SUBASH Vs. PATHARAM EDUCATIONAL AND CULTURAL SOCIETY

JUDGEMENT

(1.) Can third parties be impleaded as proper parties to a Regular Second Appeal when they were not parties either to the suit or to the appeal therefrom The jurisdiction under Order I, Rule 10(2) to add parties in the context of the powers of the appellate court under Section 107(2) of the Code of Civil Procedure, 1908 (the CPC for short) arises for consideration. The suit is for a declaration that the amendment made to die bye-laws of a Society are null and void and for a mandatory injunction directing the defendants to administer it as per the original bye-laws. The Society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 is the educational agency of a school governed by the Kerala Education Act. The amendment made to the bye-laws of the Society concerns the admission of patron members on payment of Rs. 1,000 and the appointment of one amongst them as a permanent Manager of the school. The trial court dismissed the suit which was reversed in appeal by the lower appellate court and the same is impugned at the instance of the defendants in this Regular Second Appeal. The fourth plaintiff died pending first appeal while the remaining plaintiffs (except the second plaintiff) died pending Regular Second Appeal and their legal heirs are not brought on record. It later transpired that a compromise was entered into between the second plaintiff and defendants 1, 3, 4 and the legal heirs of the second defendant who alone are parties to the Regular Second Appeal. The parties requested the compromise to be recorded under Order XXIII, Rule 3 of the CPC whereby they seek to set aside the judgment of the lower appellate court and restore the judgment of the trial court. It was at this juncture did the present petitioners seek impleadment in the Regular Second Appeal in order to oppose the recording of the compromise and have the judgment of the lower appellate court sustained.

(2.) My attention was drawn to certain observations of the lower appellate court and the relevant portion of the judgment in appeal is extracted herein below:

(3.) The impleading petitioners contended that the compromise is attempted to be recorded surreptitiously by defendants 1, 3, 4 and the legal heirs of the second defendant by winning over the surviving second plaintiff. The compromise, if recorded, would entail in the dismissal of the suit in toto enabling a few to wrest control of the Society and keep the public at bay. The impleading petitioners asserted that they are not seeking any individual reliefs in the suit and that their attempt is only to sustain the judgment of the lower appellate court in the interest of the larger public. Defendants 1, 3, 4 and the legal heirs of the second defendant however maintained that the remedy, if any, of the impleading petitioners is to file a fresh suit only and that they cannot be impleaded. It is further contended that there is no enabling provision for third parties to be impleaded in the Regular Second Appeal when they were not parties at all either to the suit or to the appeal therefrom. I was also reminded that the suit is not one for vindication of a public right after obtaining leave under Section 92 of the CPC or filed in a representative capacity under Oder I, Rule 8 of the CPC.