Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 2642/19(Suit 1955/19)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.2642/2019
(CNR No.MHCC01-007243-2019)
IN
S.C. SUIT NO. 1955/2019
Dadar Club & Ors. ..Applicants
In the matter between :
Sandeep P. Pradhan & Ors. .. Plaintiffs.
V/s.
Dadar Club & Ors. ..Defendants
Appearance:
Adv. Mr. Dalal with Adv. Mr.Akshay Puranik and Adv. Mr. Amol
Bhavare i/b Pragnya Legal for plaintiffs
Adv. Mr. Mihir R. Govilkar with Adv. Ms.Kinjal Jani with Adv. Shaba
Khan for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 27.11.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by defendant
no.2, who is managing committee member of Dadar Club, which is
defendant no.1 in the suit. Defendant no.2 has taken out the N/M for
himself or on behalf of defendants no.3 to 6 praying for rejection of
plaint as per provisions of Order VII Rule 11 of CPC on the ground that
the suit claim is barred by law from the statement made in the plaint.
The motion is supported by an affidavit of defendant no.2 Ashwin
Deshmukh.
2. Plaintiff no.1 has opposed the Motion by filing affidavit in
rely duly verified by Sandeep Pradhan. I have heard oral submissions of
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Ld. Adv. Mr. Dalal for plaintiff and Ld. Adv. Mr. Govilkar for defendants
at length and also perused various citations and authorities submitted
by them in support of their oral submissions.
3. It is submitted on behalf of the defendant no.2 that,
election of managing committee and scrutiny committee of the
defendant no.1 were held on 30.6.2019 and defendant no.2 was
president of the defendant no.1 Dadar Club. When the present suit was
filed at that time and even today, till date, office bearers of the
managing committee have not been elected.
4. It is contended in the present Motion that the plaintiffs'
claim in the suit is barred by law from the statement made in the plaint
and therefore, the plaint is liable to be rejected under Order 7 Rule 11
of CPC. It is submitted in para 1.2 in the plaint that the defendant no.1
is an association of persons known as Dadar Club. It is governed by
Constitution of the club. Defendant no.2 is the incumbent President of
defendant no.1 Club. The Chairman and Managing Committee members
defendants no.2 to 7 are managing committee members of Defendant
no.1 at the time of filing of the suit. Defendants no.8 to 10 were
members of the defendant no.1 and allegedly appointed members of the
Investigation and Disciplinary subcommittee, allegedly constituted by
the Managing Committee of the defendant no.1 for inquring into
wrongful and baseless allegations against the plaintiffs. In para 2.1 of
the plaint, it is alleged that, defendant no.1 is an Association of persons
located in Dadar (E), Mumbai and offers various facilities and services
to its members as per provisions of the Constitution of the Club, which
is annexed with the plaint vide Exh.A.
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5. On the above background of pleadings, it is submitted on
behalf of the defendant no.2 that, the association of persons is not a
legal entity, either juristic or natural person. No suit can lie against it. It
cannot sue or cannot be sued as per basic principles of law. Therefore,
the suit claim filed against the defendant no.1 club is not maintainable
in law.
6. It is further submitted that, defendants no.2 to 7 are made
parties to the suit being members of the managing committee at the
relevant time. The managing committee is responsible for the functions
and management of the defendant no.1 club. Office bearers of the club
are also members and discharging their function in the capacity being
office bearers of the club. It is submitted that, the managing committee
members of defendant club have not been made party in their personal
capacity but in the capacity of being office bearers of the club. Thus, it
is submitted that, no individual member of the managing committee
solely represents the action of the managing committed of defendant
no.1. The managing committee as a body of defendant no.1 has not
been made a party to the suit. Similarly, defendants no.2 to 7 who are
made managing committee members have been not been made
defendants in the suit in their representative capacity as there are about
3000 members of defendant no.1 club.
7. Thus, it is submitted that, the suit claim is totally
misconceived and contrary to the provisions of law. Ld. Counsel for the
defendant no.2 specifically argued that it is a settled legal position that,
the civil courts have no authority to act as a court of Appeal from the
decision of a body such as managing committee of defendant no.1 club.
