Dismissed

Nasreena Salam v. Rev.Fr.Peter Mulluparambil

Kerala HC18 May 2022FAO (RO)/8/2022

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal in limine. It held that the trial court erred in not adjudicating the preliminary issue regarding the proper institution of the suit. The court ruled that a suit for society property instituted in a member's individual name is invalid. Consequently, the scope of remand was extended to include both the exemption and ownership issues.

What did the court decide?

The order of remand is maintained with an extension of scope to cover issues regarding the proper institution of the suit and the parties involved.

Nasreena Salam Vs Rev.Fr.Peter Mulluparambil — Contract and Commercial Disputes | Kerala HC (2022)

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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 P.SOMARAJAN

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WEDNESDAY, THE 18^th DAY OF MAY 2022 / 28TH VAISAKHA, 1944

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FAO (RO) NO. 8 OF 2022

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AGAINST THE JUDGMENT DATED 15.09.2021 IN AS No.28/2019 OF Ist

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ADDITIONAL DISTRICT COURT, KOZHIKODE

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JUDGMENT DATED 03.12.2016 IN OS 580/2014 OF ADDITIONAL MUNSIFF

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COURT-I, KOZHIKODE

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APPELLANT/RESPONDENT/DEFENDANT:

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Mrs.NASREENA SALAM, AGED 59 YEARS, D/o C.P. ADAM, ROOM No.7,8, KJS COMPLEX, RC ROAD, KASABA VILLAGE, KALATHINKUNNU, CALICUT – 673 032.

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BY ADVS. NIRMAL.S VEENA HARI RIA ELIZABETH JOSEPH IRENE ELZA SOJI

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RESPONDENT/APPELLANT/PLAINTIFF:

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REV.FR.PETER MULLUPARAMBIL, AGED 49 YEARS, S/o M. PETER, SECRETARY AND TREASURER, KERALA JESUIT SOCIETY (Regd. Society), CHRIST HALL, P.O. MALAPARAMBA – 673 009, VENGERI AMSOM, NEDUNGOTTOOR DESOM, KOZHIKODE TALUK.

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) No.8 of 2022

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JUDGMENT

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The question whether the subject matter of the suit is

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exempted from the operation of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up as an initial issue,

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which was answered by the trial court, against which a

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review petition was filed. It was dismissed, against which, the aggrieved person came up before this court. It was disposed of by this court by observing that the remedy of aggrieved person is by way of an appeal. Thereon, an appeal was preferred and the appellate court set aside the order of the trial court and remanded the matter for fresh consideration, against which, the defendant came up in appeal.

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The remand is for the purpose of adjudicating the

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preliminary issue regarding the operation of exemption under Section 25 of the Kerala Buildings (Lease and Rent

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Control) Act, 1965. But no documentary evidence was adduced in that behalf. The exemption order/notification

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FAO (RO) No.8 of 2022 3

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was not produced for perusal. Going by the suit, it is

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clear that the plaintiff is one Rev. Fr. Peter

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Mulluparambil, claimed to be the Secretary and Treasurer of

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Kerala Jesuit Society (a registered society). The registered society was not made as a party to the suit. Admittedly, it is not the personal property of Rev.Fr.Peter Mulluparambil. Without making the society (registered), the owner of the property as a party, a suit was instituted in the name of Rev.Fr.Peter Mulluparambil. He may be the

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person holding the office of Secretary and Treasurer of the registered society. That does not mean that he can maintain

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a suit in respect of the property belonged to the society in his individual capacity, without making the society as a party to the suit, though he can maintain a suit in a representative capacity for and on behalf of the society, for which necessarily, the society must be in the array of suit as plaintiff. No such suit was instituted by making the society either as a plaintiff or as a defendant. Hence, prima facie it appears that the suit has not been properly instituted. The said question was not taken up or adjudicated though it is material in maintaining a suit of

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FAO (RO) No.8 of 2022 4

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this nature. Failure to consider the said question is so fatal. Hence, a remand of the matter cannot be avoided. The trial court shall take up both the issues as preliminary issues for adjudication. The order of remand hence deserves no interference. But the scope of remand is extended so as to cover both the issues raised above. Accordingly, the appeal is dismissed in limine.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Nasreena Salam v. Rev.Fr.Peter Mulluparambil

Case brief

What is this about?

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Nasreena Salam v. Rev.Fr.Peter Mulluparambil

Case brief

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What the court decided

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Statutes considered

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