# Mahendra Singh v. C/M Rastriya Sabha Khair & Ors

- **Citation:** (2023) 8 ILRA 219
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-24
- **Case number:** Matters U/A 227 No. 6926 of 2023
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-singh-v-c-m-rastriya-sabha-khair-ors-50591
- **Pages:** 7

## Headnote

Sri Ankit Kumar Rai

Held:
Even if the office bearers of a registered society
are not formally approved on the date of suit,
yet where there is no rival claim and they are in
effective and actual control of the institution,
they can validly maintain a suit for eviction. The
doctrine of de facto applies and lends legitimacy
to the actions of such office bearers. Where the
building is part of a recognized educational
institution, exemption under Section 2(1)(b) of
the U.P. Act No.13 of 1972 applies. The eviction
suit filed by the Society was validly maintainable
in law.

Case Law Discussed:

## Text

8 All. Mahendra Singh Vs. C/M Rastriya Sabha Khair & Ors.
219
shall carry simple interest at the rate of 7%
per annum from the date of institution of
claim petition, until realization.

31. The sum of money already
deposited with the Tribunal pursuant to the
impugned award, or the interim order
passed by this Court, shall be adjusted
against the award. The other direction of
the Tribunal shall remain intact.

32. In the result, this appeal stands
allowed in part.

33. Costs easy.
----------
(2023) 8 ILRA 219
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Matters U/A 227 No. 6926 of 2023
With other related cases

Mahendra Singh ...Petitioner
Versus
C/M Rastriya Sabha Khair & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Pankaj Agarwal, Sri Shekhar Gangal,
Ms. Utkarshni Singh

Counsel for the Respondents:
Sri Ankit Kumar Rai

Held:
Even if the office bearers of a registered society
are not formally approved on the date of suit,
yet where there is no rival claim and they are in
effective and actual control of the institution,
they can validly maintain a suit for eviction. The
doctrine of de facto applies and lends legitimacy
to the actions of such office bearers. Where the
building is part of a recognized educational
institution, exemption under Section 2(1)(b) of
the U.P. Act No.13 of 1972 applies. The eviction
suit filed by the Society was validly maintainable
in law.

Case Law Discussed:

1. Committee of Management Dayanand Arya
Kanya Degree College Vs Director of Higher
Education, (1998) 4 SCC 104

2. Mehandi Hasan Vs St. of U.P., 2014 (3) ADJ
437 (DB)

3. Committee of Management Gangadin Ram
Kumar Inter College Vs Deputy Director of
Education, 2006 (4) ADJ 381 (DB)

4. Committee of Management, Pt. Jawaharlal
Nehru Inter College Vs Deputy Director of
Education, AIR 2005 All 101 (FB)

Laws Applied:

1. Societies Registration Act, 1860, Sections 5, 6

2. Civil Procedure Code, 1908, Order VII Rules
1(b), 4

3. Transfer of Property Act, 1882, Section 105

4. U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972, Section 2(1)(b)

5. Provincial Small Cause Courts Act, 1887,
Sections 15, 16 (as amended in U.P.)

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. This bunch of petitions under
Article 227 of the Constitution of India
involve common questions of fact and law
and, therefore, all these petitions are being
decided by a common judgment. For the
purpose of judgment, Matter under Article
227 of the Constitution of India No.6926 of
2023 (Mahendra Singh v. Committee of
Management Rastriya Sabha Khair & 2
others) is being treated as a leading case.
220 INDIAN LAW REPORTS ALLAHABAD SERIES

2. As per pleadings contained in the
petition and the material annexed thereto,
the petitioner was a tenant in the shop
bearing No.36 forming part of a building
belonging to Khair Kanya Mahavidyalaya
Khair, District Aligarh. A suit bearing
S.C.C. Suit No.38 of 2014 (Committee of
Management Rastriya Sabha Khair &
others v. Mahendra Singh) claiming a
decree for eviction was filed by the
Committee of Management, Rastriya Sabha
Khair, Aligarh with the description that it is
a Society registered under the provisions of
the
Societies
Registration Act,
1860
(hereinafter referred to as 'the Act, 1860')
through its Manager/Secretary Dr. Vishal
Sharma; by Vishal Sharma himself as a
person
in
the
capacity
of
Manager/Secretary of Rastriya Sabha Khair
and also by Committee of Management,
Khair
Kanya
Mahavidyalaya,
Khair,
Aligarh respectively as plaintiff Nos.1, 2
and 3.

3. The aforesaid suit was filed with
the averments that the property in dispute
belongs to an educational institution which
is recognised under the provisions of the
Uttar Pradesh State Universities Act, 1973
(hereinafter referred to as 'the Act, 1973')
and the said Institution is run by a Society
registered under the Act, 1860. It was
alleged that the provisions of the Uttar
Pradesh Urban Buildings (Regulation of
Letting, Rent & Eviction) Act, 1972
(hereinafter referred to as 'the U.P. Act
No.13 of 1972') were not applicable to the
shop in dispute and since the Institution felt
a great need of space to construct its
building, the shop in dispute alongwith
various shops (forming subject matter of
litigation in the connected petitions) was
required. It was further alleged that tenancy
of the petitioner was determined by serving
a registered notice dated 13.06.2014 but
since the shop was not vacated, suit for
ejectment claiming decree of eviction was
filed.

4. The petitioner filed written
statement and admitted the landlord-tenant
relationship in between the petitioner and
the Society but denied the said relationship
in relation to Khair Kanya Mahavidyalaya,
Khair, Aligarh. The written statement was
amended during the course of proceedings
and it was alleged that the plaintiffCommittee/Society was not registered
under the Act, 1860; the office bearership
of the persons described in the plaint was
not approved by the University; no rent was
due on the date of issuance of notice; the
notice was invalid and that the suit having
been filed by unauthorized persons was
liable to the dismissed.

5. The parties led evidence in support
of their respective cases and I find from the
record that apart from other documents, the
plaintiffs filed Scheme of Administration of
the Institution, list of office bearers
approved by the University pertaining to
year 2014-2015; certain letters issued by
the authorities in this regard; the Bye-laws
and
also
Certificate
of
renewal
of
registration of the Society. In oral evidence,
Vishal Sharma appeared as PW-1 in the
capacity of Manager/Secretary of the
Committee of Management of the Society
and was cross-examined on behalf of the
defendant-petitioner.

6. After analysing the case of the
parties, the Judge Small Causes Court, by
impugned judgment and decree dated
06.09.2022, decreed the suit and directed
the defendant-petitioner to vacate the shop
in dispute within a period of two months.
The
defendant-petitioner
assailed
the
aforesaid decree by filing a revision under
8 All. Mahendra Singh Vs. C/M Rastriya Sabha Khair & Ors.
221
Section 25 of the Provincial Small Cause
Courts Act, 1887 (hereinafter referred to as
'the Act, 1887'), however, the challenge
has been turned down by the District Judge,
Aligarh by dismissing the revision by order
impugned dated 01.04.2023.

7. I have heard Ms. Utkarshni Singh,
learned counsel for the petitioner and
perused the record. Shri Ankit Kumar Rai
represents the respondents through caveat.

8. Learned counsel for the petitioner
has mainly argued that Vishal Sharma,
alleging himself to be Manager of the
plaintiff No.1 was not a duly elected
Manager and as the Society was not duly
recognized by Deputy Registrar, Firms,
Societies and Chits, Aligarh, the suit
instituted on behalf of the Society through
the said Manager was not maintainable. It
has further been argued that though the
landlord-tenant relationship was not denied
by the defendant-petitioner, the courts
below, while considering the admission to
this effect, have erred in holding the suit as
maintainable. It has further been argued
that
the
petitioner
had
moved
an
application 29-C before the trial court
under Order XI Rules 12 and 14 read with
Section 151 of the Civil Procedure Code,
1908 (hereinafter referred to as 'the Code,
1908') seeking a direction for the plaintiffs
to file documents of registration and
Constitution
of
Society
and
also
recognition letter of the plaintiff No.3
under
the
provisions
of
U.P
State
Universities Act, 1973 and though the said
application was allowed by the Judge Small
Causes Court by order dated 03.10.2015,
the documents were not filed by the
plaintiff-respondents and, hence, adverse
inference should have been drawn by the
courts but has not been drawn. It has
further been argued that the courts below
have failed to take into consideration the
amended
paragraphs
of
the
written
statement, by which, the locus and right to
sue of the plaintiffs was specifically
objected to by the defendant-petitioner.

9. I have considered the submissions
advanced by the learned counsel for the
petitioner and I would like to deal with the
same in the light of statutory provisions
which are applicable in the proceedings
instituted by a Society registered under the
Act, 1860 and other laws.

