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2018 DIGILAW 734 (KER)

Alukkal Koya v. Marakasutharbiyathul Islamiya

2018-09-17

ANNIE JOHN, K.HARILAL

body2018
ORDER : K. HARILAL, J. 1. The question that emerges for consideration in these revision petitions is, can a society registered under the Societies Registration Act, 1860 sue or be sued in its own name? The revision petitioner is the tenant, who is confronting with an order of eviction passed in five rent control petitions and all the rent control petitions were filed, seeking an order of eviction under Sections 11(2)(b), 11(4)(i), 11(4)(iii) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965(hereinafter referred to as the Act). The 1st respondent/1st petitioner/landlord is a co-operative society by name Marakasutharbiyathil Islamiya and the 2nd respondent/2nd petitioner/ landlord is Marakasutharbiyathil Islamiya, represented by the general secretary. The parties are referred to as in the Rent Control Petitions. According to the petitioners, the 1st petitioner/landlord is a society registered under the Societies Registration Act, 1860 and the 2nd petitioner is the said society, represented by its General Secretary. 2. The respondent/tenant contended that the rent control petitions itself are not maintainable, as the society was not represented, as contemplated under Section 6 of the Societies Registration Act, 1860. Though the said issue was raised as a preliminary issue, the parties went on to trial and both parties adduced evidence. After considering the evidence on record, the said preliminary issue was considered at first, and the Rent Control Court found that the rent control petitions are not maintainable, as the society was not represented in the rent control petitions, as contemplated under Section 6 of the Societies Registration Act, 1860. 3. Feeling aggrieved, the petitioners/landlords preferred appeals before the Rent Control Appellate Authority and the Appellate Authority, after considering the contentions raised in the appeal, reversed the findings of the Rent Control Court and allowed the appeals, on a finding that the society, by name, Marakasutharbiyathil Islamiya is properly represented in the rent control petitions and the rent control petitions are maintainable. Thus, the divergent findings on the issue, whether the society registered under the Societies Registration Act, 1860 can sue or be sued in its own name, have come up in these revisions before us. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 5. The learned counsel for the respondent/tenant cited the decision, Illachi Devi (D) by LRs. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 5. The learned counsel for the respondent/tenant cited the decision, Illachi Devi (D) by LRs. and Others vs. Jain Society, AIR 2003 SC 3397 , to canvas the point that society cannot sue or be sued in its own name and the society can sue or be sued in the name of President, Chairman or Principal Secretary or the Trustees thereof only. 6. Per contra, the learned counsel for the petitioners/landlords relied on the decision of the Supreme Court in Board of Trustees, Ayurvedic and Unani Tibia College, Delhi vs. State of Delhi, AIR 1962 SC 458 , to canvas the point that the society can sue or be sued in its own name. The learned counsel further invited our attention to Section 116 of the Act and contended that, where the General Secretary is properly authorised to file a rent control petition, the rent control petition is maintainable? 7. In view of the arguments at the Bar, we find that the question in controversy in these rent co. - Court in Illachi Devi's case (supra) and Board of Trustees, Ayurvedic and Unani Tibia College's case (supra). 8. It is not disputed that the 1st petitioner is a society registered under the Societies Registration Act, 1860. It is discernible from the impugned judgment that originally in the cause title of the rent control petitions, there was only one petitioner and that was K.T. Kunjutty Haji, General Secretary, Markasutharbiyathil Islamiya, Athavanad. The respondent/tenant raised a contention that the petitioners were not authorised by Markasutharbiyathil Sangam to file the rent control petitions. So, the rent control petitions were not properly framed, as contemplated under Section 6 of the Societies Registration Act, 1860 and thereby the original rent control petitions are not maintainable. Later, the petitioners amended the cause title and the name and description of the petitioners are amended as follows: “Suppl. P1, Markasutharbiyathil Islamiya, Reg. No. 144/1984, Athavanad, Tirur Taluk. Suppl. P2, Markasutharbiyathil Islamiya, Reg. No. 144/1984, Athavanad, Tirur Taluk represented by its General Secretary”. 9. The respondent/tenant stood by his earlier objection and contended that even after the amendment, the society was not represented as per Section 6 of the Societies Registration Act, 1860. P1, Markasutharbiyathil Islamiya, Reg. No. 144/1984, Athavanad, Tirur Taluk. Suppl. P2, Markasutharbiyathil Islamiya, Reg. No. 144/1984, Athavanad, Tirur Taluk represented by its General Secretary”. 