Tamil Nadu Karuneegar Sangam vs Chennai Magana Karuneegar Sangam and Vasudeva Pillai Trust

Abdul Hadi, J.—This Original Side Appeal is by the Tamil Nadu Karuneegar Sangam (hereinafter referred to as Tamil Nadu Sangam), The

said Sangam is 1st respondent in O.A. No. 3184 of 1992 on the file of the learned trial Judge. The said O.A., though numbered in 1992 seems to

have been presented in August, 1990 and it was filed by Chennai Magana Karuneegar Sangam. the 1st respondent in this O.S.A. (hereinafter

referred to as ''Chennai Sangam''). The said O.A. No. 3184 of 1992 sought for setting aside the order dated 12.8.1988 in Application No. 971 of

1988, which was filed by Tamil Nadu Sangam in C.S. No. 246 of 1930. In the said suit scheme was framed on 4.3.1931 for Vasudeva Pillai

Trust, which is 3rd respondent in the O. A. and 2nd respondent in the present O. S. A. In Application No. 971 of 1988, the Tamil Nadu Sangam

sought for amendment of some clauses of the said scheme and thereby in essence wanted to take away the right given to Chennai Sangam under

the scheme to itself (Tamil Nadu Sangam). The said Application No. 971 of 1988 ended in a compromise order dated 11.8.1988. based on the

compromise memo dated 11.8.88. The abovesaid memo of compromise initially reads as follows:

The 1st Respondent Chennai Magana Karuneegar Sangam and the Applicant Sangam viz., the Tamil Nadu Kamneegar Sangam having resolved

on 17.7.1988 to merge themselves and function as Tamil Nadu Karuneegar sangham with effect from 15.8.1988, it is prayed that the Application

No. 971 of 1988 may be ordered on the following terms...

The order dated 12.8.1988 was passed pursuant to the said memo of compromise, but, subsequently the Tamil Nadu Sangam applied to the

Registrar of Societies to approve the abovesaid amalgamation but that application was rejected by the Registrar on the ground that for the

abovesaid amalgamation there was no compliance of Section 30 of the Tamil Nadu Societies Registration Act, 1975 since the required Special

Resolution has not been passed by the General body of each of the said Sangams for the abovesaid amalgamation. Subsequently there were

proceedings before the Appellate Authority, and then on remand before the original authority, and thereafter in this Court by way of Writ Petition

and Writ Appeal. The resultant position is that the abovesaid original order of rejection of the Registrar stands upheld. In the above circumstances,

the learned Judge, who has passed the impugned order, has observed as follows: -

''''The Chennai Magana Karuneegar Sangam in fact has continued to exist and there has been no amalgamation at all at any point of time. No

amalgamation could take place in law except with the approval of the Registrar of Societies as both Societies were registered societies. The rights

conferred on the Chennai Magana Kamneegar Sangam have therefore to be restored to that Sangam as contemplated in the Scheme. The fact that

the compromise memo and the order passed therein could not have formed subject matter of an appeal does not come in the way of this Court

exercising its inherence jurisdiction in the interest of justice in correcting an error which unintentionally has been allowed to enter into the scheme on

an assumption was made has been shown to be incorrect The applications are accordingly ordered.

On reading the impugned order as a whole-it is clear that though not so expressly stated in the impugned order the abovesaid order dated 12.8

1988 has been corrected or set aside.

Learned counsel for the appellant initially submits that the abovesaid O.A. No. 3184 of 1992 by Chennai Sangam itself is not maintainable since

Chennai Sangam is not a registered society But no-where in the affidavit the appellant Sangam has averred specifically that Chennai Sangam is not

registered society. Therefore, we are unable to entertain this submission.

Then learned counsel for the appellant then submits that an appeal alone would lie against the order dated 12.8.1988 and not an application as

O.A. 3184 of 1992. Regarding this submission, we must state first of all that though normally no appeal would lie against compromise order, in

view of Section 96(3), CPC it has been held that where the agreement which embodies the compromise itself is unlawful, an appeal would be

against the order based on the compromise. (Vide Baqridan and Others Vs. Bashir Ahmad Khan and Others, and Sridharan v. Puramathon ( ILR

1900 23 Mad 101)) Anyway, the contention learned counsel for the appellant itself is that appeal would lie. But, that does not mean that the

present application is not maintainable. If an order is absolutely void, or it is a nullity it could be challenged even by such an application In Kiran

Singh and Others Vs. Chaman Paswan and Others, ) it has been held thus:-

It is a fundamental principle well-established the a decree passed by a court without jurisdiction is nullity and that its invalidity could be set up

whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral Proceedings-

(Emphasis supplied)

The abovesaid order dated 12.8.1988 could be easily held as an order without jurisdiction since admittedly, the compromise entered into between

the parties is unlawful and is hit by Section 23 of the Contract Act. Therefore, it cannot be held that the abovesaid O.A. No. 3184 of 1992 is not

maintainable.

The net result is, the order of the learned trial Judge is upheld and it is specifically held that the abovesaid order date 12.8.1988 is a nullity, it

having been passed without jurisdiction.

However, learned Counsel for the appellant submits that Tamil Nadu Sangam which filed the said Application 971 of 1988 should now be

allowed to pursue the said application on its merits. We feel that this request has to be necessarily conceded and it is open to the appellant-Sangam

to pursue the said Application No. 971 of 1988 on its merits. In the result, the Original Side Appeal is not admitted, but dismissed. C.M.P. No.

11732 of 1996 is consequently dismissed.