Hsr Club vs Sri Ananda Reddy N
2022 Latest Caselaw 4897 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16 T H DAY OF MARCH, 2022

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

            MFA NO.5166 OF 2021 (CPC)

BETWEEN:

HSR CLUB
A society reg istered and incorporated
und er the p rovisions of the Societies
Registration Act
And having its Office at Civic Amenities
Site No.12, 3 r d Sector, HSR Layout
Ag ara, Sarjap ura Road
Beng aluru-560 102
Represented by its Secretary                ...App ellant

(By Sri P.B. Raju, Advocate)

AND:

Sri Anand a Reddy N,
S/o Late A.L. Nanjunda Reddy
Aged about 55 years
Residing at No.62/193
Near Venakteshwara Swamy Temple
Ag ara, Ag ara Post, HSR Layout
Ag ara, Sarjap ura Road-560 102.
                                           ...Respondent
(By Sri S.V. Giridhar, Advocate)

     This MFA is filed under Order 43 Rule 1(r) r/w
Section 151      of  CPC   ag ainst  the ord er dated
13.09.2021 p assed on I.A No.1 in O.S No.3567/2020
on the file of the XX Additional City Civil and Sessions
Judge, CCH-32, Bengaluru, allowing the I.A No.1 filed
und er Order 39 Rule 1 and 2 of CPC and etc,.
                             :: 2 ::


     This MFA coming on for Admission this d ay, the
Court delivered the following:


                         JUDGMENT

The defendant being the appellant has

challenged the order dated 13.9.2021 passed on

I.A.No.1 filed by the plaintiff under Order XXXIX

Rules 1 and 2 CPC.

2. The respondent/plaintiff was the member

of the defendant club. On the allegation of

misconduct by the plaintiff, one Gangadhar Reddy

made a complaint to the management committee

of the defendant. The plaintiff's membership was

kept under suspension. Questioning the order of

suspension, the plaintiff filed a suit,

O.S.8215/2019, and it was dismissed. In the

meantime, his membership was terminated on the

pretext of an enquiry. Therefore, the plaintiff filed

a suit seeking declaration that the termination of

his primary membership by order dated 30.5.2020 :: 3 ::

is null and void and for a consequential relief of

permanent injunction. In the suit, the plaintiff

sought an interim order of temporary injunction to

restrain the defendant from his making use of the

facilities in the club. The said application having

been allowed by the court below, the defendant is

in appeal.

3. I have heard Sri P.B.Raju, learned counsel

for the defendant/appellant and Sri S.V.Giridhar,

learned counsel for the plaintiff/respondent.

4. It is the argument of Sri P.B.Raju that

once the plaintiff's membership with the club was

terminated, he is no longer a member and he

cannot enter the club premises and make use any

of the facilities. The plaintiff admits termination

of his membership and also issuance of notice to

him. His earlier suit O.S.8215/2019 was

dismissed. In the said suit, he questioned the

order of suspending his membership. In view of :: 4 ::

the dismissal of the earlier suit and termination of

his membership subsequently, the impugned order

has the effect of putting the clock behind. The

learned trial court judge has given some reasons

that are not sustainable at all and that they

indicate total non-application of mind by the trial

court judge. The allegation against the plaintiff

was that he caused hurt to another member

namely Gangadhar Reddy with a tissue paper

holder on 16.10.2019. In the written statement,

at one place it is stated that the plaintiff assaulted

Gangadhar Reddy with a holder of tissue paper and

at another place, with the wooden napkin holder.

This is all the discrepancy. But according to the

trial court, the defence thus taken by the

defendant is totally inconsistent and therefore the

plaintiff has not been able to make out a prima

facie case. This is a wrong finding. Moreover,

enquiry was held following the procedure and

there was no violation of principles of natural :: 5 ::

justice. The plaintiff has clearly admitted in the

plaint itself that the enquiry was sham, this

assertion shows that enquiry was held. It is also

his another argument that the impugned order

tantamount to decreeing the suit itself. In this

view the impugned order is to be set aside.

5. Sri S.V.Giridhar argued that though the

plaintiff's earlier suit was dismissed, in the

present suit he has questioned the termination of

his membership with the defendant club. The

main allegation made by the plaintiff is that the

termination order was passed without holding the

enquiry properly. The plaintiff was not notified to

participate in the enquiry. Enquiry was not at all

conducted in the presence of plaintiff and thus

there was violation of principles of natural justice.

Merely for the reason that the plaintiff has

questioned the order of termination, it does not

mean that he admitted that the whole enquiry was :: 6 ::

conducted in a proper manner. The defendant has

misinterpreted the notice given to the plaintiff.

What the plaintiff refers to is, the notice that he

received to appear before the managing committee

before his membership was kept under suspension.

