Madras High Court
P.S.Jaganath Babu vs K.Santhanam on 24 October, 2008
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.10.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).No.3297 of 2008 and M.P.Nos.1 and 2 of 2008 P.S.Jaganath Babu ... Petitioner Vs. K.Santhanam ... Respondent Prayer: Petition filed under Article 227 of the Constitution of India against the order dated 4.7.2008 passed by the learned XVI Assistant Judge, City Civil Court, Chennai in I.A.No.9879 of 2008 in O.S.No.3679 of 2008. For Petitioner : Mr.R.Parthasarathy For Respondent : Mr.Yashodha Varadhan for M/s.C.T.Mohan ORDER
This civil revision petition is filed by the revision petitioner/respondent/defendant as against the order passed in I.A.No.9879 of 2008 in O.S.No.3679 of 2008 dated 04.07.2008 by the XVI Assistant City Civil Judge, Chennai in appointing the Advocate Commissioner to take over the day to day administration of the sangam and to conduct the 85th Annual General body of the sangam regarding elections by giving proper notice to all the members of the sangam and to submit his report.
2.The trial Court has passed order in I.A.No.9879 of 2008 by appointing an Advocate Commissioner Mr.Karthik Ganesh and has fixed his remuneration of Rs.3,000/-. Further, the trial Court in para 5 of its order passed in I.A.No.9879 of 2008 has inter alia observed that 'the activities of two sangams are accepted on either side and therefore, to find a solution to the real controversy and Advocate Commissioner can be appointed who will scrutinize the list of members and after selecting persons for the conduct of elections he shall submit a report etc.'
3.The respondent/plaintiff has filed a suit O.S.No.3679 of 2008 on the file of XVI Assistant City Civil Judge, praying for the relief of declaration declaring that the meeting held on 12.05.2008 12.5.2008, 22.5.2008 and the resolution passed thereon in the said meeting which was unauthorised and illegal, detrimental to the interests and rights of the sangam, is null and void, ab-initio illegal, improper etc. and not binding on him and for permanent injunction restraining the revision petitioner/defendant and his men and associates from running a parallel administration of the sangam without any authority and against the bye laws totally indisregard to the interests of the sangam and for permanent injunction restraining the defendant and his men etc., from conducting the Executive committee meeting scheduled to be held on 07.06.2008 at 5.30 p.m. or on any subsequent date in the committee hall of premises or at any other place or interfering with the day to day affairs of the sangam.
4.In I.A.No.9879 of 2008 the respondent/ petitioner/plaintiff has inter alia averred that it is now found that the respondent/defendant had fixed the date of conducting 85th Annual General Body meeting on 5.7.2008 inspite of the fact that the petitioner herein as the General Secretary etc. and that though bye law 13 of the sangam specifically provides the General Secretary shall be responsible for due and proper administration of the sangam, shall be in charge of day to day administration and be in charge of all correspondence and communications. Further, the revision petitioner/defendant/respondent had given a go bye to the bye laws in utter disregard and has conducted the meeting on 7.6.2008 when the matter is ceased before court of law and the same is subjudice between the parties and further that he had taken the law into his own hands and he had conducted the meeting on 22.5.2008 without the proper Executive Committee and the bye law No.14 of the sangam prescribes that executive committee shall consist of president, 5 vice presidents, General Secretary, two joint secretaries, Treasurer and 12 members who shall be elected once in three years and that the revision petitioner/ respondent/defendant without convening the Executive committee conducted a meeting on 22.5.2008 and took a decision to suspend the respondent/plaintiff for 5 years and went to the extent of removing him from the sangam's primary membership and that when the Executive committee has not been properly convened and when the removal of General Secretary could not be with a part of the President and his men and more so since the resolution was in respect of the General Secretary, the resolution regarding his removal from the primary membership and suspension for five years which is contrary ought to have been placed before the General body which is the supreme body that too when the Secretary is supposed to be the executive head of the sangam and that the present activities of the respondent/defendant and his men, is bound to be curbed and as ultimately prayed for the appointment of an Advocate Commissioner to take over the decision of the sangam and to conduct the 85th Annual General Body of the sangam regarding the elections by giving proper notice to all the members etc.
