Madras High Court
Dakshina Mara Nadar Sangam vs Asokan on 4 December, 2012
Author: R.Karuppiah
Bench: R.Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 4/12/2012
CORAM
THE HONOURABLE MR. JUSTICE R.KARUPPIAH
S.A.(MD)No.16 of 2011
and
M.P.(MD)Nos.1 and 2 of 2011
Dakshina Mara Nadar Sangam
Tirunelveli throught its
Secretary S.S.S.Nathan Nadar,
Offict at No.70, Salai Street,
Sindupoondurai, Tirunelveli Junction,
Tirunelveli
.. Appellant/Plaintiff
Vs.
1.Asokan
2.Soundar Raj Nadar,
3.A.Selvaraj Nadar
4.K.K.Kasiviswanathan Nadar,
5.K.Paulraj Nadar
6.A.M.Vijaya Raja Nadar
7.Stanly Vedamanicka Nadar
8.David Daniel Nadar
9.Fredrick Jeyaraj Nadar
10.M.Thiagarajan
11.P.Arumuga Nadar .. Respondents/Defendants
PRAYER
Second Appeal filed under Section 100 of Civil Procedure Code
against the judgment and decree dated 23.12.2010 in A.S.No.42 of 2009 on the
file of Additional District Court/Fast Track Judge No.1, Tirunelveli,
confirming the judgment and decree in O.S.No.105/2008 dated 23.10.2009 on the
file of Principal Subordinate Court, Tirunelveli.
!For Appellant ... Mr.T.R.Rajagopal, SC
For Mr.C.Dhanaseelan
^For Respondents ... Mr.S.Meenakshisundaram
(R2 to R5)
For Respondents ... Mr.S.Kumar
(R1, 6, 7 and 9)
For Respondent-11 ... Mr.M.R.S.Prabhu
For Respondents ... No Appearance
(R8 and R10)
:JUDGMENT
The appellant/plaintiff has filed this Second Appeal as against the judgment and decree passed by Additional District Judge/Fast Track Judge No.1, Tirunelveli, dated 23.12.2010 in A.S.No.42 of 2009, dismissing the appeal and confirming the judgment and decree passed by Principal Subordinate Judge, Tirunelveli, dated 23.10.2009 made in O.S.No.105/2008.
2. Before the trial Court, appellant is the plaintiff and the respondents are the defendants. For the sake of convenience, the parties referred as in the suit is referred in the Second Appeal.
3. The appellant/plaintiff has filed a suit for declaration that all the resolutions alleged to have been passed in the General Body Meeting, dated 30.05.2008 and the consequent claim of defendants 1 to 10 appointing themselves as Temporary Administrative Committee and the Election Officers as null and void and also permanent injunction restraining defendants 1 to 10, their men, agents, servants etc., from doing anything to interfere with the affairs of the plaintiff Sangam in any manner including conducting elections.
4. Briefly the case of the appellant/plaintiff is that the appellant Sangam is registered under the Tamil Nadu Societies Registration Act, 1975 (herein after referred to as the Act) and the Registration Number is 6/1948 and the administration of the Sangam is governed by the Bye-laws, framed by the Subordinate Court, Tirunelveli in a scheme decree passed in O.S.No.13/1942 and By-laws can be amended or altered or a new rule may be framed only as per scheme decree and the General Body of the Plaintiff Sangam can frame sub rules for effective enforcement of Bye-laws of the Sangam but has absolutely no power to frame any sub rules contrary to the bye-laws.
5. According to the plaintiff, without following the procedures enumerated under Section 7(c) of the Bye-laws of the Sangam and Section 28(2) of the said Act, some 320 members of the plaintiff Sangam published a notice in the issue of "Tamil Murasu" news paper stating that Special General Body of the Sangam would be convened at Thisayanvilai on 25.05.2008 for amendment of Bye- laws and subsequently, by another publication made in 'Dinakaran' Newspaper dated 07.05.2008, the very same 320 persons stated that the General Body of the Sangam would be convened on 29.05.2008. As against the meeting, one Sarguna Pandian and Suyambulingam filed a suit in O.S.No.678/2008 and also filed C.R.P. (MD) No.920/2008 before this Court against the proposed General Body Meeting organised by 320 members and this Court had passed an order on 28.05.2008, restraining those persons from conducting the meeting and hence the plaintiff, who was second respondent in the revision also communicated in the place, where the meeting was scheduled to be held and hence, no meeting was conducted on 29.5.2008 by 320 members.
6. It is also averred in the plaint that in the meantime another 410 members claiming to be a life members of the plaintiff Sangam effected a publication in 'Daily Thanthi' Newspaper dated 08.05.2008, stating that they are going to convene a Special General Body Meeting on 30.05.2008, at Sankar Nagar in Thalaiyuthu, without following the procedures enumerated under Sections7(c) of the Bye-laws of the Sangam or Section 28(2) of the said Act. It is further stated in the plaint that the 10th respondent/10th defendant, claiming himself as Election Officer of appellant/plaintiff Sangam, had effected a publication in the issue of 'Dinamalar" and also in "Tamil Murasu" news papers, dated 10.06.2008, stating that as per the resolution, dated 30.05.2008, election for the Administrative Council of the appellant/plaintiff Sangam was scheduled to be held from 05.07.2008 to 12.07.2008 and also stated the nomination forms would be available from 12.06.2008 to 15.06.2008 and the last date for receipt of nominations was on 20.06.2008. According to the appellant/plaintiff, the term of office of the existing Administrative Council Members of the appellant/plaintiff Sangam expires in the year 2009 but, in the publication had no details about the venue of the alleged meeting and how many members participated in the said meeting dated 30.5.2008.
