Suit instituted in the name of wrong person-whether plaint can be rejected?

 The plaint can be rejected under Clause (d) where suit is barred by some law. Where the suit is instituted by a wrong person the suit could not be said to be barred by a law. The phrase "Plaint barred by any law" means where Court ordinarily is prevented from taking the cognizance of such a suit. If the plaint is presented by a wrong person, it cannot be said that the suit was barred by any law or the Court was prevented from taking cognizance of such a suit. In fact, remedy is available under Order 1 Rule 10 to cure such defect.Another aspect which needs consideration is that the other persons who are said to be the members of the society had already 9

moved an application under Order 1 Rule 10 to add them as party. Instead of deciding this application the learned Judge chose to decide the application under Order 7 Rule 11 and that too without considering the provisions of order 1 Rule 10 Civil Procedure Code. The Judge must always bear in mind that he should always try to decide all matters finally and effectualy and thus do substantial justice between the parties. Had he cared to decide the application under Order 1 Rule 10 first, he may not have been required to spend so much time in deciding the application under Order 7 Rule 11 Civil Procedure Code.

Bombay High Court

Ramesh Shriram Sule vs Dilipraj Niranjankumar Goenka on 21 November, 2008

Bench: C. L. Pangarkar

Citation; 2009 (1) ALLMR ; 2009(2)BomCR118, 2008(111)BOMLR315, 2009(1)MhLj429

Rule returnable forthwith.

2. Heard with consent of parties.

3. This appeal is at the instance of the plaintiff.

4. The facts are as follows:

Plaintiff is the Chief Promoter of Society known as "Seth Kisanlalji Goenka Puram Akola". The Society entered into a contract of purchase of land with respondents. The defendant/respondent No.1 was not ready to perform his part of the contract. Plaintiff, therefore, instituted a suit for specific performance of contract.

5. Defendant had filed Written Statement and had resisted the suit. We are not much concerned with the contention in the Written Statement. Issues were framed by the trial Court and trial Court even recorded part of evidence. The suit is instituted in the year 1989 but the defendants moved an application under Order 7 Rule 11 read with Order 1 Rule 8 Civil Procedure Code on 29/06/2006. 3

6. Trial Court heard this application and allowed the application and rejected the plaint. Aggrieved by this rejection of plaint this appeal has been preferred.

7. I have heard both sides.

8. The main contention of the defendant No.1 in the application is that Society has been formed and it is not registered. It is, therefore, merely a body of persons and not a juristic person. It is contended that an uncorporated association of persons cannot sue in its proposed name without obtaining leave of the Court under Order 1 Rule 8 Civil Procedure Code. Since such leave is not secured it is contended that the plaintiff's suit is liable to be dismissed.

9. Plaintiff filed a very cryptic reply to this application contending that the suit is not filed by Society but is filed by one Ramesh Sule. Hence the application is without substance. 4

10. Plaintiff describes himself as follows: "Shri Ramesh Shriram Sule,

Aged abougt 44 years, Occu. Service,

Chief Promoter of "Seth Kisanlalji Goenka Puram, Akola" A Society formed for purpose of constructing Residential accommodation, for needy people of Akola Tq. And distt. Akola."

Description itself makes it clear that the suit is filed for Society and not by Ramesh Sule in his personal capacity. There cannot be two opinions that a suit by unregistered society would not be maintainable since the unregistered society is not a juristic person. In that case all members of the society will have to sue together as plaintiffs or one of them could sue by seeking the leave under Order 1 Rule 8 Civil Procedure Code. The decision cited by Shri Jaiswal learned counsel for the respondents in Mathura Bhawan Co-operative Housing Society Ltd. Vs. Official Liquidator & Another 2003(5) Bombay Cases Reporter 481 is squarely applicable to the facts of the case. The material question however is, whether the plaint could have been rejected because no leave under Order 1 Rule 8 is sought or the plaint could be said to be defective. Rule 11 of Order 7 reads as follows: 5

"Rejection of plaint.-The plaint shall be rejected in the following cases:

(a) Where it does not disclose a cause of action;

(b) Where the relief claimed is

undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (C) Where the relief claimed is property valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp- paper within a time to be fixed by the Court, fails to do so;

(d) Where the suit appears from the

statement in the plaint to b e barred by any law; (e) Where it is not filed in duplicate;

(f) Where the plaintiff fails to comply

with the provisions of Rule 9.

