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2016 DIGILAW 155 (ORI)

Fr. E. A. Thomas v. Rammurty Missal

2016-02-23

B.P.RAY

body2016
JUDGMENT B.P. RAY, J. - Being aggrieved by the judgment and decree dated 31.07.1997 and 08.08.1997 respectively passed by the learned Civil Judge (Sr. Division), Parlakhemundi in Money Suit No. 37 of 1995, the appellant-plaintiff has preferred this appeal. 02.Factual aspects as revealed from the pleadings of the rival sides may be briefly stated as follows:- The appellant-plaintiff claiming himself to be the Regional Director of the Organization for Development, Integration and Social Action (for short, “ODISA”) filed the suit seeking recovery of Rs. 1,40,000/- with interest from the respondent-defendant, with the pleading that he is the Priest in-charge of a Church at Allada and is running a hostel accommodating children with provision of free meals and residence for them, and that on the approach of the respondent-defendant, a converted Christian having a piece of land near the PWD Road, and the Sarpanch and some other villagers, he financed the respondent-defendant for purchase of machinery, and construction materials to the tune of Rs. 1,60,000/-, for establishment of a Rice Mill with flour and oil units on the aforesaid land of the respondent-defendant. The respondent-defendant acknowledged receipt of the aforesaid money by executing a promissory note on 17.09.1993, and also after making a part payment of Rs. 20,000/- to the appellant-plaintiff, he executed an agreement on 28.09.1994 to pay Rs. 80,000/- before 28.02.1995 and the balance of Rs. 60,000/- before 28.09.1996, and in default, to deliver the possession of the Mill to the appellant-plaintiff. As the respondent-defendant defaulted in making the payment, at the instance of the appellant-plaintiff, criminal proceedings were started against the respondent-defendant before the Executive Magistrate, and the respondent-defendant also filed a title suit bearing No. 30/95 in the Court of Civil Judge (Jr. Division) seeking a permanent injunction against the appellant-plaintiff. The aforesaid Title Suit was decreed giving liberty to the present appellant- plaintiff to file a separate suit for realization of the dues from the present respondent-defendant. This goaded the appellant-plaintiff to file the suit. The respondent-defendant resisted the suit by filing his written statement denying the claim of the appellant-plaintiff and the plaint averments. He also denied existence of any such organization by the name “ODISA” and the appellant-plaintiff to be the Regional Director of any such organization. He also denied himself to be a member of Christian community. The respondent-defendant resisted the suit by filing his written statement denying the claim of the appellant-plaintiff and the plaint averments. He also denied existence of any such organization by the name “ODISA” and the appellant-plaintiff to be the Regional Director of any such organization. He also denied himself to be a member of Christian community. According to him, the Mill in question has been established out of his own investment, and that the appellant-plaintiff obtained his signatures on some blank sheets of paper by practicing fraud and fabricated some documents to create a false case against him. He also questioned the maintainability of the suit on some technical ground including the ground of non-joinder and mis-joinder of parties. 03.The learned trial Court framed the following issues for adjudication:- i. Is the suit maintainable ? ii. Has the appellant-plaintiff cause of action to bring the suit.? iii. Is the suit barred by limitation? iv. Is the suit bad for non-joinder of necessary parties? v. Can the suit Mill be kept as 1st charge for realization of the suit claim? vi. Had the plaintiff supplied machineries, Construction materials for construction of the suit Mill worth of Rs. 1,60,000/- to the defendant? vii. Had the defendant acknowledged his liability worth Rs. 1,60,000/- through a document dated 17.09.1993. viii. Had the defendant executed the suit documents voluntarily and the same are binding on him. ix. Are the suit documents tainted with fraud? x. Is the plaintiff entitled for the suit claim from the defendant along with future interest @ 12% per annum from the date of filing of the suit till recovery? xi. To what other relief, the plaintiff is entitled under law? 04.Both the sides adduced oral and documentary evidence at the trial of the suit, and the learned Court below on appreciating evidence answered the pivotal issues in favour of the appellant-plaintiff, but dismissed the suit as being not maintainable for the findings recorded under issue Nos. 1, 2 & 4 that the appellant-plaintiff has no locus standi to institute the suit, and the suit is bad for non-joinder of “ODISA” as a necessary party. 