7. It is further averred in the plaint that on 11.06.2008, a publication was effected in "Dinamalar" Newspaper dated 11.06.2008, by defendants 1 and 2 stating that in the alleged meeting, dated 30.05.2008, the term of office of the existing office bearers of the appellant/plaintiff Sangam was terminated and till such time the election was declared to be conducted, defendants 1 to 9 were constituted as the Temporary Administrative Committee and they are empowered to look into the administrative of the Sangam and also invited requisition from members for convening a General Body Meeting and offered to convene the same, if the requisition is given to the President of the Temporary Administrative Committee.
8. According to the appellant/plaintiff, no procedures or requisition enumerated under Section 7(c) of the Sangam Bye-laws or Section 28(2) of the Societies Registration Act, to convene General Body Meeting was followed or made to the President of the Sangam at any point of time and also no agenda of election of office bearers for the meeting proposed for 30.05.2008 and none of the respondents/defendants gave any notice for convening any Special General Body Meeting on 30.05.2008 and without complying the mandatory provisions of clear 21 days notice, no Special General Body Meeting can be convened and hence, the above said resolutions alleged to be passed in the Meeting, dated 30.05.2008 was abinitio void, since not giving any particulars about the alleged meeting and further, the contesting respondents/defendants have no locus standi either to conduct the meeting or to hold election or to interfere in the affairs of the Sangam. It is also stated in the plaint that the 11th defendant, announced in the new papers on 13.06.2008 as the meeting scheduled to be held on 30.05.2008 was not held and hence this suit filed by appellant, namely, Thiru. S.S.S.Nathan Nadar as Secretary of the Sangam.
9. Respondents 2 to 7 and 9 filed separate written statement in which it is averred that the plaintiff viz., S.S.S.Nathan Nadar has no locus standi to file the suit as Secretary of "Dakshina Mara Nadar Sangam" and also denied the various allegations in the plaint and stated that on 15.02.2008, 410 members of the Sangam affixed signatures and given written requisition to convene the General Body Meeting to the President of the Sangam, since the General Body Meeting was not convened even after 60 days over by the President, on 08.05.2008 published in "Dina Thanthi" News Paper with all particulars i.e., the place, time, Agenda of the General Body Meeting, as "General Body Meeting will be held on 30.05.2008", so as to give 21 days prior notice. It is also averred in the written statement that several proceedings were initiated to stop the General Body Meeting organized to be held on 29.05.2008 by other 320 members and this Court had passed an order staying the alleged meeting dated 29.5.2008, but, in the proposed General Body Meeting by 410 members dated 30.05.2008, no proceedings were initiated and not granted any stay of the above said meeting, since they proposed to conduct the meeting as per the rules and Bye-law and therefore, the above said General Body Meeting dated 30.5.2008 was legally convened.
10. It is further stated that in the above said extraordinary General Body Meeting held on 30.05.2008 resolutions were passed and according to the resolutions, the 10th defendant was appointed as Election Officer with the approval of majority of the members and the above said 10th defendant also conducted the election as per Bye-laws and provisions of the Act and further some members of the society had filed O.S.No.27/2008 and in the above said proceedings, an Advocate Commissioner was appointed to conduct the election and on his inspection, the 10th defendant conducted the election and the Commissioner also filed a detailed report.
11. It is further averred in the written statement that this appellant had filed revision petitions in C.R.P.(MD)No.1104/2008, C.R.P(MD)No.1144/2008, and C.R.P(MD)No.1145/2008, to cancel the order passed in the miscellaneous petitions and this Court had passed an order that status-quo has to be maintained and this Court has not cancelled or given any finding but it is only observed and held that with regard to General Body Meeting held on 30.05.2008 will be decided in the main suit and further stated that if permitted to assume charges of the office bearers of the Sangam, the Sangam will be run smoothly.
12. The 10th defendant filed a separate written statement in which it is stated that he has not aware of the allegations about the resolution passed on 30.05.2008 General Body Meeting and further stated that he was appointed by defendants 1 to 9 to conduct elections and accordingly he conducted the elections as per law without any interference and in the above said election, 33 candidates elected unopposed and 13 Administrative Council Members were elected through elections from Kovilpatti, Tirunelveli and Thisayanvilai area and on 16.07.2008, new President, Vice-President, Secretary, Deputy Secretary and Treasurer were elected in the presence of Election Officers and all the proceedings were completed.
13. The 11th defendant filed separate written statement and according to him, 11th defendant and 410 others gave requisitions to convene the General Body Meeting to bring amendment to the existing Bye-laws but not questioning the election of the office bearers or their removal or for conducting fresh election and there is no necessity also for the same, since this defendant and 410 other members did not agree for the proposed amendment suggested by notification given in the proposed meeting organised by another 320 persons to be held on 29.05.2008 and this defendant and 410 others gave paper publication regarding the proposed amendment to the existing Bye-laws and also to discuss about the over all functions of the Sangam. In the meantime, this Court had delivered the judgment and found that there was no valid Agenda or requisition and held that the notification for meeting convened by 320 members was not valid Agenda or requisition and hence, this Court had passed an order of stay and therefore 320 members' meeting was not conducted. It is further stated that his group of 410 members felt that the above said judgment may apply and hence, cancelled the meeting to be held at Nadar Uravin Murai Kalyana Mandapam at Thalaiyuthu and got back the advance of Rs.1000/- and therefore, this defendant and 410 members, who gave notification calling for General Body Meeting on 30.05.2008 was not conducted for the above said reasons and no resolutions were passed on that date.
14. The trial Court, considering the above said pleadings, framed five issues and on the side of the plaintiff 2 witnesses were examined as P.Ws.1 and 2 and marked 19 documents as Exs.A1 to A19 and on the side of the defendants, 7 witnesses were examined as D.Ws.1 to 7 and marked 20 documents as Exs.B1 to B10 and also two documents were marked as Exs.X1 and X2 and finally the trial Court had discussed in detail and dismissed the suit filed by the appellant/plaintiff. Aggrieved over the same, the appellant/plaintiff filed the first appeal and the first appellate Court also dismissed the appeal filed by this appellant/plaintiff. Aggrieved over the concurrent findings of both the trial Court and the first appellate Court, the appellant/plaintiff filed this Second Appeal.
