, seva puja and Nitikantis of the Sangha of Plaintiff No.1 and 2.

(d) Let a decree of permanent injunction be passed against the defendants and their agent and followers, not to do any act or Perform any function or activities relating to the plaintiff No.2 or plaintiff No.1, Sangha, or Sri Sri Thakur and not to interfere in the Niti, daily, weekly and monthly seva puja, monthly Mahila Puja and or annual function of Sri Sri Thakur and not to Collect funds, donations as members of the Sangna, on the basis of the Parichaya Patra granted under the seal of Late Durga Charan Mohanty and signature of defendant No.1, be prevented from issuing any Parichaya Patra in future.

(e) Let a decree of permanent injunction be passed against the defendants not to interfere in daily or weekly seva puja, Nitikantis, monthly prayer of Sri Sri Thakur Bigraha and management of the plaintiff

// 5 //

No.2, Sangha situated in schedule A land and not to create any disturbance in any manner over Schedule-A property.

(f) Let any other or further reliefs be granted as deem it and proper;

(g) Let the cost of the suit be declared in favour of the plaintiffs and against the defendants."

3. The case of the plaintiffs in brief as pleaded in

their plaint was that Nilachala Saraswata Sangha (Plaintiff

No.1) is a society registered under the Societies

Registration Act, 1860. The aim and object of the Sangha

was to propagate the philosophy and ideology of Sri Sri

Thakur Srimat Swami Niagamananada Saraswati Dev.

After its registration, Bye law of the Sangha was framed

with various provisions to regulate the activities of the

Sangha. As per the provision of the Bye law, overall affairs

of the Kendra Sangha were entrusted to the Governing

Body, and the Governing body remained as the custodian

of all the properties of Kendra Sangha, Branch Sanghas

and the Sikshya Kendra Sangha. As per the Bye Law, the

Governing body shall consist of 9 members who shall be

elected in the combined meeting of the existing members of

// 6 //

the Governing Body and the members of the Advisory

Board to be convened by the Secretary of the Kendra

Sangha. The Kendra Sangha has three categories of

members (i) Probationer, (ii) Regular Members, (iii)

Associate Members. The Kendra Sangha shall be consisting

of three organs (i) A Governing Body, (ii) An Advisory Board

and (iii) A General Body.

The further case of the plaintiffs was that as per

the Bye Law, the arrangement of convening of "Utkal

Pradesika Bhakta Samilani" and for holding the sessions of

"Sarbabhoum Bhakta Samilani" was to be taken by the

Governing Body of the Kendra Sangha. Late Durga Charan

Mohanty, a direct disciple of Thakur Nigamananda

Paramahansadev, was functioning as the Secretary and

Parichalaka of NSS, Puri, Plaintiff No.1

After the death of Durga Charan Mohanty in the

year 1985, the Governing Body of NSS, Puri was

reconstituted in a joint meeting of the Governing Body and

Advisory Board held on 24.02.1986. One Chaitanya

Charan Das was elected as its President and Late

Raghunath Pati was elected as the Secretary in place of

// 7 //

Late Durga Charan Mohanty. The next election year was

being 1989, as per the Resolution dated 01.02.1988, the

plaintiff No.1 accepted the invitation of Balasore and

Mayurbhanj Sakha Sangha and authorized them to hold

38th Annual Utkal Pradesika Bhakta Samilani to be held at

Balasore on 19th, 20th and 21st February, 1989.

Advertisement inviting Members of Plaintiff No.1 were

published in daily "Samaj" dated 12.12.1988 and

26.01.1989 for holding the Samilani at Balasore.

