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2024 DIGILAW 1570 (ALL)

Reeta Devi v. Raj Kamal Sahakari Awas Yojna

2024-07-01

KSHITIJ SHAILENDRA

body2024
JUDGMENT : Hon'ble Kshitij Shailendra,J. 1. Heard Sri Sharad Malviya, learned counsel for the appellants and perused the record. 2. The plaintiff-respondent is a Co-operative Housing Society and instituted a suit for declaration of a sale deed dated 07.09.2012 inter se defendant-appellants as null and void. 3. An issue with regard to the valuation of the suit and payment of court fee was framed by the trial court. It was decided against the plaintiff-respondent and it was directed to make good deficiency of court fees. 4. Sri Sharad Malviya, learned counsel submits that the plaintiff did not comply with the order of the trial court and, consequently, the plaint was rejected under Order 7 Rule 11(c) C.P.C. by order dated 21.08.2017. The said order amounts to a decree as per Section 2(2) C.P.C. and assailable under Section 96 of Civil Procedure Code. Civil Appeal was filed by the society through a different Secretary and it has been allowed by the impugned judgment dated 26.02.2024 only on the ground that the Secretary of the society had died on 17.08.2017 and, therefore, the trial court was not justified in rejecting the plaint without facilitating the procedure for substitution/due representation of the parties. He submits that the order for making good deficiency was passed long ago and it remained un-complied with for years together and, therefore, merely because the Secretary of the society died in August, 2017, the same could not be a ground for allowing the appeal. 5. Having heard learned counsel for the appellants, this Court finds that the date of death of the Secretary was noted in the margin of the order-sheet dated 21.08.2017. The said endorsement was made by the counsel for the plaintiff-respondent i.e. the society. On the same date the plaint was rejected by the trial court. The endorsement reads as under:- Jheku th] oknh dh e`R;q gks pqdh gSA gŒ 21-8-2017 6. As per the Order 22 Rule 10-A of C.P.C., whenever a pleader appearing for a party to the suit comes to know of the death of that party, he is under obligation to inform the court about it, and the court shall thereupon give notice of such death to the other party and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist. For ready reference, Order 22 Rule 10-A reads as under:- "10A. For ready reference, Order 22 Rule 10-A reads as under:- "10A. Duty or pleader to communicate to Court death of a party— Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall there upon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist." 7. In view of the fact that the counsel for the plaintiff society informed the court by making an endorsement in the margin of the order-sheet about death of the secretary, the trial court, on the same date, was not justified in rejecting the plaint and it should have followed the procedure prescribed under Rule 10-A of Order 22. As a matter of fact, the plaint has been rejected against a dead person. 8. Although the plaintiff was not a human being but certainly it was a Co-operative Housing Society and a juristic person on which the provisions of Uttar Pradesh Co-operative Societies Act, 1965 are applicable. For the purposes of the instant case, Sections 29 and 31(2) of the Act of 1965 are required to be referred. The same read as under:- "29. Committee of Management. (1) The management of every co-operative society shall vest in a Committee of Management constituted in accordance with this Act, the rules and the bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed by this Act, the rules and the byelaws." "31(2). The same read as under:- "29. Committee of Management. (1) The management of every co-operative society shall vest in a Committee of Management constituted in accordance with this Act, the rules and the bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed by this Act, the rules and the byelaws." "31(2). The Secretary shall be the Chief Executive Officer of the society and subject to such control and supervision of the Chairman and the committee of management as may be provided in the rules or the bye-laws of the society shall - (a) be responsible for the sound management of the business of the society and its efficient administration; (b) carry on the authorized and normal business of the society; (c) subject to the provisions of the bye-laws of the society, operate its accounts and, except where the society has a cashier or treasurer, handle and keep in his custody its cash balances; (d) sign and authenticate all documents for and on behalf of the society; (e) be responsible for the proper maintenance of various books and records of the society and for the correct preparation and timely submission of periodical statements and returns in accordance with this Act, the rules, the byelaws and the instructions of the Registrar or the State Government. (f) convene meetings of the general body, the committee of management and any sub-committee constituted by the committee of management and maintain proper records of such meetings; and (g) perform such other duties and exercise such other powers as may be imposed or conferred on him under the rules or the bye-laws of the society." 9. Further, as per Section 2(o) of the Act, 1965, Secretary, being an officer of a Co-operative Society, is empowered to carry on the business of the society or to supervise its affairs. Section 9 also needs mention and is quoted hereunder:- "9. Co-operative societies to be bodies corporate-The registration of a society, shall render it a body corporate by the name under which it is registered, having perpetual succession and a common seal, and with power to hold property, enter into contracts, institute and defend suits and other legal proceedings and to do all things necessary for the purpose for which it was constituted." 10. The aforesaid provisions demonstrate that the society may sue or be sued through its Secretary and, therefore, once death of the secretary was an admitted fact and specifically brought on record on 21.08.2017 itself, irrespective of the fact that the order of making good deficiency of court fee might have remained uncomplied with for long, the plaint could not be rejected on 21.08.2017 when the society was represented by a dead person. 11. The Court also notices the fact that the civil appeal was filed by the society represented through a newly appointed Secretary and the lower appellate court has taken a view that rejection of plaint was at a premature stage and, therefore, the appellate court has set aside the order rejecting the plaint and directed the trial court to decide the suit in accordance with law. 12. The Court may also take note of the power of the civil court to enlarge time for any steps, as provided under Section 148 of C.P.C., which reads as under:- "148. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period,1[not exceeding thirty days in total,] even though the period originally fixed or granted may have expired." 13. In the facts of the case, the Court feels that the civil court could have also enlarged time for making good deficiency by granting opportunity to the society represented by the present Secretary had it proceeded to grant opportunity for substitution/due representation of plaintiff society and once the appellate court has already set aside the decree of rejection of plaint, the said course is still open for the trial court, as the power under Section 148 in its restricted sense, as contemplated under the statute itself, is vested in civil court. 14. Since civil appeal is in continuance of suit proceedings and was filed by the society represented by a new secretary, the Court finds that rejection of plaint on 21.08.2017, on which date the counsel for the society had duly informed the factum of death of ex-secretary, was improper and unwarranted exercise of power by the civil court. Consequently, the Court does not find any error in the view taken by the appellate court. 15. No substantial question of law arises for consideration. 16. Consequently, the Court does not find any error in the view taken by the appellate court. 15. No substantial question of law arises for consideration. 16. The second appeal is dismissed.