Saji Koduvath, Advocate.

Synopsis

• 1.      Provisions of the Societies Registration Act, 1860
• 2.      How to Sue an Unregistered Society or a Club
• 3.      Decision Binds all Represented
• 4.      Virtually Suit By or Against Entire Members
• 7.      How Sec. 6 is an Enabling Provision
• 8.      Suit shall be in the Name of President, Chairman
• 9.      Our Law Does Not Favour ‘Corporation Sole’
• 10.    Sec. 6 Impliedly Bars Filing a Suit in the Name of Society
• 11.    When Society need not be Necessary Party?
• 12.    Is Society, a Necessary Party?
• 13.    Personal Liability of Members and Governing Body
• 14.    Sec. 6 is Not Strictly Followed by our Courts
• 15.    Notice to a Society, Notice to all Members

Provisions of the Societies Registration Act, 1860:

• “6. Suits by and against societies – Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion.
  •    Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant.
• 7. Suits not to abate -No suit or proceeding in any Civil Court shall abate or discontinue by reason of the person, by or against whom such suit or proceedings shall have been brought or continued, dying or ceasing to fill the character in the name whereof he shall have sued or been sued, but the same suit proceedings shall be continued in the name of or against the successor of such person.
• 8. Enforcement of judgment against society – If a judgment shall be recovered against the person or officer named on behalf of the society, such judgment shall not be put in force against the property, movable or immovable, or against the body of such person or officer, but against the property of the society. The application for execution shall set forth the judgment, the fact of the party against whom it shall have been recovered having sued or having been sued, as the case may be, on behalf of the society only, and shall require to have the judgment enforced against the property of the society.
• 9. Recovery of penalty accruing under bye laws – Whenever by any bye laws duly made in accordance with the rules and regulations of the society, or, if the rules do not provide for the making of bye laws, by any bye laws made at a general meeting of the members of the society convened for the purpose (for the making of which the concurrent votes of three-fifths of the members present at such meeting shall be necessary), any pecuniary penalty is imposed for the breach of any rule or bye laws of the society, such penalty, when accrued, may be recovered in any court having jurisdiction where the defendant shall reside, or the society shall be situate, as the governing body thereof shall deem expedient.
• 10. Members liable to be sued as strangers – Any member who may be in arrear of a subscription which according to the rules of the society he is bound to pay, or who shall possess himself of or detain any property of the society in a manner or for a time contrary to such rules, or shall injure or destroy any property of the society, may be sued for such arrear or for the damage accruing from such detention, injury, or destruction of the property in the manner hereinbefore provided.
• Recovery by successful defendant of costs adjudged – But if the defendant shall be successful in any suit or other proceedings brought against him at the instance of the society, and shall be adjudged to recover his costs, he may elect to proceed to recover the same from the officer in whose name the suit shall be brought, or from the society, and in the latter case shall have process against the property of the said society in the manner above described.
• 11. Members guilty of offences punishable as strangers – Any member of the society who shall steal, purloin, or embezzle any money or other property, or willfully, and maliciously destroy or injure any property of such society, or shall forge and deed, bond, security for money, receipt, or other instrument, whereby the funds of the society may be exposed to loss, shall be subject to the same prosecution, and, if convicted, shall be liable to be punished in like manner, as any person not a member would be subject and liable to in respect of the like offence.”

Introduction:

Societies, Clubs and Companies are formed by the teamwork and co-operation of the people associated with them, at its beginning.

• A Company is a Juristic person. Hence it can sue or be sued in its name.
• Proceedings in a suit by or against a registered society is different from that of an unregistered society or a club. 

How to Sue an Unregistered Society or a Club

An unregistered society or a club is not a legal person;[1]and therefore, it has to sue or be sued only in the names of all its members. It can be done invoking Order I Rule 8 CPC which enables the society to sue, or be sued, in a representative character.

When a suit is filed by a member seeking reliefs concerning the society or a club, relating to a matter common to all members, he has to file it (also) as representing other members of the society, other than the defendants (usually office-bearers); and if it is a personal matter of the plaintiff, seeking relief against all other members, the plaintiff has to sue against one or two members (usually office-bearers) as representatives of others.

Objective of Order I Rule 8 CPC and Manner of its Publication

The objective of Order I Rule 8 CPC, which is an enabling provision, is avoidance of multiplicity in litigation; and the decision in such a suit binds both present and future members.[2] Such a suit can be proceeded with even where the person sought to be made a representative refuses to do so.

In Sukadev Tapaswai v. Sri Sidheswar Mahadev Bija Silod[3] it is pointed out that Order I Rule 8 CPC ‘notice of the institution of the suit’ should include the names of the persons who have been permitted to represent others, so that the persons interested may have an opportunity of knowing who have been selected to represent them.