Further case of the plaintiff was that one

Biswanath Pradhan was a Member of the Governing Body

of plaintiff No.1.He separated himself from the body and by

describing himself as President of Utkal Pradesika Bhakta

Samilani Abhyarthana Samiti, Birtung had convened a

parallel 38th Utkal Pradesika Bhakta Samilani of NSS, Puri

(Plaintiff No.1) at Sikshya Kendra, Birtung on 18th, 19th &

20th February, 1989. The invitation letter issued by

Biswanath Pradhan was bearing rubber seal purported to

be of late Durga Charan Mohanty, the then Parichalaka

who was dead since 07.12.1985. The aforesaid action of Sri

Biswanath Pradhan in issuing invitation letter affixing the

// 8 //

rubber seal purporting to be that of late Durga Charan

Mohanty and calling a parallel meeting was wholly

unauthorised tantamount to acting contrary to the

provisions of the Bye-law of the Sangha. Said Biswanath

Pradhan was also supported by two other members of

Sangha namely Damodar Das and Jagannath Samantara.

The creation of bifurcation and formation of self

styled governing body of their own at Birtung had no

existence in the eye of law. Utilisation of the

seal of the deceased person was an act of forgery and any

action taken by a person having not been authorized by the

Governing Body of the plaintiff No.1- Association was

unauthorized and illegal.

The defendant No.1, 2 & 3 being nominated by the

so called governing body formed at Birtung claimed

themselves as the President, Secretary of Plaintiff No.2

(Sakha Sangha). The defendant No.1, styling himself as the

President of Plaintiff No.2 issued parichaya patra(Identity

Cards) to their followers recognising those persons as the

members of Nilachala Saraswata Sangha, Puri under the

rubber stamp/ seal of late Durga Charan Mohanty.

// 9 //

Defendant No.1 who was acting as President of the alleged

governing body had got no authority or recognisation in the

eye of law to issue parichaya patra by using the name of

Plaintiff No.1. Defendant No.1 was issuing parichaya patra

(identity card) on his own signature with the rubber seal of

ex-parichalaka late D.C. Mohanty, though the Parichalaka

was dead since 1985. The parichaya patra (identity card)

issued by defendant No.1 to their followers as the members

of Nilachala Saraswata Sangha for the year 1989-90 cannot

be recognized to be valid since the persons granting

"parichaya patra (identity card) were not authorized to

grant the same nor the same were granted as per the

provisions contained in the bye-law of the Sangha. Any act

of performance done by these persons with regard to the

activities of the Sangha are to be held to be unauthorized

and without any locus-standi.

Since the reliefs claimed in the suit revolve

around the authority of the Defendant No.1 to issue

Parichaya Patra to other defendants and persons who were

large in number, the plaintiffs filed the Suit by impleading

Defendant Nos.1 to 20 as the representative of all the

// 10 //

disputed Parichaya Patra holders having the same interest.

According to the plaintiffs, this was in compliance with

Order-1 Rule-8 CPC.

