Calcutta High Court
All India Allahabad Bank Officers' ... vs Sri Surya Kumar Ghosh And Ors. on 8 November, 1995
Equivalent citations: (1996)1CALLT66(HC)
JUDGMENT Samir Kumar Mookherjee, J.
1. The present first Misc. appeal is directed against Order No. 5 dated 26th August, 1994, passed by the learned Judge, VII Bench, City Civil Court, Calcutta, in title suit No. 2490 of 1994, dismissing an application of the plain tiff/appellant under Order 39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure. The Injunction prayed for, inter alia, was seeking to restrain the defendants/respondents, their men, agents etc. from taking any steps or giving any effect to or holding any election as per the notice dated 15th July, 1994. The said notice dated 15th July, 1994, in substance purported to initiate an election process in terms of the general body decision, dated 16th April, 1994, for certain posts in the appellant's Association.
2. The plaintiff/appellant filed the instant suit, inter alia, praying for declaration that the said notice was illegal, arbitrary, void and bad in law; that the appointment of defendant No. 1, who issued the said notice as Election Commissioner was illegal, void and liable to be cancelled, for permanent injunction seeking to restrain the defendants and their men and agents from taking any steps and/or giving and any effect in terms of or to the said notice, inter alia, alleging various infirmities and illegalities in the process of election initiated. In connection with the said suit, the prayer for temporary injunction had been made.
3. An affidavit-in-opposition was filed on behalf of the contesting defendant No. 2 and in the said affidavit-in-opposition, apart from purporting to controvert the contents of the plaintiffs application for injunction, specifically a point was taken that the plaintiffs Association was a registered Trade-union and as such the suit did not lie before the City Civil Court, Calcutta.
4. The learned Judge, while dismissing the application of the plaintiff/ appellant on the ground of non-maintainability of the suit, inter alia, recorded a finding that the "rules of the Association as linked up with the record categorically indicate that the particular union was registered under the Trade Union Act".
5. Before us the parties have based their contentions on the effect of certain legal provisions relating to the jurisdiction of the Trial Court to entertain the suit and application for injunction. In the context of the said rival contentions, it appears to us that in judging the propriety of the order Impugned in the appeal the effect of certain provisions of the Calcutta City Civil and Sessions Courts Act, 1953, the Trade Union Act, 1926 and the applicability of certain decisions of the Supreme Court of India as also of this Court would require consideration. Section 5(4) of the City Civil Courts Act, excludes the jurisdiction of such Court regarding the trial of suits and proceedings, as mentioned in the first schedule of the said Act. Item 10(ii) of the first schedule describes such suits and proceedings as 'relating to or arising out of the Constitution incorporation, management or winding up of Corporations'. Section 6 of the said Act makes the provisions of the Code of Civil Procedure generally applicable to all suits and proceedings under the said Act. It is well settled that exclusion of jurisdiction of a Court must not be readily inferred but must be either provided expressly or by clear implication be found to have been intended by the legislature. The provision of the first schedule, as referred to above, can be said to be an express exclusion of such jurisdiction and the requisites as mentioned in the said provision have to be strictly fulfilled before a Court can be said to have no jurisdiction. The Provision has two parts, namely, the first part narrate the contingencies, which must constitute subject matter of dispute involved in the suit, and the second part makes it clear that such contingencies must occur in connection with Corporations. We have already noted that the provisions of the Code of Civil Procedure have been made generally applicable to the suits or proceedings under the City Civil Courts Act. The institution of the suits in the City Civil Court, accordingly, may be said to attract section 20 of the Code in appropriate cases. The amended explanation to section 20 of the Code of Civil Procedure bears a reference to Corporation and the meaning thereof has now been settled by the decision of the Apex Court in the case of Hukum Singh v. Gammon India Limited, in the following words :
"Corporation"-Civil Procedure Code, 1908, section 20, Expln II The Code of Civil Procedure uses the expression "Corporation" as meaning a legal person and includes a Company registered under the Companies Act. Order XXIX of the Code of Civil Procedure deals with suits by or against a Corporation and there is nothing in the Code of Civil Procedure that a Corporation referred to under section 20 means only a statutory Corporation and not a Company registered under the Companies Act. In the instant case, it is, therefore, necessary to find out, as a fact, whether the plaintiff Association is a registered Trade-Union, and whether the definition of the Corporation, as given by the Apex Court makes the plaintiffs Association a Corporation. We say to so because the said meaning of the term 'Corporation' is an acceptance of the widest sense in which the term 'Corporation' is understood in the legal parlance (Vide S. S. Dhanoa v. Municipal Corporation, ). The learned Judge's finding about the Association being a registered Trade Union lacks materials on which such a finding is based, particularly, when the fact of registration is in dispute; secondly, even if a particular Association is a Corporation that by itself Would not take away the jurisdiction of the City Civil Court, in term of the provision of the first schedule, as referred to above, unless the dispute involved in the relevant suit or proceeding relates to one of the specified Items as mentioned in the said provision. In the present case there is no such finding about the nature and character of the dispute which forms the sub-stratum of the suit. The decision of a Single Judge of this Court, in the case of Mining Geological Metallurgical Institute of India and Ors. v. S.N. Bhaduri and Ors., reported in 1978(1) CLJ 563, relied on by the learned Trial Judge, is distinguishable on facts, as, in the said case the institute was registered under the Indian Companies Act and as such squarely fell within the definition of Corporation and the second criterion about the character and nature of the dispute involved in the suit was also found to have been satisfied.
6. For the reasons aforesaid, the appeal must succeed and the same is, therefore, allowed. The impugned order is set aside. The learned Trial Judge is directed to re-hear the application for injunction in the light of the observations as made by us above and the decisions noted by us in the instant order. The Trial Judge may, if he so thinks, frame an issue about the maintainability of the suit and decide the same along with the injunction application, according to law.
7. On behalf of the respondents other points were raised, which may be considered only after decision about the maintainability of the suit and we have, therefore, refrained from dealing with such points and kept all such points open for consideration by the Trial Court, at the appropriate stage. Each party will bear his own costs.
8. If urgent certified copies are applied for, the department is directed to deliver the same within 10 days of deposit of the requisite stamps and folios.
Samir Kumar Chakrabarty, J.
9. I agree.