1, 2 & 4 that the appellant-plaintiff has no locus standi to institute the suit, and the suit is bad for non-joinder of “ODISA” as a necessary party. 05.In support of the appeal, learned counsel for the appellant-plaintiff contended, inter alia, that the respondent-defendant having not raised any question in his written statement regarding locus standi of the appellant-plaintiff and having not specifically pleaded as to who are the necessary parties ought to have been impleaded, learned trial Court exceeded its jurisdiction by travelling beyond the real facts in issues and committed gross error both in facts and law in dismissing the suit. On this context, learned counsel has drawn the attention of the Court to the provisions of Order 8 of the Civil Procedure Code. His further contention was that when the learned Court below answered the vital issues in affirmative while discarding the defence plea regarding fraud, fabrication of documents etc. the ultimate decision ought not to have been the dismissal of the suit on the flimsy grounds which were never in issue especially when the appellant-plaintiff has produced the documents vide Exts. 10 & 11 to show that he is being duly authorized to institute the suit. According to him, the learned trial Court misapplied the ratio of the decision in the case of Vallabhaneni Neelakanteswar Vrs. Sri Edupuganti Ragavendra Rao, reported in AIR 1963 AP 20 , and misconstrued the provision of Section-6 of the Societies Registration Act, 1860. 06.On the other hand, while siding with the conclusion arrived at vide the impugned judgment and decree, learned counsel for respondent-defendant submitted that the appellant-plaintiff having filed the suit in his personal capacity bereft of due authorization from “ODISA”, and without impleading the said organization as a necessary party, learned trial Court rightly held the suit not maintainable keeping in view the mandatory provision of Section 6 of the Societies Registration Act. He argued that the statutory requirement is meant to be strictly followed. in support of his submission, he has placed reliance in the cases of Capital Bar Association vs. State of Odisha and others 2013 (I) OLR 344 , Krushna Chandra Sahoo vs. Bank of India and others 2008 (II) OLR 789 and Dipak Barbaria and anothers vs. State of Gujrat and others AIR 2014 SC 1792 . in support of his submission, he has placed reliance in the cases of Capital Bar Association vs. State of Odisha and others 2013 (I) OLR 344 , Krushna Chandra Sahoo vs. Bank of India and others 2008 (II) OLR 789 and Dipak Barbaria and anothers vs. State of Gujrat and others AIR 2014 SC 1792 . Learned counsel for the respondent further contended that the appellant having not produced during the trial Book of Account, if any, maintained by the society (ODISA) to show advancement of any finance to the respondent, the claim put-forth by him purportedly on behalf of the society has been rightly dismissed by the trial Court. 07.I have gone through the impugned judgment vis-à-vis the pleadings of the parties in the suit. The learned trial Court on elaborate discussion of the evidence of the rival sides has arrived at the definite findings that the appellant-plaintiff supplied the machinery and construction materials worth Rs. 1,60,000/- to the respondent-defendant and the latter acknowledged vide Exts. 4 & 5, his liability to pay the said amount of money to the appellant-plaintiff. There is also categorical finding under issue No. 9 that the aforesaid documents so also the agreement vide Ext. 9 were not tainted with fraud, and those having been voluntarily executed by the respondent-defendant are binding on him. The aforesaid findings of fact recorded by the Court below having not been assailed by the respondent-defendant, this Court is not called upon to deal with the same. The only question that needs consideration in this appeal is , whether the learned trial Court fell in error of fact or law in holding the suit not to be maintainable. 08.It has been expressed by the trial Court that in view of the provision of Section 6 of the Societies Registration Act, the appellant-plaintiff has no locus standi to institute the suit, and the suit is also bad for non-joinder of “ODISA” as a necessary party, and with these findings the suit has been held not to be maintainable. 08.It has been expressed by the trial Court that in view of the provision of Section 6 of the Societies Registration Act, the appellant-plaintiff has no locus standi to institute the suit, and the suit is also bad for non-joinder of “ODISA” as a necessary party, and with these findings the suit has been held not to be maintainable. 