S. N. D. P. SAKHAYOGAMversusKERALA ATMAVIDYA SANGHAM

                              [2017] 13 S.C.R. 456


A                        S. N. D. P. SAKHAYOGAM
                                        v.
                    KERALA ATMAVIDYA SANGHAM
                        (Civil Appeal No. 7068 of2010)
B                           SEPTEMBER05,2017
       [R. K. AGR.AWAL AND ABBAY MANOHAR SAPRE, JJ.]
            Code of Civil Procedure. 1908 - 0. 1, r.8 -Application filed
    by plaintiff to prosecute suit in a representative capacity -
c   Examination of - Respondent No. l (plaintiff) filed a civil suit against
    the appellant (defendant No.l) and defendant No.2 for declaration
    that the sale deed executed by defendant No.2 in favour of defendant
    No. I in respect of suit land be cancelled as being void and bad in
    law - Trial Court framed issues - Thereafter. plaintiff filed an
    application u/O. !, r. 8 and sought permission to prosecute the suit
D   as a representative suit - Sanction to prosecute the suit as
    representative suit was granted unopposed - Suit dismissed by the
    trial Court and the First Appellate Court - However. High Court
    allowed the appeal by plaintiff - Supreme Court remanded the case
    to the High Court for deciding the appeal afresh -- High Court
    again allowed the appeal and decreed the plaintiff's suit - On
E
    appeal. held: Plaintiff applied to the trial Court u/0.1, r.8 of the
    Code to prosecute the suit in representative capacity and permission
    was granted wUhout any objection from the defendants - Trial Court
    should have examined the question as to whether the plaintiff. who
    is a juristic person. i.e.. "Society" is entitled to invoke the provisions
F   ofO.I, r.8 of the Code for filing a suit in a "representative capacity"-
    Secondly, if the plaintiff is held entitled to file such suit, whether
     the facts pleaded and the relief~ claimed in the plaint can be said to
    be in the nature of representative character so as to satisfy the
     ingredients of OJ, 1:8 of the Code which are meant essentially for
G    the benefit of public at large for gram of any relief - Lastly, if the
    facts pleaded and the relieft claimed in the plaint do not satisfy the
     requirements of O.l. r.8 of the code for grant of relief to the public
    at large then whether such suit is capable of being tried as a regular
    suit on behalf of the plaintiff for granting reliefs in their personal
    capacity because the suit relates to ownership of land, namely. who
H    is the owner of the suit land - However, there was neither any
                                       456
     S. N. D. P. SAKHAYOGAM v. KERALAATMAVIDYA                            457
                        SANGHAM

discussion much less finding on any of the aforesaid issues by any        A
of the courts below though these questions direct(v and substantial(v
arose in the case - Therefore, in the interest a/justice. matter
remanded to trial Court to answer these issues and then decide the
suit depending upon the answe1· in accordance with law -
Jurisdiction.
                                                                          B
      Allowing the appeal, the Court
      HELD: 1. In the instant cas.e, one question, which goes to
the root of the case affecting the very jurisdiction of the Court to
try the suit, was not taken note and if taken note of, it was not
decided in its proper perspective by any of the Courts below.             c
May be due to the reason, instead of raising the objection, the
defendant appears to have conceded it. Be that as it may, the
issue of jurisdiction which goes to the root of the case, if found
involved has to be tried at any stage of the proceedings once
brought to the notice of the Court. [Paras 17, 18)(461-D-E]
                                                                          D
      2. The plaintiff had sought permission before the trial court
to prosecute the suit hy taking recourse to the provisions of Order
1 Rule 8 of the Code of Civil Procedure, 1908. In other words,
the plaintiff treated their suit to be in the nature of a
"representative suit" within the meaning of Order 1 Rule 8 and,
therefore, applied to the Trial Court under Rule 8 of the Code            E
seeking permission to prosecute the suit in the representative
capacity. This permission appears to have been granted to the
plaintiff by the Trial Court without any objection from the side of
the defendants. [Para 19] (461-D-G]
      3.1     While deciding issue regarding the 'suit in a               F
representative capacity', the Trial Court was expected to decide
several material questions, namely, whether the plaintiff, who is
a juristic person, i.e., "Society" is entitled to invoke the provisions
of Order 1 Rule 8 of the Code for filing a suit in a "representative
capacity". In other words, the Trial Court should have examined           G
the question as to whether the expression "person" occurring in
Rule 8 also includes "juristic person". [Para 21] [462-A-B]
     3.2 Secondly, if the plaintiff is held entitled to file such suit,
whether the facts pleaded and the reliefs claimed in the plaint
can be said to be in the nature of representative character so as         H
458             SUPREME COURT REPORTS                            (2017] 13 S.C.R.