4. The Defendant Nos.1 to 17 filed a joint written

statement denying the plaint averments. The case of the

defendants was that Raghunath Pati had no locus standi to

represent Nilachala Saraswata Sangha, Puri and he was

not the elected Secretary of the Sangha and had no right to

file the suit. Nilachala Saraswata Sangha, Puri was not the

Kendra Sangha. Main establishment of the Sangha is

situated at Birtung, Gop in the district of Puri which was

the Kendra Sangha though the registered office of the

Sangha was situated at Puri. Plaintiff No.2 was not the

elected Secretary of Cuttack Saraswata Sangha. Cuttack

Saraswata Sangha was a separate registered society. The

suit as framed by the plaintiffs is incomplete inasmuch as

the Plaintiffs had no locus standi or right to initiate the

present Suit. After the death of Durga Charan Mohanty a

great void was created not only in the management of the

Association but also in the heart of the devotees of Sri Sri

Thakur. The Bye Law did not provide any mode or

// 11 //

machinery for calling the General Body meeting which is

commonly called as Bhakta Samilani. To avoid such

lacunae, a meeting was convened on 25.2.1986 and it was

unanimously resolved that a permanent Abahaka

Committee was to be constituted and Sri Biswanath

Pradhan would continue as the permanent President of the

said committee upon whom the duties of convening the

Meeting, Samilani would vest. As per the aforesaid

decision, Biswanath Pradhan was empowered and

authorized to convene the General Body meeting of Bhaka

Samilani on 18.2.1989. The venue of the Samilani was

decided to be held at Birtung, the Kendra Ashram. In

accordance with the schedule, the meeting was convened

on 18th, 19th & 20th February, 1989 and in the said

meeting, the new Governing Body was constituted electing

9 members. By Resolution dated 19.2.1989, the duly

elected President Sri Biswanath Pradhan was permitted to

execute the power of Parichalaka. In accordance with the

Resolution of the Samilani, the newly elected President Sri

Biswanath Pradhan nominated/selected Braja Kishore

Mohanty and 7 other persons as the Members to the

// 12 //

Council of Management of Cuttack Saraswata Sangha.

Braja Kishore Mohanty (Defendant No.1) was elected as

President. Ramesh Chandra Ray (Defendant No.2) was

selected as Secretary of Cuttack Saraswata Sangha. The

aforesaid Council of Management had taken over charge

and performed the duties to the satisfaction of all the

genuine devotees. The meeting held at Balasore had no

legal sanctity as it was not convened by a person having

the right. The other paraphernalia which are customarily

follows were not taken care of and the said meeting is non-

existent in the eye of law. The Governing Body of which the

Defendants were members was the duly constituted

Governing Body. Raghunath Pati, Anathabandhu Pradhan

and Plaintiff No.3 had no locus standi to file the suit as

they were not the duly elected/selected office bearers of the

Sangha. The Plaintiffs had filed Original Suit No.46 of 1989

in the Court of Sub-ordinate Judge, Puri which was the

earlier suit and the issue involved in both the suits being

directly and substantially same, the present suit was liable

to be dismissed in limine or should be stayed till disposal

of the O.S. No.46 of 1989 pending in the Court of the Sub-

// 13 //

ordinate Judge, Puri. The Parichaya Patras issued by the

defendants were the only genuine cards issued in

consonance with the Bye Law by the persons having

authority to do so. The Defendants were the only persons

in management who carry on the Seva Puja and Nitikantis

of Sri Sri Thakur whereas the Plaintiffs had no locus standi

to file the Suit challenging the Authority of Defendants.

Hence, the suit was liable to be dismissed.

5. The learned Trial Court on the basis of the

aforesaid pleadings of the parties framed as many as 11

issues. Both parties led evidence in support of their

respective case. The plaintiff examined 4 witnesses and

several documents were exhibited on their behalf to prove

their case. Whereas the defendants examined only one

witness and series of documents were exhibited on their

behalf as evidence. Out of the issues framed by the Trial

Court, the main issues are (II) whether the plaintiffs have

got the cause of action to file the Suit, (IV) whether

Raghunath Pati was duly elected as Secretary of Nilachala

Saraswata Sangha, (V) whether Plaintiff No.2 was

represented by its Secretary Anathabandhu Pradhan, (VI)

// 14 //

whether the Plaintiff No.3 was the President of Plaintiff

No.2, (VII) whether Defendant No.1 was empowered to issue

Parichaya Patra to the devotees of Nilachala Saraswata

Sangha and (X) Whether Defendant No.1 was duly elected

as President of the Society in the year 1988. The learned

Trial Court delivered the judgment on 23.12.2002. On

considering the evidence on record and deciding Issue

No.(IV), (V), (VI) & (X), the learned Trial Court recorded the

following findings :-

"(i) The Samilani convened at Birtung headed by Biswanath Pradhan claiming to be the President of the Abahaka Committee is purely illegal which is contrary to the decision taken by the Governing Body.

(ii) In absence of existing Governing Body and Advisory Committee in the Samilani at Birtung, no election can be conducted in respect of the Office Bearers. The General Body having no power to elect the President of the Sangha, the selection of Office Bearers including the President claims to have been acquired by Biswanath Pradhan is illegal and invalid in accordance with the Bye Law.

