Issues of an association's registration validity and its competency to sue must be determined through trial, not as preliminary objections.

ORDER

The revision petitioner is the defendant in O.S.No.148 of 2021 on the files of the I Additional Munsiff’s, Ernakulam, which was filed by an association by name “Royal Castle Tiknar Apartment Owners’ Welfare Association”. The specific case of the petitioner is that the Suit is not maintainable because the afore said plaintiff-Association is not validly registered; and further that they have no right to recover any amounts from him towards maintenance charges qua the apartment complex. He says that he thus filed I.A.No.7 of 2022 raising a preliminary objection regarding the maintainability of the suit, but which has now been dismissed by the learned Munsiff through the impugned order. He thus assails the said order as being illegal and perverse.

2. Sri.P.B.Sahasranaman – learned counsel for the petitioner, vehemently argued that, when the very constitution of the plaintiff- Association is under challenge, the Trial Court ought to have considered it as a preliminary issue and to have then dismissed the Suit, finding it to be not maintainable. He argued that, as long as the plaintiff-Association is not one registered under the Kerala Apartment Ownership Act , 1983, but concededly only under the Travancore- Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, a suit by it, in the manner as now framed, is not maintainable, and hence that his client has been constrained to approach this Court through this CRP.

3. I am afraid that I cannot find favour with the afore submissions of Sri.P.B.Sahasranaman for reasons more than one. For the first, as rightly found by the learned Munsiff, the Association is one stated to be registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act . Whether said registration is valid or not, is an issue that can be raised in the Suit, to be decided based on the evidence and materials to be impelled by the parties. For the second, the question whether plaintiff-Association is competent to recover amounts from the defendant is also an issue to be decided based on evidence and cannot be urged as a preliminary issue. For the third, the contention that the plaintiff-Association, being registered only under the and not under the Kerala Apartment Ownership Act , is thus incapacitated from acting as an Association relating to an apartment, is surely an aspect that can be raised and impelled by the defendant during the Trial of the suit itself.

4. Of course, the finding of the learned Munsiff, in the order impugned, that the Suit is maintainable because registration under the Kerala Apartment Ownership Act , 1983 is not necessary, can be treated only as a preliminary observation and not as a final one.

5. In the afore circumstances, I am certain that this Court cannot stop the prosecution of the Suit at this stage, since the contention urged by the defendant are ones in the realm of evidence and its assessment, which can only be decided through its trial.

Resultantly, I dismiss this CRP, confirming the order of the learned Munsiff; however, clarifying that every observation therein is only prima facie in nature and that the right of the defendant to impel and raise any contention, including regarding the competence of the plaintiff-Association to prosecute the plaint and to recover money from him, are left open.