Shri Jaiswal learned counsel for respondents/defendants contends that suit could be said to be barred under Clause(d) as it is a suit filed by a non juristic person or by a person who alone has no authority to institute such suit. We have seen that Ramesh Sule alone could not institute the suit and Society being unregistered is not a juristic person 6

at all.

11. The plaint can be rejected under Clause (d) where suit is barred by some law. Where the suit is instituted by a wrong person the suit could not be said to be barred by a law. The phrase "Plaint barred by any law" means where Court ordinarily is prevented from taking the cognizance of such a suit. If the plaint is presented by a wrong person, it cannot be said that the suit was barred by any law or the Court was prevented from taking cognizance of such a suit. In fact, remedy is available under Order 1 Rule 10 to cure such defect. Rule 10 reads as follows:

"Suit in name of wrong plaintiff.-(1)

Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, 7

order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a

plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added plaint to be

amended.-Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary,m and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the

Indian Limitation Act, 1877 (15 of 1877). Section 22 , the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."

It is thus clear that if a suit is instituted by a wrong person and the Court is satisfied that the suit is instituted through a bonafide mistake and that it is necessary for the determination of the real matter in the 8

suit so to do order any other person to be substituted or added as plaintiff. Thus the Court has power to order substitution as well as addition of any person as plaintiff in the suit for proper adjudication of the suit. Obviously, therefore, if a suit is instituted by a wrong person that cannot be said to be a ground falling under Clause (d) of Rule 11 of Order 7.

12. Even if it is found that the suit was not filed strictly in accordance to the provisions of Order 1 Rule 8 the Court could have directed that the suit be converted into one under Order 1 Rule 8. If Rule 8 of Order 1 is read carefully it would be clear that it covers two situations; one, permission granted by Court to sue in representative capacity and two, directions to such person to sue in representative capacity. Thus the Court has a power to give even a direction to sue in a representative capacity.

13. Another aspect which needs consideration is that the other persons who are said to be the members of the society had already 9

moved an application under Order 1 Rule 10 to add them as party. Instead of deciding this application the learned Judge chose to decide the application under Order 7 Rule 11 and that too without considering the provisions of order 1 Rule 10 Civil Procedure Code. The Judge must always bear in mind that he should always try to decide all matters finally and effectualy and thus do substantial justice between the parties. Had he cared to decide the application under Order 1 Rule 10 first, he may not have been required to spend so much time in deciding the application under Order 7 Rule 11 Civil Procedure Code.

14. Shri Jaiswal learned counsel for the respondent had placed before me another decision of this Court in Tukaram Narayan Margam Vs. Narsingh Giriji Mill Solapur 2002(1) Maharashtra Law Journal 930. He submits that this decision would make it clear that the case would fall under Clause (d) of Rule 11 of Order 7. The facts of the reported case appear to me to be very different as in that case the suit was instituted by a Company which was not in existence 10

and whose assets and liabilities were taken over by Government. It was held that the Company which is not in existence could not have instituted a suit as there can be no cause of action in favour of that Company. In the instant case I find, that plaint could not have been rejected at all. The plaint could not have been rejected also because of the fact that the application under Order 1 Rule 10 was pending before the Court. In the instant case I find that the plaint can at the most be said to be instituted in wrong name and therefore for the forgoing reasons the plaint could not have been rejected.

15. Appeal, therefore, must succeed. Appeal is allowed. Order and the decree passed by the trial Court is, therefore, set aside and the matter stands remitted back to the trial Court to try and decide the suit preferably, and in any case within a period of 6 months since the suit is instituted in the year 1989. Respondents shall pay the costs of this appeal to the appellant and bear his own. JUDGE

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