Defendant no.1 Dadar Club is a private club, therefore civil court can
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only set aside the decisions of the managing committee if it is shown
that the managing committee has acted without jurisdiction, or has not
acted in good faith or acted in violation of the principle of natural
justice. But in the present case, no such case is made out by the
plaintiffs. Ld. Counsel for the defendant no.2 submitted that, as things
stand, the plaintiffs ought to have filed present the suit by seeking
permission of the court under Order 1 Rule 8 (1)(a) of CPC and could
have filed the suit against the defendants in their representative
capacity. But that has not been done in the present case. No such
permission has been obtained, therefore suit claim, as framed and filed,
is barred by law and the plaint is liable to be returned under Order 7
Rule 11 of CPC.
8. In support of above submissions, Ld. Counsel for the
defendant no.2 has placed reliance on the following authorities :
1. Commission of Income Tax, Bombay North,
Kutch and Saurashtra, Ahmedabad V/s. Indira
Balkrishna (AIR 1960 SC 1172).
2. T.P. Daver V/s. Lodge Victoria No.363 S.C.
Belgaum and Ors. (AIR 1963 SC 1144).
3. Jaisingh Choraria V/s. The National Sports Club
of India (2013 SCC OnLine Bom 932).
4. Kailash Nath Associates V/s. Delhi
Development Autohrity and anr. ((2015) 4
Supreme Court Cases 136)
5. State of Assam V/s. Union of India and Ors.
((2010) 10 Supreme Court Cases 408).
9. I have gone through the above authorities and ratio laid
down by the Hon'ble Apex Court and Hon'ble High Courts in the said
decisions.
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10. Per contra, Ld. Counsel for the plaintiffs has opposed the
present Motion and relied on the affidavit in reply submitted by plaintiff
no.1 Sandeep Pradhan and submitted that, present Motion as framed
and filed is totally misconceived and it is liable to be dismissed.
11. Ld. Counsel for the plaintiffs argued that, no ground as is
contemplated under Order 7 Rule 11 of CPC has been made out by
defendant no.2. Even there is no specific allegation that, the plaintiffs'
claim in the suit is barred by law or that the plaint do not disclose cause
of action. Ld. Counsel for the plaintiffs specifically argued that, the
main relief in the suit is, directions against defendant no.2 to 6, who are
managing committee members of the defendant no.1 club and more
particularly, present managing committee of defendant no.1 club has
acted with malafide intention, illegally and with vindictive attitude in
the matter. The acts of managing committee of the defendant no.1 club
are arbitrary, illegal and contrary to the principle of natural justice and
opposed to the constitution of the defendant no.1 club.
12. Ld. Counsel for the plaintiffs submitted that, the defendant
no.1 club has been joined in the suit as proper and necessary party in
the facts and circumstances of the case. It is submitted that, this court
being a competent civil court having jurisdiction u/s. 9 of CPC to quash
and set aside illegal and arbitrary action of the defendants. The
plaintiffs are entitled to seek declaration that, impugned order/ action
of the defendants, in respect of membership of the plaintiffs, is illegal
and bad. The plaintiffs are entitled to seek declaration for enforcement
of their rights as members of defendant no.1 club. Defendants no.2 to 6
being managing committee members of defendant no.1 club have been
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joined in the suit as necessary and proper party. Thus, it is submitted
that, the defendant no.1 club has been joined as it is representing all its
members. It is submitted that, the objection raised by defendant no.2 is
self destructive in that the managing committee of defendant no.1 club
has not been joined as party to the suit and in the same breadth, it is
contended that, the defendant no.1 club not being legal entity cannot
be made party defendant in the suit. Thus, the contentions of defendant
no.2 in the present Motion are self destructive and have the effect of
contradictory claims, which cannot be entertained by the court as legal
and proper.
13. So far as ground raised in the course of argument that the
plaintiffs ought to have filed the suit by taking prior permission of the
court under Order 1 Rule 8 of CPC, it is submitted that, the said
contention is not tenable in law. Ld. Counsel for the plaintiffs referred
to para 9 of the affidavit in reply and argued that, if at all the
defendants had any objection on this point, such objection ought to
have been taken by the defendants at the very first available
opportunity i.e. on the first date of hearing on 7.6.2019. Now, the
defendants have appeared in the suit and submitted to the jurisdiction
of the court. Therefore, now the objection on this ground that this
court has no jurisdiction to entertain the present claim is itself not
tenable. Ld. Counsel for the plaintiffs argued that, maintainability of the
suit and jurisdiction of the court are two different things and on the
both grounds, the plaintiffs have prima facie made out a case that the
suit claim, as framed and filed, is maintainable in law without prior
permission of the court and secondly, the plaintiffs' claim in this suit is
not barred by any provisions of law expressly or impliedly and
therefore, the Motion is liable to be dismissed. Ld. Counsel has
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alternatively submitted that assuming the court accepts the above
contention of the defendant that, permission of the court is required for
filing present suit under Order 1 Rule 8 of CPC, then such permission
can be subsequently applied and granted by the court as the same
requirement is purely technical and procedural one.
