Allowed

Smt Sunanda v. Satya Deepa Ashrama

Karnataka HC10 Nov 2022CRP/62/2019

Case brief

AI extract

What is this about?

In a civil revision petition under Section 115 of CPC, the Karnataka High Court allowed the petitioner's application rejecting the plaint in an original suit. The court held that under Section 15 of the Karnataka Societies Registration Act, 1960, a society must produce authorization for the person filing the suit, which was missing here.

What did the court decide?

Revoked the impugned order dated 17.12.2018 and allowed the application to reject the plaint.

Smt Sunanda Vs Satya Deepa Ashrama — Service and Employment | Karnataka HC (2022)

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CRP No. 62 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN

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CIVIL REVISION PETITION NO. 62 OF 2019

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BETWEEN:

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SMT.SUNANDA W/O SRIDHARA B RUDRAPPA AGED ABOUT 41 YEARS, RESIDING AT NO. 244, 1ST STAGE, BINNAMANGALA BANGALORE - 560 038.

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…PETITIONER

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Digitally signed by V MANJUSHA BAI Location: High Court of Karnataka

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(BY SRI. AMARESH A ANGADI, ADVOCATE)

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AND:

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SATYA DEEPA ASHRAMA BELLUR VILLAGE NARASAPURA HOBLI KOLAR TALUK & DISTRICT - 563 101 REPRESENTED BY ITS SECRETARY.

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SRI C. SRINIVASAIAH S/O CHIKKAMUNIYAPPA AGED ABOUT 63 YEARS, RESIDING AT NO.999 SAPTAGIRI NILAYA, KANAKANAGAR KANNAVALLI ROAD HOSKOTE TALUK - 562 114 BANGALORE DISTRICT.

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SMT. SUMITHRA SIDDAPPA

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CRP No. 62 of 2019

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W/O LATE SIDDAPPA AGED ABOUT 60 YEARS, RESIDING NEAR BASAVESWARA TEMPLE, M.V.BADAWANE, KURUBARA PETE, HOSKOTE TOWN - 562 114

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…RESPONDENTS

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(VIDE ORDER DATED 25.10.2021, NOTICE TO R2 IS DISPENSED WITH; VIDE ORDER DATED 18.10.2022, NOTICE TO R1 AND R3 HELD SUFFICIENT)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 17.12.2018 PASSED ON IA DATED 09.10.2017 IN OS NO.49/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM., AT KOLAR REJECTING THE APPLICATION UNDER ORDER 7 RULE 11(a) AND (d) R/W.SEC.151 OF CPC. DATED 09.10.2017 FOR REJECTION OF PLAINT.

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THIS PETITION COMING ON FOR ADMISSION, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Aggrieved by the order dated 17.12.2018 passed by the

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Principal Senior Civil Judge & C.J.M. at Kolar on I.A. filed under Order VII Rule 11(a) and (d) read with Section 151 of CPC in O.S.No.49/2010, defendant No.3 therein has preferred this revision petition.

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CRP No. 62 of 2019

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2. Notice to respondent No.2 herein has been dispensed with. Respondent No.1 herein, who is the plaintiff in the original suit and respondent No.3 herein, though served have remained unrepresented.

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3. The suit before the trial Court has been filed by respondent No.1. The plaintiff/respondent No.1 claims to be a Society registered under the Karnataka Societies Registration Act, 1960 (hereinafter referred to as 'Act', for short). It has filed the instant suit for declaration and mandatory injunction. The petitioner herein, apart from other things, has contended before the trial Court that respondent No.1-plaintiff is a fictitious person having no right over the property and Section 15 of the Act has not been complied with before filing of the suit. After the evidence of the plaintiff's side was completed, the petitioner-defendant No.3 filed an application under Order VII Rule 11(a) and (d) of CPC on the ground that the evidence discloses that the plaintiff-Society is not in

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CRP No. 62 of 2019

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existence and the permission under Section 15 of the Act has not been complied with and for that reason, prayed for rejection of the plaint. The said application was opposed by respondent No.1-plaintiff. The trial Court on the ground that while rejecting the application filed under Order VII Rule 11(a) and (d) of CPC has observed that only the averments in the plaint has to be looked into and in the instant case, while looking into the averments made in the plaint the same is maintainable and on the said ground, dismissed the application. Aggrieved by the same, the instant petition is filed.

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4. The case of the petitioner is that the plaint does not disclose a cause of action and that the suit is barred by law and the trial Court failed to appreciate the same and that the application under Order VII Rule 11 of CPC can be filed at any point of time and on the said ground, it is prayed that the petition be allowed.

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CRP No. 62 of 2019

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5. The question that arises for consideration in the instant petition is:

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Whether the plaint does not disclose the cause of action or is barred by law as contended by the petitioner or not ?

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6. It is a settled proposition of law that application under Order VII Rule 11 of CPC can be made at any point of time during the pendency of the suit. It is also settled proposition of law that the Court while deciding the application filed under Order VII Rule 11 of CPC has to consider only the averments made in the plaint and cannot take into consideration the pleadings in the written statement or the evidence let in. If the plaint on the face of it does not disclose any cause of action or is barred by law, then the plaint can be rejected.

