ABHAYA A SOCIETY Vs. J A RAHEEM

JUDGEMENT

(1.) Counter petitioners 1 to 3, 5 and 7 to 9 in O.P. (Trust) No. 129 of 2003, a petition filed under Section 92 of the Code of Civil Procedure seeking leave to file a suit in a representative capacity before the District Court, Thiruvananthapuram are the revision petitioners. This Civil Revision Petition is filed challenging an order passed by the I Additional District Judge, Thiruvananthapuram granting leave to the respondents 1 to 6, who were the petitioners therein, to institute a regular suit for the reliefs made in the petition.

(2.) The 1st petitioner is a Society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act (Act XII of 1955), (hereinafter referred to as "Act XII of 1955") with registration No. 71 of 1986 and having registered office at "Varada", Nandavanam, Thiruvananthapuram, 2nd petitioner is the President and the 3rd petitioner is the Secretary. Petitioners 4 to 8 are office bearers of the 1st petitioner Society. Respondents 1 to 6 filed the petition under Section 92 of the Code of Civil Procedure seeking leave to institute a suit raising various allegations, mainly against the 3rd petitioner-Secretary. It is averred that the first petitioner organisation "Abhaya" was constituted with the objectives of serving the mentally ill-person, improving the social and non-social environment of the mental hospitals of Kerala, providing the mentally ill persons with facilities to improve their life conditions and rehabilitating the recovered patients especially those who are unwanted by their families. It is also averred that the first petitioner had framed a Memorandum of Association and Rules and Regulations. It is also averred that the general body meeting of the Society held on 5.1.1986 decided to register the first petitioner under the Act XII of 1955. In the petition the provisions contained in Clauses 5, 6, 7, 8, 10, 11, 14, 15, 18 and 19 of the Memorandum of Association were extracted. It is averred that petitioners 2 onwards are acting against the provisions of the Rules and Regulations of Memorandum of Association and the Rules and procedure prescribed by the Act XII of 1955 and those relating to public trust. It is averred that the first petitioner Society is a Public Trust. It is averred that the petitioners and respondents 7 and 8 committed acts of mismanagement, misconduct and misappropriation. Various acts of mismanagement, misconduct and misappropriation alleged to have been committed by the petitioners were narrated in paragraphs 18 to 21 of the petition. The gist of the allegation is that the 3rd revision petitioner, who is the Founder Secretary of the Society, is misusing and mismanaging the affairs of the Society and causing loss to the Society. It is averred that interference by way of directions by the District court has become necessary for the administration of the first petitioner Trust. The reliefs which they propose to make in the suit are the following:-- (1) removal of petitioners and respondents 7 and 8 from the trusteeship and members- of the Managing Committee of the 1st petitioner Trust; (2) appointing new trustees for the management, government and control of the 1st petitioner Trust; (3) vesting the property of the said Trust with the newly appointed trustees; (4) a direction to the petitioners and respondents 7 and 8 to deliver possession of the Trust Property to the person/persons who are entitled to possess the property of the 1st petitioner; and (5) directing accounts and enquiries; settling a scheme and such other reliefs.

(3.) The revision petitioners contended that the petition is not maintainable. It is contended that the 1st revision petitioner is a Society registered under the provisions of Act XII of 1955 with registration No. 71 of 1986 and it is not a Trust as defined under the provisions of the Trust Act. It is also contended that since the first petitioner is not a Public Trust, the present petition filed under Section 92 of the C.P. Code seeking leave of the Court is not maintainable. It is further contended that Act XII of 1955 contains special remedies in the event of infringement of the provisions of the aforesaid Act and since remedies are provided under the Act itself, a special remedy available under Section 92 of the Code of Civil Procedure is barred. It is also contended that the 6th respondent is not a member of the first petitioner Society and is not a person having any interest in the Society. The averments contained in paragraphs 1 to 13, which deals with the various provisions of the Memorandum of Association were admitted. The averments contained in paragraphs 14 to 21 were denied. They prayed for a dismissal for the Original Petition.