New Delhi Durga Puja Samiti And ... vs New Delhi Kali Bari And Ors.
1995 Latest Caselaw 704 Del

JUDGMENT

Manmohan Sarin, J.

(1) The appellants have filed this appeal against the order dated 13.9.1995, passed by Ms. Indermeet Kaur, Additional District Judge, Delhi, dismissing the application under Order Xxxix, Rules I and 2 Civil Procedure Code seeking to restrain the respondents, from organizing the annual Durga Puja, at the New Delhi Kali Bari premises.

(2) The facts leading to the filing of the appeal are as under:- (I)The appellant No. 1 is a Samiti i.e. an association of persons, comprising Bengali Hindus. The appellant No. 2 is the General Secretary of the appellant No.1 Samiti, while the others are the members of the Executive Committee of the Samiti. The sole function of the appellant No.1 Samiti and its members, is to celebrate the annual Durga Pu)a with the traditional gaiety, reflecting the culture and religion of the Bengali Hindus. The appellant Samiti submits that since the yeal: 1935, it has been organising the annual Durga Puja at the Kali Bari temple, premises of the respondent No. 1 Society. The respondent No.2 is the General Secretary of the respondent No. 1 society. (ii) The Durga Puja had been organized by the appellant No. 1 all the years except for the year 1993. The appellants then had filed a Suit No. 301 / 93 for injunction, assailing the decision of the respondents to organize the Durga Puja. The appellants alleged customary and legal right to perform Durga Puja at the Kali Bari Temple. The application for interim injunction was dismissed by Shri S.N. Dhingra, Adj, Delhi, holding that the appellants were only an assembly of a few persons, who had been celebrating Durga Puja annually, within the premises of respondent No.1, based on the permission granted by the respondent No.1. It was held that the appellant did not have any legal or customary right, but it was only with the consent of the respondent that the Puja was being performed. Another injunction application in the said suit, based on additional facts, which had been introduced in the plaint on amendment, met the same fate. It was held that the additional facts pleaded related to the internal management of the respondent and could not form the basis of the suit. (iii) The General Body of respondent No.1 in its meeting passed a resolution dated 21.8.1994, by which it restored back to the appellant Samiti the organisation of the Durga Puja, w.e.f. 1994. This was subject to the condition that the appellant would withdraw the suit filed for permanent injunction. The said decision was duly communicated to the appellant. The said suit was got dismissed as withdrawn on 16.9.1994, in view of the respondents' decision to restore Puja to appellant. (iv) The Managing Committee of respondents vide a decision taken on 29.7.1995, reversed the decision of the General Body, of letting the appellant Samiti, celebrate the Durga Puja and instead, decided that organisation and celebration of Durga Puja would be carriedout by the respondent No. 1 itself. The appellants Filed an execution application in the suit that had been dismissed as withdrawn. The said application was dismissed. A contempt petition was also dismissed. (v) The present suit for permanent injunction was filed by the appellants to restrain the respondents from organising the annual Durga Puja under its own banner and/or any other banner except that of the appellants. Along with the suit, the appellant had filed an application for injunction which was dismissed by the impugned order.

