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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.7068 OF 2010

S.N.D.P. Sakhayogam ….Appellant(s)

VERSUS

Kerala Atmavidya Sangham          …..Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This  appeal  is  filed  by  the  first  defendant

against  the  final  judgment  and  order  dated

27.01.2005 passed by the High Court of Kerala at

Ernakulam  in  S.A.  No.299  of  1987  whereby  the

appeal filed by the respondent-plaintiff was allowed

and the judgment and decree passed by the Courts

below were set aside and the defendants were given

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two  months’  time  to  deliver  the  property  to  the

plaintiff failing which the plaintiff shall be entitled to

put the decree in execution.

2)  In order to appreciate the controversy involved

in  the  suit,  which  has  now  travelled  up  to  this

Court,  it  is  necessary  to  state  the  relevant  facts

infra.

3) The  appellant  herein  is  defendant  No.  1

whereas respondent No. 1 is the plaintiff. So far as

respondent  Nos.  2  to  8  are  concerned,  they  were

made parties in appeal  as legal  representatives of

original  defendant  No.  2,  who  died  pending  this

appeal  but  later  by  order  dated  14.01.2009  their

names were deleted from the array of  the parties.

They  are,  therefore,  no  longer  parties  to  the  lis

arising in the case.   

4) Respondent  No.  1  (plaintiff)  is  a  Society

registered  as  such  under  the  Travancore  Cochin

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Literary  Scientific  and  Charitable  Societies  Act

12/1955 (hereinafter referred to as “the Act”) having

their  branches  all  over  the  State  of  Kerala.  It  is

claimed  to  be  running  charitable  institutions  all

over  the  State  through  their  branches.  It  has  its

own bye-laws to run the charitable institutions.

5) The appellant (defendant no 1) is alleged to be

another body of persons known as "Panoor 47 Atma

Vidya  Sabha"  having  their  place  of  working  at  a

place called "Panoor" in the State of Kerala whereas

defendant No. 2 was one Kunju Panikan Narayanan

(since  dead).  He  was  alleged  to  be  President  of

defendant No. 1 (appellant).  

6) The dispute in this case relates to land bearing

Survey  Number  No.  991/1,  situated  in  village

Thrikkunnapuzha, District Alappuzha as described

in  detail  with  specifications  in  the  Sale  Deed,

registered  as  Document  No.  399-dated

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09.02.1978(Annexure-P)  hereinafter  referred  to  as

the "suit land".

7) Respondent  No.  1  (plaintiff)  filed  a  civil  suit

(O.S.  No.  213/1978)  against  the  appellant  herein

(defendant  No.1)  and  one  Kunju  Panicken

Narayanan-defendant  No.  2.  The  suit  was  for  a

declaration that  the  sale  deed (Document No.399)

dated 09.02.1978 executed by defendant No.  2 in

favour of defendant No. 1 in respect of the suit land

be cancelled as being void and bad in law.  

8) It  was,  inter alia,  averred  in  the  plaint  that

respondent No. 1 (plaintiff) had purchased the suit

land by registered sale deed (Document No.2904) in

the year 1951 for running their charitable activities

through defendant No. 1 which, according to them,

was their branch of which defendant No. 2 was the

President at all relevant time. It was alleged that the

suit land was purchased by respondent No. 1 being

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the parent organization in the name of the appellant

(defendant No. 1) through defendant No. 2.  It was

alleged that since the appellant (defendant No. 1),

after some time had stopped their activities due to

some reasons,  all the properties stood in the name

of  the appellant  (defendant No.  1)  was merged as

provided  in  the  bye-laws  with  respondent  No.

1(plaintiff),  i.e.,  parent  body.  It  was  alleged  that

defendant No. 2, who claimed to be the President of

defendant No.1,  had no right, title and interest  nor

had any authority to sell  the suit  land to anyone

much less to defendant No. 1 vide sale deed dated

09.02.1978.  On these averments, the suit was filed

seeking declaration in the reliefs.

9) The  appellant  (defendant  No.1)  denied  the

claim set  up  in  the  plaint  and defended the  sale

deed executed in their favour by defendant No. 2. It

was contended that the sale deed dated 09.02.1978

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is  legal  and proper.  According  to  defendant  No.1,

both  (plaintiff  and  defendant  No.  1)  were  always

independent  organizations  having  no  connection

between them in any manner. Some more facts were

also averred in the written statement, which are not

necessary to mention here. The Trial Court framed

several issues on merits arising in the case.   

10) The plaintiff  (respondent  No.  1)  then applied

under Order 1 Rule 8 of the Code of Civil Procedure,

1908  (hereinafter  referred  to  as  “the  Code”)  and

sought  permission  of  the  Court  to  allow  them to

prosecute  the  suit  as  a  representative  suit.

Defendant  No.  1  (appellant)  did  not  oppose  the

prayer  and  hence  sanction  to  prosecute  the  suit

seemed to have been granted to the plaintiff. (See-

Issue No. 1).   Parties adduced evidence.   