15. This Court has admitted the Second Appeal on the following Substantial Questions of Law:-
"1. Whether the courts below have committed an error in law in deciding the case on merit after holding that the suit filed by Mr.S.S.S.Nathan, claiming to be representing the plaintiff's sangam as its Secretary, is not maintainable?
2. Whether the courts below have rendered a perverse finding that the respondents/defendants have substantiated their case of giving a requisition in writing of not less than 300 members of the society to the President of the plaintiff/society to call for a General Body Meeting in accordance with bye-law No.7 of the society and Section 28(1) of the Tamil Nadu Societies Registration Act, 1975?
3. Whether the courts below have rendered a perverse finding that the General Body Meeting was infact convened on 30.05.2008, when vital documents like records showing the particulars of members who attended the General Body Meeting, Minutes prepared in the meeting, photographs and video clippings to show the members who attended the General Body Meeting were not produced?
4. Whether the power of removing all the members of the Administrative Council, including the office-bearers, at one stroke is available to the General Body in the light of the provision found in Section 34-A of the Tamil Nadu Societies Registration Act,1975 giving such power of supersession of the Administrative Committee to the Government?
5. Whether the alleged notice convening the General Body Meeting by the 410 members of the society was not in accordance with the requirements of sub-section(2) and (3) of Section 26 r/w Section 28(3) of Tamil Nadu Societies Registration Act, 1975, insofar as the proposed amendment to the bye-laws had not been indicated in the memorandum accompanying the notice?
6. Whether the Agenda No.6, which was to the effect that the functioning of the office-bearers of the society and the Chairman of the Election Committee were to be considered by the General Body, was enough to pass a resolution removing the Office-bearers of the society and the Chairman of the Election Committee?"
16. Both sides admitted that "Dakshina Mara Nadar Sangam", Tirunelveli is duly registered under Tamil Nadu Societies Registration Act, 1975 and also admitted that the administration of the Sangam is governed by Ex- Bye-laws of the Sangam, as per scheme decree passed in O.S.No.13/1942.
17. The appellant viz., S.S.S.Nathan Nadar has filed this Suit as Secretary of "Dakshina Mara Nadar Sangam", Tirunelveli, questioning the General Body Meeting of the "Dakshina Mara Nadar Sangam" held on 30.05.2008 and seeking other consequential reliefs. On the side of the contesting respondents/defendants have specifically stated in their written statement that the above said S.S.S.Nathan Nadar, has no locus standi to file the suit on behalf of "Dakshina Mara Nadar Sangam", Tirunelveli and on that ground alone, the suit is not maintainable. Admittedly, it is not stated in the plaint or not filed any reply statement explaining the fact that how he has locus-standi to file the suit as a Secretary of the above said Sangam. The trial Court had discussed in detail about the admission of above said P.W.1 S.S.S.Nathan Nadar and finally held that the above said S.S.S.Nathan Nadar has no capacity to file the suit and found against him. The first appellate Court also elaborately discussed in his judgment in paras 43 and 44 and also considered the admission of the above said P.W.1, at the time of evidence and finally held that the above said S.S.S.Nathan Nadar not duly elected as Secretary and therefore, he has no locus-standi to file the suit.
18. The learned counsel appearing for the appellant would submit that the post of Secretary is not directly elected from the General Body Meeting but 51 Administrative Committee Members alone elected and they elected among themselves the office-bearers including the Secretary, as per the bye-law and also submitted that the above said Administrative Committee Members to fill up the said vacancies, conducted election within two months, as per Bye-law 17(a) and the above said S.S.S.Nathan Nadar was selected as Secretary by adopting the above said procedures and the above said fact was shown in the relevant Resolution No.13, dated 24.04.2008 in Ex.A13 and therefore P.W.1 has admitted at the time of evidence that he was not elected as per Bye-law 10(15), since he was not elected as per By-law 17(b) r/w 12(a) but both the Courts below have erroneously held that the above said S.S.S.Nathan Nadar has no locus- standi to file the suit.
19. Per contra, the learned counsel appearing for the contesting respondents/defendants would submit that the defendants have specifically pleaded in the written statement itself that the above said S.S.S.Nathan Nadar has no locus-standi to file the suit and a perusal of Ex.A8, Bye-law Rule 10(15) as well as Rule 17(b), it is clear that no election had been conducted in accordance with Rule 17(b) and on seeing Ex.A.13 it reveals that the resignation of the former Secretary was accepted by the 12th Resolution, in the meeting conducted on 21.04.2008 and on the same day S.S.S.Nathan Nadar applied for Secretaryship but as per Rule 17(b) if a vacancy arise it will be filled up by election within two months and therefore, there was no chance for other proposed contestants to know about the Secretaryship election, since the vacancy had arisen on the same day on which the date the election for the post of Secretary was conducted. It is further contended that as per Rule 10(15), the office-bearers elections including the post of Secretaryship will be conducted only after 10 days prior notice, but the above said rule also not complied with and further the above said S.S.S.Nathan Nadar, the alleged Secretary, deposed as P.W.1, has clearly admitted the above said fact at the time of evidence and therefore, he has no locus-standi to file the suit as Secretary. It is further contended that in the signature of the above said S.S.S.Nathan Nadar has described in the plaint short cause title and long cause title as S.S.S.Nathan Nadar and also signed to that effect in the plaint but in Ex.A13 he is shown as Sugamba Sivakaminathan and also signed in different manner and further P.W.1 himself admitted the above said signatures differ in the plaint and document Ex.A13 and therefore, the above said S.S.S.Nathan Nadar, has no locus-standi to file the suit as Secretary of the plaintiff sangam.
