Calcutta High Court (Appellete Side)
Karan Singh Grewal vs Calcutta Cricket & Football Club & Ors on 22 July, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
Form J(2) IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
C. O. 2338 of 2019
Karan Singh Grewal
-Vs.-
Calcutta Cricket & Football Club & Ors.
For the Petitioner : Mr. S. K. Kapur, Sr. Adv.,
Mr. Samik Kanti Chakraborty,Adv.,
Ms. Anuradha Poddar, Adv.,
Mr. Yash Vardhan Deora, Adv.
For the opposite party : Mr. Joydeep Kar, Sr. Adv.
No. 1
For the opposite party
No. 3 : Mr. Aniruddha Chatterjee, Adv.
For the opposite party
No. 4 & 12 : Mr. Siddhartha Banerjee, Adv.
For the opposite party
No. 14 : Mr. S. P. Mukherjee, Adv.
Heard & Judgment on : 22.07.2019.
Bibek Chaudhuri, J.
A very short question is involved in the instant revisional application under Article 227 of the Constitution of India.
A Miscellaneous Appeal under the provision of Order 43 Rule 1(r) of the Code of Civil Procedure (hereafter as C.P.C.) was registered in the Court of the learned District Judge, South 24-Parganas at Alipore being Miscellaneous Appeal No. 161 of 2019. It was instituted by the plaintiff of Title Suit No. 781 of 2019. In the said Miscellaneous Appeal, the petitioner came up with an application under Order 39 Rule 1 and 2 of the C.P.C. praying for Ad-interim order of injunction restraining the respondents from receiving further application from prospective candidates for General Committee Election for the year 2019-20 declaring last day for submission of nomination on 16th July, 2019 till the disposal of injunction matter in this appeal and/or to pass such other order or orders as is deemed fit and proper". The learned District Judge, South 24-Parganas was on due notice that caveats were filed by the respondents/opposite parties of the said appeal and accordingly directed the petitioner to serve copy of the application under Order 39 Rule 1 and 2 of the C.P.C. to the caveators/opposite parties fixing the very next day, i.e., on 27th June, 2019 for hearing of the injunction application.
The order-sheet dated 27th June, 2019 shows that the above-mentioned application under Order 39 Rule 1 and 2 of the C.P.C. was taken up for hearing. It was heard in part and next date was fixed on 10th July, 2019 for hearing. However, the matter could not be taken up for hearing on the next date fixed because due to a resolution taken by the local Bar, the learned Advocates abstained from taking part in conducting cases on 10th July, 2019. The learned District Judge fixed 17th July, 2019 for hearing of the application for ad-interim injunction filed in connection with the said appeal.
In the meantime, on 16th July, 2019 the plaintiff/appellant/petitioner has filed the instant revision challenging legality, validity and propriety of all the orders passed by the learned District Judge, South 24-Parganas, Alipore in Misc. Appeal No. 161 of 2019.
The question to be answered in the instant revision is as to whether repeated adjournments of hearing of an application under Order 39 Rule 1 and 2 of the C.P.C. amounts to denial or refusal to grant ad-interim order of injunction so as to attract the provision of Order 43 Rule 1(r) of the C.P.C.
Now, relevant fact in a nutshell.
The petitioner as plaintiff filed Title Suit No. 749 of 2019 against the opposite parties for following reliefs :-
(a) Leave under Order II Rule 2 of Code of Civil Procedure, 1908;
(b) Decree for declaration that the show-cause notice dated June 12, 2019 being Annexure 'A' hereto is null and void and for an order that the same be delivered up and cancelled;
(c) Decree for perpetual injunction restraining the defendants from taking any steps or further steps on the basis of or giving any effect or further effect to the show-cause notice dated June 12, 2019 being Annexure 'A' hereto;
(d) All cost of this suit;
(e) Any other relief or reliefs to which the plaintiff is entitled to in law and in equity.