10. There is no dispute about the fact
that since the shop in dispute forms part
and parcel of the building vested in a
recognized educational institution, the
provisions of U.P. Act No.13 of 1972
would not be applicable by virtue of
Section 2(1)(b) of the said Act. There is
also no dispute about the landlord-tenant
relationship in between the parties to the
litigation, atleast in between the plaintiff
Nos.1 and 2 and the defendant-petitioner.
There is also no dispute that the notice
determining the tenancy of the defendantpetitioner was duly served upon him. The
dispute in the present case is as to whether,
in the light of the material placed before the
courts below, it could be said that the
plaintiffs had no right to sue or that the suit
instituted by them was not maintainable.

11. I find that there was sufficient
material on record in the form of Scheme
of Administration of the Institution, list of
office bearers approved by the University
pertaining to the year 2014-2015; certain
letters issued by the authorities in this
regard; the Bye-laws and also Certificate of
renewal of registration of the Society, Paper
No.27-Ga/14 (list of office bearership of
2014-15)
and
paper
No.27-Ga/15
(certificate issued by the Registrar of
222 INDIAN LAW REPORTS ALLAHABAD SERIES
Societies, U.P. renewing the registration of
the Society for a period of five years w.e.f.
28.01.2015) to establish that the Society
was duly registered under the provisions of
Act, 1860. Even if, by any stretch of
imagination, it is assumed that the Society
was not registered on the date of institution
of the suit (though I do not find any such
material to this effect), the question would
arise as to whether office bearers of the
Society, having actual and effective control
over the affairs of the Society, are
competent to institute and press a suit for
ejectment of a tenant from immovable
property forming part of the building
vested
in
a
recognized
educational
institution run by the Society.

12. Sections 5 and 6 of the Act, 1860
are required to be referred in this regard
and are quoted hereinbelow:-

"5. Property of society how
vested.-The
property,
movable
and
immovable,
belonging
to
a
Society
registered under this Act, if not vested in
trustees, shall be deemed to be vested, for
the time being, in the governing body of
such Society, and in all proceedings, civil
and criminal, may be described as the
property of the governing body of such
society for their proper title.

6. Suits by and against societiesEvery 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 persons 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."

13. From the aforesaid, it is clear that
any immovable property belonging to a
Society shall be deemed to be vested for
the time being in the Governing Body of
such Society and in all proceedings, the
property,
movable
and
immovable,
belonging to a Society registered under this
Act, if not vested in trustees, shall be
deemed to be vested, for the time being, in
the governing body of such Society, and in
all proceedings, civil and criminal, may be
described as the property of the governing
body of such society for their proper title. It
is also clear that such a Society may sue or
be sued in the name of the President,
Chairman or Principal Secretary or Trustees
and, in case, anybody has claim or demand
against the Society, he may sue the office
bearers of the Society by launching
appropriate proceedings.

14. Insofar as the requirement of a
suit
instituted
by
such
plaintiff
is
concerned, Order VII Rule 1(b) and Rule 4
of the Civil Procedure Code, 1908 need to
be referred and are quoted hereinbelow:-

"Order VII Rule 1(b)- the name,
description and place of residence of the
plaintiff;

Rule 4- When plaintiff sues as
representative.- Where the plaintiff sues in a
representative character the plaint show not
only that he has an actual existing interest in
the subject-matter, but that he has taken the
steps (if any) necessary to enable him to
institute a suit concerning it."

15. From a perusal of the aforesaid
provisions read with the array of the
8 All. Mahendra Singh Vs. C/M Rastriya Sabha Khair & Ors.
223
parties, I find that the description of
plaintiffs was in consonance with Order VII
Rule 1 (b) of the Code, 1908 and the office
bearers of the Societies had, by leading
cogent documentary and oral evidence,
established that they were having actual
existing interest in the subject matter
(i.e. the shop in dispute) and, hence, since
the office bearers were representing the
Society, the requirement of Order VII Rule
4 of the Code, 1908 also stood fulfilled.