9. The respondent/tenant stood by his earlier objection and contended that even after the amendment, the society was not represented as per Section 6 of the Societies Registration Act, 1860. According to him, the society should have sued against the respondent in the name of the president, chairman, or principal secretary, or trustees and in default, in the name of such person, as shall be appointed by the governing body of the society. At first, it is apposite and profitable to have a reading of Sections 5 and 6 of the Societies Registration Act, 1860 and the same is reiterated below: “5. 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, may be described as the property of the governing body of such society for their proper title. 6. Suits by and against societies – Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary or 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.” 10. On a reading of Sections 5 and 6 together, it is discernible that the society registered under the Societies Registration Act, 1860, can sue or be sued in the name of the president, chairman or principal secretary, or trustees and in default, in the name of such person as shall be appointed by the governing body of the society for the occasion. In the above context, the decision relied on by both the petitioners and the respondent assumes relevance and significance. 11. Let's examine the judicial precedents on Section 6 of the Societies Registration Act, 1860. In Illachi Devi's case (supra), the Supreme Court held that a society registered under the Societies Registration Act, 1860 is not a body-corporate as in respect of a company registered under the Companies Act. 11. Let's examine the judicial precedents on Section 6 of the Societies Registration Act, 1860. In Illachi Devi's case (supra), the Supreme Court held that a society registered under the Societies Registration Act, 1860 is not a body-corporate as in respect of a company registered under the Companies Act. In that view of the matter, a society registered under the Societies Registration Act is not a juristic person. A society whether registered or unregistered, may not be prosecuted in criminal court nor is it capable of holding the ownership of any property or of suing or being sued in its own name. Vesting of property, therefore, does not take place in the society. Similarly, the society cannot sue or be sued. It must sue or be sued through a person nominated in that behalf. A bare perusal thereof would show that a society registered under the Societies Registration Act, as contra-distinguished from a company registered under the Companies Act, cannot sue in its own name. It is to be sued in the name of the president, chairman, or principal secretary or trustees as shall be determined by the rules and regulations of the society or in the name of such person as shall be appointed by the governing body for the occasion in default of such determination. It is, therefore, not correct to contend that it is capable of suing or being sued in its own name. 12. The principle that can be culled out from the aforesaid decision is that the society registered under the Societies Registration Act, 1860 is not a juristic person unlike a company. Therefore, vesting of property does not take place in a society. 13. Let's examine the Board of Trustees, Ayurvedic and Unani Tibia College's case (supra) in paragraph 36 of the said decision which reads as follows: “36. Now, under the Societies Registration Act, 1860, which was enacted by the Governor General in Council upon registration a society is entitled to sue and can be sued in the name of its President, Secretary, etc., as shall be determined by its rules or by its governing body. A suit by or against the society would not abate by reason of the death of the person through whom or against whom the suit had been brought. A suit by or against the society would not abate by reason of the death of the person through whom or against whom the suit had been brought. A judgment obtained against a person sued as representing a society shall not be enforced against him but against the property of the society. The society can sue any of its members for arrear of subscription damages etc. It can also enter into contracts as an entity. Upon, dissolution, its property cannot be distributed amongst its members but must go to some other society.” 