Decision Binds all Represented, and Constitutes Res Judicata

To bring an action under Order I Rule 8 CPC, the persons on whose behalf the suit is brought must have the same interest. The decision in such a representative suit will bind all the persons sought to be represented; and it will constitute res judicata, under Section 11, CPC.[4]

Registration does not Confer Juristic Personality

Registration of Societies under the Central or State Societies Registration Act does not give the society a corporate status.[5] In Illachi Devi Vs. Jain Society Protection of Orphans India[6] it is held by our Apex Court as under:

• i) The mere fact of registration will not make a society distinct from association of persons. (Para 20)
• ii) A Society registered under the Societies Registration Act is not a body-corporate as is the case in respect of a company registered under the Companies Act. In that view of the matter, a Society registered under the Societies Registration Act is not a juristic person.  (Para 21)
• iii) A society, whether registered or unregistered, may not be prosecuted in criminal court, nor is it capable of ownership of any property or of suing or being sued in its own name. (Para 22) Vesting of property does not take place in the Society. Similarly, the society cannot sue or be sued. It must sue or be sued through a person nominated in that behalf. (Para 26)

‘Suit By or Against a Regd. So.’ is Virtually Suit By or Against Entire Members

A society or a club, both registered and unregistered, is the compendium of its members. When it sues or is sued all its members should be made parties. As shown above, registration of Societies under the Central or State Societies Registration Act does not give the society a corporate status. [7]

Expressions in the Societies Registration Act, ‘property belonging to a society’[8] and ‘property of the society’,[9] do not give the society a corporate status; and it “merely describes the property which vests in trustees or Governing Body”.[10]

Following the above propositions, it can be legitimately concluded that the common expression, ‘suit by or against a society’, legally and virtually denotes suit by or against its entire members.

How Sec. 6 is an Enabling Provision

The earlier view taken by various courts in India was that the registered societies were legal persons and they could sue or be sued in their own name;[11] and that Sec. 6 was only an enabling (or added) provision to sue or be sued ‘in the name of the president, secretary’, etc. This view does not hold good in the light of Unani Tibia College case[12]and Illachi Devi case.[13]

Suing entire members of the society, either in person or invoking Order I Rule 8 CPC, is the normal rule. But, Sec. 6 enables to sue (or be sued) every registered society (i.e., all its members) in the name of its president, secretary, etc., as shall be determined by the rules and regulations of the society (or through such person as shall be appointed by the governing body for the occasion).

Suit shall be in the Personal Name of President, Chairman, etc.

From the expression in Sec. 7 of the Societies Registration Act, that ‘proceedings shall be continued in the name of or against the successor of such person’, it is clear that the words in Sec. 6 of the Societies Registration Act, ‘sue or be sued in the name of President, Chairman, or Principal Secretary, or Trustees,’ refers to filing suit by or against the President, Chairman, Principal Secretary or Trustees in their ‘personal name’; and not in their ‘official status’ “as” President, Chairman, Principal Secretary or Trustees.

Person who Signs Pleadings must be Authorised by the Bye­laws

The Supreme Court, in  P. Nazeer Vs. Salafi Trust, AIR 2022 SC 1580, held:

• (i) A society registered under the Societies Registration Act is entitled to sue and be sued, only in terms of its bye­laws.
• (ii) The bye­laws may authorise the President or Secretary or any other office bearer to institute or defend a suit for and on behalf of the society,
  • since section 6 of the Societies Registration Act, provides that ‘every society registered under the Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and,
  • in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion’.
• (iii) Unless the plaintiff, which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the bye­laws to do so, the suit cannot be entertained
  • The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit affiliated to a registered society is of no consequence, unless the bye­laws support the institution of such a suit.

Suits by a Company

Proper authorisation is essential for signing a plaint on behalf of a Company.  Though, the Secretary or any Director or other Principal officer can sign pleadings by virtue of their office, as per Order 29 Rule 1 of the CPC, the view taken in some decisions was that neither the directors nor the managing director would have the right to represent the Company, in a suit unless they were duly authorised by a resolution taken by the Board of Directors at a meeting duly constituted for the said purpose.[14]

The Delhi High Court, in Nibro Limited Vs. National Insurance Company Ltd. (1991),[15] it is observed, with regard to the source of power of the Directors, as under:

• “25. It is well-settled that under Section 291 of the Companies Act except where express provision is made that the powers of a company in respect of a particular matter are to be exercised by the company in general meeting-in all others cases the Board of Directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the Memorandum and Articles. It is true that ordinarily the court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far-reaching effects. It often affects policy and finances of the company. Thus, unless a power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard.”