20. The learned counsel appearing for the contesting respondents would also submit that a perusal of Ex.B20 i.e., Form-VII is the specific format contemplated under the said Act, and it shows that change of the Secretaryship has not been taken on file and P.W.1 has also admitted that he did not know whether the above said fact of selection as Secretary was taken on file by the competent authority i.e., Registrar of Societies and therefore, for all the above said reasons, both the Courts below have correctly concluded that the above said S.S.S.Nathan Nadar has no locus-standi to file the suit as Secretary of the sangam.
21. In the plaint, the above said S.S.S.Nathan Nadar has not specifically stated in which provision of Bye-laws he was elected as Secretary of the Sangam and inspite of specific denial in the written statement, he has not filed any reply statement to explain the locus-standi to file the suit. At the time of evidence also, he has not specifically stated in which provision of Bye-laws, he was elected as Secretary. At the time of argument before this Court alone, the learned counsel appearing for the appellant would submit that, as if the above said S.S.S.Nathan Nadar was elected as per the Bye-law 17(b) r/w 12(a). In the above circumstances, the learned counsel for the respondents also has relied on a decision of a Full Bench of this Court in B.Suresh Chand Vs. State of Tamil Nadu & another (2006 (4) L.W 409) wherein in paragraph 30 it has been held as follows:-
"30. The distinction between "material facts" and "particulars" cannot be over looked. Material facts are primary and basic facts which must be pleaded by the party in support of the case set up by him, either to establish his cause of auction or defence. Since the object and purpose is to enable the opposite party to know the case he has to meet, in absence of pleading a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit. Particulars, on the other hand, are the details of the case. They amplify, refine and embellish material facts. They give the finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative."
22. A perusal of Bye-law 17(b) reveals that if vacancy arise for Secretary, within two months it will be filled up and By-laws 12(a) reads as once in five years the Administrative Committee Members have elected 11 office bearers including the President, Vice President, Secretary, Deputy Secretary and Treasurer etc. In the instant case, the plaintiff has not stated anywhere in the plaint or evidence as he was elected as Secretary as per Bye-law 17(b) r/w 12(a). In the Bye-law Section 10(15) speaks about the election of office- bearers including the Secretary. P.W.1 himself admitted that he was not elected as per the above said Bye-law and further as rightly contended by the learned counsel appearing for the contesting respondents, the secretaryship election was not conducted after giving 10 days prior notice, as per Rule 10(15) but the above said S.S.S.Nathan Nadar alleged as if he was elected on the same day of previous Secretary viz., Sababathi Nadar was resigned and therefore, the provisions of the Bye-laws were not complied with and further he has not proved that the above said election of Secretaryship was accepted by the Registrar of Societies and also as rightly contended by the learned counsel for the contesting respondents, the signatures and the name found place in the plaint averments and the above said Ex.A13 are differs and no satisfactory explanation by the above said S.S.S.Nathan Nadar and therefore, both the Courts below have correctly discussed and held that the above said S.S.S.Nathan Nadar has no locus-stndi to file the suit as duly elected Secretary of the above said Sangam and no interference needs in the above said concurrent findings of both the Courts below and answered the first Substantial Question of Law accordingly.
23. With regard to 2nd Substantial Question of law is concerned, the learned counsel for the appellant would mainly contend that no requisition was made to the president of the Sangam at any point of time as per Bye-laws 7(c) and the procedures contemplated under Section 28(2) of the Tamil Nadu Societies Registration Act and therefore, the alleged General Body Meeting held on 30.05.2008 is not valid in law and further contended that the above said alleged written requisition signed by 410 members dated 15.02.2008 (i.e) Ex.B8 requisition with Certificate of Postings in which it is not mentioned the material particulars like who gave it or whether it was given to the President or anybody else or by what mode it was given and further the above said requisition was produced as document only at the time of evidence and the above said document was not produced along with written statement or at the time of producing documents or at the time of examination of P.W.1. It is further submitted that in the written statement, the 2nd defendant has stated as on 15.02.2008, a requisition in writing signed by 410 members was placed but it is not mentioned as to before whom it was placed or the name of addressee and hence, the contention of the contesting respondents that necessary requisition was made on 15.02.2008 to the President is not proved as true and therefore, prior to the alleged General Body Meeting the necessary conditions prescribed in Section 7(1) of Bye-law and Rule 23(7) of the Act are not complied with and on that ground also the alleged meeting dated 30.05.2008 cannot be treated as valid General Body meeting.
24. Per contra, the learned counsel appearing for the respondents would submit that both the Courts below have discussed in detail and arrived at the conclusion that valid requisition has been given in accordance with Bye-laws and Act (i.e) the requisition, dated 15.02.2008, signed by 410 members was given to the President and to prove the same Ex.B8 requisition, dated 15.02.2008 along with certified of postings have been filed as documents and also adduced oral evidence and therefore the above said Ex.B8 requisition, satisfied all conditions prescribed under Section 28(1) of the said Act as well as Rule 7(c) of the Bye-laws of the Society. It is also contended that Section 28(1) of the said Act, or Rule 27 of Tamil Nadu Societies Registration Rules (herein after referred to as the Rules) does not show in what manner the contents of the requisition should be or to whom the requisition has to be given or address and in the Bye-law alone stated that requisition has to be given to the President and hence, the question of requisition is not in accordance with Section 28(1) does not arise.