14. Going by the aforesaid decision, we find that in the said decision also, the Supreme Court held that under the Societies Registration Act, 1860, which was enacted by the Governor General in Council upon registration of a society is entitled to sue and can be sued in the name of its President, Secretary etc., as shall be determined by its rules or by its governing body. Further, the Supreme Court held that a suit by or against the society would not abate by reason of the death of the person through whom or against whom the suit had been brought and a judgment obtained against a person sued as representing a society shall not be enforced against him; but against the property of the society. It is well discernible from the aforesaid observation that the society can sue and be sued in the name of the person such as President, Chairman, Secretary etc. only, as the society is not a juristic person, who will not and cannot hold the property. 15. In the light of the aforesaid decision, we have meticulously gone through the judgment rendered by the Appellate Authority, whereby the Appellate Authority reversed the findings of the Rent Control Court and held that the society can sue or be sued in its own name. 16. The learned counsel for the respondent contended that the expression in the name of the president, chairman or principal secretary or trustees means and intents the designation as chairman or president or principal secretary or trustee etc, only and need not be represented by the name of the person holding the aforesaid posts. We are unable to accept the said contention, in view of the statutory intent manifested in Section 6 of the Societies Registration Act, 1860. We are unable to accept the said contention, in view of the statutory intent manifested in Section 6 of the Societies Registration Act, 1860. The aforesaid interpretation is seen negatived by the last limb of the said provision, which would say that in default of such determination, the society can sue or be sued in the name of such person, as shall be appointed by the governing body for the occasion. It is needless to say, there cannot be two conflicting interpretations or views in the same provision of law. The second limb of the aforesaid Section clarifies that the society may sue or be sued in the name of the president, chairman or principal secretary or trustee and not in the name of designation, as contended by the learned counsel for the respondent. 17. The aforesaid interpretation gets assurance from the Board of Trustees, Ayurvedic and Unani Tibia College's case (supra), wherein in paragraph 36 the Supreme Court clarified that a suit by or against the society would not abate by reason of the death of the person through whom or against whom the suit had been brought. A judgment obtained against a person sued as representing a society shall not be enforced against him but against the property of the society. This clarification would remove the doubt as to what would be the consequence, if the person, in whose name the society filed the suit, dies. Further, it clarifies that even if the society is represented by the chairman or president or secretary in his name, judgment obtained against the person sued as representing a society shall not be enforced against him; but against the property of the society only. Thus, the aforesaid interpretation further clarifies that the society can sue or be sued in the name of the person who holds the post as president, chairman, secretary or trustee. In the above analysis, we hold that a society registered under the Societies Registration Act, 1860 can sue or be sued in the name of the president, chairman, secretary or trustee, who holds the aforesaid posts. 18. In the above analysis, we hold that a society registered under the Societies Registration Act, 1860 can sue or be sued in the name of the president, chairman, secretary or trustee, who holds the aforesaid posts. 18. We further find that the Appellate Authority has misinterpreted the judgment rendered by the Supreme Court in Illachi Devi's case (supra) erroneously and arrived at a finding that the society is a quasi corporation, having capability to hold the property in its own name and the society can sue or be sued in its own name. The aforesaid finding is legally unsustainable in view of the decision referred above. 19. Consequently, the impugned judgment passed by the Appellate Authority would stand set aside and we hold that the rent control petitions are not maintainable. But, having regard to the long pendency of the rent control petitions, and to secure the interest of justice, we set aside the judgment passed by the Appellate Authority and affirm the findings of the Rent Control Court on point No. 1 only. But, the rent control petitions are remitted to the Rent Control Court for fresh consideration and disposal. The petitioners/ landlords are allowed to amend the rent control petitions, in accordance with Section 6 of the Societies Registration Act, 1860 and thereafter the parties are allowed to adduce further evidence. The Rent Control Court is directed to dispose of these rent control petitions, at the earliest, at any rate, within a period of three months from the date of receipt of a copy of this order. 20. These rent control revisions are disposed of accordingly. All pending interlocutory applications will stand closed.