# Smt. Reeta Devi & Ors v. Raj Kamal & Anr

- **Citation:** (2024) 7 ILRA 1325
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-01
- **Case number:** Second Appeal No. 454 of 2024
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-reeta-devi-ors-v-raj-kamal-anr-52250
- **Pages:** 4

## Headnote

Civil Law - Code of Civil Procedure,1908 -
Order 22 Rule 10-A-Plaintiff-respondent is a
Co-operative Housing Society-instituted a suit
for declaration of a sale deed inter se
defendant-Appellants as null and void-valuation
and court fee not proper-consequently plaint
rejected-Secretary died-date of death endorsed
by the pleader of the Plaintiff-Trial Court not
justified in rejecting the plaint-should have
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
followed Order 22 Rule 10-A-Plaint rejected
against a dead person-Appellate Court set aside
the order-impugned-Second Appeal-no error in
appellate order.

Second Appeal dismissed. (E-9)

## Text

7 All. Smt. Reeta Dei & Ors. Vs. Raj Kamal & Anr.
1325
basis of an invalid Will dated
10.01.1996. Even if the Court ignores the
Will of 1996, as rightly observed by the
lower appellate court, for the reason that its
photostat
copy
was
inadmissible
in
evidence and, even otherwise, its proof did
not satisfy the statutory requirements
needed for that, the same, in itself, could
not be a circumstance to grant various
decrees by the lower appellate court,
including a decree against the co-operative
society, non- party, and which relief
appears to be clearly barred under Section
111 (d) of the U.P. Co-operative Societies
Act, 1965.

CONCLUSION

26. For all the aforesaid reasons,
this Court is of the considered view that
though the lower appellate court was right
in holding that Will dated 10.01.1996
would not supersede the registered Will
dated 24.11.1995, merely on that basis the
suit could not be decreed as per the
discussion made herein above. In this view
of the matter, first three substantial
questions of law are answered in favour of
the plaintiff-respondent and against the
defendant-appellants, however, the last
question
no.4,
framed
as
regards
transferable right created under the letter of
allotment or a Will, is answered in favour
of the defendant-appellants and against the
plaintiff-respondent holding that mere
allotment made by NOIDA in favour of
SLM or execution of registered Will dated
24.11.1995 or agreement or power of
attorney by him in favour of the plaintiffrespondent was not sufficient to grant the
decree drawn by the lower appellate court.

27. In view of the above, the
instant second appeal succeeds and is
allowed.
28. The judgment and decree dated
17.01.2017 passed by learned Additional
District Judge, First, Gautam Budh Nagar
in Civil Appeal No.19 of 2013 is hereby set
aside. Consequently, Original Suit No.482
of
2002
(Yashpal
Khullar
Vs.
I.R.
Constructions Pvt Ltd and others) stands
dismissed for additional reasons given in
this judgment.

29. Office is directed to remit the
record of lower appellate court as well as
trial court to the District Judge, Gautam
Budh Nagar forthwith so as to facilitate
return of original documents to the
concerned parties by the District Court
office in accordance with the provisions of
General Rules (Civil).
----------
(2024) 7 ILRA 1325
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 454 of 2024

Smt. Reeta Devi & Ors. ...Appellants
Versus
Raj Kamal & Anr. ...Respondents

Counsel for the Appellants:
Sri Prashant Kumar Mishra, Sri Sharad Malviya

Counsel for the Respondents:
--

Civil Law - Code of Civil Procedure,1908 -
Order 22 Rule 10-A-Plaintiff-respondent is a
Co-operative Housing Society-instituted a suit
for declaration of a sale deed inter se
defendant-Appellants as null and void-valuation
and court fee not proper-consequently plaint
rejected-Secretary died-date of death endorsed
by the pleader of the Plaintiff-Trial Court not
justified in rejecting the plaint-should have
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
followed Order 22 Rule 10-A-Plaint rejected
against a dead person-Appellate Court set aside
the order-impugned-Second Appeal-no error in
appellate order.

Second Appeal dismissed. (E-9)

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

1. Heard Sri Sharad Malviya, learned
counsel for the appellants and perused the
record.

2. The plaintiff-respondent is a Cooperative Housing Society and instituted a
suit for declaration of a sale deed dated
07.09.2012 inter se defendant-appellants as
null and void.

3. An issue with regard to the
valuation of the suit and payment of court
fee was framed by the trial court. It was
decided against the plaintiff-respondent and
it was directed to make good deficiency of
court fees.

4. Sri Sharad Malviya, learned
counsel submits that the plaintiff did not
comply with the order of the trial court and,
consequently, the plaint was rejected under
Order 7 Rule 11(c) C.P.C. by order dated
21.08.2017. The said order amounts to a
decree as per Section 2(2) C.P.C. and
assailable under Section 96 of Civil
Procedure Code. Civil Appeal was filed by
the society through a different Secretary
and it has been allowed by the impugned
judgment dated 26.02.2024 only on the
ground that the Secretary of the society had
died on 17.08.2017 and, therefore, the trial
court was not justified in rejecting the
plaint without facilitating the procedure for
substitution/due
representation
of
the
parties. He submits that the order for
making good deficiency was passed long
ago and it remained un-complied with for
years together and, therefore, merely
because the Secretary of the society died in
August, 2017, the same could not be a
ground for allowing the appeal.

