Karnataka High Court
Chev K M Joseph vs Indiranagar Club on 4 July, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF JULY 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
R.F.A. NO. 1778/2012
BETWEEN
CHEV K.M JOSEPH,
AGED ABOUT 77 YEARS,
(SENIOR CITIZEN),
S/O K.M MATHEW,
RESIDING AT NO.79,
1ST STAGE, INDIRANAGAR,
BANGALORE - 560 038.
...APPELLANT
(BY SRI. K.M JOSEPH, ADV.,)
AND
INDIRANAGAR CLUB,
9TH MAIN, 4TH CROSS,
HAL II STAGE,
BANGALORE - 560 008,
REP. BY ITS PRESIDENT:
MR. M.NAGENDRA
...RESPONDENT
(BY SRI. G.SUKUMARAN, ADV.,) RFA FILED U/SEC 96 AND ORDER 41 RULE 1 & 2 OF THE CPC, TO SET ASIDE THE ORDER DATED 29.06.2012 PASSED IN O.S. NO. 8382/2010 ON THE FILE OF XXXIX ADDITIONAL CITY CIVIL AND SESSION JUDGE, BANGALORE.
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THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J UD G M E N T Plaintiff is in appeal against the Order in O.S.8382 /10 dated 29.6.2012 on the file of City Civil and Sessions Judge, Bangalore, by which the plaint has been rejected.
2. In response to the notice, respondents 1 and 2 are duly represented and I have heard the appellant in person and the learned counsel for the respondents, and perused records in supplementation thereto which reveals:
a) Appellant-plaintiff filed the suit seeking the following reliefs:
a) declare the orders of the defendant Club conveyed in letter dated 11.9.2010 as illegal and ultra vires;
b) restore the plaintiff membership of the Club with immediate effect without any break;
c) stop the harassment of the enquiry against the plaintiff on vague charges by the two-man committee;
d) grant permanent injunction;
e) grant such other reliefs as may seem fit and proper to this Hon'ble Court in the facts and circumstances of the case; and 3
f) order costs to the plaintiff for this mala fide action against him.
b) In support of the relief so sought, he averred he is a member of the defendant Club from the year 1981 when the Club came into existence. The defendant Club is administered by a supreme body called General Body which conducts meetings periodically as envisaged in the by-laws.
The managing committee carries out the functions under the superintendence and control of the General Body. In that, the managing committee implements the resolutions passed in the General Body Meeting.
c) He further alleged, the defendant Club in its 23rd general Body Meeting in 2004 resolved to approve and constitute a 'Benevolent Fund' authorizing the managing committee to work out further details for its implementation. The managing committee in its meeting held on 11.8.2004 resolved to nominate the president of the Club as Chairman of the committee and authorized him to select other members and frame rules. Thus the Chairman of the Committee nominated him (K.M.Joseph) as the Convener for 4 the 'Benevolent Fund' which was conveyed to him vide presidential letter dated 11.1.2005.
d) It is alleged, though the appellant did not aspire or desire for such position in the Club but being charitably inclined, he thought the 'Benevolent Fund' committee could do better to the benefit of the poor and needy, and hence accepted the assignment. He received a letter dated 30.3.2005 from the managing committee that in the meeting held on 23.3.2005, it was decided to restrict the benefits of the 'Benevolent Fund' to needy members and Club members only and with that change, the other clauses had to be duly approved as it will be consistent with the noble acts and objects of the 'Benevolent Fund.' He therefore contributed as seed money Rs.5,500/- to the 'Benevolent Fund' for which the Club issued official receipt.
e) On 30.3.2007 the 'Benevolent Fund' committee met and another resolution was passed by all the members including past presidents, senior members, present and past office bearers, for early finalization of the list of beneficiaries. In the meantime, he reminded the president 5 and the managing committee and in the meeting held on 10.6.2008, the managing committee asked the members of the Club to contribute for the 'Benevolent Fund' and declared that he was authorized to contact the respective members for collecting the fund.
