Food Corporation of India vs Truck Operators Union, Nabha and Others

B.S. Walia, J.

This Regular Second Appeal has been filed by the Food Corporation of India (for short TCI'') challenging the judgment and decrees passed by both the courts below decreeing the suit filed by the respondents-plaintiffs for recovery of Rs. 2,75,370/- along with interest @ 9% per annum from the date of accrual thereof to the date of decision and future interest thereafter at the rate of 6% per annum till realisation of the entire decretal amount. Brief facts of the case necessary for adjudication of the instant appeal are that a civil suit was instituted by the Truck Operators Union, Nabha (for short ''Union'') through its member Sh. Vijay Kumar Gupta as plaintiff No. 1 and Sh. Vijay Kumar Gupta as plaintiff No. 2 seeking recovery of Rs. 3,74,500/-(which included Rs. 2,75,370/-as principal and Rs. 99,130/- as interest @ 12% p.a.) with costs and interest on account of said amount having been illegally and unilaterally deducted by the appellant-defendant from the total payment of Rs. 15,16,643.60 for alleged shortage of paddy transported by the Union without affording an opportunity of hearing.

As per facts set out in the plaint, the plaintiff-Union consisted of 825 trucks under the ownership of different persons and Vijay Kumar Gupta was one of the members of the Union. He, therefore, was competent to file the suit on behalf of the Union as well as in his personal capacity having direct interest in the recovery. President of the Union was elected every year through ballot and in the year 2001, the defendant had allotted work of transporting paddy to the Union and an agreement to that effect was executed by Vijay Kumar Gupta, plaintiff No. 2, as the then President of the Union with the defendant, but to the utter surprise of the plaintiffs, the defendant illegally, unilaterally and without affording opportunity of hearing to the plaintiffs, put shortage of paddy upon the plaintiffs and deducted Rs. 2,75,370/- from total payment of Rs. 15,16,643.60 which was to be paid by the appellant - defendant for the above said transportation work.

In the written statement, the appellant-defendant denied that the Union had 825 trucks or that respondent No. 2/plaintiff No. 2 was one of the members of the Union or that he was competent to file the suit on behalf of the Union or in his personal capacity or that he was having direct interest in the recovery, or that he was the President of the Union or the agreement had been executed through him.

On the pleading of the parties, the following issues were framed:--

"1. Whether the plaintiff is entitled for recovery of Rs. 3,74,500/- from the defendant as prayed for? OPP

Whether the plaintiff is entitled for interest, if so at what rate? OPP

Whether the suit is not maintainable? OPD

Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD

Whether the suit is barred by law of limitation? OPD

Whether the suit is bad for misjoinder and non-joinder of necessary parties? OPD

Relief."

It would be relevant to mention here that, Hazara Singh, Manager (Depot) FCI, while appearing as DW-1 filed an affidavit in which he categorically stated as under:

"3. That the suit itself is not maintainable as Truck Operators Union, as admitted by the plaintiff and his witnesses, is not a registered body, as such Truck Operators Union has no right to file the suit in its own name nor Vijay Kumar the alleged member has got any right to file this suit......."

"6. That even according to agreement Ex. ....., the plaintiff is responsible for all shortage. There is an arbitration clause in the agreement so the plaintiff should have resorted to arbitration rather than to file a civil suit."

On the basis of the pleadings, evidence and submissions, the Subordinate Court decided all the issues in favour of the respondents-plaintiffs and against the appellant-defendant, resultantly decreed the civil suit. The appeal filed by the defendant was dismissed by the Lower Appellate Court leading to the filing of the instant Regular Second Appeal.

I have heard learned counsel for the parties and with their able assistance have gone through the records. In the Regular Second Appeal, the following substantial questions of law have been framed:

i) Whether present suit is maintainable in view of the facts that respondent Union is not a registered body?

ii) Whether findings recorded by courts below are perverse and are based on misreading of evidence and has been passed without considering the documents and evidence on record?

iii) Whether present suit is maintainable in view of Arbitration Clause in the agreement?"

