JOHN GEORGE Vs. STEWARDS ASSOCIATION IN INDIA

JUDGEMENT

(1.) The Stewards Association in India, which is a society registered under the Tamil Nadu Societies Registration Act filed a suit for recovery of the possession of the plaint schedule property from the defendants and also for realisation of mesne profits at Rs. 1,800/- per year. The burden of the plaint was that the plaint schedule properties were acquired by Adolph Kocher, a German Missionary as per registered documents of 1084 and 1088 M.E.. He constructed a building for his residence and missionary work as a result of which a Brethern Sabha was formed. There was a prayer hall in the building which was used as an orphanage after purchase of the property by Kocher. Kocher was arrested during World War No. 1 as he was a German citizen. He however, had gifted the property to Stewards Company Limited, England, which right was transferred to the plaintiff-Association in 1973 by a registered document. One Mr. Adams was staying in this property and was continuing the missionary work and administration of the orphanage. During 1976, Adams left for Australia for the treatment of his wife. The orphanage was described as a trust and the subject matter of the trust was only furniture and livestocks. The orphanage or its Superintendents have no right over the property. The first defendant was a member of the Brethern Mission. He volunteered to supervise the orphanage as a Member of the Mission as desired by Adams. When Adams came back to Irinjalakuda in 1978, he found various irregularities. He tried to rectify the same but had to go back to Australia. Though he had written to the inmates of the orphanage to treat the first defendant as a Superintendent, there was no transfer of right to the first defendant. The first defendant, however, on the strength of the letter written by Adams on 29.12.1978 tried to make the property as his own, thus constraining the plaintiff to file a suit for injunction (O.S.No.173 of 1984, originally numbered as OS 648/1982) which was pending. In the present suit, (OS No. 176 of 1983), however, as mentioned above, the prayer was for recovery of possession on the strength of title with a prayer for damages. The suit was contested on various grounds as would be reflected from the issues framed by the trial court. The two suits, it appears were consolidated and disposed of by a common judgment. The suit with regard to recovery of possession and realisation of mesne profits was decreed and the defendants were directed to surrender the suit property to the plaintiffs. However, the right of the defendants to manage the affairs of the orphanages till they are legally removed from the office was also recognised. The suit pertaining to injunction, bearing No. 173 of 1984 was also decreed and the defendants were restrained from obstructing the plaintiff from managing the orphanage until he was removed from office. Constrained, the defendant arrayed in the original lis, filed an appeal which came up for final disposal before the learned Single Judge on 23rd October, 2003 and by a detailed judgment, the same was dismissed. Still dissatisfied, the defendants filed the appeal, A.F.A. No. 1 of 2006.

(2.) The facts of the appeal (A.F.A. No. 86 of 2002) filed by M/s. Sundaram Finance Limited, 21, Patullos Road, Madras, reveal that it had filed O.S.No.148 of 1988 before the Sub Court, Kollam on 26.5.1988 for recovering an amount of Rs. 40,138/- with interest due under a hire purchase agreement. The defendant therein had entered into a hire purchase agreement with the plaintiff for purchase of a lorry and the plaintiff had financed the defendant a total amount of Rs. 1,47,400/-, on the security of the lorry under the hire purchase agreement. The defendant failed to pay the instalment amounts from 20.5.1984 and the plaintiff took custody of the vehicle and it was sold for an amount of Rs. 85,000/-. After adjusting the amount repaid by the defendant as also the price recovered by the sale of the lorry, according to the plaintiff, an amount of Rs. 40,138/- was due which was sought to be recovered by filing the money suit as mentioned above. The suit was resisted on various grounds which include the plea of limitation. The trial court dismissed the suit on the ground of limitation. The plaintiff filed appeal, A.S.No.388 of 1992 before this Court against the dismissal of the suit, which also ended in dismissal vide order dated 10.4.2002 passed by the learned Single Judge, upholding the view taken by the trial court. Aggrieved by the judgment of the learned Single Judge, the plaintiff/appellant has filed A.F. A.No.86 of 2002. Even though numbered as Appeal against First Appeal as per the established practice and Rules of this Court, the appeals are in fact Second Appeals, the first appeal having been dismissed by the learned Single Judge of this Court. It is the conceded position that the appeals have been filed under Section 5(ii) of the Kerala High Court Act, even though the provision of the Act under which the appeals were filed have not been mentioned in the memorandum of appeals.

(3.) Learned Counsel representing the defendant-respondent, when the matter came up before the Division Bench raised a plea that in view of Section 100A of the Code of Civil Procedure substituted with effect from 1.7.2002, the appeal against the judgment of the single Judge would not be maintainable. In support of the above plea, he relied upon the Full Bench decision of this Court in Kesava Piliai v. State of Kerala . Per contra, learned Counsel representing the plaintiffs on the basis of the decision recorded by the Constitution Bench of the Supreme Court in Garikapati Veeraya v. N.Subbiah Choudhry urged that the right of appeal is a vested and a substantive right and the same accrues to the litigant and exists as on and from the date the lis commences and although it is actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceedings and not by the law that prevails at the date of its decision or at the date of filing of the appeal. The learned Division Bench even though noted that such a contention was raised before the Full Bench in Kesava Piliai v. State of Kerala (supra), was however of the view that the contention raised by the counsel representing the appellant would have substance, even though, prima facie. By so observing, the matter was referred to be decided by a Full Bench. The operative part of the reference order dated 16th February, 2006 reads as follows: