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THE HON’BLE MR. JUSTICE D.BHARATHA CHAKRAVARTHYC.R.P. (MD) No. 685 of 2022 andC.M.P. (MD) No.2804 of 20221.President,The Melapalayam Muslim girls Educational Society,

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.07.2024
CORAM
THE HON’BLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY
C.R.P. (MD) No. 685 of 2022 and
C.M.P. (MD) No.2804 of 2022
1.President,
The Melapalayam Muslim girls Educational Society,
D.No.38, Mohammed Lebbai Street, Melapalayam, Tirunelveli. Rep. through its President, Noorjakhan.
2.M.L.M.Kuthubun Najeeb
Secretary,
The Melapalayam Muslim girls Educational Society,
D.No.38, Mohammed Lebbai Street,
Melapalayam, Tirunelveli. … Petitioners/Respondents
-vs-
1.M.L.M.Kuthubudeen Ibaq
2.Sarmila Barvin … Respondents/Appellants PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order in I.A.No.1 of 2021 in A.S.No.90 of 2020, dated
06.01.2022, on the file of the Principal District Court, Tirunelveli.
For Petitioner : Mr.H.Arumugam
For Respondents : Mr.A.Arumugam
ORDER
The Civil Revision Petition is directed against the fair and decreetal order passed in I.A.No.1 of 2021 in A.S.No.90 of 2020.