Submission on behalf of the appellant-defendant in the Regular Second Appeal is that despite plea of non-maintainability of suit in view of the Union being an unregistered body, besides, agreement between the parties containing arbitration clause having been raised, the said aspects of the matter were not dealt with either by the Subordinate Court or the Lower Appellate Court. It was also contended that the judgment and decrees were perverse being based on misreading of evidence and having been passed without considering the documents and evidence on record.

The arguments of the parties in appeal before the Lower Appellate Court are referred to in paragraph Nos. 7 and 8 of the judgment of the Lower Appellate Court i.e. that the plaintiffs had no right to file the suit as the resolution authorizing them to file the suit had not been placed on record and none of the actual sufferer had come in the witness box etc. Learned Counsel for the appellant contended that grounds of non maintainability of the suit in view of arbitration clause contained in the agreement as also of admission of respondent No. 2/plaintiff No. 2 that he was not authorized person'' to file the suit had been raised in paragraph Nos. 4 and 5 of the grounds of appeal but the same had not been dealt with by the Lower Appellate Court.

In paragraph No. 9 of the grounds of appeal before this Court, it has been mentioned that the appeal filed before the Lower Appellate Court was dismissed in a stereotyped manner without discussing the evidence and facts properly while in paragraph No. 12, it has been pleaded that for filing a suit for recovery by the Union, the same ought to be a registered body failing which the suit filed by such a body would not be maintainable and would be liable to be dismissed. In paragraph No. 13 of the grounds of appeal, it has been mentioned that in view of arbitration clause in the agreement between the parties (Exhibit P15), remedy, if any, of the respondent-plaintiffs was to pursue their claim under the provisions of the agreement by way of arbitration, therefore, the suit was not maintainable on the aforesaid ground also.

Thus the grounds raised in paragraph Nos. 4 and 5 of the grounds of appeal before the Lower Appellate Court are of non-maintainability of the suit in view of arbitration clause contained in the agreement as also of admission of respondent No. 2/plaintiff No. 2 that he was not authorized to file the suit and that the same had not been dealt with by the Lower Appellate Court. Although the plea with regard to the maintainability of the suit was raised before the Subordinate Court and in the affidavit filed by DW-1 it was categorically stated that the suit itself was not maintainable as Truck Operators Union, as admitted by the plaintiff and his witnesses, was not a registered body, as such Truck Operators Union had no right to file the suit in its own name nor Vijay Kumar the alleged member had got any right to file this suit nor was the civil suit maintainable in view of arbitration clause in the agreement, however, the plea with regard to non-maintainability of the suit on behalf of an unregistered Union as also with regard to non maintainability of civil suit in view of availability of arbitration clause in the agreement was not dealt with by the Courts below.

Thus, the main points argued by learned counsel for the appellant which go to the root of the matter are : (i) that the suit was not maintainable in view of the Union not being a registered body; (ii) that the suit was not maintainable in view of arbitration clause contained in the agreement; and (iii) that the findings recorded by the courts below were perverse being based on misreading of evidence etc. In response to the submissions on behalf of the appellant, Learned counsel for the respondent, submitted that Section 8 of the Arbitration and Conciliation Act, 1996 provides that a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. Learned Counsel for the respondent submitted that in fact the issue with regard to clause requiring reference of the matter to arbitration as contained in the agreement was not agitated before the Subordinate Court in the manner required as per law. In terms of Section 8(2) of the Arbitration and Conciliation Act, 1996, the objection with regard to availability of remedy of arbitration is to be taken at the earliest possible time before filing the first statement of defence along with a duly certified copy or original arbitration agreement. Reference in this context can be made to the decision of the Hon''ble Supreme Court in case titled as Booz Allen and Hamilton Inc. Vs. SBI Home Finance Ltd. and Others, . Learned counsel for the appellant concedes that the procedure as has been referred to above was not followed in the instant case. In view thereof, the substantial question of law with regard to the non maintainability of the civil suit in view of the availability of arbitration clause in the agreement is answered against the appellant and in favour of the respondents in view of the decision of the Hon''ble Supreme Court in Booz Allen''s case (Supra). In fact this point ought not to have been raised by the appellant in the Regular Second Appeal in view of the same not having been moved by way of an application at the appropriate time in terms of Section 8 of the Arbitration and Conciliation Act, 1996.