But when the enquiry was initiated after

suspension, no notice was served on him. Except

the order of termination, the defendant has no any

other document to show that the enquiry was

conducted following the principles of natural

justice. In this view, the termination itself is bad

and therefore the plaintiff gets a right to restrain

the defendant from causing obstruction to his

making use of facilities in the club as a member.

When the plaintiff asserts that the procedure was

not followed and that he was denied of an

opportunity to participate in the enquiry

proceedings, the burden is on the defendant to

show that enquiry was conducted according to the

bye-laws and by following the principles of natural :: 7 ::

justice. The plaintiff cannot prove a negative

aspect and in this view, the burden is on the

defendant who has taken a positive plea that

enquiry was held in accordance with principles of

natural justice. Therefore it is his argument that

the impugned order cannot be disturbed as the

trial court exercised its discretion properly in the

given set of facts and circumstances.

6. Having heard both sides, it may be first

stated that the reasons assigned by the trial court

for granting the plaintiff's application for

temporary injunction do not appear to be proper,

but its ultimate conclusion to grant the relief to

the plaintiff is sustainable. The allegation against

the plaintiff is that he misbehaved with Gangadhar

Reddy, another member of the club. Whether he

caused hurt to Gangadhar Reddy with a holder of

tissue papers or wooden napkin holder, is totally

irrelevant. All that the trial court should have :: 8 ::

seen is whether there was assault. This allegation

triggered initiation of action against the plaintiff.

In the first instance his membership was

suspended. It is true that his suit questioning the

suspension was dismissed. What happened

subsequently is important. In the plaint, the

plaintiff has stated that a sham enquiry was

conducted and that a report against him appears

to have been generated. The plaintiff has also

stated that a three member committee was

appointed and that the committee issued a notice

to the plaintiff on 4.1.2020. According to the

defendant, this is an admission of the plaintiff's

participation in the enquiry. But they do not

appear to be admissions given by the plaintiff

about his participation in the enquiry. As rightly

argued by Sri Giridhar, the plaintiff who has taken

a specific negative plea that enquiry was not held

at all, cannot be expected to prove it. On the

other hand, the defendant asserts that the whole :: 9 ::

enquiry was conducted in accordance with bye-

laws and principles of natural justice by notifying

the plaintiff and that at all stages his participation

was there. This being the specific positive plea of

the defendant, nothing prevented the defendant

from producing the proceeding sheet relating to

enquiry to refute the plaintiff's allegations.

7. Sri P.B.Raju, learned advocate for the

defendant, submitted that in the written statement

it is clearly averred that the enquiry was held

without violating the principles of natural justice

and to that effect there are averments in the

affidavit also. If at all any document is necessary,

it will be produced at the time of trial and at this

stage mere statements in the affidavit are

sufficient.

8. This argument of Sri P.B.Raju cannot be

accepted. Order XXXIX Rule 1 clearly states the

court may grant temporary injunction of the :: 10 ::

nature enumerated in clauses (a), (b) and (c) on

the facts that may be proved by affidavit or

otherwise. The court can draw suitable inferences

from the affidavit averments, but it does not mean

that affidavit alone is always sufficient. When the

court is to form an opinion about existence of a

prima facie case, if a document is available in

support of an assertion made in the affidavit,

there is nothing wrong in producing it. Such

production helps court take proper decisions. In

spite of having document, if a party to the suit

does not produce it, an adverse inference may be

drawn against such party even at the stage of

deciding an application for temporary injunction.

In the instant case if it is the clear case of the

defendant that before terminating the membership

of the plaintiff, enquiry was held following the

principles of natural justice by affording him

opportunity to participate at all the stages of the

proceedings, the best documents that it could have :: 11 ::

produced are the recordings of the proceedings in

the enquiry, the statements of the witnesses, etc.,

The defendant is reluctant to produce it and rather

tries to depend on one averment in the plaint that

a sham enquiry was conducted. By stating so in

the plaint, what the plaintiff has tried to plead is

that enquiry was not at all held and that a report

was just generated against the plaintiff. Thus

viewed, the plaintiff has made out a prima facie

case.

9. Examined whether balance of convenience

lies in favour of the plaintiff, certainly in the

absence of materials indicating enquiry having

been held following the principles of natural

justice, the balance of convenience lies in favour

of the plaintiff. Then a question arises whether

the plaintiff can claim right to make use of the

facilities in the club once his membership is

terminated. In this regard it may be stated that if :: 12 ::

the termination of the membership does not

appear to have been preceded by an enquiry in

accordance with principles of natural justice and

the bye-laws of the club, then, notwithstanding

termination, the plaintiff can insist on using the

facilities available to a member of the club.

Or otherwise there is injury to his right and

interest as a member of the club. Therefore it is

concluded that the plaintiff is entitled to claim

temporary injunction as prayed for in his

application. Appeal fails and it is dismissed.

The trial court shall decide the suit without

being influenced by the observations made in this

order.

Sd/-

JUDGE

ckl/-