Subsequently, the petitioner received the order of suspension on 19th June, 2019. The petitioner found that Title Suit No. 749 of 2019 became infructuous as he was served with an order of suspension on the basis of notice dated 12th June, 2019 which was challenged in the aforesaid suit. Accordingly, the plaintiff withdrew Title Suit No. 749 of 2019 and filed Title Suit No. 781 of 2019 praying for the following reliefs:-
"(a) Leave under Order II Rule 2 of the Code of Civil Procedure, 1908;
(b) Decree for declaration that the suspension order dated June 19, 2019 is null and void and direction that the same be delivered up and cancelled;
(c) Decree for perpetual injunction restraining the defendant No.1 from taking any steps or further steps on the basis of or giving any effect or further effect to the suspension order dated June 19, 2019;
(d) Decree for perpetual injunction restraining the defendants from taking any other or further coercive steps against the plaintiff pursuant to notice dated June 12, 2019 and Suspension Order dated June 19, 2019;
(e) Costs of this suit;
(f) Any further or other reliefs to which the plaintiff may be entitled to in law and in equity."
Suffice it to say that Title Suit No. 781 of 2019 is a suit for declaration that the order of suspension dated 19th June, 2019 is null and void and required to be cancelled and for perpetual injunction restraining defendant no. 1/Club from taking any step or further steps on the basis of or giving any effect or further effect to the suspension order dated 19th June, 2019.
Mr. Kapur, learned Senior Counsel on behalf of the petitioner submits that the petitioner was hounded up by some greedy office bearers of defendant no. 1/Club since 9th January, 2019. In order to substantiate his contention, learned Senior Counsel for the petitioner draws my attention to page no. 39 of the supplementary affidavit, i.e., a copy of such purported notice dated 9th January, 2019. According to Mr. Kapur, it was not addressed to anybody. A wild allegation was made against the petitioner that he allowed one cricketer to represent the Club violating the norms set out by the C.A.B. to the effect that only the local players were entitled to take part in Second Division Cricket Competition conducted by the C.A.B. It is also alleged that the petitioner by allowing the said outstation player caused loss of a huge sum of money at the disadvantage to the defendant no. 1/Club. It was contended by Mr. Kapur that the said notice was issued in blatant violation of Rule 5.2 of the Articles of Association of Calcutta Cricket and Football Club.
Mr. Kapur next refers to series of correspondences between the petitioner and the defendant no. 1/Club and its office bearers. All such correspondences were made with the sole object to oust the petitioner from even the primary membership of the Club. Subsequently, when it was found by the respondents that the purported notice dated 9th January, 2019 and subsequent actions in the form of making internal committees, in-house enquiry etc. were taken out by the Club in utter violation of the Articles of the Association, a notice was issued to the petitioner on 12th June, 2019 to inform him that a Disciplinary Committee was formed on 10th June, 2019 comprising of the President, Mr. Subrata Das, the Vice-President, Mr. D. Mucadum, Committee Member, Mr. Sourav Chatterjee, Independent Member, Mr. S. Menon, Mr. R. Thapa, Mr. G. Arora, General Committee Member of the Club in terms of Clause 5.2 of the Articles of Association and the petitioner was directed to submit his explanation within one week from the date of receipt of the said application, more specifically within 18th June, 2019.
It is already pointed out that the petitioner challenged the said notice dated 12th June, 2019 by filing a suit. During the pendency of the said suit, he was suspended which compelled him to withdraw the said earlier suit and also to file Title Suit No. 781 of 2019 for declaration and perpetual injunction, the reliefs of which have already been set out hereinabove.
It is urged by Mr. Kapur that when the suit was pending and the petitioner was almost on daily basis urging for ad-interim injunction the Trial Court as well as the Court of Appeal in Miscellaneous Appeal No. 161 of 2019 went on adjourning the hearing of the application for ad-interim injunction. The orders of adjournment, according to Mr. Kapur, amount to refusal of ad-interim injunction in favour of the petitioner. The Court of Appeal conducted the hearing with material irregularity for which valuable right of the petitioner to participate in the election of the Club is going to be jeopardized. Considering such aspect of the matter, the learned Senior Counsel invites this Court to pass appropriate order of injunction in the instant revisional application.