Secondly, even though the plea with regard to non maintainability of the civil suit on account of the union not being a registered body was not categorically raised before the Lower Appellate Court, except in the affidavit of DW-1, however, in view of the said plea being a legal plea and going to the root of the matter, the same is taken up for adjudication. Some decisions regarding maintainability of the civil suit in such like circumstances are:

"i) Hyderabad Cricket Association Gymkhana Grounds Vs. Cambridge Cricket Club and Another, .

ii) Jamiat Ulama-I-Hind and another v. Maulana Mahmood Asad Madni and another, CS (OS) No. 685 of 2008 decided on 25.08.2008 - Delhi High Court.

iii) Salafi Trust and Another Vs. Nazeer, P., ."

The Andhra Pradesh High Court in Hyderabad Cricket Association Gymkhana Grounds'' case (supra) while taking note of various decision held that an unincorporated body which has no existence in the eye of law can neither sue or be sued in its own name except in the name of all members of the association or in the name of the secretary or other members of the governing body on their Own behalf and on behalf of other members of the association under the provisions of Order 1, Rule 8, of the Civil Procedure Code.

Relevant extract of the judgment referred to above is reproduced below:--

"20. The right of any other body which has no existence in the eye of law to sue or be sued is clearly negatived by the Allahabad High Court in a decision reported in the N.W.P. Club Through G.B. Goyder, Honorary Secretary (Defendant) v. Sadullah (Plaintiff), (1898) I.L.R. Vol.XX Allahabad Series 497. A Division Bench of the Allahabad High Court while dealing with the maintainability of a suit against such a club, held as follows:

"......The question remains as to whether the action can rightly be said to have been brought against the N.W.P. Club, that is, what the case mentioned above calls an abstract entity unknown to the law. To hold that an action lay against it and to give judgment in such action would be to hold that an action lay against a great number of individuals who had not been cited in the action, who had no opportunity of appearing, but who should have been so cited, and who should have had such opportunity given to them to appear and contest the action. On that ground the action should have been dismissed against the club."

Similarly, in another judgment reported in Yusuf Beg (Defendant) v. The Board of Foreign Missions of the Presbyterian Church of New York in America through the Revd. W.F. Johnson, Principal Officer, (Plaintiff), (1894) I.L.R. Vol.XVI Allahabad Series 420. Once again a Division Bench of the Allahabad High Court while dealing with a question of the maintainability of a suit filed by an unincorporated body, held as follows:

"......This case may appear to be a hard one, but there are also numerous difficulties, obvious to every one, connected with the fact of persons not registered and not incorporated and possessing only a floating existence, which cannot be overlooked. Bodies of this nature wishing to claim the privileges and protection which the law assigns to corporations should take care to have themselves incorporated and registered in such a way that those who deal with them or are brought in contact with them can know whom they are suing and by whom they are being sued. The appeal prevails. The suit as brought by the respondent fails and is dismissed with costs in all Courts."

In fact, a learned single Judge of the Bombay High Court in a case reported in Satyavart Sidhantalankar Vs. The Arya Samaj, , also held as follows;

"......The society is an association of individuals which comes into existence with certain aims and objects. If it is not registered as a society under the Societies Registration Act, it would have the character of a club or other association which cannot sue or be sued except in the name of all members of the association or in the name of the secretary or other members of the governing body on their own behalf and on behalf of other members of the association under the provisions of Order 1, Rule 8, of the Civil Procedure Code. It would not be competent to a secretary or other members of the governing body of the club or association to sue or be sued alone in respect of matters in which the association is interested even though authority in that behalf has been conferred on them by all members of the association."