(iii) There is sufficient evidence from the side of the Plaintiff regarding the decision taken by the Governing Body for holding Samilani as well as the

// 15 //

joint Meeting of the Governing Body and Advisory Committee at Balasore on 19th, 20th & 21st February, 1989.

(iv) The Samilani at Balasore having been convened and Election having been conducted in accordance with the Bye law at Balasore by virtue of the Specific Resolution, the Election of the Office Bearers of the Sangha is considered to be valid one. The Election conducted at Balasore is proper and all the representatives of original Sangha having been present at Balasore, the plaintiff is the original Sangha as initially established by Sri Sri Thakur.

(v) The Election of the Defendant No.1 for the post of Office Bearers of Cuttack Saraswata Sangha is illegal, null and void.

(vi) The Defendant No.1 is not the real President of Cuttack Saraswata Sangha. He being the illegal President, no power of Parichalaka can be vested to him for issuance of Parichaya Patra to the devotees. It is only the President of Nilachala Saraswata Sangha to function as Parichalaka as per entrustment given by the Governing Body. The Defendant No.1 in this connection shall have no power to issue Parichaya Patra under his signature to the Devotees and the Parichaya Patra issued by him to the devotees are held to be invalid and inoperative in the eye of law."

// 16 //

But, the learned Trial Court while deciding Issue No.(I) &

(II) with regard to the maintainability of the Suit and

cause of action had observed as under :-

"Due to the dispute ensued between the Sangha Members, the Thakur cannot be considered to have acquired Ananda and Cherished long spiritual desire of attainment of Moskha to his devotees. Where there is no presence of "Sri Thakur", there is no existence of "Sangha" though it is legally formed."

Accordingly, the trial court had de-recognised the

plaintiffs to be the Office Bearers. The Trial Judge had

gone to order that the Governing Body and the Advisory

Committee formed and prevalent at the time of defection

of Sangha should unite together at one place for the

purpose of election of Office Bearer of the Sangha. The

Trial Judge not only passed order for fresh election with

certain proposed amendment to the Bye Law, but also

went a step ahead by directing the Assistant Registrar,

Co-operative Society, to conduct election in a manner

through secret Ballot and to submit compliance report to

that effect.

// 17 //

6. The Trial Court having passed the decree in the

aforesaid manner, the plaintiffs-respondents challenged

the decree to the extent it directed the Assistant Registrar,

Co-operative Society to hold the election of the Society, by

filing RFA No.5 of 2003. The Defendant-Appellants filed

RFA No.9 of 2003 challenging the findings and order of

the Trial Court holding their election as invalid and

declaring the Governing Body constituted at Balasore as

the real Governing Body of Sangha.

7. The First Appellate Court disposed of both the

Appeals by a common judgment whereby RFA No.5 of

2009 was allowed and RFA No.9 of 2009 was dismissed.

During pendency of the Appeals, the Plaintiff-Respondents

filed an application under Order-41 Rule-27 CPC to admit

the certified copy of the judgment passed in Second

Appeal No.51 of 1997 as an additional evidence by

contending that the issue involved in the present suit

between the parties being directly and substantially in

issue in the suit out of which the second appeal was

preferred before the High Court between the same parties,

the judgment passed in the second appeal would operate

// 18 //

as res judicata between the parties and as such the same

be admitted as Additional Evidence. The Appellate Court

admitted the same as Evidence which was marked as

Ext.65. It appears from the judgment of the Appellate

Court that the said Second Appeal arose out of S.J.

Appeal No.68 of 1994 where the judgment dated

07.10.1994 passed by the Civil Judge (Senior Division),

Balasore in T.S. No.194 of 1990 was confirmed. The

aforesaid suit was filed by the plaintiffs therein claiming

to be the President and Secretary of Balasore Saraswata

Sangha challenging the authority of Late Raghunath Pati,

the elected Secretary of Plaintiff No.1 who transferred

some properties at Balasore.