25. The learned counsel appearing for the contesting respondents would further submit that the present appellant who is 2nd respondent in Ex.B9, C.R.P.(MD)No.920/2008 proceedings and in the above said proceedings itself it is stated in the order as "It is brought to the notice of the court by the petitioner that another requisition has been given by 410 members, who have a meeting on 30.05.2008" and therefore, the above said fact of 410 members requisition Ex.B8 which was given on 15.02.2008 is proved as true and further contended that the appellant/plaintiff has deposed as P.W.1 and at the time of oral evidence he has specifically deposed that he was not aware about the requisition was given for convening the meeting (i.e. by 410 members) and further admit that even on 08.05.2008 he knows about the contents in the publication and therefore, the plaintiff himself pleaded only ignorance on receipt of requisition. Learned counsel for the appellant submitted that if really Ex.B8 requisition dated 15.2.2008 was not received, the Society ought to have produced those Registers to prove the non-receipt of Ex.B8 and hence, adverse inference has to be drawn as against the appellant/plaintiff. It is further contended that the above said Ex.B8 requisition was given to the President of the Society and therefore, the above said President alone is competent witness to speak about the alleged non- receipt of requisition but he has not entered into the witness box and appellant/plaintiff also not taken any steps to examine any witness including President about the non-receipt of requisition and therefore, the adverse inference has to be drawn against the appellant/plaintiff. Further it is contended that on the side of contesting respondents, examined several witnesses and also produced reliable documents and therefore, it is very clear that valid requisition was given to convene the meeting on 30.05.2008 under the provisions of Bye-Laws and the above said Act and Rules.
26. It is relevant to mention here the above said provisions of Tamil Nadu societies Registration Act and Rules and Bye-laws. In Ex.A8 Bye- law, Rule 7(c) reads as under:
7.(c). rq;f tpNr\ kfhrigf; $l;lk; elj;j (300) Ke;EhW thf;fhsh;fSf;F Fiwahjth;fshy; $l;lg;gl Ntz;Lk; vd;gjw;Fhpa fhuzq;fisAk;
nghUl;Fwpg;GfisAk; fz;L $l;l Ntz;Lnkd;W jiythplk; Nfl;Lf;nfhz;lhy; me;j fhuzq;fSk; nghUl;Fwpg;Gk; jiytUf;F rhpahdJ vd;W gl;lhy; ,uz;L khjj;jpw;Fs; jiyth; me;j $l;lj;ij $l;b itg;ghh;.
27. Sections 26 (2 and 3), Sec.27, and Section 28(1 to 3) of the Tamil Nadu Societies Registration Act, reads as under:
"26.Annual General Meeting:-
(1) .....
(2) Notice of every such general meeting shall be given by the registered society to its members within such period as may be prescribed before the day appointed for the meeting.
(3) The notice shall specify the day, hour and place and the object of the meeting and, in case any amendment of a bye-law or objects of association as contained in the memorandum is intended to be proposed, shall contain a copy of every such amendment.
"27.Filling of special resolutions:- A copy of every special resolution for any of the purposes mentioned in this Act, signed by and officer of the registered society, authorised in this behalf by its bye-laws shall, within such period, as may be prescribed from the passing of the resolution, be filed with the Registrar."
"28.Extraordinary general meeting:- (1) The Committee may at any time call an extraordinary general meeting of the registered society and shall call such a meeting within such period as may be prescribed after receipt of a requisition in writing from such number of members of proportion of the total number of member as may be specified in the bye-laws of the registered society, (2) If an extraordinary general meeting is not called in accordance with such requisition, the requisitionists shall have power to call such meeting themselves.
(3) No extraordinary general meeting shall be deemed to have been duly called if the members of the registered society have not been given such notice thereof as is required by sub-sections (2) and (3) of section 26."
28. A perusal of Bye-law 7(c) reveals that if more than 300 members wants to convene the General Body Meeting, it should be submitted requisition to the President along with reasons and the Agenda for the Meeting and if the requisition is given, the President should convene the meeting within two months. In the instant case, according to the contesting defendants, 410 members have given written requisition to the president on 15.02.2008, to convene the Extraordinary General Body Meeting with the signatures of the above said 410 members and the above said requisition was sent to the President and to prove the same, Ex.B8 requisition along with Certificate of Postings were filed on the side of the contesting respondents and also given oral evidence to prove the above said facts. Further, at the time of evidence, the appellant/plaintiff himself expressed only ignorance of said fact of giving Ex.B8 requisition to the President.
29. Further, appellant/plaintiff has not produced or not taken any steps to produce the records maintained by the Society to prove the non- receipt of Ex.B8, as rightly contended by the learned counsel for the respondents and further, the above said Ex.B8 was addressed to the President of the Society but on the side of the appellant/plaintiff has not examined the above said President who is competent witness to speak about the alleged non- receipt of the requisition and hence adverse inference has to be drawn as against the appellant/plaintiff, as rightly contended by the learned counsel for the respondents. Learned counsel for the respondents relied on a decision reported in AIR 1981 DELHI 169 (Shashi Kumar Vs. Dharam Pal), in which, para 3 reads as under:
"... The notice as already stated was also sent under the certificate of posting and it is deemed to have been served upon the appellant, as held in Om Prakash Bahal v. A.K. Shroff, 1972 Ren CR 578 (Delhi), that service through a certificate of posting is good service. The address on the envelope containing the notice is admitted to be correct. Mere denial by the appellant that the notice under certificate of posting was not received by him is of no assistance to him."
In the instant case, the fact of Ex.B8 requisition given to the President on 15.02.2008, to convene the meeting of 410 members is proved by reliable oral and documentary evidence on the side of the respondents/defendants and therefore, necessary requisition in writing was given by 410 members of the Society to the President to call for a General Body Meeting in accordance with the Bye-law 7(c) of the Society and also Section 28(1) of the said Act and there is no illegality in the above said proceedings and the second substantial question of law is answered accordingly.