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In view of the principle that an unincorporated body which has no existence in the eye of law can neither sue or be sued, I am of the opinion that all the impugned orders are required to be set aside."

The Delhi High Court in Jamiat Ulama-I-Hind''s case (supra) while considering amongst other points the point whether the suit was not maintainable because it purported to be on behalf of an unregistered association, i.e. the Jamat after taking note of the factual position as well as various decisions, held that the suit was not maintainable for want of sanction under Order I, Rule 8 CPC. Relevant extract of the said judgment is reproduced below:

"13. Learned Counsel next contended that the suit is also not maintainable because it purports to be on behalf of an unregistered association, i.e. the Jamat. The frame of the suit, and the nature of relief are such that the Jamat and the second plaintiff claim reliefs on the basis of the same allegations. Therefore, unless the second plaintiff shows his competence in some manner to represent the first plaintiff, the suit is not maintainable. It is contended that even otherwise, the suit cannot be maintained since the mandatory provisions of Order I Rule 8 have not been complied with. Furthermore, non- disclosure of the persons on whose behalf the suit is sought to be filed '' assuming it to be in representative capacity '' is a fatal infirmity.

It was contended that a suit, on behalf of a non-registered association, such as a club or society cannot be maintained; reliance was placed on the decisions reported as GIP Railway Senior Institute v. Mohit Kumar, A.I.R. 1954 Nag. 29 ; Rajendra Nath Tikku Vs. The Royal Calcutta Turf Club, ; and S. Nesamony Nadar Vs. Nidalam Government High School, Improvement Committee, .

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Mr. Khurshid submitted that if, for some reason, the court were to conclude that the suit in its present form is not maintainable, yet that cannot be a ground to reject the plaint. Counsel submitted, on the strength of the rulings in Hubli Panjarapole and Others Vs. Saraswatevva Bayappa Kala Ghatki, ; Saraf and Swarnkar Samiti, Morar and Others Vs. Munnal Lal and Others, ; Smt. Ram Piari Vs. Shri Amar Singh and Others, and Radhaswami Satsang Sabha Vs. Smt. Puttan (deceased by L.Rs.) and Others, that the defect if any in non compliance with provisions of Order I Rule 8 can be cured at any stage, even in appellate proceedings. Therefore, the defendants'' arguments about the maintainability of the suit, were refuted as without foundation. Learned Counsel also submitted that the plaintiffs have moved a separate application under Order I Rule 8 to seek leave to sue in a representative capacity.

xxx xxx xxx xxx xxx xxx 19.

Next, the more substantial issue about maintainability on the ground that the suit is not a representative one. Order I Rule 8 was conceived in public interest to enable ''numerous'' persons having common interest, to approach the court, through one, or few of them, in a representative character. The object of the provision is avoidance if multiplicity in litigation. In The Chairman, Tamil Nadu Housing Board, Madras Vs. T.N. Ganapathy, the Supreme Court held that:

The provisions of Order I of Rule 8 have been included in the Code in the public interest so as to avoid multiplicity of litigation. The condition necessary for application of the provisions is that the persons on whose behalf the suit is being brought must have the same interest. In other words either the interest must be common or they must have a common grievance which they seek to get redressed. In Kodia Goundar and Another Vs. Velandi Goundar and Others, a Full Bench of the Madras High Court observed that on the plain language of Order I Rule 8, the principal requirement to bring a suit within that rule is the sameness of interest of the numerous persons on whose behalf or for whose benefit the suit is instituted. The court, while considering whether leave under the rule should be granted or not, should examine whether there is sufficient community of interest to justify the adoption of the procedure provided under the rule. The object for which this provision is enacted is really to facilitate the decision of questions, in which a large number of persons are interested, without recourse to the ordinary procedure. The provision must, therefore, receive an interpretation which will Sub-serve the object for its enactment.

