A.Sarangan v. S.Vadivelu Mudaliar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:12.3.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.Nos.1765 and 1279 of 1998A.Sarangan... Appellant in S.A.No.1765 of 1998( Defendant No.1)A.Annadurai (since deceased)1.Tmt.Thilagaathy2.Selvi Amutha3.Manoj Russel... Appellants in S.A.No.1279 of 1998(Appellants 2 to 4 1st Defendant)C.T.accepted vide orderdated 20.8.1998 inC.M.P.No.11302 of 1998vs.S.Vadivelu Mudaliar(Since deceased)1.Nammalwarpet Co-op.Housing Society Ltd.2.K.Doraikannu3.M.Indrani4.V.Narayanasamy5.Corporation of Chennai, rep.by its Commissioner6.M.M.D.A.rep.by its Secretary7.Registrar, Co-op.Housing Society, Chennai-600 0358.The Director, Town Planning9.V.Mani10.V.Sekar... Respondents in S.A.No.1765 of 1998(Respondents 1 to 9 Plaintiff Defendants 2 to 9)respondents 9 & 10 arethe LRs of the deceased first respondent in A.S.No.380 of 1988C.T.accepted vide orderdated 6.10.98 in C.M.P.No.13927 of 1998S.Vadivelu Mudaliar(since deceased) https://hcservices.ecourts.gov.in/hcservices/

1.V.Mani2.V.Sekar3.Nammalwarpet Co-op. Housing Society Ltd.4.K.Doraikannu5.M.Indrani6.V.Narayanasamy7.Corporation of Chennai, rep.by its Commissioner8.M.M.D.A.rep.by its Secretary9.Registrar, Co-op.Housing Society, Chennai-600 03510.The Director, Town Planning.. Respondents in S.A.No.1279 of 1998 1st Respondents Plaintiff & Defendants 2 to 9)These second appeals are filed against the judgments and decreesdated 26.4.1991 and 26.1.1991 passed in A.S.Nos.380 and 381 of 1988by the II Additional Judge, (VI Addl.Judge in-charge), City CivilCourt, Chennai, confirming the judgement and decree dated 20.11.1986passed in O.S.Nos.1276 and 1274 of 1983 by the XIV Asst.Judge, CityCivil Court, Chennai.For Appellants : No Advocates appearance in both the Sides Mr.Sarangan-the appellant appeared in person in S.A.No.1765 of 1998For Respondents : Mrs.Bhavani Subbarayan,Spl.G.P. For R7 and R8 in SA.1279 of 1998 For R5 & R6 in SA.1765 of 1998COMMON JUDGMENTThese second appeals are focussed by the original firstdefendant in the respective suits, animadverting upon the judgementsand decrees dated 26.4.1991 and 26.1.1991 passed in A.S.Nos.380 and381 of 1988 by the II Additional Judge, (VI Addl.Judge in-charge),City Civil Court, Chennai, confirming the judgements of the trialCourt, namely, the XIV Asst.Judge, City Civil Court, Chennai, inO.S.Nos.1276 and 1274 of 1983, which were the suits filed fordeclaration and permanent injunction. For convenience sake, theparties are referred to hereunder according to their litigativestatus before the trial Court. https://hcservices.ecourts.gov.in/hcservices/

2. Broadly but briefly, narratively but precisely, the relevantfacts, which are absolutely necessary and germane for the disposal ofthese second appeals, could be portrayed thus in view of the factthat both the Courts below elaborately detailed and delineated therelevant facts in their respective judgements.(a) Vadivelu Mudaliar-the original plaintiff filed the twosuits, namely, O.S.Nos.1276 and 1274 of 1983 so as to get declaredthe two sale deeds dated 8.12.1982, registered as Document Nos.1915and 1916 of 1982, executed by defendants 2 to 5, on the direction ofthe 8th defendant, in favour of A.Sarangan and A.Annadurai and togrant permanent injunction restraining the first defendant fromputting up any construction on the suit land described in theschedule given to the plaint and from causing any obstruction,hindrance or interruption on the suit land for free passage and usageas a public street and reading room as demarcated and set apart inthe Sanctioned Layout LPH 15/62.(b) The defendants entered appearance and filed their writtenstatements, raising the law point that the civil Court had got nojurisdiction to entertain the suit in view of the Co-operativeSocieties Act 1961(Act 53 of 1996) (hereinafter referred to as the'Act' in short), apart from raising various other points. The lowerCourt decreed both the suits. Being aggrieved by the same, theappeals were filed by the first defendants in the respective suitsfor nothing but to be dismissed by the appellate Court, confirmingthe judgements and decrees of the lower Court. Being disconcertedand aggrieved by the judgements of both the Courts below, thesesecond appeals are