Partly allowed

Santhosh Club v. v.v.Philip

Kerala HC28 Nov 2012CRP/316/2010

Case brief

AI extract

What is this about?

The High Court of Kerala set aside an order granting leave under Section 92 CPC after the suit was instituted. Relying on precedents, the Court held such leave cannot be granted post-filing, rendering the suit non-maintainable thereon, but without prejudice to filing afresh.

What did the court decide?

The impugned order was set aside without prejudice to the right of the plaintiffs to sue afresh.

Santhosh Club Vs v.v.Philip — Civil Procedure and Limitation | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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WEDNESDAY, THE 28TH DAY OF NOVEMBER 2012/7TH AGRAHAYANA 1934

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CRP.No. 316 of 2010 ( )

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I.A. NO. 799/2006 IN OS.2/2006 OF DISTRICT COURT, THODUPUZHA

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REVISION PETITIONERS/RESPONDENTS 1 & 2 /DEFENDANTS 1 &2 :

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1. SANTHOSH CLUB KARIMANOOR, REG. NO. 425/78,

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KARIMANOOR P.O., KARIMANNOOR VILLAGE REPRESENTED BY ITS PRESIDENT, FRANCIS V., VARICKASSERIL HOUSE, UDUMBANNOOR PO,

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UDUMBANNOOR VILLAGE.

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2. V.K.THANKAPPAN, MLAYIL HOUSE, KARIMANNOOR PO, THODUPUZHA TALUK, SECRETARY SANTHOSH CLUB, KARIMANNOOR.

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BY ADVS.SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN

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RESPONDENTS/PETITIONERS 1 TO 4- PLAINTIFFS & RESPONDENTS 3 TO 7

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------------------------------------------------------------------------------------------------------------DEFENDANTS 3 TO 7 :

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1. V.V. PHILIP,

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S/O. VARKEY, VENKULATHIL HOUSE, PANNOOR PO, KARIMANOOR VILLAGE THODUPUZHA.

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2. A.S.JABBARKUTTY, S/O.SADIK,

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AALIYAKUNNEL HOUSE, UDUMBANNOOR PO, THODUPUZHA.

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3. K.P.MADUSUDANAN, S/O.PEETHAMBARAN,

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KALLUVELIL HOUSE, KARIMANOOR PO, THODUPUZHA.

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4. JOY JOSEPH, S/O.JOSEPH, KOCHUPURACKAL HOUSE, PANNOOR PO,

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UDUMBANNOOR VILLAGE THODUPUZHA TALUK.

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...2/-

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CRP.No. 316 of 2010 ( ) -2-

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5. SAJI, S/O.MARKOSE, PULLISSERIL HOUSE, ARIVILAMCHAL PO, KANTHIPPARA VILLAGE UDUMBANCHOLA TALUK, IDUKKI.

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6. P.N.PRABHAKARAN NAIR, KARTHIKA NIVAS, PANNOOR KARA, KARIMANNOOR, THODUPUZHA.

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7. K.S.J0SE, S/O.DEVASIA, KUNNAPPILLIL HOUSE, KARIMANNOOR, THODUPUZHA.

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8. MATHAI MATHEW, S/O.MATHEW, POOVATHINKA VEEDU, THATTAKKUZHA PO, THODUPUZHA.

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9. P.N.NARAYANAN NAIR, PUTHENVEEDU, KARIMANNOOR, THODUPUZHA.

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R1 TO R4 & R6 TO R9 BY ADVS. SRI.P.B.KRISHNAN

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SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN

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SRI. T.A. UNNIKRISHNAN SRI.K. SATHEESH KUMAR

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.CHITAMBARESH,J.

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= = = = = = = = = = =

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C.R.P No.316 of 2010

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= = = = = = = = = = = == = = = = Dated this the 28^th day of November, 2012

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O R D E R

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The suit filed on 27-10-2006 seeks to prepare a scheme for the administration of the first defendant (Santhosh Club) Karimanoor. The plaintiffs subsequently filed an application on 6-11-2006 seeking leave under Section 92 of the Code of Civil Procedure. The court below by order dated 15-12-2009 granted leave and the same is impugned in the Civil Revision Petition.

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The revision petitioners/defendant Nos. 1 and 2 contend that grant of leave should precede the institution of the suit. Reliance is placed on the following decisions to buttress this point.

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i) P.V Mathew and Others vs. K.V Thomas and Others (AIR 1983 Kerala 5)

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ii) R.M Narayana Chettiar and another vs. N.Lakshmanan Chettiar and others ( AIR 1991 Supreme Court 221)

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iii) St.Peters Orthodox Syrian Church vs. Fr. Abraham Mathews (2011 (4) KLT 540)

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C.R.P No.316 of 2010 2

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It is clear from the aforesaid decisions that the court cannot grant leave under Section 92 of the Code of Civil Procedure after the institution of the suit. It necessarily follows that the suit wherein leave was granted subsequent to its institution is not maintainable.

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The core question is whether the first defendant Club is a public trust wherein the beneficiaries are the public at large. Normally the bye laws of such a Club would imply that the beneficiaries are only its members. The Club is also seen registered under the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act, 1955. The remedy under the said Act is to file an application to the District Court for framing a scheme for the better and efficient management of the society. A reference to the decision in Abhaya vs. Raheem

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(2005(3) KLT 891) is apposite.

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I set aside the impugned order without prejudice to the right of respondent Nos.1 to 4/plaintiffs to sue afresh on the same cause of action. All the questions can be dealt with in the proceedings proposed to be filed in accordance with law.

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The Civil Revision Petition is disposed of.

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V.CHITAMBARESH. JUDGE

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smm

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C.R.P No.316 of 2010

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smm

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