Desh Bandhu Khurana vs National Sports Club Of India
2009 Latest Caselaw 4130 Del

*          HIGH COURT OF DELHI : NEW DELHI

+ I.A. No.3405 /2009& IA No.4220/2009 in C.S. [OS] No.2556/2008

                                 Reserved on: 17th September, 2009

%                                Decided on:    13th October, 2009

Desh Bandhu Khurana                                   ....Plaintiff
                   Through : None

                       Versus

National Sports Club of India                       ....Defendant
                     Through : Mr. D.K. Rustogi, Adv. with Mr. A.P.
                               Aggarwal, Adv. for applicant in IA
                               No.4220/2009
                               Mr. Saurabh Suman Sinha, Adv. for
                               applicant in IA No3405/2009

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                    No

2. To be referred to Reporter or not?                                 No

3. Whether the judgment should be reported                            No
   in the Digest?

MANMOHAN SINGH, J.

1. This order shall dispose of two applications being IA

No.3405/2009 under Section 151 of the Code of Civil

Procedure,1908(for short 'Code') for impleadment of five applicants

who are members of the National Sports Club of India (in short 'the

Club') and Central Council of the Club. Another application being I.A.

No.4220/2009 was also filed under Order 1 Rule 10 of the Code for

impleadment of three applicants who are also members of NSCI and

Central Council of NSCI.

2. The plaintiff filed the suit inter alia seeking a declaration to

the effect that the election by NSCI members for electing Central

Council members of Bombay as well as Delhi be declared a nullity and

further seeking an injunction for the election of the Club to the 1/5th post

of the Central Council falling vacant in 2008.

3. It is submitted by the applicants that all of them are members

of the Club and have been active in its affairs. Applicant No.3 is also a

member of the executive committee of the Club. The applicants

submit that they also filed a civil suit in the High Court of Bombay

being Suit No.3017/2008 titled Ram Kishore Singhi and Ors. Vs.

National Sports Club of India and Ors. which is pending adjudication

wherein the applicants sought to bifurcate the election process of the

club and to create separate electoral college for Delhi and Mumbai

regions. In this case, Bombay High Court made an order on 8th

December, 2008 whereby while issuing summons, it declined to grant a

stay on the interim reliefs claimed by the plaintiffs seeking a stay on the

amendment of the rules stating that no amendment can be made without

the approval of 3/4th majority of the Central Council voting in favour of

such amendment.

4. It is submitted that while the club has appeared before the

Bombay High Court in the abovesaid matter involving identical issues,

it has maliciously concealed the fact of the existence of the above said

suit pending in Bombay, which amounts to suppressio veri. The

applicants allege that being members of the club and on account of

having filed the Civil Suit before the Bombay High Court concerning

identical subject matter, they want to state certain pertinent facts to

assist this court in the present matter by way of impleadment and filing

written statement. The applicants allege to be directly or indirectly

interested in the bifurcation of the electoral College on a regional basis,

therefore, they wish to be impleaded as parties to the suit.

5. Another suit being CS(OS) No.1195/2008 has also been filed

by the applicants before this court challenging the election of Sh.

Subhash Chopra who has been appointed and has been in the position

for President of the Club over the last two decades. In yet another suit

being CS(OS) No.2632/2007 which has been filed by the applicants

against the management of the club in light of the manipulations and

financial irregularities, the Bombay High Court passed an order on 6 th

May, 2008 and appointed Justice (Retd.) B.P. Singh as a Special

Administrator for the completion of the project of renovation of V.P.

Indoor Stadium belonging to the club. Justice (Retd.) S.K. Aggarwal

was also appointed by this court on 25 th April, 2007 in CS(OS)

No.1243/2006 to supervise and ensure the smooth conduct of elections

as also to settle any issues that any party may have with regard to the

conduct of the elections. It is submitted that the present suit and

CS(OS) No.1243/2006 are both concerned with the elections to the

Central Council and are therefore connected.

6. The applicants aver that the club is one and united entity and

the membership of the club is considered as one body under the rules

and regulations of the club. The present suit affects all the members of

the club and seeks to amend and important rule of the club [Rule 47(a)].

7. In reply to the application, the plaintiff has denied that the

applicant No.3 is active in the affairs of the club and stated that in fact

he always opposed development work of the club by making and raising

frivolous allegations of irregularity on part of the members of the club.

