Resident Welfare And Cultural ... vs Shri Govind Sharma
2013 Latest Caselaw 6629 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 27
 

 
Case :- CIVIL REVISION No. - 430 of 2012
 

 
Revisionist :- Resident Welfare And Cultural Society And Others
 
Opposite Party :- Shri Govind Sharma
 
Counsel for Revisionist :- V.D. Shukla,P.N. Saksena
 

 
Hon'ble Vishnu Chandra Gupta,J.

Heard learned counsel for the revisionists. None appeared on behalf of the respondent.

The order impugned dated 10.7.2012 in this case  is an order passed rejecting the application under Order 7 Rule 11 Code of Civil Procedure (for short CPC), by which the  Civil Judge (Senior Division), Gautambudh Nagar declined to reject the plaint.

The brief facts for deciding the present revision are that the plaintiff Sri Govind Sharma filed Civil Suit against Resident Welfare and Cultural Society (hereinafter referred to as the 'Society') and its secretary Sri Sunil Puri and President Sri R.K. Khosla for the relief that a prohibitory injunction be issued against the defendants restraining them for terminating the membership of the plaintiff from the membership roll of club 26. The relief for declaration or mandatory injunction against the defendants directing to quash the show cause notice dated 16.3.2012 was also sought. It was further prayed that Management Committee/defendant may be directed to amend Rule 8A of the memorandum of the Association of Club 26 in conformity with  the provisions of Societies Registration Act.

According to the plaintiff a show cause notice has been issued to plaintiff by opposite party no. 2 , Secretary of the Society  threatening to terminate the membership of the plaintiff in the light of  Rule 8A of the memorandum of the Association and Rule of the club. The said show cause notice was replied by the plaintiff. Before taking any action in pursuance of the reply by defendants the present suit was filed. In that suit at the very outset an application under Order 7 Rule 11 C.P.C. was moved on the ground that the show cause notice does not provide a cause of action to file the said suit. The learned Trial Court after hearing the parties rejected the application under Order 7 Rule 11 C.P.C.

Learned counsel for revisionist has relied upon two judgments in support of his contention. The first is reported in AIR 2007 Supreme Court 906 Union of India & Anr. Vs. Kunisetty Satyanarayana and other is AIR 2009 Karnataka 76, S. Narayan vs. Karnataka State commission for Women, Bangalore.

The counsel for revisionist relied upon paragraph 14 of Kunisetty's case. Para-14 of case of Kunisetty Satyanarayana (supra) is reproduced herein below:-

"The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge sheet is that at that stage the writ petition may be held to be premature. A mere charge sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. it is well settled that a writ lies when some right of any party is infringed. A mere show cause notice or charge sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed that the said party can be said to have any grievance".

Learned counsel has also emphasized to paras 8.3, 8.4, and 8.5 of judgment in S. Narayana's case (supra) are quoted as under:-

"8.3.  Pursuant to the aforesaid provisions of the Act, the Commission, acting upon the complaint filed by Venkataramanaiah and others, has issued notice to the appellant to appear before it for personal hearing. If the Appellant-writ petitioner has any grievance or objections against the notice, the only option for him is to appear before the Commission and file his objections, instead of rushing to this Court.

8.4. The Supreme Court in the case of Special Director and another V. Ghulam Ghouse and another reported in 2004 AIR SCW 416 : (AIR 2004 SC 1467) has held thus:

"5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show cause notice was totally nonest in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice  was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initial, before the aggrieved could approach the Court."

8.5. In the instant case, admittedly, the appellant has not responded to the show cause notice and filed his objections, but straightway has approached this Court in a writ petition. Therefore, without going to the merits of the case, in our considered opinion, the learned single judge has rightly dismissed the writ petition holding the same as premature. Accordingly, finding on merit, we dismiss the writ appeal.

In the case of Kunisetty Satyanarayana (supra) it has been observed that tendency of  court interfering the matter at the stage of show cause notice or issuance of charge-sheet should be deprecated.

On the strength of this authority it has been submitted by the learned counsel for the revisionist that Court should not entertain the suit and instead of declining of entertaining the suit the trial court granted interim protection to the plaintiff.