It was observed by in Nibro Limited that a director or a secretary of a Company could certainly give the authority to institute a suit to another person, as provided under Order III Rule 1 CPC, if the director or secretary was authorised by law to file a suit on behalf of the company.

Order III Rule 1 provides that ‘any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf. Provided, that any such appearance shall, if the Court so directs, be made by the party in person’. 

If an authority is given to a pleader or a recognised agent, under Order III Rule 1, that recognised agent or pleader can, certainly, file an appearance as authorised.

The Bombay High Court, in Alcon Electronics Pvt. Ltd Vs. Celem (2015),[16] observed, with respect to the source of power of the Directors, as under:

• “The essential requirement of this provision is that the Company which is a juristic person must itself decide to sue. Once that is done, it would authorise one of its Directors who is the agent of the Company or its principal officers the Secretary of the Company or the Managing Director to file the Suit. The suing in each case is a separate act. The Company acts only through its meetings. Hence the Board of Directors in the day to day management of the company must decide and resolve to sue or not to sue. A blanket authority cannot be given to a particular Managing Director or Director to sign the papers and document/s, including the power to sue. The power to sue requires application of mind upon the particular cause of action. It requires the Company to pay the requisite Court fee. It requires the Company to be represented by a legal officer being an Advocate of the Court. It is an act which, therefore, is not a part of the day to day management of the Company. A Company would decide in a given case upon legal advice or otherwise whether or not it would sue upon a given cause of action. Such exercise is imperatively required to be performed if the intention of the Company, which is only a juristic person, is to be deciphered. That act, of course, may be undertaken even after the filing of the Suit and ratified by the Board as all other acts of management. However, the seminal requirement is to see the act of the Company though its Board or members (dependent upon whether the resolution is passed in the Board meeting or a general meeting) or is given by the Company itself (under its Articles of Association).”

The Delhi High Court pointed out in Radico Khaitan Limited Vs. JD Wines (2020),[17] that the impropriety, if any, in signing the pleadings by the officers of a Company can be ratified.

It is held in Bhupesh Rathod v. Dayashankar Prasad Chaurasia[18] (in a Sec. 138, NI Act – criminal – proceedings) that there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company; and that the format itself cannot be said to be defective though it may not be perfect (The Apex Court followed: Associated Cement Co. Ltd. v. Keshavanand, (1998-1 SCC 687).

Locus Standi of a Member to Challenge Election

In Tej Bahadur vs Shri Narendra Modi[19] the Apex Court considered the question of the validity of the appellant’s nomination since that had a direct bearing on the question whether he had a right to question the election. After finding that the appellant was not a duly nominated candidate, it is held as under:

• “We find that the averments in the petition do not disclose that the appellant has a cause of action which invest him with right to sue. It is settled that where a person has no interest at all, or no sufficient interest to support a legal claim or action he will have no locus standi to sue. The entitlement to sue or locus standi is an integral part of cause of action. In T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467, V.R. Krishna Iyer J., speaking for this Court held that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, it should be nipped in the bud at the first hearing.”

The Apex Court held in Bar Council of Delhi Vs. Surjeet Singh[20]:

• A voter could challenge the election.
• Merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso. There is no question of approbation and reprobation at the same time in such a case.
• A voter could come to the High Court even earlier before the election was held. But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any laches and must be non-suited only on that account.

A member of a Society does not have the right to challenge Election unless his rights are personally affected by the impugned action.[21] He should have been a candidate or acquired the right to vote.

In Committee of Management, Sri Kachcha Baba inter College, Varanasi Vs. Regional Committee, PanchamMandal[22] it was held that a group of members of the General Body (and not by a rival committee of management) had no locus standi to challenge the result of the elections.[23]

There were divergent views, in UP, on the right of an individual member to file a writ petition. In certain cases[24] it was held that an individual member had no right to file the writ petition. The other set of decisions[25] observed that the writ petition could be maintained, subject to the existence of efficacious alternative remedy, when there was a breach of right of a person affecting his right to form an association, which was a fundamental right under Article 19(1)(c) of the Constitution, or there was a breach of the Statute. Both the divergent views had been considered by a Division Bench in Committee of Management, Arya Kanya Pathshala Inter College, Bulandshahar v. State of U.P.[26] The Division Bench observed as under:

•  “There is no such proposition that an individual member cannot, in no circumstance, challenge the election of the Committee of Management….. It is clear that the question as to whether an individual member has locus to challenge the election of Committee of Management depends on facts of each case…..”[27]

Right of an individual member to Challenge

In Jagdambika Prasad Pandey Vs. State of UP[28] it is held that where an individual is aggrieved by an action of Authorities, such individual has the right to approach the Court in writ jurisdiction. It is observed as under:

• “33. With regard to the arguments regarding maintainability of the writ petition on behalf of the petitioners, this Court has perused the judgment rendered by the Division Bench in Ratan Kumar Solanki Vs. State of U.P. and Others reported in 2010 (1) ADJ 262. This Court finds that after considering two Division Bench judgments rendered in Dr. P.P. Rastogi Vs. Meerut University and Others reported in 1997 (1) U.P.LBEC 415 and Umesh Chandra Vs. Mahila Vidyalaya and others, 2019 (8) ADJ 536, as well as two Single Judges’ decisions in Smt. Vimla Devi Vs. Dy. Director of Education, Agra Region, Agra, reported in 1997 (3) ACC 1807 and Bhagwati Vs. State of U.P. and Others reported in 2006 (2) ADJ 361; the Division Bench observed that a writ petition at the instance of an individual member of the Society would be maintainable, since, recognition of illegally constituted committee affects the democratic rights of the individual Member of the Society and his Fundamental Right to form an association. The Division Bench observed that no doubt it is true that an individual Member cannot represent the Committee of Management and challenge the order or action of any Authorities whereby the Committee of Management is allegedly affected and if an action or order affects the Committee of Management, the Collective Body, the Body itself can challenge the same or may authorize an individual to represent it and to challenge such an action or order of the Authorities. However, where the individual is aggrieved by an action of the Authorities, such individual has locus-standi, to approach this Court in Writ jurisdiction.” [29]

Review by members

In Dr. PP Rastogi Vs. Meerut University[30] it was observed that an individual member of a Committee of Management had no locus standi to file Review Petition and it was only the Committee of Management alone which could appear as a party in the case; and that to permit individual members of the Committee of Management to appear would create a lot of problems because any individual member or several members may file applications at any time through his/their own separate counsel, would result in confusion.

Procedural Defects Should Not Defeat a Just Cause

It is trite law that one should not be non-suited for technical reasons, and that the procedural defects or procedural irregularities which are curable, or which do not go to the root of the matter, should not be permitted to defeat a just cause.[31]  It is pointed out in United Bank of India Vs. Naresh Kumar[32] by our Apex Court that there is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case.

Supreme Court Expanded Powers of Authorities of Companies in Filing Pleadings

Order 6 Rule 14 read with Order 29 Rule 1 CPC

Under Order 29 Rule 1 of the CPC, Secretary or any Director or other Principal Officer can sign pleadings by virtue of his office. A Company being a juristic entity, Board of Directors can authorise any person to sign pleadings, by passing a resolution or giving a power of attorney, by virtue of Order 6 Rule 14 read with Order 29 Rule 1 CPC. If pleadings have been signed by one of its officers, the Company can ratify it. Such ratification can be express or implied.

In Parmeshwari Prasad Gupta Versus Union of India[33] it is held by Our Apex Court that the ratification would relate back to the date of the act ratified.

It is held by our Apex Court in the aforesaid decision of Naresh Kumar (1997)[34] that a Court can, after taking all the circumstances of the case, come to the conclusion that the Company must have ratified the act of signing the pleading. It is pointed out that the courts below must have, in any case, directed the company to produce a proper power of attorney, or they must have allowed a competent person to be examined to prove the apparent ratification. The Court’s own words in United Bank of India Vs. Naresh Kumar (1997)[35] read as under:

• “10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement or its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.”

In a subsequent decision, in State Bank of Travancore Vs. Kingston Computers (2011)[36] it is held by our Apex Court as under:

• “14. In our view, the judgment under challenge is liable to be set aside because the Respondent had not produced any evidence to prove that Shri Ashok K. Shukla was appointed as a Director of the company and a resolution was passed by the Board of Directors of the company to file suit against the Appellant and authorized Shri Ashok K. Shukla to do so. The letter of authority issued by Shri Raj K. Shukla, who described himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K. Shukla to authorise another person to file suit on behalf of the company.”

In this decision (of Kingston Computers) there had neem no scope to ponder on the doctrines as to ‘technical or procedural defects’ as done in the earlier decision in Naresh Kumar (1997).[37] The decision, in Kingston Computers may be distinguishable from Naresh Kumar on the ground that there was no evidence in Kingston Computers to show that the signatory was a Director of the Company, and no resolution of the Board of Directors was produced to prove that the signatory was authorised to file the suit.

Effect of Complaint in the (Personal) name followed by ‘MD‘

In Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, (2022) 2 SCC 355, in a Criminal Complaint under Sec. 138 of the NI Act, (personal) name of the Managing Director was stated first; followed by official status, ‘Managing Director’ (he held in the Company). An affidavit was filed by the Managing Director stating that the Company had authorised him to file the complaint. A copy of the Board Resolution was also presented. In the body of the complaint it was not stated that he was the MD. The respondent contended that the complaint was filed in the personal capacity not on behalf of the Company. The Supreme Court held as under:

• “The body of the complaint need not be required to contain anything more in view of what has been set out at the inception coupled with the copy of the Board Resolution.”
• “It would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation. The artificial person being the Company had to act through a person/official, which logically would include the Chairman or Managing Director. Only the existence of authorisation could be verified.”