In Ahmed Adam Sait v. M.E. Makhri, A.I.R. 1964 S.C. 107 the Supreme Court held that decision in a representative suit, properly instituted, would bind all the persons sought to be represented, and constitute res judicata, under Section 11, CPC. There is also authority (Hubli Panjarapole case; Saraf and Swarnakar Samiti; Smt. Ram Piari''s case and Radhaswami Satsang Sabha'' referred to supra) that the lacunae or infirmity in not seeking leave in the suit, at the initial stage, can be cured later. To this extent, the plaintiffs'' contentions are well founded.

The defendant applicants contend that the nature of the right sought to be projected, and the cause of action is such that leave cannot be granted; they also contend that neither has the second plaintiff shown authorization or right to represent the membership of the Jamat as a whole, nor has he disclosed the Jamat''s membership, to enable the court to take effective steps toward issuing notice to them, and granting leave, under Order I Rule 8, to pursue this suit in a representative capacity, to him.

xxx xxx xxx xxx xxx xxx

.....The Special Bench of the Allahabad High Court in Noel Frederick Barwell Vs. John Jackson and Others, , was concerned with a resolution by a majority vote that an unregistered Club should be dissolved. It was held by the Special Bench that in the absence of any provision in the rules of the Club laying down the circumstances and the manner in which the dissolution of the Club could take place, the dissolution of the Club would not be brought about by a majority vote. The Club could be dissolved only if all the members unanimously agreed to such dissolution. Similarly, the Madras High Court, in D. Gopalan Vs. Raghava Naicker and others, held that:

From the answers given by the deponent to the affidavit as could be seen from his evidence recorded before the learned judge on the Original Side, it is clear that the very existence of the so called Association is doubtful. More than this, the number of members of the Association and their interest in this matter and their having authorized the deponent to the affidavit to institute the suit on behalf of the Association since all the members had the same interest in the subject-matter in suit, have all not been established.

Similarly, in Tulsi Ram and Others Vs. Mathura Sagar Pan Tatha Krishi and Another, the Supreme Court held that a suit on behalf of several persons, claiming community rights is not maintainable. In this case too, the nature of the right sought to be asserted on behalf of the Jamat, that the impugned resolution was illegal, and that the second plaintiff continued as President, has been pleaded in a general manner; the Jamat''s interest has been projected as the cause of action for approaching the court. The second plaintiff has nowhere disclosed his right, or authorization by the body of persons, on whose behalf the Jamat''s rights are sought to be asserted. Therefore, even if he were to be allowed to sue in representative capacity; the suit would have to fail.

xxx xxx xxx xxx xxx xxx

In an earlier decision Kapoor Group and Another Vs. Supreme Court of India Bar Association--> this Court had held, inter alia that:

Order 1 Rule 8 applies only to representative suits when there are large number of persons having common interest in a suit. One or more of those persons with the permission of the Court can sue or be sued or defend the suit on behalf of others also. On such permission, if given, it becomes the imperative duty of the Court to direct notice to be given to the absent parties in the manner as the Court in each case required. Under this rule the suit cannot be filed on behalf of innumerable, countless persons but it may be filed on behalf of limited and clearly defined class of people who had common interest and common right Indeed the proper course is to obtain the permission for suing in representative capacity before the suit is actually instituted. But Order 1 Rule 8, CPC does not forbid leave being granted afterwards at any stage of the proceeding. No notice of the application is contemplated to be served on the opposite party for granting the permission. In the instant case the permission has been applied for and granted by the Court though notice has not been issued to all those persons on whose behalf and in whose interest the suit was filed because of a subsequent event.

These observations underscore the necessity of seeking leave, under Order I Rule 8, on behalf of a named body of individuals, whose particulars are disclosed, to permit the court to take effective steps to notify them. This is a necessary procedure, since any decree made in the proceeding would bind them Kumaravelu v. Ramaswami, A.I.R. 1933 P.C. 188 ; F.A. Shihan and Others Vs. Abdul Alim Abed and Others, ; Bishan Singh Kala Singh and Others Vs. Mastan Singh Sarup Singh and Another, and Ahmed Adam Sait (supra).