5.The revision petitioner/respondent/defendant has filed a detailed counter inter alia stating that the members of the Executive committee who suspended the respondent/ defendant/petitioner as per bye laws of the sangam are not arrayed as parties to the suit particularly under Order 29 Rule 1 CPC and that the respondent/plaintiff has no prima facie case and that the Secretary's unilateral communication to the applicants have not been approved by the Executive committee as member etc. and that in the meeting held on 22.5.2008 the majority of Executive committee members felt General Secretary's reply to show cause notice has not been in good taste etc. and the act of filing returns in Form VI to Registrar which is subsequently rejected by Registration is without the knowledge and approval of the committee and that the respondent/plaintiff despite his legal suspension is continuing to show defiance to the defendant and members and has been signing cheques alone with Treasurer etc. and that meeting called for on 24.05.2008 is illegal and the scrutinising committee is still in process of scrutinising the voluminous applications and that the Secretary refused to follow the direction given by Executive committee on 15.04.2008 and 20.04.2008 attended by the plaintiff and that the respondent/plaintiff accepted the fact of the formation of screening committee and having taken part in deliberation is estopped from communicating with the new applicants without consent and approval of president and Executive committee and screening committee and that the respondent/ plaintiff/petitioner has not been reinstated and that the respondent/plaintiff as a person seeking revenge is not entitled to any equitable or statutory relief at the hands of Court and there is no need to appoint an Advocate Commissioner and has prayed for dismissal of the petition.
6.The revision petitioner/defendant has filed a detailed written statement among other things mentioning that the suit is not maintainable on the ground that non-joinder of members of Executive committee as defendants to the suit is fatal and as per bye law 15(Xvi) of the revised rules of the sangam in sub rule 1, it is mentioned that if any member is found to have acted against the interest of sangam, the Executive Committee is vested with the powers to suspend such a member for a period of not exceeding 5 years and that such suspended member or members may be re-admitted only on their request and by the approval of the General Body and thus the Executive Committee which is responsible and given the power to suspend any member is a necessary and a proper party to the suit and bye law 11 provides in clause 11-A that a special meeting of the General Body may be convened either by the President or 2/3rd of the Executive Committee to Transact any business and the meeting held on 12.05.2008 and 22.5.2008 and the resolution passed thereon in the said meeting which is authorised by the bye law is legal and the said bye law is absolutely necessary to curb the mischief and trouble makers and under these circumstances, the declaratory relief prayed for in the suit to declare that the meeting held on 12.5.2008 and 22.5.2008 and the resolution passed thereon is null and void and cannot be granted as the bye laws authorise passing of the resolutions as well as holding of the meetings purely according to the rules of the sangam and that the plaintiff has found to be usurping powers which were not warranted under the rules and he attempting to run a parallel administration to the detriment of other members etc. and it is only the Executive committee in consultation of the President which calls for a meeting and there is no provision which requires any consultation with the General Secretary and General Secretary has to only prepare the agenda for the meeting and there is no cause of action for the suit and that the President is elected from among the Members of General Body, the Executive Committee lays down the policy etc. with regard to the object of the sangam and also to consider whether the applicant to the sangam for membership is a Naidu or not and the committee decision to reject is final and it is the Executive committee which is the supreme body controlling the affairs of the sangam as per Rule 15 of the rules and under these circumstances, the meeting convened by the President as per Rules 16 is quite legal.