Our Apex Court  explained that a Manager or a Managing Director ordinarily by the very nomenclature can be taken to be the person in-charge of the affairs Company for its day-to-day management and within the activity would certainly be calling the act of approaching the court either under civil law or criminal law for setting the trial in motion.

Any Authorised Person Can Continue the proceedings for the Company

In Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, (supra) held further as under:

• “If a complaint was made in the name of the Company, it is necessary that a natural person represents such juristic person in the court and the court looks upon the natural person for all practical purposes. It is in this context that observations were made that the body corporate is a de jure complainant while the human being is a de facto complainant to represent the former in the court proceedings. Thus, no Magistrate could insist that the particular person whose statement was taken on oath alone can continue to represent the Company till the end of the proceedings.”

Even if Initially No Authority, the Company Rectify the Defect

In Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, (supra) held further:

• “Not only that, even if there was initially no authority the Company can at any stage rectify that defect by sending a competent person.”

Our Law Does Not Favour ‘Corporation Sole’

Our law does not favour characterising a ‘Corporation Sole’ as a Juristic Person,[38] except officials such as President of India, District Collectors, Secretaries/Office-Heads of various Departments of Government, Village Officers, etc.

But, under the specific provision in Order XXX, rule 7 CPC, read with Order XXI rule 50 (1)(b) CPC, it appears that ‘a person having the control or management of the partnership business’ can appear before the court otherwise than “in his own name” (that is, in the official capacity in the firm).

Order XXX, rule 7 CPC postulates as under:

• “No appearance except by partners: Where a summons is served in the manner provided by rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.”        

Order XXI rule 50 (1)(b) CPC posits as under:

• “(b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner.”       

Sec. 6 Impliedly Bars Filing a Suit in the Name of Society

As already stated, our Apex Court has repeatedly[39]made it clear that Sec. 6 of the Societies Registration Act provides that a registered society must sue or be sued through the office bearer or a nominee, as provided in that section.  Therefore, it can be concluded that Sec. 6 impliedly bars filing a suit in the name of the society, otherwise than through its President, Secretary or the nominated person.

When Society (or All Its Members) need not be Necessary Party?

Suit to protect or recover property.

As held by the Privy Council in Jagadinadra Nath Vs.  Hemanta Kumari Debi[40] and our Apex Court in Vemareddi Ramaraghava ReddiVs. Kondaru Seshu Reddi,[41] Shebait of a temple has the authority to institute a suit in his own name to protect and recover property belonging to the deity.[42] By various authoritative decisions, it is made clear that when the trust is admitted, or where the right or title over the property is not in dispute, the deity will not be a necessary party, in suits for protection of the property and the rights of the trust.[43] Same is the case for framing a scheme.[44]In Monindra Mohan Vs. Shamnagar Jute Factory[45]  a Division Bench held that the deity is not a necessary party in a suit filed on behalf of the Hindu public for declaration that the land in question was a debasthan of the idol and that it is a public place of warship.

It is appropriate to import this analogy to matters of societies also. Where the right or title over the property is not in dispute, and the suit is filed by a person who is bound to protect the property of a society, it can be concluded that the suit is not liable to be dismissed holding that the society as such (that is, all its members) is a necessary party. The ‘necessary party’ is not defined in the Code of Civil Procedure. But from the judicial dicta it may be laid down that there are two tests. Firstly, there must be a right to some relief against such party in respect of the matter involved in the proceedings in question, and secondly it will not be possible to pass an effective decree in the absence of such a party.[46]

It is observed in Latin Archdiocese of Trivandrum Vs. Seline Fernandez[47] that, though, as per the Canon Law the church property vests in the hands of the Bishop or the Vicar, the parish being by law a public juridic person, and the plaintiffs (the elected representatives of the parishioners entrusted with the administration of the church) were entitled to represent the juridic person, the plaintiffs were competent to initiate civil proceedings (with the ultimate  aim of  protecting  the  property belonging  to  the church) before a Civil Court. 

Is Society, a Necessary Party?

Kania, J., in AS Krishnan Vs. M. Sundaram,[48] laid down (earlier view) as under:

• “In my opinion as the position of the members of this society is similar to that of the share holders of the company and as the acts of the defendants which are challenged are in respect of the society it is necessary that the society should be a party to this litigation. I do not think it is competent to the plaintiff either alone or representing himself and the other members of the society other than defendants to bring a suit. …… In the absence of the society as a party to this litigation, I am of opinion that the suit as framed is not maintainable and the Court has no jurisdiction to try the suit in the absence of the society.”