f) Referring to what transpired in the past, he averred the Club having established the 'Benevolent Fund' as was approved by the then president, it was decided that Rs.1,00,001/- should be given to INDIRANAGAR CLUB and by further communication of the president directed the plaintiff to call for a meeting to start the work. A Special Advisory Board Meeting held on 21.6.2008 recorded steps to be taken for establishment of the 'Benevolent Fund' inclusive of obtaining tax benefits under Section 80 of the Income Tax Act. In another board meeting held on 19.7.2008, there was similar communication on 17.10.2008. An appeal was sent to all the members to contribute for the Fund. He claims to have addressed a letter on 28.1.2009 seeking a list of members which was given to him along with a bill of Rs.600/- which he paid personally. 6
g) It is alleged on 11.3.2009, he saw a notice exhibited on the notice board making allegations against him, without service of copy to him. When he requested for a copy of the same, it was not furnished and he had to personally visit the Club premises and note down the contents which cast aspersion on him that he was collecting funds even though it was prohibited. The notice also proclaimed contribution be made to the Club directly and obtain valid receipt. Copy of the notice is produced by him in the suit which is marked as document nos.7 and 18.
h) It is alleged that despite appellant-plaintiff's efforts to know the reason for issuance of the notice dated 11.3.2009, through his letter addressed to the secretary and president of the Club, the Club issued a show-cause notice dated 14.4.2010 vide document no.20. He sent reminders vide document no.21 dated 21.5.2009, but there was no response.
i) The appellant's main grievance is, on 4.5.2010 he received another letter from the defendant Club vide 7 document no.22 suspending him from the membership of the Club alleging that he had addressed letters to the members of the Club seeking donations which was impermissible, and that he was using unparliamentary words against the managing committee and thus had committed an act of indiscipline. He further averred, he sent a reply on 12.5.2010 making it clear that he had not functioned as convener of the Benevolent Fund Committee after notice dated 11.3.2009 and had not used any unparliamentary words against any managing committee member or conducted himself in any manner prejudicially affecting the other members. That document is marked as document no.23.
j) It is further alleged in the meantime defendant Club had asked him through letter dated 30.4.2010 to appear before the managing committee on 3.5.2010 for an enquiry. He appeared before the enquiry and co-operated fully, but a copy of the proceedings of the enquiry was not furnished to him. Again he received a letter vide document no.25 asking him to appear before a two-man committee on 18.5.2010. 8 He requested the defendant to furnish to him the accusations made against him and the necessity to conduct such enquiry, but it was refused.
k) Appellant-plaintiff further averred the two-man committee constituted by the defendant Club could not prove the charges against him. He apprised the committee of all facts relating to the establishment of the Benevolent Fund and the subsequent action taken. The members of the committee asked the Club to furnish copies of all correspondence between the appellant-plaintiff and the Club, but the Club did not make it available. They then requested the plaintiff to furnish copies; the appellant furnished to them copies of 58 letters addressed by him to the Club, but thereafter the committee did not respond.
l) It is his specific case, he has indulged in no acts requiring disciplinary action and he has never avoided to appear before the two-man committee and he is still willing to appear before them and to establish that all the accusations, if any, are baseless. Despite all such relentless 9 efforts made by him to know exactly what was the nature of charges leveled against him and also the basis for initiating such enquiry, he received a letter on 11.9.2010 (document no.27) informing him that disciplinary action under Rule 20- A of the by-laws of the defendant Club has been initiated against him (appellant) and he has been removed from membership.
m) The appellant-plaintiff therefore questioned the said order dated 11.9.2010 removing him from membership on the following grounds:
(1) no articles of charge was furnished to him; (2) he has not been informed the reason for initiating such disciplinary action; (3) no specific charge is raised or informed to him to enable him to respond or give his explanation;
(4) he has not been given a reasonable opportunity to defend himself; and (5) the action is unilateral, arbitrary and against the principles of natural justice and by-laws of the defendant Club.
n) In response to suit summons, the defendant Club entered appearance but without filing written statement, filed an application under Order VII Rule 11 (a) and (d), 10 C.P.C. seeking rejection of the plaint on the ground: (i) it did not disclose any cause of action; (ii) the suit is barred by law in view of Rule 20-A (vi) and (vii) read with Rule 31 of the by-laws of the defendant Club and (iii) that the suit is premature in nature.