(3) The learned Counsel for the appellant has assailed the impugned order on the following.grounds:- (I)The learned Additional District Judge erred in holding that the decision of the General Body could be reversed by the Managing Committee of the respondents. The resolution of the General Body clearly restored the organisation and celebration of Durga Puja to the appellant w.e.f. 1994. The decision of General Body could be altered or reversed only by another duly constituted meeting of the General Body. The Managing Committee of the respondent did not have the power or competence to reverse the decision of the General Body. l (ii) The respondents did not communicate to the appellants, the decision of their Managing Committee to reverse the decision of the General Body. The appellants in the right earnest proceeded to organise Durga Puja and have already incurred expenses of nearly one lakh. Donations of Rs. 50,000.00 are said to have been collected, while there is a balance of over a lakh with them from last year. Some documents are filed in support. The balance of convenience it was urged was in favor of the appellants. In case injunction was not granted, the appellant apart from suffering monetary loss, would suffer irreparable damage to their goodwill and reputation, which cannot be compensated by damages. (iii) The respondents have been intentionally deferring the holding of Annual General Meeting with the ulterior design to carry out the illegal decision of the Managing Committee. (iv) The respondents had not even planned for the Durga Puja in their budget and no sanctions have been taken by them as required under their bye-laws. The appellants, therefore, submit that the Trial Court erred in not restraining the respondents from carrying on and organising the Durga Puja in its own name. i. respondents fn a rep by filed in opposition to the appeal, asserted that they were fully entitled to celebrate the Durga Puja in their own premises at New Delhi, Kali Bari Temple. The appellants were free to organize the Durga Puja at any other site than the Kali Bari premises of the respondent. The appellant No. 1 Samiti and its members did not have the locus to challenge a decision of the Managing Committee of the respondent and the suit filed was not maintainable. It was not a class or representative suit.

It was urged that the appellants had not come to the Court with clean hands as they concealed the filing of suit for permanent injunctions titled AJ(. Majumdar v. New Delhi Kali Ban Samiti and Others, by appellants Nos. 2,3 and 6, and three others pending in the Court of Ms. Kamini Lao. The above suit was filed. Appellant Nos. 2,3 and three others, in their capacity as members and member of Executive Committee of respondent No. 1. One of the reliefs sought was to restrain the respondents from collecting/receiving funds for celebration of annual Durga Puja for 1995, in contravention of the decision of the General Body held on 21.8.1994. This relief was given up by the appellants Nos. 2,3 and 6, through their Counsel on 22.9.1995,asnotpressed.Theappellantswerenotentitledtothediscretionary relief of injunction. The decision of the Management Committee to celebrate the Durga Fuja under its own banner, was held as fully justified and in accordance with its Memorandum of Association and objects. It was claimed that appellants had lost their credibility and respondents did not wish to their image by letting the appellants continue the Fuja. The decision of the General Body could not be one for perpetuity. Besides the said decision had been taken without complying with the procedure of giving notice as required under the bye-laws. In any case. Appellant Samiti and its members had no locus to question the decision. It was pointed out that some members of the respondent, supporting the appellants' cause attempted )(r)) dislodge the Managing Committee, prior to its term. The resolution for a mid term poll was defeated in the General Body Meeting on 23rd July, 1995. The General Body had therefore, reposed confidence in the Managing Committee of the respondent. The respondents submitted that assertion of the appellants that they were not communicated the decision of respondents to celebrate the Fuja itself is not correct. The meeting of the Managing Committee of the respondent was attended by the office bearers of the appellant and they were fully aware of it. A lack of formal communication, in these circumstances, was of no consequence. The respondents, it was submitted had incurred considerable expenses in the preparation of Durga Fuja. Orchestra had been booked, pandals were raised. A sum of Rs. 4 Lakhs (Rs. Four Lakhs only) had been collected as contribution. The celebration and functions for Durga Fuja commence on 29th September and continue till 3.10.1995. Documents and photographs in support of the above have been filed. Public notices have been issued. Invitation for the Fuja at the respondents' premises have been issued to high dignitaries and acceptance is also received. The respondent also submitted that the budget for the Durga Fuja had been duly approved by the Managing Committee and in due course the formal approval Along with other accounts will be done in the Annual General Meeting. As regards the allegation of deferring Annual General Meeting, the respondents explained that the Treasurer of the respondent No. 1. happens to be an office bearer of appellant No.1 and was not cooperating in signing of the accounts, so that the same could be finalised with the auditors. A requirement prior to holding of General Body Meeting.