Before deciding this case the Rule 8A and 8B of the Memorandum of the Society is required to be gone into merits reads as under:-

8. Termination of Membership

A. Grounds

A member shall cease to be member of the club in any of the following contingencies:-

(i) On death: provided, however, the spouse of the deceased member shall have the option to be made a member without paying additional fees. The option has to be exercised within three months of the death unless the President or the Managing Committee for sufficient reason, agree to condone the delay.

(ii) On resignation.

(iii) On being adjudged insolent.

(iv) On being convicted of an offence, which involves moral aptitude.

(v) On indulging in activities which are prejudicial to the interest of the Club.

(vi) On being in default of dues of a member exceeding beyond a period of 6 months, a notice may be sent to member for payment of dues in 15 days and the membership shall automatically stand terminated if not paid after the notice period.

(vii) On being found that information given in by the applicant in his application for membership was false on some material point.

(viii) On being found that person is mentally sick or not in stable condition of mind.

B. Procedure

In any of the contingencies in (iii) to (vii) mentioned above brought to the notice of the Management Committee by the Secretary or otherwise, notice would be issued by the Management Committee to the member concerned specifying the ground on which his case is covered to give a reply within the specified periods and if the same is not found satisfactory or no reply is given, a decision terminating his membership would be taken which shall be final.

It is well settled that the things should be done in the manner in which they ought to have been done in accordance with law or not at all. It is also well settled that  if the competency of initiating an action is challenged that shall be subject to jurisdiction under Section 9 of C.P.C. as already held in para 16 of Kunisetty Satyanarayana (supra) which reads as under:-

16. No doubt, in some very rare and exception cases the High Court can quash a charge-sheet or show cause notice if it is  found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.

In this case notice has been issued by the  Secretary of the Society.  Rule 8-B provides that in any of contingency as provided in Rule (iii) to (vii) of Rule 8 the matter should be brought to the notice of the Managing Committee by Secretary or otherwise Managing Committee to take a decision. It is therefore only the Managing Committee who may take a decision to initiate the proceeding and if the Managing Committee decided to initiate the proceedings against any member, the Secretary in pursuance thereof will issue show cause notice on behalf of Management Committee.

It is further submitted that the plea regarding competence of issuance of notice has not been specifically taken by the plaintiff either in the reply notice or in the plaint.

So far as the reply of notice is concerned, it has been annexed with this petition as annexure-3, the relevant portion of the notice is reproduced herein below:-

"It is also denied that the membership of my client can be terminated by you by invoking the provision of Rule No. 8A of the Memorandum of Association and Rules of Club-26 because the said rules pertaining to termination of Membership is inconsistent with the provisions of Societies Registration Act, 1860."

In para 9 of the plaint, plaintiff/respondent challenged the competence of defendant no. 2 to issue notice, which reads as under:-

"The defendant no. 2 served the show cause notice dated 16.03.2012 threatening to terminate the membership of plaintiff based on provisions of Rule no. 8A of the Memorandum of Association and Rules of Club-26. That the said show cause notice is barred by law."

Admittedly there is nothing on record to show that Managing Committee has taken any decision before issuing show cause notice. Hence at this stage, it cannot be said that the order passed by the trial court is erroneous.

The trial court has decided the petition under order 7 Rule 11 C.P.C.  also on the grounds and holding therein that the plaint cannot be rejected on the plea of premature cause. As the matter relates to competence of issuance of the notice by opposite party no. 2, this matter is to be scanned by the trial court in the course of disposal of suit. Hence at this stage the proceedings cannot be struck down which has been initiated in the form civil suit.

The Apex Court categorically held that the petition may be entertained in exceptional cases when the questions of jurisdiction or competence of authority to initiate the proceedings are under challenge.

In the aforesaid circumstances it cannot be said that the plea of lack of jurisdiction and competence to issue notice by Secretary of the club could not be taken, therefore, I find no merit in this revision.

Accordingly, the revision is dismissed. The trial court may proceed with the suit expeditiously and try to decide the same as early as possible without giving unnecessary adjournments to either of the parties.

Order Date :- 28.10.2013

Dhirendra