A     to satisfy the ingredients of Order 1 Rule 8 of the Code which
      are meant essentially for the benefit of public at large for grant of
      any relief and lastly, if the facts pleaded and the reliefs claimed in
      the plaint do not satisfy the requirements of Order 1 Rule 8 of
      the Code for grant of relief to the public at large then whether
      such suit is ~apable of being tried as a regular suit on behalf of
      the plaintiff for granting reliefs in their personal capacity because
      the suit relates to ownership of land, namely, who is the owner of
      the suit land, (Para 22) (462-C-D)
            4. Sin~e there was neither any discussion much less finding
      on any of the aforesaid issues by any of the Courts below though
c     these questions directly and substantially arose in the case, th us,
      it would be just and proper and in the interest of justice to remand
      the case to the Trial Court to answer these issues and then decide
      the suit depending upon the answer in accordance with law. [Para
      23) [462-D-E)
D          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7068
      of2010.
            From the impugned Judgment and final Order dated 27.01.2005
      passed by the High Court of Kerala at Ernakulam in S.A. No.299 of
      1987(8).
 E         Jayanth Muth Raj, Sr. Adv., Nishe Rajen Shanker. Abdul Kabeer,
      Anu K. Roy, Advs. for the Appellant
           C.S. Rajan, Sr. Adv., A. Raghunath, Ms. Yogamaya, Advs. for the
      Respondents.
             The Judgment of the Court was delivered by
 F           ABHAY MANO HAR SAPRE, J. I. This appeal is filed by the
      first defendant against the final judgment and order dated 27.01.2005
      passed by the High Court of Kerala at Ernakulam in S.A. No.299 of
      1987 whereby the appeal filed by the respondent-plaintiff was allowed
      and the judgment and decree passed by the Courts below were set aside
 (i   and the defendants were given two months' time to deliver the property
      to the plaintiff failing which the plaintiff shall be entitled to put the decree
      in execution.
             2. In order to appreciate the controversy involved in the suit, which
      has now travelled up to this Court, it is necessary to state the relevant
 H    facts infra.
      S. N. D. P. SAKHAYOGAM v. KERALAATMAVIDYA                               459
          SANGHAM [ABHAY MANOHAR SAPRE, J.]

       3. The appellant herein is defendant No. 1 whereas respondent          A
No. 1 is the plaintiff. So far as respondent Nos. 2 to 8 are concerned,
they were made parties in appeal as legal representatives of original
defendant No. 2, who died pending this appeal but later by order dated
14.01.2009 their names were deleted from the array of the parties. They
arc, therefore, no longer parties to the /is arising in the case.
                                                                              B
       4. Respondent No. 1 (plaintiff) is a Society registered as such
under the Travancore Cochin Literary Scientific and Charitable Societies
Act 12/1955 (hereinafter referred to as "the Act") having their branches
all over the State of Kerala. It is claimed to be running charitable
institutions all over the State through their branches. It has its own bye-
laws to run the charitable institutions.                                      C
      5. The appellant (defendant no I) is alleged to be another body of
persons known as "Panoor 47 Atma Vidya Sabha" having their place of
working at a place called "Panoor" in the State of Kerala whereas
defendant No. 2 was one Kunju Panikan Narayanan (since dead). He
was alleged to be President of defendant No. I (appellant).              D
       6. The dispute in this case relates to land bearing Survey Number
No. 99111, situated in village Thrikkunnapuzha, DistrictAlappuzha as
described in detail with specifications in the Sale Deed, registered as
Document No. 399-dated 09.02. I 978(Annexure-P) hereinafterreferred
to as the "suit land".                                                        E