(5) There is considerable force in the submissions of the respondents. The appellants do not have any locus to assail a decision of the Managing Committee of the respondents. The said decision can only be challenged by members of respondent No. 1, by conveying the special General Body meeting as provided for in the bye-laws. It was open to those members of the Samiti, who were also members of the respondent No. 1, to raise this issue and have the decision of the Managing Committee challenged, instead the present suit had been filed on behalf of the Samiti, which has no right to challenge the internal decision of respondent No. 1. The suit is not a representive suit. Moreover, as discussed appellants Nos.2,3 and 6 and three others had filed a suit for permanent injunction in their capacity as members of the Managing Committee of respondent No.1. The said suit was against respondent No. 1 and its officer bearers inter alia seeking to restrain them from collecting or receiving funds for celebration of the Annual Durga Puja. The above prayer was given up by these appellants in the suit, which is pending in the Court of Ms. Kamini Lao. The appellants' explanation that this was done to prosecute the present appeal does not alter the situation. The net result is that a suit filed by some of the appellants in capacity as members of the respondent No. 1" seeking the same relief has been given up. It would not entitle the appellant No. t Samiti or any of its members to seek the same relief against the respondents. The appellants have also concealed the fact of filing of the suit before Ms. Kamini Lao and the withdrawal of the relief sought in the present suit. Moreover, I find that the respondents have sufficiently explained the reasons for the decision taken in the meeting of the Managing Committee on 29.7.1995, to carry out the Durga Puja celebrations under its own banner. The minutes of the meeting which have been placed on record, duly reflect the consideration and factors that weighed with the respondent No.1's Managing Committee, to celebrate the Durga Puja under its own banner. This also contemplated in the objects and Memorandum of Association. Counsel for the appellants have placed reliance on the decision of Henry Houldworth And Others v. Lewis H. Evans and Thomas Hughes, reported at 1868(3) House of Lords 263, in support of their contention that the decision of the General Body could only be reversed by another meeting of the General Body and not by the Managing Committee. In the case cited, the question was whether it was open to the directors to receive proposals for retirement of the members of the Company beyond the date that had been fixed in the General Body Meeting of the shareholders? It was held that the directors have no power on the expiration of the date to receive proposals. This authority does not advance the appellants' case as in the present case the challenge is by the party, which does not have any locus. Moreover, it is significant to note that even in the cited case, it was observed "where shareholders know that their directors have been excercising their legal powers and take no steps in the matter and allow the things to remain unimpeached, they must be taken to have retrospectively sanctioned what has been done. In the instant case only members of respondent No.1, could have challenged the decision. As noticed in the submissions uf the respondents, an attempt was made earlier to dislodge the Managing Committee by the rival group prior to its term. This was rejected and confidence reposed by the General Body in the Managing Committee. In view of the above discussions, I find that appellants do not have a prima facie case. Coming to the consideration of balance of convenience, I Find that the respondents have produced sufficient material on record to establish the considerable preparations and expenses incurred by them in preparation of the Pandal and other items. Public notices have been issued. Invitations have been accepted. More than Rs. 4 lakhs has been collected. Besides the respondents admittedly have the infrastructure to carry out the Puja. The balance of convenience is therefore, in favor of the respondents and against the appellants. Admittedly the appellants became aware of the respondent No.1's decision to perform the Durga Puja as far back as on 27.7.1995, and thereafter when public notices were issued. The impugned order was also passed on 13.9.1995. Yet the appeal was filed by the appellants only on 21.9.1995. It is seen that the expenses that appellants claim to have incurred are mostly those which are after 29th July, 1995 and in the month of August, 1995. Accordingly they cannot claim any special equity in this regard. On the other hand the respondents have proceeded considerably in organising the Durga Puja and have placed sufficient material on record in support thereof. The respondents are also possessed of sufficient funds. The Managing Committee of the respondent No.1 has also approved the budget for the Durga Puja, which would finally be got ratified by the General Body in due course. Having regard to the fact that Durga Puja is one of the main religious function of the Bengali community, it would be in public interest that the same is conducted smoothly without any disruption. In view of the foregoing discussion, the appeal has no merit and is dismissed. A copy of the judgment be made available to the Counsel for the appellant.