focussed on various grounds.3. At the time of admitting the second appeal, namely,S.A.No.1765 of 1998, my learned predecessor framed the followingsubstantial questions of law:"1. Whether the lower appellate Court was right indeciding that the civil Court has jurisdiction to entertainthe suit and to go into the affairs of the co-operativeSociety in view of Section 73 of the Tamil Nadu Co-operative Societies Act?2. Whether the lower appellate Court is right indeciding that the suit is maintainable, whereas Section 91C.P.C.is not complied with?3.Whether the plaintiff who has nothing to do with theco-operative Society has locus-standi to question theaffairs of the co-operative Society?" https://hcservices.ecourts.gov.in/hcservices/

4. In S.A.No.1279 of 1998, my learned predecessor, apart fromhaving framed the above substantial questions of law as framed inS.A.No.1765 of 1998, additionally framed the following substantialquestion of law also:"Whether a Co-operative Society has a right to changethe character of the plots earmarked for some commonpurpose when the said common purposes ceased to exist andpass resolutions to deal with them differently?"5. At the hearing Mr.Sarangan-the appellant in S.A.1765 of 1998appeared and argued the matter and Mrs.Bhavani Subbarayan, thelearned Special Government Pleader appeared and argued the matters onbehalf of respondents 7 and 8 in S.A.No.1279 of 1998 and respondents5 & 6 in S.A.No.1765g of 1998. Whereas, others remained absent,despite printing their names in the cause list.6. Substantial question of Law (i) in both the appeals: A plain poring over and perusal of the relevant records wouldunambiguously and unequivocally, unassailably and indubitablyhighlight and spotlight the fact that the original plaintiff VadiveluMudaliar claims to have purchased a plot bearing No.2, Reddy Colony,Ramalingapuram, Madras-12 from one Sabapathi Mudaliar, who was amember of Nammalwarpet Co-operative Housing Society Ltd; whichearlier sold the said plot bearing No.2 in favour of SabapathiMudaliar. Wherefore, it is crystal clear that Vadivelu Mudaliarfiled the suit mainly based on the fact that he stepped into theshoes of Sabapathi Mudaliar, who was the member of the Co-operativeSociety. The grievance of the original plaintiff was that along withthe sale deed, executed by the Co-operative Society in favour ofSabapathi Mudaliar and similar such members of the Society, adetailed layout plan was found enclosed, which contemplated the areaprovided for recreation and other purposes, namely, play ground,Library and such like; on the contrary, throwing to winds all thosestipulations, contemplating amenities to the members of the Society,who purchased the plot from the Co-operative Society, the saidSociety converted those areas earmarked for public purposes andamenities into plots and sold the same to the first defendants in thesuits. Accordingly, he focussed the suits as against the defendants.7. The crucial point which arises for adjudication undersubstantial question of law (i) is as to whether the suit as framedand filed before the civil Court is tenable in view of Section 73 ofthe Tamil Nadu Co-operative Societies Act, 1961.8. The lower Court at paragraph 40 of its judgement, in a mostunsatisfactory manner, simply observed as though the prayer in the https://hcservices.ecourts.gov.in/hcservices/ suit is not against the Registrar of Co-operative Society and hence,the suit was maintainable. Instead of deciding the relevant issuesconcerning civil Court's jurisdiction, in view of the embargo ascontained under Section 73 of the Act, the lower Court simply dilly-dallied and shilly-shallied with the issue and decided without aufait with law and au courant with facts involved in those suits,warranting interference by this Court.9. The appellate Court's approach concerning the said issue isin no way better than the lower Court for the reason that it simplyremarked as though the lower Court decided the relevant issuerelating to Section 73 of the Act based on precedents. 