(o) Despite appellant-plaintiff's serious resistance to the application, the learned trial judge has allowed the application by the impugned order dated 29.6.2012 which is questioned in this appeal.
3. AT this juncture, it is necessary to record that the plaintiff had also filed another suit in O.S.2717/09 seeking direction to the defendant Club to continue the Benevolent Fund and other schemes established by virtue of the resolution of the joint body, which suit has also since been disposed of against which the appellant-plaintiff herein has filed R.F.A.371/12.
4. This appeal is confined to consider the order passed on the application under Order VII Rule, C.P.C. rejecting the plaint in O.S.8382/10.
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5. I have heard the appellant in person and the learned counsel for the respondent at length.
6. Learned counsel, Sri Sukumaran for the defendant Club has questioned maintainability of the suit on the plea the Club has its Memorandum of Association which is a self- contained set of rules providing for all contingencies. My attention is particularly drawn to Rule 29 to contend General body is the supreme authority:
"Rule 29: The General Body of the Club shall consists of the Resident, Life, Founder and Associate Members of the club as defined in these rules as on the date of the notice calling the meeting.
The General Body shall be the supreme authority in all matters concerning the affairs of the Club provided that this shall not affect any power specifically conferred on the managing committee under this constitution.
The General Body Meeting shall be Annual or Special.
A Register shall be kept at the place of the Meeting and every member who attends the meeting shall sign in such Register before he enters the place of meeting.
The proceedings of any General Body Meeting shall be circulated to all the members before the next General Body Meeting along with the agenda of such meeting."12
7. He also referred to Rule 20-A of the by-laws which provides for disciplinary action and Rule 30 which spells out the business to be transacted by the general body in the annual general meeting. The thrust of his argument is, managing committee is empowered to initiate disciplinary enquiry and impose punishments prescribed in the said rule on any member/associate, office bearer or managing committee member. He would submit, the order passed by the managing committee removing a member/associate member is open to review in the ensuing/forthcoming annual general body meeting as provided under Rule 30(1). Therefore no suit or civil action is permissible.
8. It is his specific case that the power conferred by Rule 20-A on the managing committee is final and is subject only to review by the general body in its annual meeting. Thus he submits in the instant case disciplinary action has been initiated and final decision has been taken by the managing committee to terminate the membership of the appellant- plaintiff. He has the remedy only to seek review of the decision of the managing committee in the annual general 13 body meeting which is efficacious remedy available to him. Since the appellant has not approached the general body for review of the decision of the managing committee terminating his membership, the suit is barred by law. In short, his contention is, the decision of the managing committee is beyond judicial review. He gains citational support to his contention by relying on the following decisions:
(1) T.P.DEVAR .vs. LORD VICTORIA & OTHERS (AIR 1949 PC 313);
(2) KRISHNASWAMY & OTHERS .vs. SOUTH INDIA FILM CHAMBER OF COMMERCE & OTHERS (AIR 1969 MADRAS 42) (3) SECRETARY, BANGALORE TURF CLUB .vs. PRAKASH SRIVASTAVA (ILR 1995 KAR 1566) (4) C.N.DINESH MALAVAIAH .vs. INDIRANAGAR CLUB (REGD.) & OTHERS
9. In negation of these grounds, Mr.Joseph, party-in- person would contend, Rule 20-A has not been followed by the managing committee inasmuch as he was not served with the charges or statement of imputation as to why disciplinary action was contemplated against him. He has 14 referred to several correspondences addressed by him to the President, Secretary and also the managing committee to allow him know the nature of charges. He has assertively contended the Club has not responded to his request and till now he is not in a position to know the nature of allegations against him requiring such serious action of removal from membership.
10. So far as review by the general body is concerned, he submits it is not a remedy against removal because the general body may or may not review the decision.
11. A conspectus of Rules 20-A and 30 is necessary for ascertainment as to whether the rules provide for an efficacious remedy to a member of the Club against whom action is contemplated.