8. The Appellants besides all other contentions had

raised the issue before the Lower Appellate Court that the

Trial Court had no territorial jurisdiction to decide as to

which out of the two elections for the Office bearers of the

Sangha, one held at Balasore and the other held at

Birtung was legal. The Lower Appellate Court on

consideration of the materials on record held that the

Trial Court had the jurisdiction to go into the question of

// 19 //

the validity of either of the election. On deciding the

question of res judicata, the Appellate Court held that

after dismissal of the Second Appeal No.51 of 1997 by the

High Court, the validity of either of the elections held at

Balasore vis-à-vis Birtung had reached its finality between

the parties. The legal impact of such findings in the

present suit which was substantially in issue in Title Suit

No.194 of 1990. The findings rendered under Exts.57, 58

& 65 so far as the issue of election was binding and

operative between the parties. The issue of election having

been finally decided amongst the parties in the earlier

suit, the same was not available to be re-agitated again

being barred by the principle of res judicata.

9. While deciding Issue No.(IV) & (X), the Lower

Appellate Court held that the 38th Sambilani of NSS, Puri

at Balasore was legally convened whereas the parallel

Sambilani at Birtung was without any legal sanctity. The

further finding of the Appellate Court was that the

selection of members to the Council of Management of

Sakaha Sangha (Plaintiff No.2) by Biswanath Pradhan

purported to have been made in exercise of the power as

// 20 //

President-cum-Parichalaka automatically became

unauthorized. The Plaintiffs, on the contrary, had proved

Ext.26 under which the Committee of Management of

Cuttack Saraswata Sangha for the year, 1989-90 was

formed. Thus the claim of the Defendant No.1 as the

Office Bearer of the Cuttack Saraswata Sangha (Plaintiff

No.2) was found to have not been established. So, the

Defendant No.1's claim to the office of President is

untenable, and consequently, the Parichaya Patras

(Identity Cards) issued by him to the Devotees have been

rightly found by the Trial Court to be invalid and

inoperative.

10. The Lower Appellate Court also considered the

Issue with regard to de-recognition of office bearers of

Nilachala Saraswata Sangha by the Trial Court. While

deciding such issue, the Appellate Court held that neither

the Plaintiffs nor the Defendants in the Suit had sought

for any Election through intervention of the Court. Such

an approach made by the Trial Court was erroneous after

having found the Plaintiffs' representation to the Sangha

was legal and valid. It was not within the domain of the

// 21 //

Trial Court to again de-recognize them with a finding that

they have violated the "Guru Parampara". This view was

not legally permissible to be done within the scope of the

present suit where the Court was basically called upon to

adjudicate the issues framed on the basis of the pleadings

of the parties. The Court was not discharging the function

of a Mediator or Arbitrator. By observing thus, the

Appellate Court held that the findings arrived at by the

Trial Court on Issues No.(I), (II) & (XI) are unsustainable.

Thus the Title Appeal No.5 of 2009 was allowed and Title

Appeal No.9 of 2009 was dismissed.

11. Assailing the judgment and decree passed in

Title Appeal No.9 of 2003, the Appellants have filed RSA

No.254 of 2004 and have also filed RSA No.255 of 2004

challenging the judgment passed in Title Appeal No.5 of

2003.

12. While admitting the Appeals, this Court vide

order dated 19.01.2007 had framed the following

substantial question of Law:-

// 22 //

"i) Whether non-compliance of Order-1, Rule-8 CPC with respect to the plaintiff No.1& 3, so far as it relates to Kendra Sangha elected in Birtung election and in absence of any recourse to Order-1 Rule-8 CPC with respect to members and office bearers of the Kendra Sangha to add those as defendants, renders the suit entirely defective and the judgment and decree passed by the trial court and confirmed by the First Appellate Court is a nullity?

ii) Whether, the conclusion of the First Appellate Court to the effect that the objection to the lack of territorial jurisdiction cannot be raised for the first time before the first appellate Court, is legally sustainable?

(iii) Whether the conclusion of the First Appellate Court regarding election of Raghunath Pati as Secretary, N.S.S. Kendra Sangha, Puri is hit by the principle of res judicata?"