It is stated that the substance of the present suit is directed against the

passing of the requisition and its impleadment in extraordinary general

meeting to be conducted on 20 th October, 2008 with regard to the

decision of the executive committee on 27 th September, 2008 for

consideration of item No.5 on the agenda in the extraordinary general

meeting which relates to the requisition received from over 250 club

members for separate voting for Delhi and Mumbai Regions. Since no

such meeting has concluded passing/approving the item No.5 of the

agenda, the suit has become meaningless. It is denied that Suit

No.3017/2008 filed in Bombay High Court and the present suit raise

identical issues. In the present suit, the plaintiff has sought

interpretation of Rule 47(a). The applicants are trying to enlarge the

scope of the present suit by making false allegations with regard to

financial irregularities in the affairs of the club. The applicants will not

be prejudiced in any manner by the outcome of the present suit.

8. In IA No.4220/2009, the applicants claimed to be impleaded

in the suit alleging that the suit affects the entire body of the members.

The main relief claimed by the plaintiff in the main suit is, inter alia,

declaration that the election to the post of member of the club as a whole

is nullity and that the voting should be confined to the particular region.

It obviously involves the persons controlling the club who lost in toto

in the last election held under the supervision of retired Justice S.K.

Aggarwal appointed by this Court in a suit filed by the applicants No.1

and 2 against the malafide practice adopted by the persons controlling

the club to make the club their private property. It is stated that for

more than 20 years, the same group by unfair means has had control of

the club. It is for the first time that all the members contesting from the

controlling group lost and even the President Sh. Subhash Chopra lost

the election, who however, later on managed to get himself elected as

President against the rules and regulations governing the Club. The said

election to the knowledge of the applicants has been challenged in this

Court and the matter is kept reserved. It is submitted that Bombay Club

and Delhi Club are not separate and distinct entities and in fact the Club

is a single body operating at two places with members at both the

places.

9. In reply to I.A. No.4220/2009 the plaintiff contended that the

applicants have not disclosed any grievances against the defendant nor

have claimed any representative capacity for those who are opposing the

bifurcation of electoral process. The applicants did not claim to be

representatives of other members of the club nor will they be affected

by the outcome of the present suit.

10. I have heard learned counsel for both the parties and perused

the record. It is settled law that where a third party shows a fair

semblance of title or interest, he can certainly file an application for

impleadment. Also, explanation VI to Section 11 of the Code of Civil

Procedure, 1908 provides that where persons litigate bona fide in

respect of a public right or of a private right claimed in common for

themselves and others, all persons interested in such right shall, for the

purposes of this section, be deemed to claim under the persons so

litigating. But it is subject to the essential condition that the interest of a

person concerned has really been represented by the others; in other

words, his interest has been looked after in a bona fide manner. If there

be any clash of interests between the person concerned and his assumed

representative or if the latter due to collusion or for any other reason

mala fide neglects to defend the case, he cannot be considered to be a

representative.

11. At the stage of hearing of the application under Order 1

Rule 10(2), the court is not required to adjudicate the claim of the party

finally. While deciding an application for impleadment, the Court has

to record only a prima facie finding to find out whether the application

is bona fide. It cannot finally adjudicate the questions of fact which

would be decided in the suit itself.

12. The principle underlying the rule under Order 1 Rule

10 of the Code is that the Court puts itself in the position of being

able to

effectually and completely adjudicate upon and settle the questions

involved in the suit. The object of the rule is to enable the addition of

parties for the sole purpose of completely and effectually adjudicating

upon the dispute arising between the original parties in the presence of

such of the newly impleaded parties without which there must be

multiplicity of proceedings.

13. In the instant case, it cannot be denied that society is a public

body and once a person becomes a member of a cooperative society, he

loses his individuality qua the society and he has no independent rights

except those given to him by statute and the by-laws. He must act and

speak through the society or rather, the society alone can act and speak

for him qua rights or duties of the society as a body but where the

society is not interested to contest the suit diligently, its members can be

impleaded as necessary and proper parties in order to avoid multiplicity

of litigation.

14. Since in the case at hand, it is apparent that the club is not

prosecuting the suit diligently and legally and the members of the Club

would be effected directly by the outcome of the present suit, the

present applications for impleadment deserve to be allowed. In the

result, I.A. No.3405/2009 and I.A. No.4220/2009 are allowed.

15. Amended memo of parties alongwith written statement on

behalf of the applicants be filed within four weeks.

List on 14th December, 2009.

MANMOHAN SINGH, J OCTOBER 13, 2009 nn