Karnataka High Court
M Thirumala Babu vs Kanteerava Narasimharaja Sports ... on 15 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.3681 OF 2022 (GM-CPC)
BETWEEN:
M. THIRUMALA BABU
S/O M.V. NAIDU
AGED ABOUT 57 YEARS
R/AT #119, 5TH CROSS,
MODEL HOUSE, INDIRANAGAR,
NAZARBAD MOHALLA,
MYSURU-570 010.
...PETITIONER
(BY SRI. AJAY GOVINDRAJ, ADVOCATE)
AND:
KANTEERAVA NARASIMHARAJA SPORTS CLUB
(MYSORE SPORTS CLUB)
NARASIMHARAJA BOULEVARD,
LALITH MAHAL PALACE ROAD,
NAZARBAD,
MYSURU-570 011.
REPRESENTED BY ITS PRESIDENT
MR. SANJAY K. SHETTY.
....RESPONDENT
(BY SRI. N.K. RAMESH, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
10TH JANUARY, 2022 MADE ON IA NO.V IN REGULAR APPEAL
2
NO.333 OF 2021 BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, MYSURU AT ANNEXURE-J; AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the appellant in Regular Appeal
No.333 of 2021 on the file of the II Additional District and
Sessions Judge, Mysuru (for short, hereinafter referred to as 'First
Appellate Court'), challenging the order dated 10th January, 2022,
rejecting the application in IA.V filed by the appellant/petitioner
herein under Order XXXIX Rule 1 and 2 read with Section 151 of
the Civil Procedure Code.
2. The brief facts for adjudication of this writ petition are
that, the petitioner herein is a plaintiff in Original Suit No.265 of
2021 before the trial Court. The case of the plaintiff before the
trial Court is to declare that the impugned notice dated 29th
February, 2020, terminating the plaintiff/petitioner herein from
the defendant/respondent-Club is in gross violation of the byelaws
of the Club. Hence, he sought for nullifying the notice dated 29th
February, 2020. The respondent/defendant entered appearance
and filed application under Order VII Rule 11(a) and (d) read with
Section 151 of Civil Procedure Code, seeking rejection of the
plaint. The trial Court, after considering the material on record,
by order dated 16th July, 2021 allowed the IA.III filed by the
defendant, consequently the plaint came to be rejected. Feeling
aggrieved by the same, the plaintiff/petitioner herein has filed
Regular Appeal No.333 of 2021 before the First Appellate Court
and the appeal preferred by the petitioner herein is pending
consideration before the First Appellate Court. In the meanwhile,
the plaintiff/petitioner herein has filed IA.V under Order XXXIX
Rule 1 and 2 read with Section 151 of the Civil Procedure Code,
seeking permission to use the facilities of the defendant-Club by
continuing the order of temporary injunction granted by the trial
Court. The said application was resisted by the respondent
herein. The First Appellate court, by order dated 10th January,
2022 rejected the said application. Being aggrieved by the same,
the plaintiff in Original Suit No.265 of 2021 has preferred this writ
petition.
3. I have heard Sri. Ajay Govindraj, learned counsel
appearing for petitioner and Sri. N.K. Ramesh, leaned counsel
appearing for respondent/caveator.
4. Sri. Ajay Govindraj, learned counsel appearing for the
petitioner drew the attention of the Court to the provisions in the
byelaws of the respondent-Club. Clause 10(1) (f) of the byelaw
provide for termination of membership as well as the appeal
provisions before the Special General Body of Members.
Therefore, he contended that the period stipulated in the byelaw is
that the plaintiff ought to have approached the Special General
Body within thirty days. However, the plaintiff has not availed of
remedy, instead filed suit seeking interference of the Court,
challenging the notice dated 29th February, 2020 issued by the
respondent-Club. Accordingly, he submitted that the finding
recorded by the trial Court with regard to rejection of the plaint
itself is bad in law, however, the same is subject to outcome of
the appeal before the First Appellate Court in Regular Appeal
No.333 of 2021. He further submitted that the finding recorded
by the trial Court declining to entertain IA.V in Regular Appeal
No.333 of 2021 is bad in law as the appellant/petitioner herein is
regular life-member of the respondent-Club and the First
Appellate Court ought to have considered the said application
liberally and allowed the petitioner herein to use the facilities of
Club. Accordingly, he submitted that the impugned order passed
by the trial Court requires interference in this writ petition. In this
regard, he also relied upon the order passed by this Court in
Miscellaneous First Appeal No.9785 of 2018 dated 21st June, 2019
and argued that the finding recorded by this Court at Paragraph
12 in the said judgment squarely applies to the case on hand.
Accordingly, he sought for interference in this writ petition.
5. Per contra, Sri. N.K. Ramesh, learned counsel appearing
for the respondent-club submits that the petitioner herein has
already suffered an order by the trial Court and he is in appeal
before the First Appellate Court challenging the same in Regular
Appeal No.333 of 2021. He further submits that the said appeal is
posted for arguments. He further sought to justify the impugned
order passed by the trial Court.
6. In the light of the submission made by learned counsel
appearing for the parties, I have carefully considered the
judgment and decree dated 16th July, 2021, wherein the trial court
has rejected the plaint filed by the petitioner herein under Order
VII Rule 11(a) and (d) of the Civil Procedure Code. The said order
passed by the trial Court is assailed before the First Appellate
Court in Regular Appeal No.333 of 2021. The First Appellate
Court, at the instance of the application IA.V filed by the petitioner
herein, taking into consideration the fact that the similar
application was filed before the trial Court at the earlier instance,
and as per the finding recorded at paragraphs 11 and 12 of the
impugned order, rejected the application filed by the petitioner
herein. In view of the law declared by Hon'ble Apex Court in the
case of M/S ESTRALLA RUBBER vs. DASS ESTATE (P) LTD.
reported in (2001) 8 SCC 97, the jurisdiction under Article 227 of
the Constitution of India does not confer any unlimited prerogative
upon the High Court to correct all wrong decisions or prevent the
hardship caused therefrom. The power under Article 227 of the
Constitution of India can be exercised to interfere with the orders
of the trial Courts or Tribunals only in the case of serious
dereliction of duty or flagrant violation of fundamental principles
of law or justice, where, if the High Court does not interfere, a
grave injustice remains uncorrected. Applying the principles laid
down by the Hon'ble Apex Court to the facts on hand, so also, it is
not disputed that the Regular Appeal No.333 of 2021 is posted for
arguments on either side of the parties, at this stage, taking into
consideration the finding recorded by the trial Court in the
impugned order at paragraphs 11 and 12, I am of the view that
there is no violation of fundamental principles by the First
Appellate Court, rejecting the application filed by the petitioner in
IA.V. Therefore, I do not find any merit in the writ petition.
Accordingly, writ petition is dismissed.
7. However, taking into consideration the arguments
advanced by the learned counsel appearing for parties, I am of
the view that the First Appellate Court shall dispose of the Regular
Appeal No.333 of 2021 at the earliest, and in any event, with an
outer limit of three months from the date of receipt of certified
copy of this order.
Sd/-
JUDGE
ARK