Since it is unequivocally held by our Apex Court in Illachi Devi case[49] that a society cannot sue or be sued in its name, it is peremptory that the suit by or against a society should be brought as provided under Sec. 6 of the So. Regn. Act.

As regards the internal management of the society, whether the society as such, and not its individual members, has to sue is considered in Ram Charan Agarwala Vs. Shridhar Misra.[50] It was held as under:

• “There have been a large number of cases both in India as also in England where courts has to consider whether a suit can be brought in respect of the internal management of a company otherwise than in the name of the company itself, by individual members thereof. There is good authority for the proposition that the case of society registered under the Act is similar to that of a club or a joint-stock company, (See A. S. Krishnan v. M. Sundaram, AIR 1941 Bom 312). A Full Bench of this Court in the case of 1947 All LJ 637 (AIR 1948 All 146) (supra), has held that the same principles apply to a club which applied to a joint-stock company. In the leading case on the subject Foss v. Harbottle (1843) 2 Hare 461, it was held that the normal rule is that the corporation should sue in its own name and in its corporate character, or in the name of some one whom the law has appointed to be its representative. Mozley v. Alston, (1847) 16 LJ Ch 217, is an authority for the proposition that ordinarily individual share-holders cannot sustain a Bill in their own names in respect of a matter common to all or relating to the internal management of the company. In the case of Mac Doughall v. Gardiner (1875) 1 Ch D 13, the Court held that it could not interfere in the internal management of a company and dismissed an action brought by one Share-holder on behalf of himself and all other share-holders excluding the Directors, against the Directors and the company complaining against certain matters decided at a meeting. To the same effect is the decision of the Bombay High Court in Bhajekar v. Shinkar, AIR 1934 Bom 243 and of the Madras High Court in Nagappa v. Madras Race Club, AIR 1951 Mad 831. The Bombay High Court took the same view in S. Sidhantalankar v. Arya Samaj Bombay, AIR 1946 Bom 516, which was a case of a registered society. This general rule however has got an exception as pointed out in the Madras and Bombay cases referred to above. The exception is that a share-holder can bring an action even with regard to an internal management of a company if (1) the action of the majority is ultra vires the company; (2) where the act complained of constitutes a fraud on the minority; (3) where the action of the majority is illegal and (4) where a special resolution is required by the Article of the Company and the assent of the majority to such special resolution is obtained by a trick, or even where a Company authorised to do a particular thing only by a special resolution does it without a special resolution duly passed.”

Sec. 6 is Not Strictly Followed by our Courts

If Sec. 6 is strictly followed:

• no  suit can be filed  the name of the society (even if it is a registered one);
•  in the absence of provisions in the bye-laws empowering the president/ secretary or anybody else to file a suit or writ-petition,and in the absence of due appointment by resolution by the General/Governing Body, the suit or writ-petition filed by the president/secretary or anybody else would not be maintainable;[51]
• if the rules and regulations of the society do not determine the person against whom a suit is to be filed, any person having a claim or demand against a society can sue the president, secretary or the trustees thereof (in their name), only if in-spite-of-an-application to the governing body, some other officer or person is not nominated (to be the defendant); and
• a general statement in the bylaw[52]authorising an office-bearer to ‘represent the society in any legal proceeding’ does not enable him to file a suit on behalf of the society; because, this provision, in the bye laws, would only authorise such office bearer to represent the society in a properly instituted suit; and the authority to file a suit is quite different from the authority to represent the society in a suit which has been validly instituted.

Doctrine of Substantial Representation

It is noteworthy that the diktats in Sec. 6 are not invariably followed by our courts; but, adopted the doctrine of ‘substantial representation’.[53] In SinghaiLal Chand Jain Vs. RashtriyaSwayamsewakSangh, Panna[54] our Apex Court observed as under, with respect to an unregistered association, RashtriyaSwayam-sewakSangh (RSS):[55]

• “Procedure is the handmaid to the substantive justice. …. It is true that no permission of the Court was taken to be sued in a representative capacity by or on behalf of the Sangh. But Clause (b) of Order 1, Rule 8 indicates that it may sue or be sued, or may defend such suit, on behalf of, or for the benefit of all persons so interested. Clause (b) clearly applies to the facts in this case. The President of the Sangh, the Manager of the Sangh and a Member have duly represented the Sangh and defended the suit for the benefit of all the persons so interested in the Sangh.”