09.Section 6 of the Societies Registration Act provides that suit by or against a society should be filed in the name of the President, Chairman, Principal Secretary or the Governing Body, as determined by the rules and regulations of the society, and in absence of any clause in this regard in the rules and regulations, in the name of such person as appointed by the Governing Body. There can be no quarrel over the well recognized rule that where the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. This principle has been reiterated by the Hon’ble Supreme Court so also this Court in the decisions cited by the learned counsel for the respondent-defendant as noted hereinbefore. But whether or not the appellant-plaintiff has locus standi or is duly authorized to file the suit, is a question of fact. It needs no mention that a fact asserted or pleaded by a party figures in issue only when the said fact is denied or controverted by the adversary in his own pleading. Pleading is the foundation of one’s case in absence of or beyond which a party cannot ordinarily be permitted to adduce evidence. If at all, evidence is adduced without foundational pleading, the same should remain outside the scope of appreciation by the Court while answering any particular issue. 10.Now reverting to the case at hand, a perusal of the plaint would reveal that the appellant-plaintiff describing himself to be the Regional Director of ODISA having regional office at village-Allada and also to be the Priest in –charge of the Church situated at the said village filed the suit. The respondent-defendant in his written statement not only denied the rank and position of the appellant-plaintiff as asserted, but also denied the very existence of any such organization by name “ODISA”. The respondent-defendant in his written statement not only denied the rank and position of the appellant-plaintiff as asserted, but also denied the very existence of any such organization by name “ODISA”. He further denied to have availed of any financial assistance from the appellant-plaintiff, and questioned the voluntariness and genuineness of the documents relied on by the said appellant-plaintiff, on the ground of fraud. The plea taken by him in the written statement that the suit is not maintainable and bad for non-joinder of necessary or proper parties, is nothing but a plea of evasive nature inasmuch as nothing has been averred in specific much less with reference to the Societies Registration Act that the appellant-plaintiff is not competent to sue and there is no elaboration in the written statement as to which necessary or proper parties have remained non-impleaded in the suit. He having denied the very existence of the organization “ODISA”, understandably, there was no occasion for him to question the locus standi of the appellant-plaintiff with reference to the said organization or come with a plea that “ODISA” is a necessary party to the suit. 11.Order VIII of the Civil Procedure Code provides, inter alia, that the respondent-defendant must raise by his pleading all matters which show the suit not to be maintainable, and it shall not be sufficient for him to deny generally the grounds alleged by the appellant-plaintiff. It is also not permissible for him to give an evasive denial to an allegation of fact averred in the plaint. The words employed in the aforesaid Rules admit of no ambiguity as to the manner in which the respondent-defendant is required to plead in his written statement so as to traverse the facts pleaded or allegations brought by the appellant-plaintiff in his plaint. In the case of Badat & Co, Bombay vs East India Trading Co. reported in AIR 1964 SC 538 , the Hon’ble Apex Court observed that the Rules 3,4 & 5 of Order VIII CPC form an integrated code dealing with traversed and the legal consequences following from its non-compliance. 12.In the context, a reference may also be made to Duluna Dei alis Dolena Dei vs Balaram Sahu and two others, AIR 1993 Orissa 59. 