In support of his contention that this Court under the factual circumstances narrated above is well within the jurisdiction to pass such order, Mr. Kapur refers to an unreported decision of the Hon'ble Supreme Court in the State of Jharkhand -Vs.- Surendra Kumar Srivastava & Ors. passed in Civil Appeal No. 21 of 2019 arising out of SLP(C) No. 26645 of 2015 on 3rd January, 2019. He particularly refers to paragraph 6.2 of the judgment wherein it is held by the Hon'ble Supreme Court that the writ petition under Article 227 of the Constitution of India challenging the orders passed by Civil Courts refusing to grant interim injunction under Order 39 Rule 1 and 2 of the C.P.C. could very well be maintainable.
Reliance is placed also on the decision of the Hon'ble Supreme Court in the case of T. P. Dever -Vs.- Lodge Victoria, reported in A.I.R. 1963 SC 1144. Mr. Kapur particularly refers to paragraph 9 of the report which is quoted below:-
"(9) The following principles may be gathered from the above discussion. (1) A member of a masonic lodge is bound to abide by the rules of the lodge; and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. (2) The lodge is bound to act strictly according to the rules; whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of construction in that regard. (3) The jurisdiction of a Civil Court is rather limited; it cannot obviously sit as a Court of appeal from decisions of such a body; it can set aside the order of such a body, if the said body acts without jurisdiction or does not act in good faith or acts in violation of the principles of natural justice as explained in the decisions cited supra".
Thus, it is contended by Mr. Kapur on behalf of the petitioner that the defendant no. 1/Club is bound to abide by the Articles of the Association and more particularly Rule 5.2 before taking any action of suspension of any member. Such Rule must be strictly complied with as it is mandatory for the Club to follow. Here in this case, first, the alleged notice dated 9th January, 2019, then notices dated 6th June, 2019 and 12th June, 2019 were issued without complying with the mandatory Rule 5.2. Therefore, the petitioner was entitled to have an order of ad-interim injunction as prima facie case was heavily in favour of the petitioner.
Mr. Joydeep Kar, learned Senior Counsel on behalf of the opposite party no. 1, on the other hand, submits that the petitioner unconditionally without any leave withdrew Title Suit No749 of 2019. The said suit was instituted by the petitioner challenging the validity of the notice dated 12th June, 2019. According to Mr. Kar, when the notice to show cause was challenged in an earlier suit and it was unconditionally withdrawn, the petitioner cannot raise any grievance with regard to the authority of the Club to issue notice to show cause.
It is also pointed out by Mr. Kar that the letter dated 6th June, 2019 was issued as per the provision of Rule 5.2. Therefore, at this stage, petitioner cannot urge that the said notice dated 6th June, 2019 was issued in violation of the mandatory provision of the Articles of the Association in order to attract the ratio laid down by the Hon'ble Supreme Court in the case of T. P. Dever -Vs.- Lodge Victoria (Supra). Mr. Kar also raised the question as to the jurisdiction of the Civil Court to entertain the suit on the ground that the defendant no. 1/Club is a company within the meaning of the Companies Act and Section 430 of the Companies Act read with Section 280 of the said Act prohibits the jurisdiction of the Civil Court to try any suit or proceeding against the defendant no. 1/Club. Thirdly, it is submitted by Mr. Kar that an order of interim or temporary injunction in a suit is granted only in aid of the ultimate relief prayed for in the suit. He again refers to the prayers made by the petitioner in Title Suit No. 781 of 2019 and submits that the prayer made out by the petitioner in the application for ad- interim injunction is no way connected with prayer (c) and (d) of Title Suit No. 781 of 2019. Lastly, it is submitted by Mr. Kar that the ratio desidendi laid down in Surendra Kumar Srivastava (Supra) is not applicable under the facts and circumstances of this case because in the said decision, a writ petition was filed before the Jharkhand High Court challenging an order passed by the District Court refusing to grant interim relief in an application filed under Order 39 Rule 1 and 2 of the C.P.C. In the instant case, however, no such order was passed by the learned District Judge, South 24-Parganas. The application under Order 39 Rule 1 and 2 of the C.P.C. is heard in part by the learned District Judge. It was adjourned on 10th July, 2019 as a result of some resolution taken by the local Bar to the effect that the members should abstain from participating in judicial work on that date. Finding no other alternative, the learned District Judge fixed the matter on 17th July, 2019. In the meantime, the petitioner has filed the instant application praying for revision of such orders. Since the learned District Judge did not either grant or refuse the prayer for ad-interim injunction in connection with the appeal, the instant revision is not maintainable.