16. Admittedly, the suit was filed
under Sections 15 and 16 of the Act, 1887
and Section 15, as amended in the State of
U.P., as per the Second Schedule contained
in the Act clearly provides institution of a
suit by lessor for eviction of lessee from the
building after determination of his lease.
Since the provisions of U.P. Act No.13 of
1972 are not applicable, as already
observed, the definition of "lessor" and
"lessee" shall have to be read in the light of
Section 105 of the Transfer of Property Act,
1882 which reads as follows:-

"105. Lease defined.-A lease of
immoveable property is a transfer of a right
to enjoy such property, made for a certain
time, express or implied, or in perpetuity, in
consideration of a price paid or promised,
or of money, a share of crops, service or
any other thing of value, to be rendered
periodically or on specified occasions to
the transferor by the transferee, who
accepts the transfer on such terms.

Lessor, lessee, premium and rent
defined.-The transferor is called the
lessor, the transferee is called the lessee,
the price is called the premium, and the
money, share, service or other thing to be
so rendered is called the rent."

17. In view of the above discussion, I
find that there is no flaw in institution of
suit by a Society represented by its office
bearers. The emphasis of learned counsel
for the petitioner that the Society was not
duly registered under the provisions of Act,
1860 is contrary to the record of
proceedings.

18. Now coming to the order dated
03.10.2015 passed by the Judge Small
Causes Court on application 29-C, I find
that even the Judge Small Causes Court did
not mention in his order dated 03.10.2015
as to what documents were not filed by the
plaintiffs and what were required to be
filed. A perusal of the said order shows that
specific objections were filed by the
plaintiffs that the documents sought to be
brought on record as per the defendantpetitioner, were already filed by the
plaintiffs and there was no other document
with the plaintiffs. The Judge Small Causes
Court observed that whatever documents
are available with the plaintiffs may be
filed by them and whatever documents are
not available, the plaintiffs are not bound to
file the same. I have already observed in
the judgment that sufficient documents
were there to establish that Society was
renewed under the provisions of law and
list of office bearers was also duly
approved.

19. In this regard, analysis of oral
evidence is also of quite significance. PW-1
Vishal Sharma, who appeared in the
capacity of Manager/Secretary of the
plaintiff No.1, had clearly stated in his
cross-examination that list of office
bearers and other documents pertaining to
the Society had been filed by the plaintiffs
and that it was wrong to allege that he was
not office bearer or Secretary of the
Society. The petitioner who had appeared
as DW-1, in his cross-examination, stated
as follows:-
224 INDIAN LAW REPORTS ALLAHABAD SERIES

"मुझे नहीं मालूम त्रक राष्ट्रीय सभा खैर क्या है, मै
राष्ट्रीय सभा का संत्रवधान नहीं पढा मै डा० त्रनशान शमाा को नहीं
जानता, सोसाइटी का रत्रजस्रेशन कब तक वैधात्रनक है, हमे नहीं
मालूम है, मै त्रडप्टी रत्रजस्रार सोसाइटी आगरा नहीं गया ह ूँ, सोसाइटी
की तरफ से दावा दायर करने का त्रकसे अत्रधकार है मुझे नहीं मालूम
हैं। मै त्रकरायेदारी कानून को नहीं पढा, सोसाइटी का नवीनीकरण कब
हुआ मुझे नहीं मालूम है। सोसाइटी का कायाालय कहाूँ है नहीं मालूम
है।"

20. The Judge Small Causes Courts,
in the final judgment, has also referred to
the cross-examination of petitioner DW-1
and has also held that the plaintiffpetitioner No.1, being a juristic person, and
there being sufficient material placed by the
plaintiffs, the suit was clearly maintainable.
It was also held that the educational
institution is being run by the plaintiff
No.1-Society and also that nobody has
raised any objection with regard to office
bearership or any other aspect of the
Society. The Judge Small Causes Court
also held that the dispute was neither a
dispute of title nor a dispute relating to the
office bearership of the Society and,
therefore, the defendant had no right to
raise any objection in this regard.

21. Even if, for the sake of argument,
it is assumed to the extreme extent that on
the date of institution of suit, there was
some defect in the Society or its office
bearership (though I do not find any such
defect after perusing the entire record), the
question of effective and actual control
over and de facto management qua the
affairs of the Society and educational
institution needs to be elaborated.