       7. Respondent No. 1 (plaintiff) filed a civil suit (0.S. No. 213/
1978) against the appellant herein (defendant No.I) and one Kunju
Panicken Narayanan-defendant No. 2. The suit was for a declaration
that the sale deed (Document No.399) dated 09.02.1978 executed by
defendant No. 2 in favour of defendant No. I in respect of the suit land      F
be cancelled as being void and bad in law.
       8. It was, inter alia. averred in the plaint that respondent No. I
(plaintiff) had purchased the suit land by registered sale deed (Document
No.2904) in the year 1951 for running their charitable activities through
defendant No. I which, according to them, was their branch of which           G
defendant No. 2 was the President at all relevant time. It was alleged
that the suit land was purchased by respondent No. I being the parent
organization in the name of the appellant (defendant No. I) through
defendant No. 2. It was alleged that since the appellant (defendant No.
I), after some time had stopped their activities due to some reasons, all     H
460            SUP!tEME COURT REPORTS                         [2017] 13 S.C.R.



A     the properties stood in the name of the appellant (defendant No. I) was
      merged as provided in the bye-laws with respondent No. !(plaintiff),
      i.e., parent bo<ly. It was alleged that defendant No. 2, who claimed to be
      the President of defendant No. I, had no right, title and interest nor had
      any authority to sell the suit land to anyone much less to defendant No. I
      vide sale deed dated 09.02.1978. On these averments, the suit was filed
B
      seeking declaration in the reliefs.
             9. The appellant (defendant No. I) denied the claim set up in the
      plaint and defended the sale deed executed in their favour by defendant
      No. 2. It was contended that the sale deed dated 09.02.1978 is legal and
C     proper. According to defendant No. I, both (plaintiff and defendant No.
      l) were always independent organizations having no connection between
      them in any manner. Some more facts were also averred in the written
      statement, which are not necessary to mention here. The Trial Court
      framed several issues on merits arising in the case.
            10. The plaintiff (respondent No. I) then applied under Order I
D     Rule 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as
      "the Code") and sought permission of the Court to allow them to prosecute
      the suit as a representative suit. Defendant No. I (appellant) did not
      oppose the prayer and hence sanction to prosecute the suit seemed to
      have been granted to the plaintiff. (See- Issue No. I). Parties adduced
 E    evidence.
             11. The Trial Court, by judgment/decree dated2 l.08. l 980 dismissed
      the suit. The plaintiff, felt aggrieved, filed first appeal beingA.S. No. 77
      of 1981 before the Additional District Judge, Mavelikkara. The first
      Appellate Court, by judgment/decree dated 02.09.1986, dismissed the
 F    appeal and affirmed the judgment/decree of the Trial Court. The plaintiff,
      felt aggrieved, filed Second Appeal being S.A. No.299 of 1987 before
      the High Court.
            12. By judgment/decree dated 29.05.1995, the High Court allowed
      the appeal and decreed the suit.
 G           13. Defendant No. I, felt aggrieved, filed special leave petition
      (SLP( c) No.24439 ofl 995) before this Court. This Court by order dated
      30.10.2003 after granting leave, allowed the appeal, set aside the order
      of the High Court and remanded the case to the High Court for deciding
      the second appeal afresh. This Court remanded the case to the High
 H    Court essentially on the ground that it was noticed that the High Court
      S. N. D. P. SAKHAYOGAM v. KERALA ATMAVIDYA                                 461
          SANGHAM [ABHAY MANOHAR SAPRE, J.]

