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KERALA HIGH COURT
P.N. Ravindran and A.M. Babu, JJ.
Prof. Meeran Maluk Mohammed. S and Ors. —Petitioners
versus
The Muslim Association and Ors. —Respondents
FAO. No.7 of 2017
Decided on 14.2.2017
For the Petitioners:P.B. Krishnan, P.M. Neelakandan, P.B. Subramanyan, Sabu George and S. Nithin (Anchal), Advocates
For the Respondent No.1:Liju. V. Stephen (Caveator), Advocate
For the Respondent No.1 to 3:T. Krishnanunni, Sr. Advocate
IMPORTANT POINTS
‘Proceedings’ in rule 17 should mean pre-suit proceedings also.
Misquoting of provision may not be fatal.
Application for production of documents can be filed before the proceedings become a suit.
There is no hard and fast rule that no interlocutory application shall be considered unless leave under section 92(1) CPC is granted.
Headnote:(a) Code of Civil Procedure, 1908 – Section 92(1) – Leave to sue – Trust – A minimum of two persons having interest in the trust may seek leave – Instantly 17 life members and members of the executive committee of the trust seeking leave – There should be a prima facie case and a cause of action – Instantly, respondents 2 to 4 not pacifically denying serious allegations leveled against them – Relief can be granted if respondent 1 is a trust. (Para 9, 12)
AIR 1966 SC 878 – Relied upon
(b) Code of Civil Procedure, 1908 – Order VI rules 1, 6, 17, and Section 92(1) – ‘Proceedings’ in rule 17 should mean pre-suit proceedings also – Therefore an application under rule 17 can be considered and decided in a proceedings for leave under section 92(1) CPC. (Para 21)
(c) Administration of justice – Misquoting of provision may not be fatal. (Para 23)
(d) Code of Civil Procedure, 1908 – Order XI rule 14 – Application for production of documents – Can be filed only in a suit – Does not mean that application for production of documents cannot be filed before the proceedings become a suit. (Para 23)
(e) Code of Civil Procedure, 1908 – Section 92(1) – There is no hard and fast rule that no interlocutory application shall be considered unless leave under section 92(1) CPC is granted. (Para 24)
1982 KLT 493; 2001 KHC 527 – Distinguished
Result: Appeal allowed. Case remitted back.
A.M. Babu, J.—Appellants are the petitioners in O.P.(Trust)308 of 2016. That was an original petition on the file of the District Court, Thiruvananthapuram. It was filed to seek leave of the court under section 92(1) of the Code of Civil Procedure (CPC for short). Respondents opposed the petition. Learned Second Additional District Judge refused to grant leave and dismissed the petition. The appeal is preferred against the said order dated 12.1.2017.
2. We, in this judgment, refer to the parties as they are shown in the memorandum of appeal.
3. A few facts are admitted. Admitted facts are stated below:
The 1st respondent is an association registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (Act XII of 1955 for short). Respondents 2 to 4 are respectively the secretary, president and treasurer of the 1st respondent. Appellants are life members of the association. They are at present members of the executive committee.
4. Appellants sought leave to sue to seek the following reliefs:
To remove respondents 2 to 4 from the respective offices they hold. To appoint new trustees to the executive committee. To direct respondents 2 and 3 to render accounts. To settle a scheme for the 1st respondent.
5. The allegations in the petition are briefly stated below:
Respondents 2 to 4 are acting against the provisions of the byelaws of the 1st respondent. There is no provision to nominate members to the executive committee. But respondents 2 to 4 have nominated 14 persons who are their men. Various sub-committees are to be formed for the proper functioning of the 1st respondent and the institutions run by it. No sub-committee shall consist of less than five members and more than seven members including the chairman. But jumbo sub-committees have been constituted to include the supporters of the 3rd respondent. There shall be a managing council for the administration of the engineering college run by the 1st respondent. Members to the managing council shall be elected by the executive committee. But two persons have been nominated to the council. The manging council shall hold at least one meeting every month. But only two meetings were held during the last 14 months. This has affected the day-to-day management and functioning of the engineering college. The general body meeting held on 30.6.2007 resolved not to induct new members. But respondents 2 to 4 took hasty steps to induct new members to hijack the general body. An internal audit committee shall be appointed by the general body to audit the accounts of the 1st respondent and the engineering college. Such an audit committee was appointed by the general body. The committee audited the accounts. The audit report shows a loss of 148 lakhs rupees to the 1st respondent. The audit disclosed manipulation of accounts and misappropriation of huge amounts by respondents 2 to 4 in connivance with their supporters in the executive committee. The audit report was rejected by respondents 2 to 4 on flimsy grounds. The budget placed before the general body at its meeting held on 24.9.2016 shows a huge loss of 275 lakhs rupees to the 1st respondent. The loss was occasioned owing to the mismanagement of the funds of the association.
6. Respondents 1, 2 and 4 jointly and the 3rd respondent separately filed statements of objections. The contentions are identical and go as under: The 1st respondent is a society registered under Act XII of 1955. It is not a trust.
Therefore the petition for leave filed under section 92(1) CPC is not maintainable. All the allegations in the petition are false. The ban imposed against the induction of new members ceased to have force with effect from 9.6.2011. The report of the internal audit committee was in violation of the provisions of the byelaws. The report was not signed by all the three members. The executive committee at its meeting held on 13.11.2016 rejected the report. The accounts of the associat