7.The learned counsel for the revision petitioner urges that the respondent/plaintiff/petitioner has no locus to file the suit in O.S.No.3679 of 2008 since he has been suspended from the post of General Secretary and also from being primary member of the sangam for a period of five years under the resolution of the Executive Committee passed on 22.05.2008 and the resolution dated 12.05.2008 and 22.5.2008 passed by the Executive Committee of the sangam are under challenge in the main suit and no interim order has been sought for by the respondent/plaintiff seeking for stay of the resolutions or for asking for the relief of injunction restraining the implementation of the said resolution and in the absence of a challenge the resolution passed on 22.5.2008 is valid and binding and that the trial Court has not appreciated the question as to whether the applications filed by the 405 persons seeking admission as members into the sangam, is purely an internal affair of the sangam and a valid resolution has already been passed on 24.4.2008 and that the executive committee meeting dated 24.4.2008 which was validly convened by the President of the sangam has not been challenged at all and hence final and binding on the respondent and in this meeting that the Executive committee has taken a decision to appoint a Screening Committee for scrutinising the 405 applications made by the persons intending to become members of the sangam and further that as per the Articles and Rules of the sangam it is only the Executive Committee which is empowered to scrutinise the application for membership to the sangam and in view of this power which is available only to the sangam, the right of consideration of the application for admission as members and the resultant admission as members of any person in the sangam cannot be exercised or taken away by any other person in any manner and that the resolution dated 24.4.2008 has been validly convened by the President and has been attended by 11 members of the Executive committee thereby the quorum of a minimum of 7 members under Rules 16(iii) and that the resolution cannot be ignored and the respondent/plaintiff in disregard to the resolution passed on 24.4.2008 had written the Registrar of Societies claiming to have admitted 405 persons as members of the sangam and this has resulted in the show cause notice and his subsequent suspension from the post of General Secretary and his primary membership of the sangam for a period of five years and his removal from the post of General Secretary and suspension from the primary membership of the sangam for a period of five years is itself under challenge, the trial Court ought not to have passed order by appointing an Advocate Commissioner to completely take over the affairs of the sangam and to hold the Annual General Meeting and to hold elections for the new Executive Committee and that the Advocate Commissioner cannot be appointed for the mere asking and certainly cannot be appointed merely because no prejudice or hardship would be caused to the respondent in the petition and that the application for appointment of an Advocate Commissioner was beyond the scope of the very suit filed by the respondent/plaintiff and the trial Court has correctly held that the suspension for removal of the respondent in the resolution dated 22.05.2008 can be decided only at the time of trial and if that be the case, there is no reason why the Advocate Commissioner should be appointed at the interim stage and therefore, prays for allowing the civil revision petition in the interest of justice.
8.Contending contra, the learned counsel for the respondent/plaintiff submits that if an individual is aggrieved against the order passed in I.A.No.9879 of 2008 then his remedy lies only by way of civil miscellaneous appeal and not by way of a civil revision petition and that the civil revision petition under Article 227 of the Constitution is not at all maintainable when statutory alternative remedy is provided under the Court and that the appointment of Advocate Commissioner is not in derogation to any law in force or in detriment to the sangam and that the trial Court has taken the time tested path by appointing an Advocate Commissioner and that the sangam was re-registered under the said Act in 1975 and in the event of sangam not being re-registered under the said Act in 1975, the bye law cannot be made applicable for the conduct of the sangam and thus the resolution dated 12.5.2008 and 22.5.2008 passed in suspending the plaintiff as a member of All India Naidu Sangam for a period of five years with effect from 23.5.2008 is invalid and as per Rule 13 of the bye law in regard to the powers and duties of the General Secretary and Joint Secretaries. Sub Clause (ii) of Section 13 states that the General Secretary shall be responsible for the due and proper administration of the sangam and Sub clause (v) of Section 13 further enjoins that the General Secretary shall be in charge of the day to day administration and that Rule 13 sub clause (vii) also says that the General Secretary shall be in charge of all correspondence and communication of the sangam and the sub clause (viii) of Section 13 specifies that the General Secretary shall prepare the agenda for the meeting of the General Body and the Executive Committee in consultation with the President and issue notices of the meetings and that the notice of agenda for the meeting dated 12.5.2008 and 22.5.2008 have not been issued by the Secretary or the Joint Secretaries whereas it has been issued by the President which is not authorised by the bye laws and since it is the General Secretary who has to prepare the agenda and in his absence, the Joint Secretaries, the bye laws sub clause (viii) of Section 13 has been violated and when the President of the sangam with the help of his group suspended with the General Secretary, the President ought to hand over the day to day administration in the hands of the Joint Secretaries and that in violation and contrary to the bye laws 1)Ranjit Singh 2)Magan Lal Jhavar 3)Vincent Thambiraj 4)Mrs.Geetha 5)K.Govindaramudu 6)S.Nalini were inducted into the sangam who are not Naidus and has allowed them to continue in the sangam and therefore, a plea that Rule 5 of the sangam has been followed is only a false and that the revision petitioner is the President of All India Naidu Sangam since 2005 and that he was the General Secretary of the said sangam for more than 20 years and in the suit filed by the respondent/plaintiff against the suspension and it is not proved that the Memo of Compromise dated 15.2.2008 did mention about admission of new members and the modalities to be adopted and that the minutes produced before this Court is a fabricated one and that only the General Secretary is to write the minutes and it was recorded accordingly and that when the admission of new members itself was recorded in the minutes of the executive meeting held on 24.4.2008 and their induction is legally communicated to the Registrar of Societies and they are entitled to participate in the activities and therefore, prays this Court for passing the order of stay the 85th Annual General Body Meeting of the All India Naidu Sangam scheduled to be held on 26.20.2008 (Sunday) at 9.00 a.m. at the place mentioned in the petition.
9.Admittedly, the suit filed before the trial Court by the respondent/plaintiff is pending. According to the learned counsel for the revision petitioner that all admission of members into the sangam can be done by the Executive committee and that the President is head of the committee and he is alone to convene a meeting of Executive committee and in his absence the senior most Vice President can do that and that the respondent/plaintiff is duty bound to act in consultation with the President and in the instant case, he has not done so and therefore, he has been removed from the primary membership of the sangam and later he has been expelled from the sangam.
10.The learned counsel for the revision petitioner cite the decision Chennai Kanchi Tiruvelore District Film Distributor Association V. Chinthamani S. Murugesan 2001 (3) CTC 349 wherein this Court has held that 'person becoming member of voluntary association is bound by a rules framed by such association and is also bound by actions taken by those in whom power is vested under such rule.' He also relies on the decision Kishore Kumar Khaitan and Another V. Praveen Kumar Singh (2006) 3 SCC 312 at page 320 whereunder it is inter alia observed that the jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction and when a Court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. He also pressed into service the decision Surya Dev Rai V. Ram Chander Rai and Others (2003) 6 SCC 675 where the Hon'ble Supreme Court has observed that 'the amendment to CPC with effect from 1.7.2002 cannot and does not in any manner affect the jurisdiction under Article 226 and 227 of the Constitution and therefore, an individual can seek the aid of writ of certiorari or invoke power of superintendence of High Court. Further, the learned counsel for the revision petitioner also submitted the unreported decision of this Court in O.S.A.No.373 of 2002 dated 28.10.2002 wherein this Court has held that 'a breach of any Rule made by the Society would not give rise to a cause of action for any member to rush to Court, it must be a case of manifest illegality or where the act of omission or commission is something which goes to the root of the matter. All the members would be bound by the decision taken by the general body though there may be some violation of some Rules provided it is something which could well be condoned and ignored by the general body.' Another decision T.P.Daver V. Lodge Victoria AIR 1963 SC 1144 at page 1146 has been relied on by the learned counsel for the petitioner to the effect that 'a person who joins an association governed by rules under which he may be expelled, .. has in my judgment no legal right of redress if he be expelled according to the rules, however unfair and unjust the rules or the action of the expelling tribunal may be, provided that it acts in good faith etc.'
11.This Court has given anxious consideration to the submissions projected on either side by the learned counsel appearing for the parties and noticed their contentions.