10. A plain reading of the order of the lower Court would revealand evince that the precedents relied on by the lower Court are allrelating to path way disputes as well as disputes relating to anindividual and Municipality and there is nothing to indicate that anyprecedent applicable to Section 73 of the Act was relied on by thelower Court. Hence, both the Courts below committed serious errorof law in not deciding this legal issue in proper perspective. It istherefore just and necessary to extract here under Section 73 of thesaid Act."73. (1) If any dispute touching the constitution ofthe committee or the management or the business of aregistered society (other than a dispute regardingdisciplinary action taken by the society or its committeeagainst a paid servant of the society) arises-(a) among members, past members and persons claimingthrough members, past members and deceased members, or(b) between a member, past member or person claimingthrough a member, past member or deceased member andsociety, its committee or any officer, agent or servant ofthe society, or(c) between the society or its committee and any pastcommittee, any officer, agent or servant, or any pastofficer, past agent or past servant, or the nominee, heirsor legal representatives of any deceased officer, deceasedagent, or deceased servant of the society, or (d) between the society and any other registeredsociety,such dispute shall be referred to the Registrar fordecision. https://hcservices.ecourts.gov.in/hcservices/ Explanation – For the purposes of this section, adispute shall include-(i) a claim by a registered society for any debt ordemand due to it from a member, past member or the nominee,heir or legal representative of a deceased member whethersuch debt or demand be admitted or not, and(ii) a claim by a registered society against a member,past member or the nominee, heir or legal representative ofa deceased member for the delivery of possession to thesociety of land or other immovable property resumed by itfor breach of the conditions of assignment or allotment ofsuch land or other immovable property."11. A bare perusal of the said Section would highlight andspotlight the fact that if there is any dispute between the member ora person claiming under a member and the Co-operative Societyconcerned, such a dispute should be referred to the Registrar fordecision. In this connection, the second appellant cited thedecision of this Court rendered by me earlier reported in 2008-4-L.W.251 – 1.M.M.V.ALAGAPPAN 2.M.M.V.BNARAYANAN VS. 1.KARAIKUDI CO-OPERATIVE HOUSING BUILDING SOCIETY LTD., REP.BY ITS SPECIAL OFFICER,KARAIKUDI, 2.B.AZHAKUSUNDARAM, REP.BY HIS POWER OF ATTORNEY AGENTB.GOVINDARAJAN. Certain excerpts from it would run thus:-"13. During the pendency of the second appeal, it sohappened that in compliance with the direction of the firstappellate Court, the plaintiffs got the matter processedunder Section 90 of the Tamil Nadu Co-operative SocietiesAct and it appears, the authority concerned decided thematter in favour of the plaintiffs holding that thecancellation of the sale deed effected by the firstrespondent, the Co-operative Society, was illegal and assuch, recognised the right of the plaintiffs' vendorC.T.Azhagia Sundaram.18. The point for consideration in this writ petitionis as to whether the writ would lie in the wake ofeffective remedy of filing appeal before the Tribunal iscontemplated under the Act.38. The learned counsel for the writ petitioner wouldsubmit that since the writ petition is being dismissed onthe ground that without exhausting the remedy availableunder Section 152 of the Act, by approaching the Tribunal,the writ petitioner may be given liberty to approach theTribunal excluding the time taken for prosecuting this writpetition. https://hcservices.ecourts.gov.in/hcservices/

39. I am of the considered view that such a submissioncould be acceded to an accordingly, the writ petitioner isat liberty to approach the Tribunal excluding the timetaken for prosecuting this writ petition. However, in theevent of any appeal filed before the Tribunal, the Tribunalhas to see to it that it is disposing of the same within aperiod of two months from the date of filing of theappeal."In my considered opinion the said decision cited supra is squarelyapplicable to the facts and circumstances of this case.12. To the risk of repetition, without being tautologous, Iwould like to point out that the entire cause of action rests on thefollowing averments in the plaint filed by Vadivelu Mudaliar. "6. The plaintiff