30. With regard to third substantial question of law is concerned, the learned counsel appearing for the appellant would vehemently contend that on 30.05.2008, the alleged General Body Meeting could not be conducted within the alleged venue viz., Sankar Nagar Nellai Nadar Uravind Murai Kalyana Mandapam, booked for General Body Meeting, since it was cancelled and the said Mandapam was found locked and closed on 30.05.2008 and therefore the election of the respondents in the above said General Body Meeting alleged to be held outside the Kalyana Mandapam is not true and further so as to prove the above said contention, the contesting respondents/defendants have not produced reliable documents like Minutes of the meeting, video, photographs etc. In support of the above said contention, he relied on a decision reported in AIR (38) 1951 MADRAS 831 (N.V.R.Nagappa Chettiar and another Vs. The Madras Race Club by its Secretary, Mr. H.L.Raja and others), wherein in para 14, it has been held as follows:
"14. ... The burden of proving that a special resolution was passed at the meeting in the circumstances of this case when it vehemently denied by the plaintiff was certainly the defendants. Of course if there had been a record of the minutes of the meeting as contemplated by S.83. Companies Act that would have helped the defendants and would have shifted the burden on the plaintiffs to show that what was recorded was not true and accurate. In the absence of such record the burden lies heavily on the defendants to prove beyond doubt that the special resolution was moved at the meeting and carried by the required majority. In our opinion, the defendants did not dare to put the question to these witnesses, as they were not sure of their ground. This is the only natural inference possible in the circumstances of the case."
31. Per contra, the learned counsel appearing for the contesting respondents/defendants would submit that both the trial Court as well as the first appellate Court had elaborately discussed about the oral and documentary evidence on either side and finally concluded that the meeting was convened on 30.05.2008 in the same venue (i.e.) open space available within the compound wall at Sankar Nagar Nellai Nadar Uravin Murai Kalyana Mandapam and further the alleged contention is purely a question of fact and not proved it is perverse finding and hence the appellant is not entitled to question the concurrent findings of both the trial Court and the first appellate Court. Further, the learned counsel appearing for the appellant would submit that 410 members have given Ex.B8 requisition to convene the meeting on 15.02.2008 to the President and since the President failed to convene the meeting within 60 days, the said 410 members have given a paper publication on 08.05.2008 under Ex.B9 in accordance with Section 26 of the said Act r/w Section 25(1) of said Rules and further contended that since this Court already granted stay of another meeting proposed to be held on 29.05.2008 by 320 members, the above said Kalyana Mandapam was locked and therefore, as published in Newspaper, the General Body Meeting was convened on 30.5.2008 in the same venue of outer vacant space of the Mandabam within the compound wall and the people who attended the meeting stood there and participated in the meeting and passed resolutions and to prove the above said facts on the side of the defendants examined D.Ws.2, 3, 4, 6 and 7 and therefore, the contention of the appellant/plaintiff that no such meeting was held on 30.05.2008 and resolution not passed in the above said meeting are all false and in support of his contention, he relied on a decision viz. The Music Academy, Chennai Vs. Inspector General of Registrationh, Chennai (2005 (4) MLJ 608) wherein in paragraph 35 it has been held as follows:-
"35. ... Moreover, in view of the provisions contained in Section 55 of the Act to the effect that no act or proceeding of the Society or any Committee shall be deemed to be invalid merely on the ground of any defect in the organisation of the Society or the formation of the General Body or the constitution of the committee on the ground of any defect or irregularity in the election or appointment of a member of the committee, notwithstanding some defects in the election of some of the members, it must be held that the Executive Committee had been validly elected and the act or proceedings of the Society or the committee cannot be impugned."
32. Both the courts below have discussed in detail about the oral evidence and also various documentary evidence particularly. Exs.B11 and B.12, which are reports of competent authorities viz., Tahsildar, and RDO, Tirunelveli and finally concluded that the above said meeting was held on 30.05.2008, as contended by the respondents/defendants. The main contention of the appellant/plaintiff is that the above said open space available in front of the Kalyana Mandapam is not sufficient to participate 2000 to 3000 persons in the meeting and also mainly contended that to prove the above said meeting, the respondents/defendants have not produced reliable documents like Minutes of the proceedings or videos, photographs etc. Learned counsel for the respondents/defendants would submit that the proceedings of the General Body Meeting should not be deemed to be invalid merely on the ground of any defect in the organisation of the society and formation of General Body Meeting or Constitution of Committee on the ground of any irregularity in the election or appointment of members of the committee and the only non-production of the alleged document is not a material defects and therefore, the contention of the appellant/plaintiff cannot be accepted.
33. As rightly contended by learned counsel for contesting respondents/defendants, in the instant case, on the side of the contesting respondents, have examined several witnesses, namely, D2, D3, D4, D6 and D7 to prove the above said meeting and also proved by way of producing Exs.B11 and B12 reports, issued by competent Government officials and other documentary evidence and hence only on the ground of non-production of minutes books and photographs cannot be presumed that no such meeting was held on 30.05.2008. Further, the appellant/plaintiff failed to examine relevant witness to prove the allegation that no such meeting on that date. Therefore, the decision relied on by appellant/plaintiff i.e. AIR (38) 1951 MADRAS 831 not applicable to the facts of this case.
In the above said circumstances, the decision of the Honourable Supreme Court in Dinesh Kumar Vs. Yusuf Ali (2010 (12) SCC 740) is relied on by learned counsel for appellant/plaintiff wherein in para 25, it has been held as follows:
"25. Thus, the law on the subject emerges to the effect that second appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the findings of fact recorded by the Courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to reappreciate the evidence. ...."
In the instant case, the Courts below correctly came to conclusion on the basis of reliable oral and documentary evidence that the General Body Meeting held on 30.5.2008 by 410 members is proved as true and it is only question of facts and the above said finding is not proved as perverse finding and therefore no need to interfere in the above said concurrent finding and answered the third substantial question of law accordingly.