In this decision the following passage from Surayya Begum Vs. Mohd. Usman[56] was quoted:

• “The principle of representation of the interest of a person, not impleaded by name in a judicial proceeding, through a named party is not unknown. A karta of a Joint Hindu Family has always been recognised as a representative of the other members of the Joint Hindu Family, and so has been a trustee. In cases where the provisions of Order 1, Rule 8 of the Civil Procedure Code are attracted a named party in a suit represents the other persons interested in the litigation, and likewise a receiver appointed in one case represents the interest of the litigating parties in another case against a stranger. Similarly the real owner is entitled to the benefits under a decree obtained by his benamidar against a stranger and at the same time is also bound by the decision. Examples can be multiplied. It is for this reason that we find Explanation VI in the following words in Section 11 of the Code of Civil Procedure: ‘Explanation VI. – Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating’.”

Notice to a Society, Notice to all Members

The notice to a Co-operative Society will be deemed as notice to all its members. In Daman Singh Vs. State of Punjab and Haryana[57]  it is pointed out by our Apex Court, with respect to a Co-operative Society, that S. 13(9)(a) provides for the issue of notice to the societies and not to individual members and that S. 13(9)(b), however, gives the members an opportunity to be heard.

It is legitimate to maintain that,in appropriate cases, it may be proper to extend these principles as to service of notice,to both registered and unregistered societies,and a club also, with regard tothe matters-touching-rights-or-duties of the society ‘as a body’; for example, notice as to nonpayment of tax or revenue.The notice to the society or a proper office bearer will be deemed as notice to all its members.

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[1]      Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458; Illachi Devi Vs. Jain Society Protection of Orphans India AIR 2003 SC 3397; Tata Vs. Tata,  AIR 2010 SC 2943.

[2]      TN Housing Board Vs. TN Ganapathy, (1990) 1 SCC 608: AIR 1990 SC 642; Jamiat Ulama Vs. Maulana Mahmood Asad Madni: ILR 2008-17 Dlh 1950

[3]      AIR 1986 Ori 100; Anang Pal Vs. UOI: 2010-1 CivCC 168, 2009-164  DLT 10; Veerabhadrappa Dandappa Hanchinamani Vs. Nannesab Goususab Pathan: 2006-5 AIR KarR 354,CIVCC 2007 1 147; Jogiram Mohapatra Vs. Sibaram Pradhan: 2005-1 Ori LR 612; K. Devi Vs. Laishram Ningol Leinambi Devi: 1995-3 GauLT 367.

[4]      Mahboob Sahab Vs. Syed Ismail: AIR1995 SC 1205; T N Housing Board Vs. T N Ganapathy, (1990) 1 SCC 608: AIR 1990 SC 642; Venugopala Naidu Vs. Venkatarayulu: (1989) Supp 2 SCC 3 56: AIR 1990 SC 444. Ahmed Adam SaitVs. M. E. Makhri AIR 1964 SC 107. Arumughathan Vs. S Muthusami Naidu: 1993-1 CivCC 79: 1992-1 Mad LJ 532

[5]      Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458.

[6]      AIR2003 SC 3397

[7]      Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458. Illachi Devi Vs. Jain Society Protection of Orphans India: AIR 2003 SC 3397; Tata Vs. Tata, AIR 2010 SC 2943.

[8]      Societies Registration Act: Sec. 5

[9]      Societies Registration Act: Sec. 8 and 10

[10]    Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458

[11]    Shanti Sarup Vs. RadhaswamiSatsangSabha, Dayalbagh Agra: AIR 1969 All. 248; K.C. Thomas Vs. R.B. Gadaook, AIR 1970 Pat 163;  Khiri Ram Gupta and Another versus Nana Lal:  AIR 1964 Pat. 114, SatyavartSidhantalankar Vs. AryaSamaj, Bombay : AIR 1946 Bom. 516; NabadwipBhajanAsram Vs. Commissioner of Nabadwip Municipality : AIR 1959 Cal 361; Sonar Bangala Bank Vs. Calcutta Engineering College: AIR 1960 Cal 409.

[12]    Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458.

[13]    Illachi Devi Vs. Jain Society Protection of Orphans India AIR 2003 SC 3397; Tata Vs. Tata,  AIR 2010 SC 2943.

[14]B. MookerjeeVs State Bank of India: AIR1992 Cal 250; Nibro Limited Vs National Insurance Co:  AIR 1991  Del 25

[15]AIR 1991 Delhi 25: Quoted in: United India Periodicals Pvt. Ltd.  Vs. CMYK Printech Ltd. : 2018-248 DLT 227

[16]2015-1MhL852

[17]2020-2 AD(Del)  421.