"20-A: Disciplinary Action A member may be censured, suspended from membership for a period not exceeding six months or removed from membership by the Managing Committee if such member:-
(a) Is found to have conducted himself or behaved, while in premises of the Club, in a manner adversely affecting the decency, 15 decorum, peace and order or harmony of the Club.
(b) Is found guilty of breach of any rule or regulation of the club.
(c) Does any act which is injurious to the discipline, reputation or interest of the Club.
Provided
(i) No member shall be censured or suspended unless the allegations against him are brought to his notice in writing and had been given an opportunity to show cause why he shall not be censured or suspended from membership.
(ii) Notwithstanding the proviso (1) the Managing Committee may, suspend the membership of a Member where such action is prima facie is warranted, after giving an opportunity of personal hearing, pending enquiry.
(iii) During suspension, a number, his spouse and dependents shall not be eligible to use the club even as a guest.
(iv) An order of censure or suspension issued by the Managing Committee shall be final.
(v) No member shall be removed from membership under this rule unless the conduct, behaviour or offence alleged to against him has been enquired into by a committee consisting of more than one person appointed for the purpose by the Managing Committee.
(vi) An order of the Managing Committee removing a member from membership shall 16 be open to review by the General Body as provided under Rule 30(1).
When a review under this clause is requested by the person concerned, the Managing Committee, shall place the request on the agenda of the ensuing Annual General Body Meeting and give the person concerned an opportunity to be heard in person by the General Body.
(vii) A member whose membership was terminated under this Rules shall not be enrolled as member again without the approval of the General Body.
30. Annual General Meeting There shall be an Annual General Body Meeting every year within three months after the expiry of the official year to transact the following business:
(a) Consideration and adoption of (1) The Annual Report, (2) The Audited Statements of Accounts, (3) Income and Expenditure Accounts pertaining to each department and (4) The Audit Report.
(b) Approval of the programme of activities of the club for the ensuing year.
(c) Election of member to the Managing
Committee.
(d) Appointment of Auditor for ensuing year.
(e) Allocation and sanction of Budget for the
ensuing year.
(f) Expulsion/Readmission of member /
Members.
(g) Any other matter which may be brought up
in accordance with the rule for which due 17 notice has been given or prior permission taken from the Chairman of the meeting.
2. Twenty one days notice excluding the day of the meeting shall be given to all Resident Members of the club as on the date of the notice calling the meeting, before a meeting of the General Body is convened. A copy of the notice shall be exhibited on the Club Notice Board.
3. Non-receipt of the notice by any member or delay in receipt of the such notice shall not invalidate the proceedings of the meeting.
4. The General Body Meeting shall be held at the time and the place mentioned in the notice issued for such meeting and such notice shall specify the business to be conducted.
5. The quorum of the meeting shall be one tenth of the Resident Members on the rolls of the club as on the date of the notice calling the General Body. If there is no quorum at the time fixed, the meeting shall be adjourned by half an hour and the subjects already notified shall be disposed off at the adjourned meeting for which there need be no quorum.
6. The General Body Meeting shall be presided over by the President or in his absence the Vice- President. In the absence of both, the General Body shall elect its own Chairman to preside over the meeting. The Chairman shall be entitled to vote on all questions and in the event of an equal division, he shall exercise the casting vote.
7. Members who desire to have any subjects to be placed before the Annual General Body Meeting shall furnish the same to the Managing Committee at least ten days before the date fixed for the General Body Meeting. The Managing Committee shall consider such subject and decide whether to place the same before the General Body Meeting. If for any reason the 18 Committee decides not to place such subject before the General Body, the Committee shall intimate with reasons to the member concerned or the first signatory in case more than one member has sponsored the subject.
8. Proceedings of all General Body Meetings duly recorded shall be signed by the Chairman of the meeting within ten days from the date of meeting.
9. All issues shall be decided by majority of the members present if the votes are equal, the Chairman of the meeting shall have the casting vote.
On or before fourteenth day succeeding the day on which the Annual General Body Meeting is held, there shall be filed with Registrar a list of names, addresses and occupations of the members of the Management Committee then entrusted with the Management of the affairs of the Club and a copy of the audited Balance Sheet and Income and Expenditure Account.