A Division Bench of this Court had dealt with a somewhat similar situation, where the plaintiff''s request for leave under Order I Rule 8 was rejected, in Subhash Market Association and Another Vs. Municipal Corporation of Delhi and Others, in the following manner:

Order 1 Rule 8 of the Code of Civil Procedure. Sub-rule (2) of Rule 8 of Order I of the Code of Civil Procedure mandates that the court in all cases where a permission or direction to sue or be sued, or may defend such suit, on behalf of or for the benefit of all persons so interested, to give notice of the institution of the suit to the persons so interested, either by personal service or by public advertisement.

The plaintiff claimed membership of 75-80 persons in the plaint. It was strongly canvassed that in compliance with the orders, the appellant filed process fee in the case for issuance of notices by the court. Perusal of the process fee form shows that the process fee filed by the appellant would have been sufficient to serve only 3/4 persons.

No list of the 75-80 members was filed. It was also an admitted position, as stated in paragraph 11 of the impugned judgment, that the plaintiff did not comply with the requirements of Order I Rule 8 of the Code of Civil Procedure. We find no reason to vary the findings of the learned Trial Judge."

In this case, the plaintiffs application, IA 6338/2008, under Order I Rule 8 generally mentions about the District Committees having authorized him to file the suit on behalf of Jamat. However, the membership of those committees remains undisclosed; the membership of the Jamat, whose interests are allegedly affected due to the impugned resolution, has not been shown. According to the suit, the Jamat has a membership base of one crore. These lacunae are, in the opinion of this Court, incurable.

For the above reasons, it is held that the suit is not maintainable....."

The Kerala High Court in Salafi Trust''s case (supra) considered the plea that suit OS No. 9/2004 was bad as the plaintiff Committee was not a registered entity. After taking note of the factual position as well as various decisions, the Kerala High Court held that the suit was bad for want of sanction under Order I, Rule 8 CPC. Relevant extract of the said judgment is reproduced below:

"13. For a correct appraisal of the plea of the revision petitioners that the suit O.S. No. 9/2004 is bad as the Committee is not a registered entity, we have carefully gone through the plaint in O.S. No. 9/2004. We fail to find any whisper in the pleadings that the 1st plaintiff Committee is a registered entity or that the 2nd and 3rd plaintiffs are persons authorised to represent the 1st plaintiff Committee. There is also no pleading in the plaint that K.N.M. is a registered entity or that the 1st plaintiff is a subsidiary of the K.N.M. We have also gone through the evidence on record. We find that the conclusions arrived by the Tribunal below that K.N.M. is a registered Society and 1st plaintiff is a subsidiary of the Society is not supported by any pleadings or evidence on record. Therefore, we are unable to sustain the finding of the Tribunal on that aspect.

For a correct appraisal of the dispute, a reading of Order I, Rule 8 of the Code of Civil Procedure (CPC) would be relevant. Order I, Rule 8 reads as follows:

One person may sue of defend on behalf of all in same interest.-

(1) Where there are numerous persons having the same interest in one suit,

(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;

(b) the Court may direct that one or more of such person may, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.

(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiffs expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.

(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.

(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of Rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order, unless the Court has given, at the plaintiffs expense, notice to all persons so interested in the manner specified in sub-rule (2).

(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.

(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.

Going through the above provision, we find that when one or more such persons are sued or be sued where there are numerous persons having the same interest, permission shall be obtained from the court for suing or being sued and that before granting permission or direction, at the expense of the plaintiff notice regarding the institution of the suit has to be issued to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, notice shall be issued by public advertisement. Admittedly, no such permission or direction was obtained and no such notice was served upon the persons interested or any notice was duly published. For that reason, we find that the suit O.S. No. 9/2004 shall fail.