Mr. Siddhartha Banerjee, learned Advocate for the opposite party nos. 4 and 12 has adopted the submission made by Mr. Kar and further raised question of maintainability of appeal relying on the provision contained in Order 43 Rule 1(r) of the C.P.C.
Mr. Aniruddha Chatterjee, learned Advocate for the opposite party no. 3 and Mr. Siba Prasad Mukherjee, learned Advocate for the opposite party no. 14 have also adopted the submission made by Mr. Kar.
In reply, Mr. Kapur contends that the learned Counsels for the opposite parties raised technical objection as to the maintainability of the revision but none of them has any answer to the factual merits of the case. It is further contended by Mr. Kapur, learned Senior Counsel that Section 430 of the Companies Act is not at all applicable under the facts and circumstances of the case. In support of his contention, he refers to Section 241 read with Section 244 of the Companies Act. Mr. Kapur has concluded when it is glaringly clear from documents filed by the petitioner that he is being treated with malice and hostility by the opposite parties, it is the duty of the Court of Equity to grant immediately equitable relief in the form of ad interim injunction and this Court has ample power to pass such order.
I have already set out the question that is required to be answered in the instant revision. At the risk of reiteration, let me mention the short question involved in the instant revision:-
Whether repeated adjournments of hearing of an application for ad interim injunction filed in connection with Miscellaneous Appeal should be considered as refusal to grant ad interim injunction?
The factual circumstances under which matter was adjourned has elaborately been recorded hereinabove. At the time of hearing it is submitted by the learned counsels for the opposite parties that even today the application under order XXXIX Rule 1 and 2 was fixed for hearing from 2 P. M. and the parties had to pray for adjournment on the ground that the instant revision was being heard by this Court. Order 43 Rule 1(r) reads thus:-
"(i). Appeal from orders - an appeal shall lie from the following orders under the provisions of Section 104, namely:- .......
(r) An order under Rule 1, Rule 2, Rule 2 (a), Rule 4 or Rule 10 of Order XXXIX."
It is not disputed that the learned District Judge did not pass any order under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. The impugned orders were passed under the provisions of Order XVII Rule 1. The said order, in my considered view, is not revisable.
However, I am not unmindful to note that a party to the suit or appeal expects immediate disposal of the matters in controversy. Therefore, while dismissing the instant revision, this Court directs the learned District Judge, South 24 Parganas to hear out the application under Order XXXIX Rule 1 and 2 positively on 23rd July, 2018 and pass order disposing of the application under Order XXXIX Rule 1 and 2 positively by 24th July, 2019.
Learned counsels for the parties are at liberty to communicate this order to the learned District Judge, South 24 Parganas at Alipore in writing under their respective letterheads for compliance.
Assistant Court Officer of this Court is also directed to supply two sets of plain copies of this order to the learned counsels for the parties for communication.
The parties are at liberty to raise their contentions as raised before this Court before the learned District Judge, South 24 Parganas who is further directed to dispose of the matter on the basis of submission made by the learned counsels without being influenced in any way by any observation made by this Court in this order.
The instant revision is thus disposed of on contest.
(Bibek Chaudhuri, J.)