states that Nammalwarpet Co-operative House Site Society Ltd., No.X404 (regd) hascovenanted with all its Members in all the registered SaleDeeds made in favour of its members including theplaintiff's Vendor K.N.Sabapathy Mudaliar that they convey,grant and sell, transfer and assign the aid property markedspecifically in the sanctioned Layout Plan together withall trees, Common ways, water courses, lights, sewers,rights, liabilities, privileges and easements in anywiseappertaining thereto or be appurtenant thereto and all theEstate, Right, Title and Interest in the said land andproperty and further covenanted inter alia that thepurchaser shall and may at all times hereafter quietly andpeaceably possess and enjoy the said property without anylet or hindrance or interruption, claim or demand from orby the vendors or any person or persons claiming under orin trust for them."(emphasis supplied)13. Pellucidly and palpably, plainly and as clear as day, theplaintiff claimed right only under the sale deed executed by the Co-operative Society in favour of his vendor Sabapathy Mudaliar, who inturn executed the sale deed in favour of the plaintiff. It is thespecific contention of Vadivelu Mudaliar that the Co-opeativeSociety violated its terms and conditions of sale and it is thereforeclear that such a dispute is covered under Section 73 of the Act andthe only remedy open for him was to approach the forum contemplatedunder the Co-operative Societies Act. As such, this substantialquestion of law is answered in favour of the second appellant andboth the Courts below committed serious error of law in adjudging theissue. On that point itself the judgements and decrees of both theCourts below should be set aside and both the suits should bedismissed. https://hcservices.ecourts.gov.in/hcservices/ Substantial Question of Law (ii):14. In view of my discussion supra it is clear that Section 91of C.P.C.cannot be pressed into service at all. Section 91 ofC.P.C.is extracted here under for ready reference:"Sec.91 Public nuisances – (1) In the case of a publicnuisance or other wrongful act affecting, or likely toaffect, the public, a suit for a declaration and injunctionor for such other relief as may be appropriate in thecircumstances of the case, may be instituted"Here mere converting of certain areas earmarked for amenities by theCo-operrative Society cannot be termed as nuisance and absolutelythere is nothing in the evidence also to highlight the same. In sucha case the attempt to press into service Section 91 of C.P.C., in myconsidered opinion, is not tenable.Substantial Question of Law (iii):15. In view of my discussion under substantial question of law(i), it is apparent and incontrovertible that Vadivelu Mudaliar,being the purchaser of the property from Sabapathy Mudaliar, wasentitled to invoke Section 73 of the Act. The contention on the sideof the defendants that Sabapathy Mudaliar did not have had right toalienate the plot allotted to him is de hors the issue and if at allthe Co-operative Society had any right to cancel such allotment infavour of Sabapathy Mudaliar, consequent upon such transfer in favourof the plaintiff, it was for the Co-operative Society to initiateaction. As such in view of Section 73 of the Act, as interpretedsupra, Vadivelu Mudaliar has got the right to raise the dispute also.Substantial Question of Law (iv) in S.A.No.1279 of 1998: 16. In view of my discussion supra it is clear that thissubstantial question of law would not arise because the civil Courthad no right at all to decide the factual issues and in such a casethis Court, while exercising its power as a second appellate Courtcannot delve deep into those factual aspects and render judgementthereon.17. In the result, the judgements and decrees of both the Courtsbelow are set aside by allowing these second appeals andconsequently, both the suits are dismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ MskTo1.The II Additional Judge,(VI Addl.Judge in-charge), City Civil Court, Chennai2. The XIV Asst.Judge, City Civil Court, Chennai3. The Registrar,City Civil Court, Chennai.4. The Section Officer, V.R.Section, High Court, Chennai.+ 1 CC to Government Pleader,SR.7580+ 3 CC to Mr.A.Kothandaraman,Advocate,SR.7658S.A.Nos.1765 and 1279 of 1998BV(CO)EM/23.3.09