12.In the context, a reference may also be made to Duluna Dei alis Dolena Dei vs Balaram Sahu and two others, AIR 1993 Orissa 59. In this case, the trial Court framed an additional issue – “Is the suit maintainable” vis-à-vis the averments made by the respondent-defendants in their written statement “that the suit is false, frivolous and vexatious and not at all maintainable in law and facts”. This Court while not appreciating framing of the aforesaid issue in absence of any specific averment in the written statement of the respondent-defendant in that respect, made the following observation: Para 15. ………………………………… In face of such vague averment in the written statement, the trial Court should not have framed the additional issue in the way it has framed. Issues are ordinarily framed when there are disputes between the parties to a litigation to render decisions on those disputes for enabling the Court in deciding the lis in its proper perspective and effectually. Framing of issues also put the parties at guard to put forth the entire evidence at their command for a just decision thereon. In this case, the issue as to the maintainability had not been properly framed by the trial Court. Nevertheless, the learned counsel for both sides advanced argument after conclusion of hearing of the suit as to whether the declaratory suit was maintainable in view of the proviso to Section 34 of the Act and while the trial Court came to hold that the suit was maintainable because the plaintiff was in possession of the suit land, the appellate Court reversed such finding with an observation that the possession of the plaintiff and her mother was doubtful. It has already been held above that the suit was not maintainable because the plaintiff was able to ask for other relief for declaration. In view of the fact that there was no averment in the written statement as to how the suit was not maintainable and that the additional issue framed by the trial Court is vague the question arises whether the matter should be remanded to the trial Court to afford a chance to the plaintiff to amend the plaint or the appeal should be dismissed. ……………………” 13.Now reverting to the case at hand, what it appears, the situation is almost similar to that of Dulana Dei (supra). ……………………” 13.Now reverting to the case at hand, what it appears, the situation is almost similar to that of Dulana Dei (supra). Although there was no specific pleading in the written statement questioning the maintainability of the suit on account of competence or authority of the appellant-plaintiff to sue, an issue regarding maintainability was framed, and as it further appears, the appellant-plaintiff was cross-examined by the defence on the question of his locus standi, and the appellant-plaintiff produced Exts. 10 & 11 asserting that he is being authored to institute the suit. The learned trial Court appears not to have been convinced with the evidence produced by the appellant-plaintiff as regards his competence to bring the action on behalf of the organization (ODISA) and also held that the suit is bad for non-joinder of the said organization as necessary party. At the cost of repetition, it be mentioned here that the respondent-defendant has not averred in his written statement that either the appellant-plaintiff is not authored to institute the suit or the suit is not maintainable on account of non-impletion of “ODISA” as a necessary party. At this juncture, a reference may be made to the provisions under Order I Rule 10 CPC which empower the Court to order any person to be substituted or added as appellant-plaintiff or direct for striking out any name of any party improperly joined and for addition of proper or necessary party in a suit for determination of the real matter in dispute and also for effectual and complete adjudication upon all the questions involved in the suit. The principle ingrained in Order 1 Rule 10 CPC is to save honest and bona fide appellant-plaintiffs from being non-suited on technical ground. It is also aimed at avoidance of multiplicity of litigation. The learned trial Court remained oblivious of the provisions under Order 1 Rule 10 and also the import of Order VIII of CPC. In the facts and circumstances and having regard to the statutory requirement under Section 6 of the Societies Registration Act, 1860, it is felt appropriate to remand the suit to the trial Court for impletion of “ODISA” as a necessary party and dispose of the suit afresh according to law. 14.In the result, the appeal is allowed, but in the circumstance, without cost. The impugned judgment and decree dated 31.07.1997 and 08.08.1997 respectively are hereby set aside. 14.In the result, the appeal is allowed, but in the circumstance, without cost. The impugned judgment and decree dated 31.07.1997 and 08.08.1997 respectively are hereby set aside. The suit is remanded with a direction that upon an application to be filed by the appellant-plaintiff, the organization “ODISA” shall be impleaded as a party to the suit, and the learned trial Court shall make endeavor to dispose of the suit according to law within a period six months from the date of receipt of the LCR along with a copy of this judgment. Both the sides shall cooperate with the trial Court so as to secure disposal of the suit within the time as stipulated. Registry is directed to expedite return of the LCR along with a copy of the judgment to the Court below. Appeal allowed.