34. Regarding fourth substantial question of law is concerned, the learned counsel for the appellant would contend that in the alleged extraordinary General Body Meeting held on 30.05.2005 removed all the elected administrative committee members including office bearers on one stroke and the above said power vest with only the Government under Section 34-A of the said Act and therefore, the removal of entire Administrative Committee Members is not valid. For support of his contention, he relied on the decision of this Court in R.Karuppan, Advocate v. P.K.Rajagopal, Secretary Advocates' Association, High Court, reported in (2001 (3) SCC 486), wherein in paragraph 16 it has been held as follows:-
"16.According to the bye-law, "council" means the Governing Body to whom by these rules, the management of the Association is entrusted. That means the existing members of the council consists of the President, Secretary, Librarian and the members shall elect members to fill up any vacancy that may arise in between the two Annual General Body Meeting. Therefore, it is clear that as per the bye-laws also, there shall not be a vacancy to the post of President or Secretary or Librarian or any other Members, i.e., always the Governing Body shall consist of the President, two Secretaries, one Librarian and eleven ordinary members. The bye-law does not envisage a situation where a vacancy in the post of the President or any other office-bearers. The total number of members in the council shall be 15. Therefore, the alleged resolution of the General Body that the Governing Council has been dissolved appears to be against the by-laws also. Therefore, that resolution is not valid."
35. The learned counsel for the contesting respondents would submit that the above said ground is not raised in the pleadings and also not raised before the trial Court and no issues have been framed and no finding was given by the trial Court and only raised for the first time in the first appellate Court and before this Court and therefore without pleadings, the above said contention cannot be considered and also contended that no such situation arises to invoke Section 34(A) of the said Act and to substantiate the contentions he relied on two decisions reported in (1) 2006 (4) L.W. 409 (B.Suresh Chand V. State of Tamil Nadu and another), wherein it is held in para 30 as under:
"30. The distinction between "material facts" and "particulars" cannot be overlooked. Material facts are primary and basic facts which must be pleaded by the party in support of the case set up by him, either to establish his cause of auction or defence. Since the object and purpose is to enable the opposite party to know the case he has to meet, in absence of pleading a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit. Particulars, on the other hand, are the details of the case. They amplify, refine and embellish material facts. They give the finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative."
and (2) 2005 (4) MLJ 608 (The Music Academy, Chennai Vs. Inspector General of Registration, Chennai (2005 (4) MLJ 608), in which, para 42 reads as follows:
"42. So far as Sec.34-A of the Act is concerned, such provision relates to supersession of the committee. Under the aforesaid provision, action can be taken by the Government for supersession of the committee of the Society if such committee is not functioning properly or the affairs of the Society or the committee has contravened any of the provisions of the Act or the Rules made thereunder or wilfully disobeyed or wilfully fails to comply with any lawful order or direction issued under the provisions of this Act or the Rules made thereunder. Before taking any such action, the Government is required to give an opportunity to the committee to make its representation."
36. In the instant case, on the side of the appellant/plaintiff has not pleaded in the plaint and also not proved the above said contention by reliable oral and documentary evidence and further, as already discussed, necessary requisition was given to the Secretary for convening the meeting and since he had not convened the meeting, publication was made as per provisions of Tamil Nadu Societies Registration Act and Bye-laws and General Body Meeting was also convened and in the above said meeting all the Administrative Executive Committee Members were removed and adhoc committee was appointed for election of new Executive Committee Members. The learned counsel for the appellant has not shown any provisions in the Tamil Nadu Societies Registration Act or Bye-laws specifically to prove that if removed all the Executive Committee Members in single stroke, it is illegal or against provision of Act or Bye-law.
37. As rightly contended by the learned counsel for the respondents/defendants and in the decision of the Hon'ble Supreme Court reported in (2001 (3) SCC 486) relied on by the respondents, the General Body does not have power to remove all Executive Members and further the above said case relied on by the appellant in the Bye-laws does not envisage the situation where a vacancy in the post of President or any other office bearers and therefore, the above said facts of the case are not applicable to the facts of the present case, since in the present case, the bye-law itself provide to remove all the office bearers by convening General Body Meeting and further as per the decisions relied on by the respondents/defendants the plaintiff has not pleaded the above said contention in the plaint and only at the time of first appellate Court raised the above such question and also the situation described in the decision relied on by respondents i.e. 2005 (4) MLJ 608, to rely Section 34(A) does not arise in the present case, as rightly contended by the learned counsel for the respondents/defendants and therefore, this 4th substantial question of law is answered against appellant/plaintiff.
38. The next question of law viz. 5th question of law, is concerned, learned counsel appearing for the appellant has not seriously objected the concurrent findings of both Courts below by stating that it is not relevant to decide in the second appeal and also submitted as 'not pressed' the same in the written arguments itself. In the above circumstances, learned counsel appearing for the contesting respondents would submit that 410 members of the Society had issued necessary notice to the President on 15.2.2008 for convening the General Body Meeting and as per Rule 27 of Tamil Nadu Societies Registration Rules, the meeting ought to have been convened by the President within one month from the date of requisition and as per the Bye-laws the meeting ought to have been convened within 60 days from the date of receipt of the requisition and admittedly, no meeting had been convened by the President and therefore, the above said 410 members invoking Section 28(2) of Tamil Nadu Societies Registration Act announced that they are going to conduct the meeting on 30.5.2008 at Nellai Nadar Uravin Murai Kalyanamandapam at about 10.00 a.m to discuss and pass suitable resolutions regarding the subject mentioned in the requisition and also 410 members had given a paper publication on 8.10.2008, as per Ex.B9. It is further contended that as per Section 26 of Tamil Nadu Societies Registration Act r/w Rule 25(a) of Tamil Nadu Societies Registration Rules, notice should be given before 21 days prior to the date of meeting and the notice to satisfy the date, hour and object of the meeting and if the subject is regarding amendment of the Bye-law itself containing such copies of amendment and therefore, there had been due compliance of Section 23 (2 and 3) of the said Act and r/w Section 28(3) of said Rules. Both Courts below discussed in detail in their judgments and concurrently held that there had been valid publication as per the provisions of Tamil Nadu Societies Registration Act and Rules and hence no interference need.