14. Ld Counsel for the plaintiff has relied on the following
authorities in support of his above submission :
1. The Hubli Panjarpole and Ors V/s. Saraswatevva
kom Bayappa Kalghatgi (1953 Indian Law
Reports, pg. 710).
2. Madhav Prasad Aggarwal and Anr. V/s. Axix Bank
Ltd. And Anr ((2019) 7 Supreme Court Cases 158)
3. Jagdishchander Sachdeva V/s. Royal Bombay
Yacht Club and Ors. (2005(1) Mh.L.J. 987)
4. Capt. Kailash Nath Harsh V/s. D.C. Patel and Ors.
((1999) 2 Bom CR 411 = AIR 1999 Bom 133).
15. I have gone through the above authorities and taken into
consideration ratio laid down by the Hon'ble Apex Court and Hon'ble
High Courts in the said decision.
16. On the above background, I have heard Ld. Counsels for
both sides and considered various authorities cited and relied upon by
them, I consider it necessary to briefly refer to the provisions of Order 7
Rule 11 of CPC. It can be seen that, the plaint can be rejected on the
grounds that it does not disclose cause of action, or relief claimed is
undervalued and plaintiff fails to comply and correctly value within
time granted by the court, suit is insufficiently stamped, suit appears to
be barred by law from any statement made in the plaint or that plaint is
not filed in duplicate etc.
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17. As far as present case is concerned, it deals with Order 7
Rule 11, subclause (d) of CPC. The main grievance of the defendant
no.2 in the present Motion is that, from the averments in the plaint
more particularly paras 1.2 and 2.1, the defendant no.1 club is an
association of persons, as per averments made by the plaintiffs
themselves. It cannot sue or be sued. If at all the defendant no.1 is to
be sued, it could have been sued in its representative capacity
representing all its members but in that case, the plaintiffs ought to
have sought permission of the court under Order 1 Rule 8 of CPC. No
such permission has been taken by the plaintiffs. Though the action
taken by the plaintiffs is by the managing committee of the defendant
no.1, it has not been made party in its representative capacity and even
defendant no.1 club has been joined as necessary or proper party but
the plaintiffs have not been able to distinguish the different between
what is necessary party and what is proper party and in both capacities,
how defendant no.1 club can be joined as a party defendant in the suit.
This argument of Ld. Counsel for the defendant no.2 on one hand is
that (1) the suit as framed and filed is not maintainable in law and (2)
it is barred by law as necessary permission under Order 1 Rule 8 of CPC
has not been taken.
18. On the other hand, it is the case of the plaintiff that, the
defendant no.1 club is body of persons as described in the plaint and
action taken against the plaintiffs is by managing committee of the
defendant no.1 club. Therefore, the defendant no.1 club is necessary as
well as proper party because if any decision is given by the court of law
and orders or directions are passed at the time of deciding the suit, then
it is for the defendant no.1 Club to comply with the same.
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Consequently, it is submitted that, the defendant no.1 club can be sued
along with other defendants and for that purpose, prior permission of
the court under Order 1 Rule 8 of CPC is not required. Assuming that,
such permission is required, it can be obtained subsequently during trial
of the suit also, as it is purely a matter of technical compliance or
procedural requirement of law. Ld. Counsel for the plaintiffs has
specifically argued that, the private club or body of persons can be sued
in the court of law in respect of the actions which are clearly prima facie
illegal, vindictive, arbitrary and contrary to the principle of natural
justice etc. and there are number of decisions of Hon'ble Apex Court
and Hon'ble High Courts on this point, on which the Ld. Counsel for the
plaintiffs has placed reliance. In fact, I find substance in the submissions
based on these authorities. In the above context, I would like to discuss
the legal principles which emerge from various authorities of superior
courts, cited and relied upon by both the sides.
19. It can be seen from the authorities cited and relied upon by
Ld. Counsel for the defendant no.2 that, in the authority at Sr.No.1 in
the case of Commission of Income Tax, Bombay North, Kutch and
Saurashtra, Ahmedabad V/s. Indira Balkrishna(supra), Hon'ble Apex
Court has considered the term “association of persons” of the said
decision. It is observed that, as per Sec.3 of Income Tax Act, every
individual, HUF, Company, local authority, firm, or other association of
persons or partners of the firm or members of the association
individually etc. have been considered. It is held that, the above term
'association of individuals' has to be read ejusdem generis with the word
immediately preceding i.e. firm or other groups of persons mentioned in
the Section. It can be seen that, the Hon'ble Apex Court has considered
the said term, its meaning and application in the context of provisions
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of Income Tax Act.
