Appeal against dismissal of an amendment application in a suit challenging a society's Executive Committee resolution to demolish and rebuild. The Division Bench held the proposed declaration about General Body supremacy was unnecessary since it could be established by evidence without a prayer.
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O.S.A. No.37 of 2024
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.03.2024
CORAM:
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
O.S.A.No.37 of 2024 and
C.M.P.No.4948 of 2024
2.N.G.Hari Krishnan
... Appellants
Vs.
3.R.Ramakrishnan, President, Socio Economic Service Society, Represented by its Secretary, “Variar Illam” No.:24, Saraswathi Street, Mahalingapuram, Nungambakkam, Chennai – 600 034.
... Respondents
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O.S.A. No.37 of 2024 Prayer : Original Side Appeal filed under Order XXXVI Rule 9 of the Original Side Rules and Clause 15 of Letters Patent, to set aside the interim judgment and decree dated 03.01.2024 passed in A.No.1690 of 2023 in C.S.No.79 of 2022.
For Appellants : Mr.A.Muthu Subramaniam
for Mr.S.Namasivayam
J U D G M E N T
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
Challenge in this appeal is to the order of the learned Single Judge dismissing the application seeking an amendment of the prayer alone.
2. The appellants have filed a suit for declaration that the resolution
passed by the Executive Committee of the first respondent society on 29.01.2022 deciding to demolish the existing building and to reconstruct the building is illegal, null and void and ultra vires the objects and bye-laws of the 1st defendant Society and for a permanent injunction restraining the defendants, their men, agents, employees or any one claiming under them from demolishing the building on the suit schedule property until it is declared that the building lacks stability by the competent authorities.
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O.S.A. No.37 of 2024
3. Pending suit the appellants moved an application in A.No.1690 of
2023 seeking amendment of the plaint to include the prayer which reads as
follows:-
“A declaration that the General Body of the society is
the ultimate authority in all matters relating to the society, as empowered under Clause 10 of the Bye-law.”
4. The learned single Judge who dealt with the amendment application found that the prayer itself is superfluous and it is not required at all. The learned Judge further found that the suit being one challenging the resolution of the Executive Committee, if it is shown that the decision with regard to demolition and re-construction of building can be taken only by the General Body and not by the Executive Committee, the plaintiffs will necessarily succeed. Therefore, the declaration that the General Body is a supreme Authority is not necessary. Hence, this appeal.
5. The learned counsel for the appellants would submit that a declaration to the effect that the General Body is supreme would establish the hierarchy of the Society.
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O.S.A. No.37 of 2024
6. We do not think we could accept the said argument. If the bye-
laws provide that it is the General Body which is supreme and the decisions
of the Executive Committee are subject to the decisions of the General Body, the same can be established by evidence, for which a prayer is not required.
7. We are unable to fault the learned Single Judge for dismissing the application on the ground that the amendment itself is unnecessary. The appeal therefore fails and it is accordingly dismissed . No costs. Consequently, the connected miscellaneous petition is closed.
(R.S.M., J.) (R.S.V., J.) 04.03.2024 dsa Index : No Internet : Yes Neutral Citation : No Speaking order
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O.S.A. No.37 of 2024 R.SUBRAMANIAN, J. and R.SAKTHIVEL, J.
dsa
O.S.A.No.37 of 2024
04.03.2024
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1 issue framed by the court
Was the Single Judge justified in dismissing the application to amend the plaint to add a declaration that the General Body is the ultimate authority under Clause 10 of the Bye-law?
1 provisions across 1 enactments
A.Arul Mozhi Shivam
N.G.Hari Krishnan
Socio Economic Service Society, Represented by its Secretary
The President, Socio Economic Service Society, Represented by its Secretary
R.Ramakrishnan, President, Socio Economic Service Society, Represented by its Secretary
R.Subramanian
R.Sakthivel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