12.At this juncture, the learned counsel for the respondent/plaintiff submits that one Srinath was appointed as General Secretary during the interregnum period and the same is not proper according to the bye laws and on 23.10.2008 the revision petitioner/defendant had written to the Registrar of Cooperative Societies that some persons have been declared elected as unopposed and there is no need to write such a letter when the General Body is held on 26.10.2008 and in the present suit the respective parties disputed the factual matters in controversy and these require a detailed examination and on 24.5.2008 there has been Executive committee meeting which is the subject matter of suit which is referred to in the plaint and in the said meeting they have decided to reinstate the General Secretary and Article 227 of the Constitution cannot be pressed into service by the revision petitioner and in bye law there is no provision to fill the post of General Secretary and that the President has not power to call for the meeting and only the General Secretary can call for the meeting and therefore, he prays before this Court that the order of the trial Court in appointing the Commissioner need not be disturbed.
13.As far as the present case is concerned, on a careful consideration of respective contentions, this Court is of the considered view that there are many contentious issues which have to be decided in the trial of the suit by the parties adducing oral and documentary evidence and also producing witnesses on their side to be examined as witnesses. On a careful scrutiny of the trial Court's order passed in I.A.No.9879 of 2008, this Court is of the considered view that it is not known to this Court as to how the trial Court has observed that the activities of two sangams have been accepted on either side in the absence of any tangible material on record to this effect. It is true that the respondent/plaintiff has filed a suit O.S.No.3679 of 2008 and has sought many reliefs. However, in the I.A. he has prayed for an appointment of an Advocate Commissioner to take over the day to day administration of the sangam and to conduct the 85th Annual General Body Meeting of the sangam regarding elections. As a matter of fact, Jurisdiction of Hon'ble High Court to correct an error under Article 227 of the Constitution is an inbuilt one.
14.Since the suit is pending, this Court is not expressing any opinion in regard to the expulsion of the respondent/plaintiff whether his expulsion is in conformity with the rules or within the four corners of bye laws, these are matters to be looked into at the time of trial by the trial Court. But as on date, the respondent/plaintiff/ petitioner has no locus to file the interlocutory application and to seek the relief praying for appointment of an Advocate Commissioner to take over the day to day administration of the sangam and to conduct the 85th Annual General Body Meeting of the sangam regarding elections etc. Moreover, in the present case, the respondent/plaintiff side has produced a Xerox copy of the minutes dated 24th May 2008 of the Executive Committee meeting which has been disputed by the revision petitioner/defendant counsel. Therefore, the matters regarding 405 persons as membership etc. and the minutes of the meetings dated 24.5.2008 are all to be gone into in detail before the trial Court. Therefore, in that view of the matter, this Court comes to the inevitable conclusion that the when the respondent/plaintiff has been removed from the primary membership and expelled from the sangam though he challenges the same before the trial Court by way of suit, yet this Court is of the view that in presenti he has no prima facie right and also the balance of convenience to file an application and to seek the relief of appointment of an Advocate Commissioner to take over the day to day administration of the sangam and to conduct the 85th Annual General Body Meeting of the sangam regarding elections by giving proper notice etc. and resultantly, the trial Court's order in allowing the I.A.No.9879 of 2008 and appointing the Commissioner S.Karthik Ganesh to that effect is not correct and the same is set aside and resultantly, the civil revision petition is allowed. There shall be no order as to costs. Consequently, M.P.No.1 of 2008 is closed.
15.Since this Court has taken the view that the respondent/plaintiff has no locus standi to file the suit before the trial Court, M.P.No.2 of 2008 filed by him to stay the 85th Annual General Body Meeting of the sangam is dismissed since the revision petitioner/defendant has called for the AGM by means of an Executive Committee meeting's decision held on 02.10.2008 fixing the same on 26.10.2008 and in as much as the suit revolves on contentious issues projected by respective parties and since the same require evidence both oral and documentary one to be let in on either side, this Court has left open all the issues to be determined by the trial Court and the trial Court is to proceed further with the suit by framing necessary triable issues uninfluenced with any of the observations made by this Court in this revision. The trial Court shall give due opportunities to both parties to let in oral and documentary evidence in the manner known to law.
24.10.2008 Index: Yes/No Internet: yes/No sgl To The XVI Assistant Judge, City Civil Court, Chennai M.VENUGOPAL,J.
Sgl C.R.P.(PD).No.3297 of 2008 24.10.2008