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7. Pleadings in the plaint reveals that the plaintiffSociety is registered under the Act. It had earlier filed O.S.No.155/2007 in respect of the same schedule property which culminated in rejection of the plaint on the

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CRP No. 62 of 2019

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ground that the suit was barred under Section 15 of the Act and respondent No.1 - Plaintiff filed an appeal in RFA No.580/2009 and this Court permitted the plaintiff to withdraw the appeal with liberty to institute a fresh suit in respect of the same schedule property. Pursuant to which the present suit has been preferred by respondent No.1 - Plaintiff. The plaint further reveals that the cause of action of suit arose on 02.11.2009 when the defendants had wrongly invaded other schedule property and demolished two buildings existing there and put up a house and shed in a portion of the schedule property.

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8. Thus, in my opinion, the plaint does disclose the cause of action. Now what needs to be considered is whether suit is barred by law as contended by the plaintiff.

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Section 15 of the Act reads as under:

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15. Suits by and against society :- Every society registered under this Act may sue or be sued in the name of the president, chairman, or

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principal secretary or the trustees as shall be determined be the rules and regulations of the society, and, in default, of such determination, in the name of such person as shall be appointed by the governing body for the occasion:

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Provided that, it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if, on application to the governing body, some other officer or person be not nominated to be the defendant."

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9. The plaintiff contends that as per provisions of

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Section 15 of the Act, a person filing the suit on behalf of the Society should be duly authorized to do so. Admittedly, the plaintiff-Society instituted

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O.S.No.155/2007 without such authorization and the plaint in the said case has been rejected on the said ground and in the course of the appeal, the plaintiff withdrew the same reserving liberty to file a fresh suit after complying with the said provision. Subsequently, O.S.No.49/2010 has been filed. There is an averment

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made in the plaint to the effect that the Secretary is authorized to file a suit on behalf of the plaintiff - Society.

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CRP No. 62 of 2019

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But it is noticed that no authorization has been enclosed

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along with the plaint and in the evidence, PW1 has stated

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that he has not produced the same. However, as already stated above, while considering the application filed under

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Order VII Rule 11 of CPC, the plaint alone has to be considered and the evidence of PW1 cannot be considered.

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Thus, the question that arises for consideration is:

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Whether plaintiff is required to produce the authorization certificate at the time of filing of the suit itself?

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10. Order VII Rule 14 of CPC reads as under:-

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(Karnataka Amendment)

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"14. Production of document on which plaintiff sues or relies :- (1) The plaintiff shall endorse on the plaint or annex thereto a list of documents required to be produced or disclosed as hereinafter provided in this rule.

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(2) Where the plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.

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(3) Where the plaintiff relies on any other documents (whether in his possession or power or

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not) as evidence in support of his claim, he shall enter such documents in the list above referred to showing separately which of the documents in his possession or power and which are not, which of the documents in his possession or power he has produced with the plaint and which are not so produced. In regard to any such documents which are not produced, the list shall contain a statement of the reason for their non-production and the steps which the plaintiff has taken or will take to produce them or cause their production."

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11. Thus, the plaintiff has to produce the documents that

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he sues upon or rely upon to file the suit. However, there is a difference between the documents which is mandatory for a person to file a suit and document which the plaintiff relies upon to prove a point in the suit. The documents which he relies upon to prove a point in the suit can be produced by the plaintiff with the permission of the Court subsequently. But when the document is mandatory to file the suit, it is incumbent on

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the plaintiff to produce the same along with the plaint. When the suit is initiated by a Society only a

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10 -

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authorized person as contemplated under Section 15 of the Act can initiate the same. If a person is not authorized he cannot file a suit. Provisions of Section 15 of the Act has to be mandatorily complied with. The plaintiff in the instant case is required to produce the authorization under Section 15 of the Act at the time of presenting the plaint. In the instant case, he has not produced the same even after an application under Order VII Rule 11 (a) & (d) read with Section 151 of CPC was filed by the petitioner - defendant No.3. Further, plaint in O.S.No.155/2007 was earlier rejected on the ground that authorization under Section 15 of the Act was not obtained. It is also noticed that respondent No.1- Plaintiff in its objections has not denied the averment that they do not have the necessary authorization as per Section 15 of the Act.

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12. Thus, under the given facts and circumstances of the case, the pleadings in the plaint when read along with the documents adduced with the plaint does not establish the

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fact that the plaintiff - respondent No.1- Society has complied with the provisions of Section 15 of the Act and that the person who has filed the suit on behalf of the Society has the necessary authorization. Thus, for the

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said reasons, the petition deserves to be allowed.

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13. Hence, the following:

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ORDER

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i. The petition is allowed .

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ii. The impugned order dated 17.12.2018 is hereby set aside; the said I.A. filed under Order VII Rule 11(a) and (d) read with Section 151 of CPC is hereby allowed; and plaint in O.S.No.49/2010 on the file of Principal Senior Civil Judge, CJM, Kolar stands rejected.

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No order as to costs.

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SD/JUDGE

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Smt Sunanda v. Satya Deepa Ashrama

Case brief

What is this about?

What did the court decide?

Smt Sunanda v. Satya Deepa Ashrama

Case brief

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What did the court decide?

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