Deshadapete Veerashyva Sangha v. B. S. Chandrashekar
2014-04-03
MOHAN M.SHANTANAGOUDAR
body2014
DigiLaw.ai
ORDER Mohan M. Shantana Goudar, J. 1. The application filed by the petitioners who are defendants in O.S. No. 397 of 2012 for rejecting the plaint came to be rejected by the impugned order. Records reveal that, suit came to be filed by respondents 1 and 2 herein for declaration that the suit property is a graveyard of Veerashyva Community and for consequential relief of injunction. 2. According to the defendants, suit property belongs to the society. The application came to be filed by defendants 1 and 2 for rejecting the plaint on the ground that the suit is not maintainable; suit came to be filed without taking permission under Section 92 of Civil Procedure Code, 1908; the Court below is not justified in granting permission to the plaintiffs to file the suit in a representative capacity by allowing the application filed by the plaintiffs under Order 1, Rule 8 or Civil Procedure Code; the said application filed by the defendants came to be rejected by an impugned order. 3. While rejecting the application for rejection of the plaint, the Court below has prima facie concluded that, the suit property belongs to the society. However, it is the case of the plaintiffs that, though property belongs to the society, same is a graveyard used for burying the dead bodies of Veerashyva religion. At the time of riling of the suit, an application came to be filed under Order 1, Rule 8 of Civil Procedure Code praying permission to file the suit in the representative capacity. Consequently, the same is allowed by the Trial Court. 4. Learned Advocate appearing for the petitioners/defendants submits that, since the plaintiffs are not members of the defendant's society, it is not open for them to file civil suit of the present nature; the permission granted by the Court below in filing the suit in the representative capacity is wrong; plaintiffs ought to have taken permission under Section 92 of Civil Procedure Code before initiating the suit. 5. Sum and substance of the arguments of the learned Advocate for the petitioners is that, the suit is barred by Sections 14 and 15 of the Karnataka Societies Registration Act, 1960 (hereinafter referred to as 'the Act' for short for the purpose of clarity and convenience); thus, the plaint needs to be rejected under Order 7, Rule 11(d) of Civil Procedure Code. 6.
6. Before proceeding further, it is relevant to note the provisions of Section 14 and 15 of the Act.- 14. Property of society how vested.--The property, movable and immovable, belonging to a society registered under this Act, if not vested in trustees, shall be deemed to be vested, for the time being in the governing body of such society, and in all proceedings, civil and criminal, the property may be described as the property of the governing body of such society by their proper title. 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 Principal Secretary or the trustees as shall be determined by 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: 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". 7. From the aforementioned provisions, this Court does not find any ground to conclude that the suit itself is not maintainable against the society. The Trial Court has prima facie found that first plaintiff is the member of defendant's society since several years. If it is so, there is no bar for the plaintiffs to file civil suit. 8. Learned Counsel for the petitioners relying upon the judgment of the Delhi High Court in the case of Gurdwara Parbandhak Committee v. Jagmohan Singh and Others ILR 1971 Del. 515, contends that, suit of the present nature is not maintainable. The question as to whether the suit is maintainable or not, has be decided after full-fledged trial. 9. In the matter of Delhi noted supra, suit came to be decreed and thereafter in the first appeal, the Appellate Court has concluded that the suit was not maintainable which means the suit was dismissed on merits. That was not the case, wherein the question relating to the rejection of the plaint was considered. The plaint has to be rejected strictly in accordance with Order 7, Rule 11(d) of Civil Procedure Code.
That was not the case, wherein the question relating to the rejection of the plaint was considered. The plaint has to be rejected strictly in accordance with Order 7, Rule 11(d) of Civil Procedure Code. On going through the material on record, I am of the clear opinion that the suit of present nature is not barred by any statute more particularly, Sections 14 and 15 of the Act. The Trial Court is thus justified in rejecting the application. Hence, no interference is called for. Petition fails and same stands dismissed. All contentions are left open to the defendants to be urged before the Trial Court relating to the maintainability of the suit.