39. In the instant case, as already discussed, the President had not convened the meeting as per Ex.B8 requisition sent by 410 members on 15.2.2008 and hence, on 8.5.2008, notice was sent by the above said members by publication as per Section 25(2)(d) by giving 21 days time before the day appointed for such meeting i.e., on 30.5.2008 and further, all the necessary particulars had been given as per the above said Act and Rules in the above said application and therefore, as rightly held by both the Courts below, there is no illegality in the compliance of the above said provisions of Tamil Nadu Societies Registration Act or Rules or Bye-law of the Society and answered this question of law also as against appellant/plaintiff.
40. With regard to sixth substantial question of law is concerned, the learned counsel for the appellant would submit that unless specific Agenda, the members cannot know about it in advance and may not be in a position to inspect the records of the Society and moreover, if it is allegation or complaint against any of the office bearers or members of Administrative Committee, then they put to notice by way of complying with the principles of natural justice, but in the instant case, the contesting respondents claim that the entire Executive Committee was removed and Adhoc Committee i.e., respondents 1 to 9 and election officer i.e., 10th respondent were appointed and there is no specific agenda for removal of all the Executive Committee Members and erroneously incorporated the agenda in favour of the contesting respondents and therefore, the resolution of removal of the members was illegal.
41. The learned counsel for the respondents would submit that the trial Court had discussed in detail in para 29 and 30 of its judgments and the first appellate Court also discussed in para 35 and 38 of its judgment and both the Courts concurrently came to the conclusion that there was prior Agenda for passing resolution regarding removal of existing office bearers and also announced election for office bearers. Further, the learned counsel for the appellant would submit that in the instant case, Ex.B9 paper publication had been published in accordance with Rule 25(2) of Tamil Nadu Societies Registration Rules and as per Rule 25(d) notice to the proposed members had been given and in compliance of Section 26(3) of Tamil Nadu Societies Registration Act, it is specifically mentioned the object of the meeting and reading of subject Nos.2,4,6 and 10 in Ex.B9 will clearly prove that all the subjects of removal of members, who are acting against the interest of the Society giving powers to Election Committee, to consider and discuss the activities of the Executive Committee Members and conducting all follow up action based on the resolution have been mentioned and therefore, all the provisions of Tamil Nadu Societies Registration Act and Rules have been duly complied with and further contended that PW.1 himself clearly admitted at the time of evidence that the proposed amendment in the Bye-laws were published in Newspaper and also all the agenda for the meeting mentioned in Ex.A11 and also he admitted that he read over the publication regarding the Agenda for the meeting and further PW.1 has not stated in his evidence that he was not able to read over or understood the proposed action of removal of executive members. It is also submitted that as per the decision reported in (2005 (4) MLJ 608) discussed earlier, the proceedings in the above said General Body Meeting cannot be invalidate since any defects or irregularity in the proceedings cannot be invalidated the resolutions passed in the said General Body Meeting.
42. In the instant case, as already discussed, 410 members have given requisition for convening the Extraordinary General Body Meeting to the President and since the President not convened the meeting, the above said 410 members had given publication Ex.B9 with all particulars contained as per Section 26(3) of the Bye-laws and in the above said publication subject Nos.2, 4, 6 and 10 in Ex.B9 clearly proved that all the subjects of removal of members, who were acting against the interest of the Society giving powers to the Election Committee, and to consider and discuss the activities of the Executive Committee Members and taking of follow up action based on the resolution on the subjects have been clearly mentioned in Agenda No.6. Therefore, no illegality in the election proceedings and no interference needs in the concurrent findings of both the Courts below and the sixth substantial question of law also is answered as against appellant/plaintiff.
43. Learned counsel appearing for the contesting respondents has submitted at the time of concluding his arguments that the General Body Meeting organised by 410 members was duly convened and resolutions were passed and as per Resolution dated 30.5.2008, elections were conducted as per provisions of Bye-law and Act but only for the reason this Court passed an order of status quo to be maintained till the disposal of this suit in the Civil Revision Petitions. Office bearers could not be assume charges but this Court had not cancelled or set aside the above election and in the above circumstances, the office bearers elected in the above meeting are entitled to assume charges and function as office bearers until they removed or till the period prescribed from assuming charge under the provisions of Tamil Nadu Societies Registration Act and Rules and also as per bye-laws and therefore prayed to pass such direction by this Court in second appeal. It is not in dispute that only as per Order of this Court passed in CRPs(MD).Nos.1104/2008, 1144/2008 and 1145/2008, the office bearers could not be assume charge till date since this Court directed to maintain status quo till final disposal of this suit.
44. As already discussed, the appellant has no locus standi to file the suit and there is no illegality in the above General Body meeting dated 30.5.2008 and in the above circumstances, as rightly contended by the learned counsel for the contesting respondents/defendants, the office bearers who were elected as per resolutions passed in the General Body meeting dated 30.5.2008 are entitled to assume charge immediately and also they are entitled to continue as office bearers for the period prescribed in the provisions of Tamil Nadu Societies Registration Act and Rules and as per bye-laws from the date of assuming charges or until they are duly removed from office by General Body meeting and therefore with the above said observation, this second appeal is to be dismissed, since no interference needs in the above said concurrent findings of both Courts below.
45. In the result, the second appeal is dismissed and the judgments and decrees of both Courts below are confirmed. Consequently, connected M.Ps are dismissed. However, there shall be no order as to costs.
MPK/vks To
1.The Addl. District Sessions Judge/ Fast Track Judge No.1, Tirunelveli.
2.The Principal Subordinate Judge, Tirunelveli.