12. The language of Rule 20-A extracted above would make it clear that though the managing committee has been conferred with the power of initiating disciplinary action against a member/associate member or office bearer, proviso (i) to the said rule mandates 'no member shall be censured or suspended unless the allegations against him are brought to his notice in writing and had been given an opportunity to show cause why he shall not be censured or suspended from membership.' Similarly proviso (v) 19 mandates 'no member shall be removed from membership under this rule unless the conduct, behaviour or offence alleged against him has been enquired into by a committee consisting of more than one person appointed for the purpose by the managing committee.' Thus this rule ensures that no arbitrary action could be initiated against any member/associate member except as provided by the rule. Whether this rule is followed is a question of fact to be considered is thus subject to review.
13. It is further to be noticed that the order of the managing committee removing a member/associate member from membership/associate membership is open to review by the general body in the ensuing/forthcoming annual general meeting, as provided under Rule 30(1). But there is no specific appeal/revision provided against the order of the managing committee. The rule only permits review by the general body in its 'ensuing/forthcoming annual general meeting.' How far this could be construed as appeal provision has to be examined.
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14. Keeping this in mind, I have examined the case laws cited by Sri Sukumaran, learned counsel for the respondent. In the case of T.P.DEVAR .vs. LORD VICTORIA & OTHERS and others (AIR 1949 PC 313) rendered by the Bench presided over by Hon'ble Mr.Justice Nittoor Sreenivasa Rau and Hon'ble Mr.Justice Hegde, the view taken is that 'when a dispute relates to the working of a private association except insofar as the dispute falls within the scope of Section 9, CPC., it will be within the exclusive domestic jurisdiction of the institution concerned. As long as this jurisdiction is exercised bona fide and in conformity with the rules and in accordance with the principles of natural justice, civil courts will have no jurisdiction to examine the merits of the case. The function of the civil court is mainly to ascertain as to whether the proceedings before the domestic Tribunal is a bona fide one and whether the Tribunal acted in substantial compliance with the Rules by which it is governed and whether it has conformed to the requirement of natural justice.' 21
15. The nature of adjudication by the civil court is therefore narrowed down. It must be noticed the decision referred to deals with virtually the merit of the case and not whether the plaint was barred by law or was liable to be rejected under the provision of Order VII Rule 11(a) to (d), C.P.C. It must be noticed in the same judgment, the foundation laid is, 'the function of the civil court is merely to ascertain as to whether the proceedings before the domestic tribunal is a bona fide one and whether the tribunal acted in substantive compliance with the rules by which it is governed and whether it has conformed to the requirement of natural justice.' Thus it goes without saying that an enquiry is necessary. Rejection of plaint at the inception virtually bars such adjudication and undoubtedly the person will be non-suited. In this case the order of the trial court is passed in exercise of power under Order VII Rule 11, C.P.C. to reject the plaint for want of cause of action and as barred by law in view of the rules of the association concerned. That was not the subject matter of adjudication in the decision referred to.
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16. In the second decision in the case of KRISHNASWAMY & OTHERS .vs. SOUTH INDIA FILM CHAMBER OF COMMERCE & OTHERS (AIR 1969 MADRAS 42), the view taken by the Bench is, 'if a party who has acquiesced in the election to which he objects or he is raising an objection which might have been put forward against himself on a previous election or in the same election in which he participated, the court in exercise of its jurisdiction will refuse to award him any relief. It would not make any difference whether the relief is sought by means of a writ or Quo Warrant or by way of a declaratory suit seeking declaration that the elections were invalid and praying for ad interim injunction therein.' In this case the plaintiff had sought for a declaration and for an injunctive order. Here again the view taken is, if a person has acquiesced to holding of election, then he will not be permitted to agitate it again through a civil suit. That is not the case at hand.
