Seethaiammal and Others vs Saramariammal Koil Street, Thevar Mahajana Sangam and Others

Jagadeesan, J.—The petitioners, who are defendants in the suit O.S. No. 185 of 1994, have filed the revision. The first respondent herein

has filed the application I.A. No. 557 of 1994 seeking leave of the court to file the suit u/s 92 of C.P.C. The lower court has allowed the

application. The petitioners, aggrieved by the said order, have filed the revision. The only ground urged before this Court is the same ground that

had been urged before the lower court. Learned counsel for the petitioner referred to Section 92 of C.P.C. which is as follows:-

(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where

the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an

interest in the trust and having obtained the leave of the Court may institute a suit, whether contentions or not, in the principal Civil Court, of original

jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any

part of the subject-matter of the trust is situate to obtain a decree...

On the basis of the above section, counsel for the petitioner contended that the requirement of the section is that either the Advocate-General,

or two or more persons having an interest in the trust alone can institute the suit. In the present case, the plaintiff is Saramariammal Koil Street

Thevar Mahajana Sangam (Regd. No. 42/94) formerly known as Thevar Mahajana Sangam, Kovilpatti through its Secretary K. Sambukutti. The

Secretary of the Association is the plaintiff and hence it cannot be construed as two or more persons having interest in the trust. The application

filed by the individual is not maintainable. In fact before the lower court also the same argument was advanced and the lower court has rejected the

same on the ground that when the suit is filed by the Secretary of the Association, it has to be construed that the suit is on behalf of the members of

the Association and it cannot be construed as the suit by an individual.

Counsel for the petitioner referred to the affidavit filed by the first respondent before the lower court in I.A. No. 557 of 1994 wherein it is stated

as follows:

I am the petitioner herein and the Secretary of the plaintiff Sangam.

I have filed a suit to frame a scheme as to regulate the Income and Expenditure. I have also prayed calling upon Respondent 1 to 4 render

accounts from 1984 and to realise the same through Court. I have also prayed to remove the Respondents 1 to 4 from the affairs of the plaint

schedule properties and to call upon them to surrender the same.

The manner in which the Secretary had described himself and having stated that he has filed the suit it has to be construed that the suit has been

filed only by him on his individual capacity. I am not able to agree with the contention of the counsel for the petitioner since in the plaint it is stated

as follows:

The plaintiff is a Registered Sangam under the Societies Registration Act registered on 3.6.1994. Under Bye-law No. 8, of the plaintiffs sangam is

entitled to sue and to be sued through its secretary. Originally the entirety of Thevar Community people of Kovilpatti were residents of

Saramariammal Koil Street. Later on they got themselves settled at various parts of Kovilpatti. The schedule properties belong to the Thevar

Mahajana Sangam (Thevar Mandakapadi).

The plaintiff has categorically stated that the plaintiff Sangam is entitled to sue and to be sued by the secretary. Hence whatever is done by the

secretary it is only on behalf of the plaintiff Sangam and it cannot be construed as if that the secretary has done it in his individual capacity. Hence it

cannot be said that the suit has been filed by an individual and as the suit has been filed by the Sangam, it is in compliance with the provisions of

Section 92 of C.P.C. Hence there is no merit in the civil revision petition and accordingly the civil revision petition is dismissed. No costs.

Consequently C.M.P. No. 17060 of 1995 for stay is also dismissed.