In the second authority in the case of T.P. Daver V/s.
Lodge Victoria No.363 S.C. Belgaum and Ors. (supra), in paras 4,7
and 8 , Hon'ble Apex Court has considered the aspect of jurisdiction
and power of associations like clubs and lodges to expel their members.
By referring to earlier decision it is held that, the members are covered
by Rule and Regulations of Club. It is contractual relationship and
expulsion of members shall be governed accordingly as per rules. It is
also held that, the doctrine of bias may be invoked to some extent in
case of domestic tribunals like those of clubs. In such case, because
members of the club can be expelled as per rules, however invocation of
unjust rules or the action of the expulsion by tribunal may be provided.
However there are some restrictions on the exercise of power of
domestic tribunals or club, and that the action is taken by following
principle of natural justice. In para 8 of the said decision, Hon'ble Apex
Court has laid down that,
(1) members of the club or domestic tribunal are bound by
rules ;
(2) rules are to be strictly followed and applied wherever
they are mandatory;
(3) jurisdiction of civil court is rather limited to interfere in
the action of domestic tribunal, club or lodge. It cannot
sit as a court of appeal. However, the court can set aside
decision/order of such body, if the said body acts without
jurisdiction or does not act in good faith or acts in
violation of the principle of natural justice etc.
In the third authority in the case of Jaisingh Choraria V/s.
The National Sports Club of India (supra), Bombay High Court has
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dealt with the identical cases where suit was filed by member of
National Sports Club of India challenging his expulsion on the ground
that the expulsion was illegal, malafide, in bad faith and without giving
opportunity to make adequate representation before the defendant club.
After analyzing the facts and legal position and after giving hearing to
both sides, in para 48,61 and 62, Hon'ble Bombay High Court has
referred to a decision in the case of T.P. Daver V/s. Lodge Victoria
No.363 S.C. Belgaum and Ors. (supra). However, on the facts the
court was satisfied that the prima facie action of expulsion of the
plaintiff from defendant club was found malafide and in bad faith.
Therefore, said action was stayed during pendency of suit.
In the authorities at Sr. No.4 in the case of Kailash Nath
Associates V/s. Delhi Development Autohrity and anr. (supra) and
authority at Sr. No.5 in the case of State of Assam V/s. Union of India
and Ors. (supra), Hon'ble Apex Court has considered the provisions of
Contract Act and Specific Relief Act in respect of award of
compensation and damages and provisions of Order 1 Rule 9 and 10 of
CPC as to what are necessary and proper parties to the suit. It is held
that, in case of Udit Narayan Singh Malpaharia V/s. Board of
Revenue (AIR 1963 SC 786), it is laid down that, necessary party is
one without whom, no order can be made effectively and a proper party
is one in whose absence an effective order can be made but whose
presence is necessary for a complete and final decision of question
involved in the proceeding.
20. Per contra, if the authorities cited and relied upon by Ld
Counsel for the plaintiffs are considered, it can be seen that, in the
authority at Sr.No.1 in the case of The Hubli Panjarpole and Ors V/s.
Saraswatevva kom Bayappa Kalghatgi (supra), Hon'ble Apex Court
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has held that, in cases where suit is instituted under Order 1 Rule 8 and
10 of CPC against an unregistered Association with numerous members,
then it has to be instituted with leave of the court in representative
capacity. The question before the Hon'ble Apex Court was, whether
such leave can be granted subsequently? It was held that, as laid down
in the earlier authorities, such leave was granted subsequently during
pendency of the suit and suit is not liable to be dismissed on the ground
that requisite leave has not been obtained at the commencement of the
suit.
In the second authority, in the case of Madhav Prasad
Aggarwal and Anr. V/s. Axix Bank Ltd. And Anr (supra), Hon'ble
Apex Court has considered the provisions of Order 7 Rule 11(d) of CPC
and held that, the relief of rejection of plaint under Order 7 Rule 11(d)
of the CPC cannot be granted in part i.e. only against certain
defendants. It is observed that, the plaint has to be rejected as a whole
or not at all, in exercise of the power under said provisions. The
plaintiff has relied upon this case because the defendant no.2 only has
applied for rejection of the plaint, therefore the plaint cannot be
rejected as against defendant no.2 alone.