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17. In the case of SECRETARY, BANGALORE TURF CLUB .vs. PRAKASH SRIVATSAVA, the view taken is as under:
'By and large, in the absence of manifest and absolutely glaring illegality that almost constitutes a total perversion or negation of well defined procedural and Natural Justice principles, a Court would refrain from interfering with such proceedings at an interlocutory stage. The issue gets far more complicated however when one reaches a situation of finality because the consequences or adverse orders are invariably harsh. The age old argument that is canvassed in such cases is that having exhausted the prescribed remedies, when the party approaches the Law Court, that the proceeding itself would virtually be rendered almost infructuous unless the adverse order is put into cold storage. The commonest situation is one where the order results in cessation of service or some similar penalty and the argument proceeds on the footing that unless the order is stayed, even if the aggrieved party were to ultimately succeed in the Court proceedings, that the issue would be of little consequence because the damage is irreparable. It is necessary to take into account the damage that occurs during the interim period such as in the case of an employee who is dismissed from service, who undergoes not only personal trauma but domestic and social stigma, economic hardship and all of these cannot be adequately compensated through an order of either reinstatement or backwages at some point in the distant future. A strong case is therefore made out for some sort of relief during the interim period. On the other hand, the Courts need to take cognizance of the unpleasant fact that Judicial Proceedings undoubtedly take a long time to get disposed of and that if the punishment order comes to be stayed, it is as good as setting it aside vis-à-vis the errant party concerned, as also those 24 on whom it is supposed to have a deterrent constitutes manifest miscarriage of Justice if that order is interfered with merely because some proceedings have been instituted.' From the pith of the decision, it must be noticed the court expressed anxiety in noticing grant of interim order by which the result of disciplinary action gets stayed and the errant party would enjoy the benefit with the adverse effect on the institution. Again it must be noticed this decision does not lay down the law that disputes of this nature are not cognizable by the civil court or that the jurisdiction of the civil court is barred. All that it refers to is equity and also the rationale in grant of interim order for the mere asking considering the long period of time that cases take to get disposed of. What we are concerned in the present suit is rejection of plaint at the threshold denying the plaintiff an opportunity to substantiate his case.
18. It is a settled principle of law that plaint could be rejected when it does not disclose a cause of action, or where the relief claimed is barred by any law, etc., and any amount of material to the contrary which the defendant 25 may have as defence is not to be considered. The language of Order VII Rule 11 is clear: the plaint shall be rejected in the following cases:
"11. Rejection of plaint The plaint shall be rejected in the following cases:
(a) Where it does not disclose a case of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law;"
The decision rendered by the trial court is in exercise of power conferred under clauses (a) and (d) of Rule 11 of Order VII CPC. That means the trial court has opined there is no cause of action and the suit is barred by law. The reasons for such conclusion by the trial court is found in 26 paragraph 13 of the order where the trial court has summed up by stating thus:
13. In the instant case, each and every activity of the club is governed by by-laws framed by itself by their body. In the instant case also there is by-law framed by the defendant club, any removal act can be revoked by the Special General Body, if the removal person submits an application for revoking the same, which has been narrated in the by-law of the defendant club. So, there is a efficacious remedy available for the defendant to invoke the relief against the club for the removal act of the plaintiff from the membership of the club. Moreover, there is no cause of action explained by the plaintiff in his plaint, which titled as 'cause of action'. But, however, on entire perusal of the pleadings of the plaint, the removal act of the plaintiff from the membership by the club itself amounts to cause of action as contended by the plaintiff. On entire perusal of the decisions which have been referred by the defendants counsel ascertain that the plaintiff has to approach the body of the club for revocation of his removal order with written submission, if that written submission is rejected, then, he has got a right to file the suit. So, the filing of the present suit appears to be a premature one without in making efficacious remedy, which is available for him in the by-law of the club.
Under such circumstances, the plaint, which has been submitted by the plaintiff is liable to be rejected. So, I answer this point accordingly.
19. The order of the managing committee removing the appellant shall be subject to review in the general body 27 meeting as provided in Rule 30(1). There is no mention either in Rule 20-A that the concerned member has to submit a written statement for review by the general body which the learned judge has quoted. Similarly the judge has quoted such written request from the affected member which will be considered by the special general body. Rule 30 does not refer to special general body. It only refers to Annual General Body Meeting. Therefore on facts learned judge has imported certain things which were not found in the rules. There is no mention in Rule 30(1) that when a written statement is filed by the member, Special General Body Meeting will be called to consider it.