13. Mr. S.S. Rao, learned counsel for the Appellants

submitted that the plaintiffs having not complied with the

procedure under Order-1 Rule-8 C.P.C. as to

representation of the office bearer of NSS, Puri vis-à-vis

the office bearers of Kendra Sangha elected at Birtung and

the elected office bearers of NSS, Puri at Birtung, the suit

was entirely defective and the judgment and decree

passed by the Trial Court as confirmed by the First

// 23 //

Appellate Court should be declared as nullity. It was

further submitted that the Trial Court as well as the First

Appellate Court have adopted an erroneous legal

approach in rendering the finding with regard to validity of

the either of the election though they had no territorial

jurisdiction to adjudicate the said issue. It was further

submitted that the defendants have not waived their right

of objection to the jurisdiction of the Civil Court at

Cuttack to try the suit. He further submitted that mere

absence of the pleadings in the written statement with

regard to the fact that the Trial Court lacks jurisdiction to

try the suit does not ipso facto confer jurisdiction on the

Court to try and decide the issue where the Courts

inherently lacked jurisdiction to go into that issue. Either

of the Election held at Birtung and at Balasore having not

been conducted within the territorial jurisdiction of the

Cuttack Court, the Courts below should not have decided

the question of election and rendered a finding in that

behalf. It was further submitted that Section-21(1) of CPC

has no application to the facts of the case inasmuch as no

cause of action has arisen for the plaintiff to bring the

// 24 //

Suit at Cuttack though by challenging the validity of

election a separate suit at Puri is still pending for Trial.

Mr. Rao, the learned counsel further submitted that the

finding of the Appellate Court that the judgment passed in

Second Appeal No.51 of 1997 will operate as res judicata

in so far as it related to the issue with regard to the

question of election and the Lower Appellate Court has

gone wrong in relying upon the judgment of the Second

Appeal in Ext.65 to hold that the said judgment would

operate as res judicata in the subsequent suits. According

to Mr. Rao, the Appellate Court should have held that the

judgment in Balasore Suit has no application to the

present suit as none of the defendants or the office

bearers elected at Birtung were parties in the said suit.

The adjudication in Balasore Suit as referred to above

having involved an issue with regard to the competency of

Raghunath Pati to execute the sale deed in respect of the

property in question at Balasore, the finding rendered

touching the question of election of the office bearers of

Nilachala Saraswata Sangha has no bearing in the

present suit and the Appellate Court was in error in

// 25 //

holding that the judgment passed in Second Appeal would

operate as res judicata.

14. Per contra, Mr. N.K. Sahu, learned counsel

appearing for the Respondents supported the judgment

and contended, inter alia, that there is no substantial

question of law involved to be addressed in the present

second appeals. It was submitted that the substantial

question of law raised with regard to non-compliance of

Order-1 Rule-8 CPC being essentially a matter of

procedure to be complied with to the satisfaction of the

Trial Court and the plaintiffs having complied with the

same being duly permitted by the Trial Court, there was

no defect in the suit and the judgment and decree passed

by the learned Courts below cannot be faulted on that

count. Relating to the jurisdiction of the Trial Court to

decide the question of legality of the election, it was

contended by the learned counsel for the Respondents

that the question of jurisdiction cannot be raised for the

first time in the Appellate Court since such question was

dependent upon appreciation of evidence and pleadings of

the parties. In support of such submission, the learned

// 26 //

counsel has relied upon a decision of this Court in the

case of Shyam Sundar Mohapatra Vrs. Janaki Ballav

Pattnaik & others, reported in AIR 1990 Orissa 23. The

learned counsel also submitted that though no specific

issue was framed on the question of res judicata by the

Trial Court, the same can be raised and tried in the

Appellate court if that issue is known to the parties and

the evidence led to that effect. In support of such

submission reliance has been placed on a decision of the

Apex Court in the case of Swami Atmananda & others

Vrs. Sri Rama Krishna Tapovanam & others, reported

in (2005) 10 SCC 51 and in the case of Sardul Singh Vrs.

