Shri N.S.S. Mani And Ors. vs Delhi Gymkhana Club Limited
1994 Latest Caselaw 732 Del

JUDGMENT

R.C. Lahoti, J.

1. Through an application under Order 39 Rule 1 & 2 CPC, the plaintiffs seek an injunction in the mandatory form commanding the defendant Delhi Gymkhana Club Ltd. to permit the four plaintiffs the use of all facilities of the Club.

2. The suit and the application have been filed on 11.8,94. Briefly stated the facts in so far as relevant for the purpose of disposing of the controversy at this stage are not much in dispute and may briefly be noticed. On 20.12.93 a Joint Committee of the Club gave a report which was approved by A.G.M. on 29.12.93. Accordingly, applications were invited for membership in special category. The plaintiffs are the four amongst other who made such applications and were allowed such membership w.e.f. August, 1993 onwards.

3. One Sanjeev Kumar Singh a permanent member of the Club filed a suit No. 98/94 in the Court of Shri Sunil Kumar Aggarwal, Sub-Judge, Delhi and therein got an injunction on 7.4.94 restraining the defendant-Club from permitting any of the persons mentioned in list Annexure-A (which list includes the four plaintiffs herein) from using any of its facilities and benefits in any manner whatsoever till disposal of the suit.

4. The defendant Club has filed an appeal against the order of the Sub-Judge. In the appeal, an interim stay on the injunction order c f the Sub-Judge was sought for which has been denied by the Addl. Senior Sub-Judge on 13.5.94.

5. It appears that Mr. M.S.S. Mani, the plaintiff No. 1 herein has filed an application under Order 1 Rule 10 CPC seeking impleadment before the Addl. Senior Sub-Judge as also before the Sub-Judge. The order dated 28th May, 1994 passed by the Addl. Senior Sub-Judge discloses the Counsel for Mr. N.S.S. Mani having not pressed the application before that Court on the ground that similar application was pending before the Trial Court. Consequentially the application has been dismissed.

6. Learned Counsel for the plaintiffs has submitted that the plaintiffs have been placed in a situation incapable of solution. They are not the parties before the Sub-Judge. Still the injunction issued by the Sub-Judge is operating against them. Learned Counsel for the plaintiffs has submitted before me that this Court be pleased to grant an injunction as prayed for hereat.

7. Mr. Sanjeev Kumar Singh, the member of the Club who has filed the suit before the Sub-Judge is not a party in this case.

8. The two sets of plaintiffs before the two Courts have created a strange situation. The plaintiff before Sub-Judge knows it well that the injunction though sought for and issued against Gymkhana Club would in result operate against such persons who have been allowed special category membership, yet such members, the person affected, have not been joined as parties to the suit On the contrary, the plaintiffs herein are seeking injunction from this Court which if allowed is sure to run in conflict with injunction order dated 7.4.1994 granted by the Sub-Judge. In both the cases Zymkhana Club is the sole defendant. It would be impossible for the Club to honour both the injunctions. The Club and its office bearers surely run the risk of being haulted-up for having violated one of the two injunctions.

9. It is well settled that injunction is discretionary jurisdiction of Court. It is not bound to grant an injunction merely because it may be lawful to do so. There are several factors which have to be taken into consideration and which govern such discretion of the Court. The conduct of the parties has to be seen. The considerations of public policy and larger interest of the Society have also to be kept in view. The Court would not by its command create a situation which would be incapable of solution nor command a party to do something which it cannot possibly do.

10. Placing reliance on Khushi Ram v. Lal Man, 1982 RLR 681, Bipan Kumar v. Sham Sunder, and Dasari Suryanarayana v. Dasari Venkata Subbaiah, , learned Counsel for the plaintiff has submitted :--

  (i)     that the plaintiffs are not bound by the order of injunction passed in a case to which they are not a party inasmuch as an injunction operates only in personam;  
 

 (ii)    that this Court being a Court of higher pecuniary jurisdiction may well entertain the suit pending before the Sub-Judge and so may transfer the same to this Court and consolidate-the two for trial. None of the submissions made has appealed to me in the circumstances of the present case. Merely because a Us is subsequently initiated in the High Court touching the same subject matter but by a different party, it does not necessarily mean that another suit filed by another set of person(s) should be transferred to the High Court and thereby increase the load on the dockets of this Court.  
 

11. So also this Court would not exercise its discretionary jurisdiction to grant an injunction running in conflict with an order of injunction passed by a Court of competent jurisdiction and thereby command the defendant to flout the order of injunction previously passed, operating and binding on him though by a Subordinate Court. In the opinion of this Court, the remedy of the plaintiffs lies in seeking their impleadment before the Sub-Judge and then seeking vacating of the order of injunction.

12. Learned Counsel for the plaintiff has submitted that every plaintiff is a dominus litus; it is for him to choose his opponents; and so the plaintiff herein may not succeed in securing impleadment before the Sub-Judge if the plaintiff threat be opposed to the joinder as defendants in that suit of the plaintiffs herein. This contention also has not appealed to me. The rule of dominus litus is not a rule of universal application. Under Order 1 Rule 10 Sub-rule 2, the Court has statutory power to join a person as party to the suit who ought to have been joined or whose presence before the Court may be necessary. In any case the plaintiffs have to move the Court of Sub-Judge and see what happens to their prayer. Prima facie it is difficult to conceive that a Civil Court would refuse to hear a person and to join him as a party/though the relief sought for before it is sure to effect him directly and adversely.

13. For the foregoing reasons, the application is rejected for the present.

14. The hearing in the suit is adjourned awaiting the orders of the Sub-Judge on the application seeking impleadment before him filed or to be filed by the plaintiffs herein. It is expected that the learned Sub-Judge would hear and dispose off such application at the earliest.