11) The  Trial  Court,  by  judgment/decree  dated

21.08.1980  dismissed  the  suit.  The  plaintiff,  felt

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aggrieved,   filed  first  appeal  being  A.S.  No.77  of

1981  before  the  Additional  District  Judge,

Mavelikkara.  The  first  Appellate  Court,  by

judgment/decree  dated 02.09.1986,  dismissed the

appeal  and  affirmed  the  judgment/decree  of  the

Trial Court. The plaintiff, felt aggrieved, filed Second

Appeal being S.A. No.299 of 1987 before the High

Court.  

12) By judgment/decree dated 29.05.1995,   the

High Court allowed the appeal and decreed the suit.

13) Defendant  No.  1,  felt  aggrieved,  filed  special

leave petition (SLP(c) No.24439 of 1995) before this

Court. This Court by order dated 30.10.2003 after

granting  leave,  allowed  the  appeal,  set  aside  the

order of the High Court and remanded the case to

the  High  Court  for  deciding  the  second  appeal

afresh. This Court remanded the case to the High

Court essentially on the ground that it was noticed

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that  the  High  Court  allowed  the  second  appeal

without framing any substantial question(s) of law

arising in the case.  

14) On  remand,  the  High  Court  framed  three

substantial  questions  and,  by  impugned  order

27.01.2005, again allowed the appeal and decreed

the plaintiff's suit. Against this order, defendant No.

1  felt  aggrieved  and  filed  this  appeal  by  way  of

special leave before this Court.

15) We have heard Mr. Jayanth Muth Raj, learned

counsel,  for  the  appellant  and  Mr.  C.S.  Rajan,

learned senior counsel for the respondents.

16) Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are inclined to allow the appeal and while  setting

aside all the judgment/decrees of the Courts below

remand the case to the Trial Court for disposal of

the suit afresh.

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17) In our considered opinion, one question, which

goes  to  the  root  of  the  case  affecting  the  very

jurisdiction  of  the  Court  to  try  the  suit,  was  not

taken note and if taken note of, it was not decided

in its proper perspective by any of the Courts below.

May be  due  to  the  reason,  instead  of  raising  the

objection, the defendant appears to have conceded

it.

18)  Be that as it may, in our considered view, the

issue of jurisdiction which goes to the root of the

case, if found involved has to be tried at any stage of

the proceedings once brought to the notice of  the

Court.    

19) As mentioned above, the plaintiff  had sought

permission to prosecute the suit by taking recourse

to the provisions of Order 1 Rule 8 of the Code. In

other words, the plaintiff treated their suit to be in

the  nature  of  a  "representative  suit"  within  the

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meaning of Order 1 Rule 8 and, therefore, applied to

the Trial  Court under Rule 8 of  the Code seeking

permission  to  prosecute  the  suit  in  the

representative capacity. This permission appears to

have been granted to the plaintiff by the Trial Court

(see  discussion  on  issue  No.  1)  without  any

objection  from  the  side  of  the  defendants  and,

therefore,  Issue  No.1  was  answered  in  plaintiff’s

favour.

20) This is how issue no 1 was answered by the

Trial Court:  

“Issue  No.1:-  This  is  not  pressed  by  the defendant’s counsel as sanction was obtained by the Plaintiff from Court to file the suit in a representative  capacity  under  or  Rule  8 C.P.C.”

21) In our considered opinion, while deciding Issue

No. 1, the Trial Court was expected to decide several

material  questions,  namely,  whether  the  plaintiff,

who is a juristic person, i.e., “Society" is entitled to

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invoke the provisions of Order 1 Rule 8 of the Code

for filing a suit in a  "representative capacity“.  In

other words, the Trial Court should have examined

the question as to whether the expression "person"

occurring in Rule 8 also includes “juristic person".   

22) Secondly, if the plaintiff is held entitled to file

such suit, whether the facts pleaded and the reliefs

claimed in the plaint can be said to be in the nature

of  representative  character  so  as  to  satisfy  the

ingredients of Order 1 Rule 8 of the Code which are

meant essentially for the benefit of public at large

for grant of any relief and lastly, if the facts pleaded

and the reliefs claimed in the plaint do not satisfy

the requirements of Order 1 Rule 8 of the Code for

grant of relief to the public at large then whether

such suit is capable of being tried as a regular suit

on behalf of the plaintiff for granting reliefs in their

personal  capacity  because  the  suit  relates  to

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ownership of land, namely, who is the owner of the

suit land.

23) Since there was neither any discussion much

less finding on any of the aforesaid issues by any of

the  Courts  below though  these  questions  directly

and substantially arose in the case (Issue No. 1), we

are of the considered opinion that it would be just

and proper and in the interest of justice to remand

the case to the Trial Court to answer these issues

and  then  decide  the  suit  depending  upon  the

answer in accordance with law.

24) In the light of foregoing discussion, the appeal

succeeds  and  is  allowed.  Impugned  order,

judgment/decree passed by the first Appellate Court

and the Trial Court are set aside.  

25) The suit is restored to its file for trial to answer

the  aforementioned  issues  and  then  decide  it  in

accordance with law.

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26) We have not expressed any opinion on any of

the issues on their respective merits, therefore, the

Trial Court would decide the issues uninfluenced by

any of our observations made herein.

27) Parties  to  appear  before  the  Trial  Court  on

03.10.2017 to enable the Trial Court to decide the

suit as directed within one year as an outer limit.

               ………...................................J.

[R.K. AGRAWAL]             

                        …... ……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; September 05, 2017