allowed the second appeal without framing any substantial question(s)            A
of law arising in the case.
       14. On remand, the High Court framed three substantial questions
and, by impugned order 27.01.2005, again allowed the appeal and decreed
the plaintiff's suit. Against this order, defendant No. 1 felt aggrieved and
filed this appeal by way of special leave before this Court.                     B
      15. We have heard Mr. Jayanth Muth Raj, learned counsel, for
the appellant and Mr. C.S. Rajan, learned senior counsel for the
respondents.
       16. Having heard the learned counsel for the parties and on perusal
of the record of the case, we arc inclined to allow the appeal and while         c
setting aside all the judgment/decrees of the Courts below remand the
case to the Trial Court for disposal of the suit afresh.
       17. In our considered opinion, one question, which goes to the root
of the case affecting the very jurisdiction of the Court to try the suit, was
not taken note and if taken note of, it was not decided in its proper            D
perspective by any of the Courts below. May be due to the reason,
instead of raising the objection, the defendant appears to have conceded
it
      18. B!! that as it may, in our considered view, the issue ofjurisdiction
which goes to the root of the case, if found involved has to be tried at         E
any stage of the proceedings once brought to the notice of the Court.
       19. As mentioned above, the plaintiff had sought permission to
prosecute the suit by taking recourse to the provisions of Order I Rule 8
of the Code. In other words, the plaintiff treated their suit to be in the
nature of a "representative suit" within the meaning of Order l Rule 8           F
and, therefore, applied to the Trial Court under Rule 8 of the Code seeking
permission to prosecute the suit in the representative capacity. This
permission ;ippcars to have been granted to the plaintiff by the Trial
Court (see discussion on issue No. I) without any objection from the
side of the defendants and, therefore, Issue No. I was answered in
                                                                                 G
plaintiff's favour.
       20. This is how issue no 1 was answered by the Trial Court:
       "Issue No.1:- This is not pressed by the defendant's counsel
       as sanction was obtained by the Plaintiff from Court to file
       the suit in a representative capacity under or Rule 8 C.P.C."             H
462              SUPREME COURT REPORTS                            (2017] 13 S.C.R.



A            21. In our considered opinion, while deciding Issue No. 1, the Trial
       Court was expected to decide several material questions, namely, whether
      the plaintiff, whCll is a juristic person, i.e., "Society" is entitled to invoke
       the provisions of Order 1 Rule 8 of the Code for filing a suit in a
       "representative capacity". In other words, the Trial Court should have
B      examined the question as to whether the expression "person" occurring
      "in Rule 8 also includes 'juristic person".
              22. Secondly, if the plaintiffis held entitled to file such suit, whether
      the facts pleaded and thereltefs claimed in the plaint can be said to be in
      the natw·e ofreptesentative character so as to satisfy the ingredients of
      Order I Rule 8 of the Cod~ which are meant essentially for the benefit
c     of public at large for grant of any relief and lastly, if the facts pleaded
      and the reliefs claimed in the plaint do not satisfy the requirements of
      Order l Rnle 8 of the Code for grant of relief to the public at large then
      whether such suit is capable of being tried as a regular suit on behalf of
      the plaintiff for granting reliefs in their personal capacity because the
 D    snit relak> iv ownership ofland, namely, who is the owner ofthe suit land.
             23. Since there was neither any discussion much less finding on
      any of the aforesaid issues by any of the Courts below though these
      questions directly and substantially arose in the case (Issue No. I), we
      are of the considered opinion that it would be just and proper and in the
 E    interest of justice to remand the case to the Trial Court to answer these
      issues and then d<!!cide the suit depending upon the answer in accordance
      with law.
            24. In the light of foregoing discussion, the appeal succeeds and is
      allowed. Impugned order, judgment/decree passed by the first Appellate
 F    Court and the Trial Court are set aside.
            25, The suit is restored to its file for trial to answer the
      aforementioned issues and then decide it in accordance with law.
             26. We have not expressed any opinion on any of the issues on
      their respective merits, therefore, the Trial Court would decide the issues
 G    uninfluenced by any of our observations made herein.
             27. Parties to appear before the Trial Court on 03.10.2017 to enable
      the Trial Court to decide the suit as directed within one year as an outer limit.


      Ankit Gyan                                                       Appeal allowed.