Delhi High Court
M/S Chelmsford Club Limited vs Ravindra Nath Sahni & Ors. on 22 September, 2017
$~4.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No. 371/2016
Date of decision: 22nd September, 2017
M/S CHELMSFORD CLUB LIMITED ..... Appellant
Through Mr. Sankalp Goswami & Mr.
Azhar Alam, Advocates.
versus
RAVINDRA NATH SAHNI & ORS. ..... Respondents
Through Ms. A. Banerji, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J. (ORAL):
With the consent of the learned counsel for the parties, we are
disposing of this intra Court appeal under Section 10 of the Delhi High
Court Act, 1966 allowing IA No. 13323/2016 filed by the respondent
No. 1-plaintiff.
2. The respondent No. 1, namely, Ravindra Nath Sahni, has filed a
suit for injunction against the appellant, which is a club in Delhi.
FAO(OS) No. 371/2016 Page 1 of 7
3. IA No. 13323/2016 filed by the respondent No. 1-plaintiff under
Order I Rule 8 read with Section 151 of the Code of Civil Procedure,
1908 (Code, for short), is rather short and reads as under:-
"1. The Plaintiff has filed the
accompanying Suit to safeguard the best interests
of the Defendant Club. The interest of the
Plaintiff in the present proceedings is
representative of the interests of each and every
member of the Defendant Club.
2. The Plaintiff accordingly seeks the liberty of
this Hon‟ble Court to sue on behalf of and for the
benefit of the members of the Defendant Club.
In the interest of justice it is therefore most
respectfully prayed that this Hon‟ble Court may
be pleased to:-
a. grant the Plaintiff leave to sue on behalf of the
members of the Defendant Club;
b. issue notice upon the members of the Defendant
Club by affixation upon the notice board of the
Defendant Club; and
c. pass any other and further orders as this Hon‟ble
Court may deem fit and just in the facts and
circumstances of the present case."
4. The said application had come up for hearing for the first time
on 8th November, 2016, and was allowed on 8th November, 2016 itself.
The said order records that the amended plaint filed by the respondent
FAO(OS) No. 371/2016 Page 2 of 7
No.1-plaintiff was taken on record. Thereafter, it records statement on
behalf of the appellant-Club that notice on the application under Order
I Rule 8 need not be issued and they would be filing a reply within
four weeks. Thereupon, the impugned order mentions that the Court
had enquired from the counsel for the appellant-Club as to what
objection they would have to the suit being entertained under Order I,
Rule 8 of the Code. The next paragraph records that the counsel was
unable to argue or give any comments, but had requested four weeks‟
time to be granted to file reply. The single Judge having considered
the nature of the reliefs claimed and grievance made in the plaint held
that a case for entertaining the suit under Order I Rule 8 was made out
and accordingly the application was allowed. Least there be any doubt
or debate, we would reproduce paragraphs 3 to 13 of the order dated
8th November, 2016:-
"3. The amended plaint is taken on record.
4. The counsel for the plaintiff states that the suit
be entertained under Order I Rule 8 of Code of
Civil Procedure, 1908 (CPC) and notice of
institution of the suit be issued to all persons. It is
stated that there is already a group of members of
the defendant No.1 Club which calls itself „Save
Chelmsford Club‟ and upon notice within the
meaning of Order I Rule 8(2) of CPC being given,
FAO(OS) No. 371/2016 Page 3 of 7
it will be known whether anyone is willing to
support the grievance as raised in the plaint.
5. The counsel for the defendant No.1 Club states
that he is today unable to enter appearance on
behalf of defendants No.2 to 26 being the
members of the Managing Committee elected in
the election held on 26th September, 2016.
6. Though it appears that the counsel representing
the defendant No.1 Club which is a Corporation
necessarily acting through its Managing
Committee, does not have instructions from the
Managing Committee but it is deemed appropriate
to issue notice to the other defendants.
6. Issue summons of the suit and notice of the
applications for interim relief.
7. Summons/notice are accepted by the counsel
for the defendant No.1 Club appearing on advance
notice.
8. The plaintiff to serve the defendants No.2 to 26
by all modes including dasti returnable before the
Joint Registrar on 30th January, 2017.
9. The counsel for the defendant No.1 Club states
that notice under Order I Rule 8(2) of CPC be not
issued and the defendant No.1 be permitted to file
a reply thereto within four weeks.
10. I have enquired from the counsel for the
defendant No.1 Club as to what is the objection to
the suit being entertained under Order I Rule 8
CPC and notice within the meaning of Order I
Rule 8(2) CPC being issued.
11. Though he is unable to state any but states
that four weeks time be given to file the reply.
FAO(OS) No. 371/2016 Page 4 of 7
12. Considering the nature of the reliefs claimed
and the grievances made in the plaint, I am of the
view that a case for entertaining the suit under
Order I Rule 8 CPC is made out.
13. Accordingly, IA No.13323/2016 is allowed."
5. Counsel for the appellant-Club submits that their counsel, who
had appeared on behalf of the appellant-Club on 8th November, 2016
was taken by surprise when queries and questions were raised by the
Court. It is submitted that even notice on the application had not been
issued. Prayer for time to file reply was made.
6. During the course of hearing, learned counsel for the appellant-
Club submitted that they would have several objections to the suit filed
by the respondent No. 1-plaintiff being entertained and treated as
representative suit on behalf of the members of the appellant-Club.
The appellant-Club is a limited company and elections are held from
time to time, as per law. The affairs of the company are managed in
accordance with the Articles of Association, Companies Act etc. The
grievance raised by the respondent No. 1-plaintiff is personal in nature
and he does not have support of other members of the appellant-club.
Plea of mala fides is also raised. Learned counsel for the appellant-
Club has submitted that an order of this nature, can be misconstrued
FAO(OS) No. 371/2016 Page 5 of 7
and misunderstood by the members of the Club as an opinion by the
Court. It has several consequences. Adverse inferences can be drawn.
7. Counsel for the respondent No. 1-plaintiff, on the other hand,
submits that these contentions and issues have no merit. She,
however, accepts that notice on the application IA No. 13323/2016
was not issued prior to 8th November, 2016 and the said application
was a fresh one, which had come up for consideration before the Court
for the first time on 8th November, 2016. She has also stated that
elections of the club are due to be held on 29 th September, 2017 and
interim applications for injunction, etc. are listed on 25th September,
2017. An order of remand with direction to decide IA No. 13323/2016
before the elections would lead to chaos and difficulty. Counsel for
the appellant-Club submits that in case an order of remand is passed,
the application IA No. 13323/2016 can be decided after 29 th
September, 2017.
8. We are inclined to allow the present appeal as we feel that the
appellants did not have sufficient chance and opportunity to put forth
their stand and stance before IA No. 13323/2016 was decided by the
single Judge. Adjudication and decision should be after the appellant-
FAO(OS) No. 371/2016 Page 6 of 7
club is granted fair and adequate opportunity to contest the assertion
and case of the first respondent. We would not make any comments
on merits, as there are aspects to be considered and decided by the
single Judge.
9. We accordingly set aside the impugned order dated 8 th
November, 2016 to the extent it allows IA No. 13323/2016 under
Order I Rule 8 of the Code. The said application would be heard
afresh. The appellant would file reply to the said application within a
period of two weeks. The respondent is at liberty to file rejoinder to
the same within two weeks thereafter. The learned single Judge will
fix a date for hearing in application, IA No. 13323/2016, on 25th
September, 2017. The appeal is disposed of, with no order as to costs.
SANJIV KHANNA, J.
NAVIN CHAWLA, J.
SEPTEMBER 22, 2017
VKR
