IMPORTANT POINT
The court established that a Co-operative Society can only be represented by a living Secretary, and the death of the Secretary necessitates a proper substitution process rather than an outright rejection of the plaint.

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. 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 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 -

(