22. Coming to the de facto doctrine,
the literal meaning of this would be ''in
fact'. The doctrine of de facto is based on
sound principle of public policy and is
aimed at removing any kind of insecurity
and confusion amongst the people whose
rights would get prejudiced in the event the
orders passed or actions taken by a person,
who in fact occupied the office, is held to
be void on account of his occupation of
office subsequently being held to be illegal.
It is rightly said that doctrine is borne of
necessity and to arrest mischief if there
exists office in law and an authority
occupies it by virtue of its appointment or
election or nomination. Such a person or
body is clothed with insignia of the office
and exercises powers and functions as such
and the authority to exercise such power is
upheld by virtue of de facto doctrine.

23. In the case of Committee of
Management
Dayanand Arya
Kanya
Degree College, Moradabad and others v.
Director of Higher Education, Allahabad
and others reported in (1998) 4 SCC 104,
the Supreme Court upheld the acceptance
of voluntary resignation of a teacher by the
Committee of Management which was de
facto in office. Vide paragraph 3 of the
judgment,
the
Court
held
that
the
Committee of Management that was
continuing in office by virtue of interim
order of the High Court, it would be taken
to be a de facto and de jure as well.

24. Following the above judgment, a
Division Bench of this Court in the case of
Mehandi Hasan and others v. State of U.P.
and others reported in 2014 (3) ADJ 437
(DB), had an occasion to deal with the
situation where Committee of Management
continued to enjoy office by virtue of stay
order passed by this Court even though
subsequently the election was held to be
invalid. In that case, the Committee of
Management which was continued by
virtue of an interim order, issued an
advertisement. The petitioners, who had
applied against the advertisement and their
8 All. Oriental Insurance Co. Ltd., Moradabad Vs. Smt. Priyanka Agarwal
225
selection was held but the same was
questioned on the ground that their
appointment was void ab initio as at that
time the Committee was only on the
strength of interim order. The similar view
was taken by a Division Bench of this
Court in the case of Committee of
Management Gangadin Ram Kumar
Inter College, Ramgarh Barwan, District
Jaunpur
v.
Deputy
Director
of
Education, Vth Region, Varanasi and
others, 2006(4) ADJ 381 (DB). The
question of effective control over the
managerial
affairs
of
an
educational
institution has also been emphasized by the
Five Judges Full Bench of this Court in the
case of Committee of Management, Pandit
Jawaharlal
Nehru
Inter
College,
Bansgaon and Anr. v. Deputy Director of
Education, Gorakhpur & Ors. reported in
AIR 2005 Allahabad 101 (FB).

25. In view of the aforesaid position
of law, I find that there being no rival
Committee or Society raising objection
with regard to the office bearership of the
plaintiffs,
there
being
no
suit
or
proceedings under the proviso attached to
Section 6 of the Act, 1860, there being
sufficient
material
to
establish
that
plaintiffs were under effective and actual
control over the affairs of the Society, and
their control being saved by doctrine of
both de facto and de jure management, I
find that suit for eviction of the tenantpetitioner from the immovable property
was very much maintainable in the light of
the provisions of Sections 5 and 6 of the
Societies Registration Act 1860, Order VII
Rules 1(b) and 4 of the Civil Procedure
Code, 1908, Section 105 of the Transfer of
Property Act read with Second Schedule of
U.P. (Amendment) contained in Section 15
of the Provincial Small Causes Court Act,
1887.

26. No other point was argued.

27. The findings recorded by the
Judge Small Causes Court as affirmed by
the revisional court are pure findings of fact
which do not require any interference in
exercise of powers under Article 227 of the
Constitution of India, and the present
petition alongwith nine other petitions (as
noted
hereinabove)
fail
and
are,
accordingly, dismissed.

28. The petitioners are granted time to
vacate the shop(s) in dispute on or before
30.04.2024 provided they continue to
deposit admitted rent before the Judge
Small Causes Court, month-to-month,
which shall be released in favour of the
plaintiff-respondents
without
furnishing
any security. It is also provided that, in
case, the petitioners fail to vacate the shops
in dispute as directed hereinabove, the
Executing Court shall execute the decree of
eviction forthwith by using force on or
before 31.05.2024 i.e. within a month of
the last date fixed by this Court saving
possession of the petitioners.
----------
(2023) 8 ILRA 225
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J
THE HON'BLE VINOD DIWAKAR, J.

Special Appeal No. 309 of 2019

Oriental Insurance Co. Ltd., Moradabad
 ...Appellant
Versus
Smt. Priyanka Agarwal ...Respondent

Counsel for the Appellant:
Sri Amaresh Sinha, Sri Anubhav Sinha