New Osmangunj Extension Co-Operative Housing Society Ltd. vs Navbharat Restaurant rep. by its Proprietrix Smt. Jeswant Kaur

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2015 Supreme(AP) 819

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. Siva Sankara Rao, J.
New Osmangunj Extension Co-Operative Housing Society Ltd. - Petitioner
Versus
Navbharat Restaurant rep. by its Proprietrix Smt. Jeswant Kaur - Respondent
CCCA. MP. No. 658 of 2015 and CCCA. No. 87 of 2006
Decided on : 28-12-2015

Advocates:
Advocate Appeared:
For the Petitioner:M. Papa Reddy, Advocate.
For the Appellant :D. Madhava Rao, Advocate.

Headnote:
Civil Law – Civil Procedure Code, 1908 – Order 41 – Rule 25 read with Section 107 – Appeal filed aggrieved by decree and judgment of trial Court in decreeing the suit of plaintiff for possession of plaint schedule premises by evicting defendant and for arrears of rent of Rs.14,646/-, mesne profits from 01.05.1997 to 31.08.1997 amounting to Rs.24,000/- besides future mesne profits at Rs.6.000/- per month from September, 1997 till taking possession – Trial Court should have dismissed plaintiff s suit, trial Court should have seen that plaintiffs so called signatory is not duly authorised by any resolution muchless any authority to file suit, that itself is sufficient to show no locus to claim suit amount and trial Court failed to frame proper issues particularly on this aspect and went wrong in decreeing suit vis-a-vis and other incidental reliefs and the amount of Rs.6,000/- per month towards mesne profits is also on higher side and exhorbitant without appreciation of the evidence and that Secretary, who deposed in the suit is not competent PW. 1, depose and if that evidence is ignored, there is no material to decree the suit. Apart from that, the society cannot maintain suit against the third party without specific and proper resolution and permission of Government and on that count also suit is liable to be dismissed and that trial Court went wrong in answering the issues 1 to 3 improperly, thereby sought for setting aside judgment and decree – Held, No doubt, it refers general provision covered by Order 29, Rule 1 CPC – Which speaks of in suit by or against corporations – Plaintiff is not a corporation. United Bank of India is a banking corporation, thereby Order 29 was applied and in the expression supra particularly at para 10, it is clearly observed that a person may be expressly authorised to sign pleadings on behalf of the company – But a general provision to say, it no way overrides any internal mechanism of specific authorisation as per bye-laws. At the cost of repetition, bye-laws discussed supra are silent – As per very expression in para 10 wording Order 29 besides confined to corporations is a general provision and there may be an express authorisation for maintaining a suit or t verification of pleadings or engaging advocate by signing on vakalat. Here that express authorisation is lacking, thereby the plaint signed and filed was defective, that was not considered by the trial Court – There is a sustainability in grounds of appeal impugning the trial Courts judgment for the r defective verification and presentation of the t plaint – From this, coming to additional evidence concerned, it is contention that so called resolutions particularly of 05.01.1995 is with interpolation in the last words and a manipulation to original cannot be received, equally for resolution last words as clause 8. Though Order 41, Rule 27 (1)(b) CPC enables the appellate Court to exercise its inherent power to receive as additional evidence for complete adjudication of the Us and to subserve the ends of justice, here, a once the very resolutions are in dispute, but for from expressions of Apex Court in United Bank of India (supra) the defect is curable by remitting the matter and left open to file application to receive documents filed herein as additional evidence – Learned counsel for the respondent/plaintiff that Order 41, Rule 25 read with Section 107 CPC can be invoked to the limited extent of formulating the point to take additional evidence by trial Court to decide that aspect by this Court, this Court is not able to consider the same, as it required trial by taking of evidence and to give a fresh finding as to locus –Order accordingly. (Paras 17, 18 and 19)

JUDGMENT :

Dr. B. Siva Sankara Rao, J.

The appellant is the defendant M/s Navbharat Restaurant, a proprietary concern and the respondent is the plaintiff in O.S.No.1936 of 1997 on the file of VIII Additional Senior Civil Judge, City Civil Court, Hyderabad. That is the entity, the Co-operative Housing Society in the plaint arrayed as represented by its Secretary by then by name Devata Narayana.

2. The appeal is filed aggrieved by the decree and judgment of the trial Court dated 25.01.2006 in decreeing the suit of the plaintiff for possession of the plaint schedule premises admeasuring 1400 sq. feet under MCH Nos. 5-2-280 to 283 of New Osman Gunj, Muneer Bagh, Opp. to Gowliguda Telephone Exchange, Hyderabad by evicting the defendant and for arrears of rent of Rs.14,646/-, mesne profits from 01.05.1997 to 31.08.1997 amounting to Rs.24,000/- besides future mesne profits at Rs.6.000/- per month from September, 1997 till taking possession. Three months time is granted by the trial Court to vacate the premises and to pay arrears with interest @ 6% per annum and future damages Rs.6,000/- per month from the date of suit till handing over the vacant possession of the premises.

3. The contentions in the grounds of appeal are that the decree and judgment of the trial Court is contrary to law, weight of evidence, probabilities of the case. Trial Court should have dismissed the plaintiff s suit, trial Court should have seen that the plaintiffs so called signatory is not duly authorised by any resolution muchless any authority to file the suit, that itself is sufficient to show no locus to claim suit amount and trial Court failed to frame proper issues particularly on this aspect and went wrong in decreeing the suit vis-a-vis and other incidental reliefs and the amount of Rs.6,000/- per month towards mesne profits is also on higher side and exhorbitant without appreciation of the evidence and that the Secretary, who deposed in the suit is not competent (PW. 1, Nandlal Vyasjto depose and if that evidence is ignored, there is no material to decree the suit. Apart from that, the society cannot maintain suit against the third party without specific and proper resolution and permission of the Government and on that count also the suit is liable to be dismissed and that the trial Court went wrong in answering the issues 1 to 3 improperly, thereby sought for setting aside the judgment and decree.

4. Learned counsel for the appellant reiterated the same, whereas, it is the contention of the learned counsel for the respondent/plaintiff that the trial Court's decree and judgment are just, supported by reasons in arriving just conclusions and for this Court while sitting in appeal, there is nothing to interfere to brush aside the findings arrived by the trial Court either on locus standi or on the amount arrived towards rent claimed or the mesne profits sought from the date of suit till delivery possession and thereby sought for dismissal of the appeal.

5. Undisputably, there are no cross objections so far as the rate of interest to profits from 01.05.1997 to 3 1.08.1997 Rs.24,000/-, four months claimed separately Undisputedly, the plaint was presented 16.09.1997.

6. During pendency of the appeal, the respondent filed CCCA. MP. No. 658 of 2011 to receive the documents as additional evidence invoking the Order 41 Rule read with Section 151 CPC i.e. copies minutes of meetings dated 05.01.199 13.10.1998 and 17.01.2002, with affidavit averments that the appellant raised objection regarding locus of the person, who signed the plaint by name Nandlal Vyas. [Indisputably, PW. 1, the so called Secretary by then Nandlal Vyas was examined in chief based on affidavit in compliance of Order 18, Rule 4 CPC subsequent to 95.02.2004. These documents/resolutions are prior to Ex. A.6-Resolution, dated 98.04.2000. This is only resolution filed and exhibited before the trial Court. The so called defect is beyond curable. The additional documents required to be filed showing that

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