Our above conclusion is fortified by the decisions reported in Narayanan Nambudiri Vs. Kurichithanam Educational Society, , Corporation of Trivandrum v. K. Narayana Pillai, 1968 K.L.T. 285 and the decision reported in Commons Club v. P.M. Mathew, 1982 K.L.T.

In Narayanan Nambudiri''s case at paragraph 3, a Single Judge of this Court held as follows:

Then there is the objection that the suit itself is not properly constituted and that therefore the sanction under O. I, R. 8 should not have been issued. It is pointed out that the plaintiff in the suit is the Kurichithanam Educational Society which is an unregistered society and that such an unregistered society is not a juridical person and cannot figure as a plaintiff. Even though the society is described as the plaintiff the individual claiming to be its present President has brought forward the suit as its representative. Since the society is itself an unregistered one, the individual claiming to be its President cannot represent the society and maintain the suit on behalf of the society.

In Corporation of Trivandrum v. K. Narayana Pillai''s case, at paragraph 10, another Single Judge, referring to an Allahabad decision, held as follows: The Secretary of a club or other association cannot sue alone in respect of a matter in which the association is interested even if he is authorised so to do by a resolution of the members of the association. The suit must be brought by all the members of the association, or by the Secretary on his own behalf and on behalf of the other members under Order I, Rule 8. [See: Mohammadan Association v. Bakshi, (1884) I.L.R. 6 Allahabad 284].

In Commons Club''s case, referring to the Narayanan Nambudiri''s case, certain other decisions and Halsbury''s Law of England, a Division Bench of this Court, at paragraph 13, after quoting the statements, held that, in our opinion, decision in Narayanan Nambudiri''s case encapsulates the correct law on the point.

Therefore, we hold that the suit O.S. No. 9/94 is bad for want of sanction under Order I, Rule 8 CPC."

In the instant case, the civil suit was purportedly filed on behalf of respondent-plaintiff No. 1 by respondent-plaintiff No. 2 as well as respondent-plaintiff No. 2 in his individual capacity. Respondent-plaintiff No. 1 is an unincorporated body, admittedly, an unregistered union which at the time of institution of the civil suit in 2005 had a membership of 825 members, subsequently reduced to 604 members in 2009. Details of the 825 members or for that 604 members of the Union was not given nor was permission under Order 1 Rule 8 of the Code of Civil Procedure sought and obtained. The civil suit filed on behalf of respondent-plaintiff No. 1 in 2005 was not by a duly authorized person. Alleged ratification by the President of the Union in the year 2009 on the basis of a resolution signed by 10 members of the unregistered Union, the membership of which had shrunk from 825 in the year 2005 to 604 in the year 2009 was also without disclosing the details of the said 604 members. In the circumstances, the suit on behalf of respondent-plaintiff No. 1 is not maintainable in the light of the judgment''s referred to above.

Accordingly, I have no hesitation in holding that the civil suit filed on behalf of the Truck Operators Union, Nabha, an unincorporated and unregistered body, is not maintainable. Consequentially, the finding of the Courts below with regard to maintainability of the civil suit qua respondent-plaintiff No. 1 is reversed and it is held that the suit was not maintainable and neither did the ratification in 2009 confer validity on the suit instituted in 2005. The substantial questions of law raised on behalf of the appellant stand answered as per details given above.

Resultantly, the Regular Second Appeal is allowed and the judgment and decrees of the Courts below are set aside so far as respondent No. 1-plaintiff No. 1 is concerned, and the suit filed on behalf of respondent No. 1-plaintiff No. 1 is dismissed. However, so far as respondent No. 2-plaintiff No. 2 is concerned, the suit qua his individual right is decreed and the judgments and decrees passed by the Courts below are upheld to the extent of his share. Consequently, the appellant-defendant would give proportionate relief to respondent No. 2-plaintiff No. 2 (Vijay Kumar Gupta) in terms of the judgments of the courts below.