21. In the third authority i.e. Jagdishchander Sachdeva V/s.
Royal Bombay Yacht Club and Ors. (supra), Hon'ble Bombay High
Court had an occasion to deal with the case involving similar facts and
circumstances, where members of a private club were expelled from the
club. They had filed a suit challenging their removal and prayed for
temporary injunction. Trial Court had refused to grant injunction,
therefore the members of the club, who were appellants before the
Hon'ble High Court had considered Rule No.43(vii) of the Club Rules
and examined, whether said rule was followed by the club while taking
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action against the members, which provided opportunity of hearing. As
per subrules, the delinquent was entitled to get an opportunity of
hearing. That opportunity had to be reasonable and proper. It was held
that, prima facie, the action of the club was contrary to the said rule. It
was held that, the club had not followed the procedure of giving
hearing before disciplinary action is taken and principles of natural
justice were not followed and the order of trial Court was set aside and
injunction was granted.
In the fourth and last authority i.e. Capt. Kailash Nath
Harsh V/s. D.C. Patel and Ors. (supra), Hon'ble Bombay High Court
had an occasion to deal with the case of identical facts involving
disciplinary proceedings of a Golf Club. It was held that, rules of natural
justice are to be followed mandatorily by the authorities and bodies
while conducting disciplinary proceedings. Complainant should not be
a judge in the same proceedings. A person cannot act as a witness as
also a Presiding Officer. In the above said case, after considering the
facts in detail and legal position on the point, Hon'ble High Court had
allowed the Motion and injunction was granted.
22. If the ratio of the above authorities is taken into
consideration and applied to the facts of the present case, I find that,
the present Motion taken out by the defendant no.2 for himself and on
behalf of defendants no.3 to 6 is not legal, proper and maintainable in
law. It is well settled legal position that, maintainability of a suit is one
thing and bar of jurisdiction of the court is another thing. In the present
case, defendant no.2 has taken objection of taking both grounds
simultaneously. It is very clear that, the activities of the private club are
covered by its own Rules or Constitution and generally civil court will
have no jurisdiction to intervene unless and until it is shown that, the
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action of the club is suffering from violation of the principles of natural
justice, void ab initio, illegal and arbitrary and vindictive in nature.
Only in such exceptional circumstances, the court can exercise its
jurisdiction. Further, it is also well settled that, the civil court will not
sit in an appeal for the action of the club under consideration. The
jurisdiction of the civil court is limited to prevent such action and to do
justice in every individual case and this aspect depends upon facts and
circumstances of every case and no straightjacketed formula can be laid
down in this regard.
23. Therefore, I hold that, in the present case, the plaintiffs are
entitled to file suit against defendants in its official capacity. Though, it
is clear that the plaintiffs have not obtained prior permission to sue the
defendant in their representative capacity under Order 1 Rule 8 of CPC,
the plaintiff can take appropriate steps in this regard during pendency
of the suit and trial of the case. In view of the rulings of the superior
courts this oprtion will have to be left open to the discretion of the
plaintiff and on this ground itself, it cannot be said that, the plaintiffs'
claim in the suit is not maintainable in law.
24. So far as second aspect of bar of jurisdiction is concerned, it
is held that, even if the plaintiffs have not sought prior permission of
the courtfor filing the suit against defendants in its representative
capacity, it cannot be said that, the plaintiffs' claim in the suit is barred
by law in view of statement made in the plaint. Moreover, there is no
express bar or provisions of law, which will prevent the plaintiffs from
instituting the suit against the defendants. Hence, I hold that, the
objections raised by defendant no.2 are devoid of any merit and cannot
be entertained. Hence, I proceed to pass following order :
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ORDER
1. Notice of Motion No. 2642/2019 is hereby dismissed and
disposed of accordingly.
2. The question of permission of the court under Order 1 Rule
8 of CPC is kept open, to be considered and decided by the
court during trial of the case.
3. The suit to proceed for further hearing on next date.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 27.11.2019 Gr. Bombay (C.R. 03)
Dictated on : 27.11.2019(Partly) & 3.12.2019 (remaining)
Typed on : 27.11.2019 and 4.12.2019
Signed by HHJ on : 5.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 5.12.19
TIME: 1.17 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 27.11.19
Judgment/ order signed by P.O on 5.12.19
Judgment/ order uploaded on 5.12.19
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