  1. The present suit in O.S.No.81 of 2016 was laid with a prayer to frame a scheme for administration of Melapalayam Muslim Girls Higher Secondary School and to remove the second defendant, being the member of the Melapalayam Muslim Girls Educational Society and for other reliefs. In paragraph (10) of the plaint, it has been specifically pleaded that the second defendant is the member of the Executive Committee of the Society. He is also working as Office Assistant in the said school and is receiving salary. As per the amended By-law No.13, the Members of the Society should not be holding any office or employment under the Society.
  2. It is essential to extract the said paragraph 10, which reads as follows:-
    “10. 2k; gpujpthjp fy;tpr;rA;fj;jpd; braw;FG cWg;gpdh; Mthh;. mth; K!;yPk; kfsph; Bky;epiyg;gs;spapy; mYtyf cjtpahsuhft[k; mjhtJ Cjpak; bgWk; CHpauhf gzp g[hpe;J
    tUfpwhh.; jpUj;jg;gl;l rAf; tpjp vz;.13d;go rA;f cWg;gpdh;fs; ve;j cj;Bahfj;jpYk; nUf;ff;TlhJ. i& rA;f tpjpf;F Kuzhf 2k; gpujpthjp gzpg[hpe;J tUfpwhh;.”
  3. The said averments are denied in the written statement. It is the admitted case of the second defendant that he is both the member of the society and also working as an office assistant receiving salary from the school run by the Society. However, it is his case that there is no such stipulation in By-law No.13. The relevant portion of the written statement contained in paragraph (9) of the written statement is extracted as follows:-
    “gpuhJ ghuh 10y; fz;l rA;fjpfs; cz;ikay;y. rAf; j;jpd; braw;FG cWg;gpdh; kl;LBk rA;fj;jpd; brayhsuhf bray;gl naYk;. mjd;gpd;g[ 2Mk; gpujpthjp braw;FG cWg;gpduhd gpd; brayhsuhf gzp Vw;W elj;jp tUfpwhh;. rA;f tpjp 13y; rA;f cWg;gpdh;fs; ve;jtpjkhd cj;jpBahfj;jpYk; nUf;ff; TlhJ vd fz;Ls;sjhf TWtJ jtW. rA;f tpjpf;F Kuzhf 2Mk; gpujpthjp bray;gl;L tUfpwhh; vd;gJ bgha;ahf g[ide;J Twg;gl;Ls;sJ. rA;f brayhsuhf 2Mk; gpujpthjp rAf; j;jpypUe;J ve;jtpj CjpaKk; bgwhky; gzpahw;wptUfpwhh;. muR Mizg;goa[k; Mrphpauhf gzp g[hpe;JtUk; egh; kl;LBk eph;thf gzpapy; nUe;J brayhw;w KoahJ.”
  4. The Trial Court, considered this issue under issue Nos.3 and 5 ininternal pages 13 and 14 of the judgment holding that the plaintiff did not prove about the stipulation in By-law No.13. The Trial Court has otherwise given a specific finding that the second defendant himself has admitted that he is an office assistant working in the school and receiving his salary. Against the said judgment and decree passed by the Trial Court dated 07.09.2020, the present appeal suit in A.S.No.90 of 2020 is filed. Pending the Appeal Suit, an application under Order XLI Rule 27 of the Code of Civil Procedure 1908, is filed to receive the copy of the alleged amendment as an additional document. The same was also taken up along with the main Appeal Suit.
  5. After hearing, the appellate Court found that whether there exists an amendment to By-law No.13, is the point which is to be decided so as to determine the lis between the parties and therefore, when the rival claims are made as if the said amendment itself is produced along with the plaint and since the defendant in the suit, being in the administration of the Society, had not produced the copy of the resolution book even after a notice to produce issued by the plaintiff, had passed this preliminary order directing that the said document be taken on file and the. matter be re-opened for marking the additional document, keeping open the rights of the parties to mark the said document as well as to raise objections in accordance with the law at the time of marking. Aggrieved by the same, the present civil revision petition is filed.
  6. Mr. H.Arumugam, the learned Counsel appearing on behalf of the petitioner would submit that firstly, what is produced is only a photocopy. By relying upon the judgment of a Coordinate Single Bench of this Court in Manikandan v. Sambandam, reported in 2013 (2) L.W.93, it is contended by him that photocopy, neither being primary evidence nor a secondary evidence, cannot be marked as a document. The photocopy cannot be marked as a secondary evidence because, the very existence of such a document itself is disputed by the petitioners. It is his alternative contention that the respondents are not in a position to apply for a certified copy of the register and produce the same in which case it would have been a secondary evidence. When the same is not done, the lower appellate Court ought not to have re-opened the matter. It is his further contention that Section 12(3) of the Tamil Nadu Societies Registration Act, 1975 (‘the Act’ in short), specifically mandates that any amendment to the By-laws though will take effect from the date of passing the resolution however, only after such amendment is registered with the Registrar.
    Thus, if it is the case of the plaintiff that it is not registered as on date, the same will not take effect at all and therefore, no purpose is going to be served by carrying out the entire exercise. Therefore, he would submit that in the absence of any valid reason and in the absence of the primary or secondary evidence of the document itself, the lower appellate Court ought not to have passed the impugned order.
  7. Per contra, Mr.A.Arumugam, learned counsel appearing on behalf of the respondents, would submit that the order that is passed by the lower appellate Court is only a preliminary order. Whether the document can be validly marked and whether the contents stood proved and whether it should be relevant to rely upn the amendment are all matters which can be argued during the appeal when it is taken up for final disposal. Prima facie he would submit that it is the revision petitioner who is in administration of the Society. As such the original of the amendment is in his custody. Already a notice to produce is given. Even if the amendment was never carried out, nothing prevented him to produce the resolution book so as to demonstrate the same. Even with the photocopy, the respondents herein can examine such witnesses who are the members of the Society who had passed the resolution in support thereof to prove that actually such resolution was validly passed. Merely because the second defendant has not forwarded the amendment to the Registrar and get the registration done in his personal interest, then the same will be a question to consider while considering Section 12(3) of the Act.
  8. I have considered the rival submissions made on either side and perused the material records of the case.
  9. The lower appellate Court after having gone through Ex.A1 and the averment made in the plaint and written statement for arrived at the conclusion that whether or not such an amendment exists is the core issue in the suit with reference to the relief prayed as against the second defendant. No exception can be taken for such a finding. The objections on behalf of the learned counsel for the petitioner are that it is a photocopy. Under what circumstances the photocopy can or cannot be treated as a secondary evidence would depend on the facts and circumstances of each of the case and when it is alleged that the original is in the custody of the objector himself, then even under such circumstances whether photocopy can be marked is a matter to be considered at the time of arguments. As far as the relevancy and proof and admissibility with reference to Section 12(3) of the Act also is left open by the appellate court and can be validly argued at the time of final disposal of the appeal.
  10. It can be seen that according to the plaintiff, no employee who isworking under the management, can also form part of the management. Whether the said logical resolution was passed or not has to be tested on facts. Therefore, the procedural infirmities or lapses on the part of the plaintiff, cannot be allowed to be taken over when it comes to the substantive
    consideration of the lis between the parties and the rights of the parties.
  11. In view thereof, I find no error whatsoever in the order of the lower appellate court thta is passed on 06.01.2022, re-opening the matter for the purpose of marking the document. The lower appellate Court itself has kept open the rights of the petitioner and therefore, leaving it open for the petitioner to raise all such objections during the course of the proceedings and during the final hearing of the appeal suit, the Civil Revision Petition is dismissed.
    Consequently, the connected Miscellaneous Petition is closed. No cost.
    22.07.2024
    Index : Yes
    NCC : Yes
    PKN
    To
    1.The Principal District Court, Tirunelveli. 
    D.BHARATHA CHAKRAVARTHY , J.
    PKN
    C.R.P. (MD) No. 685 of 2022
    22.07.2024

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