20. In the resultant position, it can easily be concluded that against the order of the managing committee rules do not provide for any right of appeal or review except that the general body has been empowered to review such decision. Clause (vi) of Rule 20-A of the rules no doubt enables a member who has suffered disciplinary action to seek review.
21. To seek review as envisaged in clause (vi) of Rule 20-A, there is no indication in the rule as to when such 28 review would be considered. The only indication is, it will be considered by the general body in the ensuing annual general meeting. That cannot be considered as a remedy of appeal to the affected person. Besides, there is nothing in Rule 20-A or Rule 30(1) of the rules as to what is the remedy to a member/associate member against whom the managing committee has passed an order terminating his membership to seek immediate relief against such order.
22. Clause (vi) of Rule 20-A provides that 'an order of the managing committee removing a member from membership shall be open to review by the general body as provided under Rule 30(1).' None of these rules provide as to what a member should do if his membership is terminated except stating he has to make a request for review at the annual general meeting and has to wait till the ensuing meeting. There is no rule cited by the learned counsel to show that a member whose membership has been terminated has been provided with any independent right of appeal to the supreme body. No rule is cited which ousts the jurisdiction of Civil Court to adjudicate whether the committee has 29 followed the procedure prescribed to conduct enquiry or impose punishment.
23. Had the rules contained any right of appeal/revision providing for expeditious/efficacious remedy, a view could have been taken that the rules are self-contained. In the absence of it, the aggrieved person can only have recourse to civil law for redressal of his grievance. In the resultant position, it could easily be held that against the order of the managing committee, rules do not provide for any independent right of appeal or review except that the general body has been empowered to review such decision and that too, in its ensuing annual general meeting and till then the member has to wait. In this fact situation, it cannot be said that the jurisdiction of the civil court is barred.
24. It must further be noticed the safeguard provided under clauses (i) and (v) of Rule 20-A is very specific. Certainly their contravention will generate cause of action to the affected member/associate member to question it on 30 the ground of violation of principles of natural justice and contravention of the rules and that will be sufficient cause of action for him to file a suit in the civil court. In fact, the trial court in paragraph 13 of its order (extracted above) has recorded a finding that the averments in the plaint show existence of cause of action for the appellant-plaintiff to file the suit, but has misled itself ion belief that the remedy of review being available to him, the suit is premature and barred by law.
25. For the reasons stated above, I am satisfied that the appellant-plaintiff had disclosed cause of action for the suit and the court was required to look into it based on the averments in the plaint, particularly in the absence of any specified appeal provided by the rules. The impugned order also suffers from infirmity and is unsustainable because the trial court has failed to notice that the main grievance of the plaintiff was mala fides in the action of the defendant Club against him through the managing committee and that was also required to have been gone into and considered on merit.
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26. The impugned order is also not sustainable as the trial court has ignored the material propositions in the plaint which gave rise to framing of relevant issues for consideration. The trial court has further failed to notice that the plaint can be rejected only based on the averments in the plaint if it discloses no cause of action, or is shown to be barred by law, or in other circumstances enumerated under Rule 11 of Order VII, C.P.C. and not otherwise. When mixed questions of law and fact arise for consideration, the right course was to permit the defendant to file written statement and based on it, to frame relevant issues for consideration.
27. In the result, the impugned order passed by the trial court on 29.6.2012 rejecting the plaint is set aside. The suit is restored to the file of XXXIX Additional City Civil Judge, Bangalore, with a direction to permit the defendant to file written statement and also consider the applications filed by the parties which are pending decision. The trial court shall pass an order on the application filed by the 32 appellant-plaintiff seeking injunctive relief and until such applications are heard and disposed of, there shall be an interim order of stay staying operation of the order dated 11.9.2010 passed by the managing committee terminating the membership of the appellant.
28. The appeal is allowed in terms of this order. In the circumstances, there is no order as to costs.
Sd/-
JUDGE vgh*