[18] 2022-2 SCC 355

[19] AIR 2021 SC 217

[20] AIR 1980 SC 1612

[21]    Ram Pal Singh Vs. State of U P: LAWS (ALL)-2015-5-99. Referred to: Ram PyareLal Vs. State of U.P. 2015 3 ADJ 577;  Indian Sugar Mills Association Vs. Secretary to Government, UP: AIR 1951 All 1; Dr. PP Rastogi Vs. Meerut University, 1997 1 UPLBEC 415; Vimla Devi Vs. Deputy Director of Education, 1997-3 ESC 1807;  2010 (1) ADJ 262

[22]   2007-7 ADJ 414; 2007-3 All LR 14

[23]    Referred to in SatyaNarainTripathi Vs. State of U P: 2008 – 2 ADJ 222, 2008-71 ALLLR 698.

[24] Dr. P.P. Rastogi v. Meerut University, Meerut, 1997-1 UPLBEC 415; Smt. Vimla Devi v. The Deputy Director of Education, Agra Region, Agra, 1997-3 ESC 1807; Bhagwan Kaushik v. State of U.P., 2006-2 UPLBEC 1372; Amanullah Khan v. State of U.P. and others, 2009-75 All LR 29

[25] Kamla Kant Agrawal v. State of U.P., 2008-7 ADJ 601; Committee of Management, Janta Inter College, Sultanpur, District Haridwar v. Joint Director of Education, I Region, Meerut, 1999-1 UPLBEC 170; Ratan Kumar Solanki v. State of U.P., 2010-1 ADJ 262 (DB).

[26] 2011-2 ADJ 65

[27] See: Laxman Singh Vs. State of UP, ADJ 2014 9 242, AWC 2014 5 4382, LBESR 2014 3 415.

[28] 2019 (8) ADJ 536

[29] Quoted in: Dr. Dheeraj Singh Vs. State Of U.P.Thru Addl.Chief Secy./ Prin.Secy. Finance: 2021-3 AWC 2776.

[30] 1997-1 UPLBEC 415

[31] United Bank of India Vs. Naresh Kumar:AIR 1997 SC 3; Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh: AIR  2006 SC 269; VarunPahwa Vs. Mrs. RenuChaudhary: AIR  2019 SC 1186: 2019-3 JT 109

[32]AIR 1997 SC 3

[33] AIR 1973 SC 2389. See also: Punjab University Vs. VN Tripathi: AIR 2001 SC 3672

[34]AIR 1997 SC 3

[35]AIR 1997 SC 3

[36]2011-11 SCC 524

[37]AIR 1997 SC 3

[38]    Samatha Hyderabad Abrasives And Minerals Vs. State of AP: AIR 1997 SC 3297; T.K. SanthanagopalaChettiar Vs. Thimmi M. SeetharamaChettiar 1968-2 Mad LJ  41; S GovindaMenon Vs. Union of India: AIR 1967 SC 1274; S C Sreemanavikraman Raja Vs. Controller of Estate Duty: 1957-2 Mad LJ  226.

[39]    Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458; Illachi Devi Vs. Jain Society Protection of Orphans India AIR 2003 SC 3397; Tata Vs. Tata,  AIR 2010 SC 2943.

[40]    (1904) 31 Ind App 203 (PC); AIR 1983 All 202

[41]    AIR 1967 SC 436: Referred to: PramathanathNathVs.Pradyumna: AIR 1925 PC 139.

[42]    Kishore Joo Vs. GumanBehariJooDeo: AIR  1978  All  1. Referred to: JagadindraNathVs. HemantaKumari, (1904) 31 Ind App 203.

[43]    Hangi Mal Vs. PannaLal:  AIR 1957 All 743

[44]    Bimal Krishna Vs. IswarRadhaEalla:  AIR 1937 Cal 338.

[45]   AIR 1939 Cal 699

[46]    The Banaras Bank Ltd. Vs. Bhagwan Das: AIR 1947 All 18.

[47]    2013(4) Ker LT 283.

[48]    AIR 1941 Bom. 312

[49]    Illachi Devi Vs. Jain Society Protection of Orphans India AIR 2003 SC 3397

[50] AIR 1962 All 610

[51]    Advocates Association Vs. District Registrar and Registrar of Societies: AIR 2006-4 Kar R 218: 2006-4 Kar LJ 526;  Relied on: Muddappa Vs. Panchaksharaiah: ILR1985 Kar 1230; Inamdar Vs. BF Swamy: ILR1991 Kar 1654

[52]    See: Inamdar Vs. BF Swamy, ILR1991 Kar 1654. Referred to in Advocates Association Vs. District Registrar : 2006-4 AIR Kart 218

[53]    SubramaniaPillai Vs. Masterly: AIR1976 Mad 303

[54]    AIR1996 SC 1211

[55]    Note: RSS was a defendant; and not plaintiff.

[56]   (1991) 3 SCC 114

[57]    AIR 1985 SC 973

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