Pritam Singh & others, reported in (1999) 3 SCC 522.

15. The rival contentions of the learned counsel for

the parties require careful consideration. I have heard the

learned counsel for the parties at length and perused the

judgments impugned and other materials available on

record.

16. Before answering the substantial question of law

as formulated, it would be apt to notice the law relating to

the scope of interference with the concurrent findings of

// 27 //

the Courts below by the High Court under Section-100

CPC. The Apex Court in the case Navaneethammal Vrs.

Arjuna Chetty, reported in AIR 1996 SC 3521 has

authoritatively held that interference in the concurrent

findings of the Courts below by the High Courts under

Section-100 CPC must be avoided unless warranted by

compelling reasons, and in any case, the High Court is

not expected to re-appreciate the evidence just to replace

the findings of the Lower Courts. The Supreme Court also

went on to hold that even assuming that another view is

possible on re-appreciation of the same evidence, that

should not be done by the High Court as it cannot be said

that the view taken by the First Appellate Court was based

on no material. Keeping in mind the law laid down by the

Supreme Court, let me examine the correctness of the

rival contentions.

17. Undisputedly, Plaintiff No.1 was a society

registered under the provisions of Societies Registration

Act and it had a Bye law. Section-6 of Societies

Registration Act provides that every society registered

under the Act may sue or be sued in the name of the

// 28 //

President, Secretary or Trustees as shall be determined by

the Rules, Regulations of the Society. Clause-15 of the

Bye Law provides that Secretary may represent the

Sangha in all revenue, civil and criminal Courts. The

Plaintiff No.1 being represented by its Secretary having

filed the Suit, there was no need of compliance with the

provisions under Order-1 Rule-8 CPC. Similarly, Plaintiff

No.2 is also a registered Saka Sangha of Kendra Sangha

and Plaintiff No.3 was representing the Kendra Sangha as

well as Sakha Sangha being its elected President. The

Bye-Law of Kendra Sangha provides that the office bearers

of Sakha Sangha would function as the custodian of

Asanamandira and Sakha Sangha on behalf of Kendra

Sangha. Once a Society is registered, it enjoins the status

of legal entity apart from its member constituting the

same and is capable of suing or being sued. Therefore, a

registered society can sue or be sued without taking

recourse of Order-1 Rule-8 CPC. The relief claimed in the

Suit revolves around the question of authority of the

Defendant No.1 to issue a Parichaya Patra to other

defendants and the persons who are large in number. As

// 29 //

it appears, the defendant No.1 to 20 had been impleaded

as the representatives of all the disputed Parichaya Patra

holders having the same interest in purported compliance

with the provisions under Order-1 Rule-8 CPC. It further

appears from the record that the Trial Court had accorded

permission for the above purpose, and accordingly, at the

instance of the Plaintiff notice was issued to the

Defendants and paper publication was made in

compliance with the provisions of Order-1 Rule-8 to

satisfy the requirement of Order-1 Rule-8 CPC. Such

compliance having not been objected to either in the Trial

Court or in the Lower Appellate Court, the contention

questioning the same cannot be permitted to be raised at

the stage of second appeal. Therefore, the Question No.1

formulated as the substantial question of law is answered

accordingly.

