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2001 DIGILAW 404 (KAR)

Swetha Education Society v. K. Ramanna

2001-05-30

K.SREEDHAR RAO

body2001
JUDGMENT K. Sreedhar Rao, J.—The two appeals arise out of O.S. No. 249 of 1999 as O.S. No. 4994 of 1999 on the file of the 7th Additional City Civil Judge, Bangalore. 2. The appellant is the Plaintiff in both the suits. O.S. 249 of 1999 is filed for permanent injunction against the second Respondent herein seeking permanent injunction not to interfere with the running of the school. The second Respondent is none other than the brother-in-law of the appellant. 3. From the facts in O.S. 249 of 1999 it discloses that a Society was registered under the name of Shwetha Education Society which undertook to run a school by name Kannada and English Primary and High School. There was a dispute regarding the claim of the Plaintiff that he is the Secretary of the said Society which was challenged by the second Respondent. 4. In O.S. No. 4994 of 1999 the appellant filed the suit seeking injunction against the Respondents herein not to interfere with the peaceful possession and enjoyment of the suit property which consists of the school building. In both the suits, an application was filed under Order 39, Rules 1 and 2 Code of Civil Procedure for grant of temporary injunction. The applications in both the suits were heard and disposed of by a common order. The prayer for grant of temporary injunction is rejected. It was also held by the trial Court that the suit is not maintainable, accordingly, dismissed the I. As. and as well the suits. Being aggrieved by the said order, the present appeals are filed. 5. The trial Court finds that the leased premises in which the school is run belongs to the Shwetha Education Society. The Plaintiff-appellant without competent authority or authorisation from the Society has instituted the suit and thus holds that the suit filed by the Plaintiff is not maintainable. 6. The grievance of the first Respondent in the appeal is that the rents of the leased premises is not being paid to him despite the directions given by this Court. 7. On hearing the Counsel for the appellant and the Respondent, the crux of the dispute in both the suits appears to project in the following way. 8. The Plaintiff claims that he is the Secretary of the Society and has a right to manage the school. 7. On hearing the Counsel for the appellant and the Respondent, the crux of the dispute in both the suits appears to project in the following way. 8. The Plaintiff claims that he is the Secretary of the Society and has a right to manage the school. The said assertion is challenged by the second Respondent contending that the Plaintiff is not the Secretary and he has no right to manage the school. On the other hand, the Defendant contends that he has right to manage the school. 9. In Original Suit No. 4994 of 1999, the Plaintiff's contention is that the suit schedule property is taken on lease individually in the name of Plaintiff and he has permitted the Shwetha Education Society to run the school. It is further contended that after the disputes arose, the school run by Shwetha Education Society is shifted to some other place and in the said premises a different school is run by name Poorna Pragathi School by a different society. This assertion is seriously challenged by the second Respondent. It is the contention of the Respondents that the premises is leased in favour of Shwetha Education Society and that the Plaintiff has no individual or personal interest in the lease, as such it is their contention that in the absence of proper authorisation given by the Shwetha Education Society, the suit filed by the Plaintiff is not maintainable. The trial Court while considering the question of grant of temporary injunction in detail gone into the rival contentions with regard to the management of the school and incidentally finds that the lease is executed in favour of Shwetha Education Society thus holds that the Plaintiff, in the absence of proper authorisation given by Shwetha Education Society is not competent to file the suit, accordingly dismissed the applications filed for temporary injunction and as well the suits. 10. In the present appeals, the question that precisely arise for consideration would be the propriety of the trial Court for dismissing the suit on the ground of maintainability without a proper issue being framed in that behalf and without giving proper opportunity to the parties concerned. No doubt while granting a temporary injunction, the maintainability of the suit is one of the considerations which should be taken note of by the Court. No doubt while granting a temporary injunction, the maintainability of the suit is one of the considerations which should be taken note of by the Court. However, the converse of which cannot be stretched to mean that when the Court while hearing the application on a temporary injunction, the suit can be dismissed on the ground of maintainability without a proper hearing on that particular point. In the instant case, although some material was available to the Court on this issue none the less the parties were not directed to rivet their attention to this aspect of the matter. The arguments were canvassed only on the facts relating to grant of temporary injunction. In all fairness to give proper opportunity in law to both the parties, it is just and necessary that the Plaintiff and as well the Defendants should have been asked to address their arguments specifically on the issue of maintainability and the Court should have decided after hearing on this aspect. It is open for the Court under Order 14, Rule 5 Code of Civil Procedure to consider the question of maintainability as a preliminary issue. If the issue is a mixed question of law and fact perhaps only after recording the evidence, the issue requires to be decided. In the instant case, the lease deed executed appears to be the material document for considering whether the lease is in favour of the Plaintiff in his personal capacity or made in favour of the Institution. On these aspects, the Court should have considered and disposed of the question of maintainability separately and independently. In that view of the matter, I find that the trial Court has acted hastily in dismissing the suit without giving proper opportunity to the parties concerned. 11. Accordingly, the dismissal of the suit is set aside. The matters are remitted to the trial Court for disposal in accordance with law and the trial Court may if the material on record warrants can hear the question of maintainability even without recording evidence. The trial Court is directed to dispose of the suit within one year. It is submitted the arrears of rent in a sum of Rs. 16,000/- is deposited. The first Respondent is permitted to withdraw the amount in deposit without prejudice to his case.