5. Having heard learned counsel
for the appellants, this Court finds that the
date of death of the Secretary was
noted in the margin of the order-sheet
dated
21.08.2017.
The
said
endorsement was made by the counsel
for the plaintiff-respondent i.e. the
society. On the same date the plaint
was rejected by the trial court. The
endorsement reads as under:-

"श्रीम न् जी,
ि दी की मृत्यु िो चुकी िै।
ि०
21.8.2017"

6. As per the Order 22 Rule 10-A
of C.P.C., whenever a pleader appearing for
a party to the suit comes to know of the
death of that party, he is under obligation to
inform the court about it, and the court
shall thereupon give notice of such death to
the other party and, for this purpose, the
contract between the pleader and the
deceased party shall be deemed to subsist.
For ready reference, Order 22 Rule 10-A
reads as under:-

"10A. Duty or pleader to
communicate to Court death of a
party-
Wherever
a
pleader
appearing for a party to the suit
comes to know of the death of that
party, he shall inform the Court
about it, and the Court shall there
upon give notice of such death to
the other party, and, for this
purpose, the contract between the
pleader and the deceased party
shall be deemed to subsist."
7 All. Smt. Reeta Dei & Ors. Vs. Raj Kamal & Anr.
1327
7. In view of the fact that the
counsel for the plaintiff society informed
the court by making an endorsement in the
margin of the order-sheet about death of the
secretary, the trial court, on the same date,
was not justified in rejecting the plaint and
it should have followed the procedure
prescribed under Rule 10-A of Order 22. As
a matter of fact, the plaint has been rejected
against a dead person.

8. Although the plaintiff was not a
human being but certainly it was a Cooperative Housing Society and a juristic
person on which the provisions of U.P. Cooperative
Societies
Act,
1965
are
applicable. For the purposes of the instant
case, Sections 29 and 31(2) of the Act of
1965 are required to be referred. The same
read as under:-

"29.
Committee
of
Management.
(1) The management of
every co-operative society shall
vest
in
a
Committee
of
Management
constituted
in
accordance with this Act, the rules
and the bye-laws, which shall
exercise such powers and perform
such duties as may be conferred or
imposed by this Act, the rules and
the bye-laws."
"31(2).
The
Secretary
shall be the Chief Executive
Officer of the society and subject
to such control and supervision of
the Chairman and the committee of
management as may be provided in
the rules or the bye-laws of the
society shall -
(a) be responsible for the
sound management of the business
of the society and its efficient
administration;
(b)
carry
on
the
authorized and normal business
of the society;
(c) subject to the provisions
of the bye-laws of the society,
operate its accounts and, except
where the society has a cashier or
treasurer, handle and keep in his
custody its cash balances;
(d) sign and authenticate
all documents for and on behalf
of the society;
(e) be responsible for the
proper maintenance of various
books and records of the society
and for the correct preparation and
timely submission of periodical
statements
and
returns
in
accordance with this Act, the rules,
the bye-laws and the instructions of
the
Registrar
or
the
State
Government.
(f) convene meetings of the
general body, the committee of
management
and
any
subcommittee
constituted
by
the
committee of management and
maintain proper records of such
meetings; and
(g) perform such other
duties and exercise such other
powers as may be imposed or
conferred on him under the rules
or the bye-laws of the society."

9. Further, as per Section 2(o) of
the Act, 1965, Secretary, being an officer of
a Co-operative Society, is empowered to
carry on the business of the society or to
supervise its affairs. Section 9 also needs
mention and is quoted hereunder:-

"9. Co-operative societies
to
be
bodies
corporate-
The
registration of a society, shall
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
render it a body corporate by the
name under which it is registered,
having perpetual succession and a
common seal, and with power to
hold property, enter into contracts,
institute and defend suits and other
legal proceedings and to do all
things necessary for the purpose for
which it was constituted."

10. The aforesaid provisions
demonstrate that the society may sue or be
sued through its Secretary and, therefore,
once death of the secretary was an admitted
fact and specifically brought on record on
21.08.2017 itself, irrespective of the fact
that the order of making good deficiency of
court fee might have remained uncomplied
with for long, the plaint could not be
rejected on 21.08.2017 when the society
was represented by a dead person.

11. The Court also notices the fact
that the civil appeal was filed by the society
represented through a newly appointed
Secretary and the lower appellate court has
taken a view that rejection of plaint was at
a premature stage and, therefore, the
appellate court has set aside the order
rejecting the plaint and directed the trial
court to decide the suit in accordance with
law.

12. The Court may also take note
of the power of the civil court to enlarge
time for any steps, as provided under
Section 148 of C.P.C., which reads as
under:-

"148. Where any period is
fixed or granted by the Court for
the doing of any act prescribed or
allowed by this Code, the Court
may, in its discretion, from time to
time, enlarge such period,1[not
exceeding thirty days in total,] even
though the period originally fixed
or granted may have expired."

13. In the facts of the case, the
Court feels that the civil court could have
also enlarged time for making good
deficiency by granting opportunity to the
society represented by the present Secretary
had it proceeded to grant opportunity for
substitution/due representation of plaintiff
society and once the appellate court has
already set aside the decree of rejection of
plaint, the said course is still open for the
trial court, as the power under Section 148
in its restricted sense, as contemplated
under the statute itself, is vested in civil
court.

14. Since civil appeal is in
continuance of suit proceedings and was
filed by the society represented by a new
secretary, the Court finds that rejection of
plaint on 21.08.2017, on which date the
counsel for the society had duly informed
the factum of death of ex-secretary, was
improper and unwarranted exercise of
power by the civil court. Consequently, the
Court does not find any error in the view
taken by the appellate court.

15. No substantial question of law
arises for consideration.

16.
The
second
appeal
is
dismissed.
----------

(2024) 7 ILRA 1328
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.07.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.