18. The question of law under Question No.2 relates

to territorial jurisdiction. It transpires from the record that

the Lower Appellate Court has come to the conclusion

that the defendants had not raised such objection

challenging the territorial jurisdiction of the Court. It was

// 30 //

submitted by Mr. Rao that the Trial Court so also the

Appellate Court adopted an erroneous approach in

rendering the finding with regard to the validity of either

the election at Birtung or the election at Balasore, though

the learned Courts below had no territorial jurisdiction to

adjudicate such a question. Refuting such submission

and placing reliance on Section-21 of the Code of Civil

Procedure, it was submitted by Mr. Sahu, the learned

counsel for the Respondents, that unless objection with

regard to lack of jurisdiction was taken at the first

instance and at the earliest opportunity, such objection

shall not be permitted to be raised in Appellate or

Revisional forum. He claims support from the judgment of

the Apex Court in the case of Harshad Chimanlal Modi -

Vrs. DLF Universal Ltd. & another, reported in (2005) 7

SCC 791 wherein it was held that objections as to

territorial and pecuniary jurisdiction have to be taken at

the earliest possible opportunity and in any case before

settlement of issues and the same cannot be allowed to be

taken at a subsequent stage. The Lower Appellate Court

on appreciation of the facts and the law has come to a

// 31 //

categorical finding that the Defendants had not raised

such objection relating to lack of territorial jurisdiction

before the trial Court. Such finding recorded by the Lower

Appellate Court, in my considered view, does not suffer

from any error of law warranting interference. It is

needless to say that to resolve the controversy between

the parties in relation to the relief prayed for in the Suit,

undoubtedly, the question of election of the year 1989 was

directly and substantially in issue to be gone into as the

same was an integral part of the cause of action. As such,

the learned Courts below have not committed any

jurisdictional error in going into the legality of the

question of election. The Question No.2 is answered

accordingly.

19. The substantial question of law formulated vide

Question No.3 was that the conclusion of the First

Appellate Court regarding election of Raghunath Pati as

Secretary, NSS, Kendra Sangha was hit by the principles

of res judicata. Mr. Rao, the learned counsel for the

Appellants, strenuously submitted that the Lower

Appellate Court was in error in relying upon the judgment

// 32 //

in Second Appeal No.51 of 1997 under Ext.65 to arrive at

a conclusion that the same would operate as res judicata

in the subsequent suits. According to Mr. Rao, the

judgment in Balasore Suit has no application in the

present suit as none of the Defendants or the office

bearers elected at Birtung were parties to the Suit

inasmuch as the same has no bearing with the present

suit. Mr. Sahu drawing attention of this Court to

Explanation-VI to Section-11 CPC submitted that in order

to sustain the plea of res judicata, it was not necessary

that all the parties to the two litigations must be common.

It was his contention that all that was necessary was that

the suit should be between the same parties or between

the parties under whom they or any of them claim

litigating. In support of such contention, Shri Sahu has

placed reliance on the decisions of the Apex Court in the

cases of Iswar Das Vrs. State of Madhya Pradesh &

others, reported in AIR 1979 SC 551, Narayan Prabhu

Venkateswar Prabhu -Vrs.- Narayana Prabhu Krishna

Prabhu, reported in AIR 1977 SC 1268, and

Commissioner of Endowment & others vrs. Vittal Rao

// 33 //

& others, reported in AIR 2005 SC 454. The judgment

passed in Title Suit No.194 of 1990 and the judgment

passed in S.J. Appeal No.68 of 1994 were marked as

Ext.57 & 58, and the question of election of office bearers

of Plaintiff No.1 was directly and substantially in issue in

Title Suit No.194 of 1990. It goes without saying that the

same issue has been decided in favour of the Plaintiffs

where Nilachala Saraswata Sangha was a party. The

judgment passed in Title Suit No.194 of 1990 was

confirmed by this Court in Second Appeal No.51 of 1997

and the Special Leave Petition filed thereunder was also

dismissed. Therefore, the decision rendered in earlier suit

was binding on each and every member of Nilachala

Saraswata Sangha. Therefore, I am in complete agreement

with the finding recorded by the learned Lower Appellate

Court that the said judgment would operate as res

judicata so far as the issue relating to election as involved

in the present suit is concerned. The substantial Question

No.3 is answered thus.

20. Having arrived at the aforesaid conclusions, I am

of the considered view that the present Appeals do not

// 34 //

involve any substantial question of law which requires

interference. Accordingly, both these Appeals are

dismissed. But there shall be no order as to costs.

21. Urgent certified copy be granted on proper

application.

( S.Pujahari ) Judge Orissa High Court, Cuttack.

The 20th day of September, 2022/MRS