S C Burman I.P.S vs Indiranagar Club
2022 Latest Caselaw 7760 Kant

                            1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 31ST DAY OF MAY, 2022

                         BEFORE

  THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

             R.F.A.NO.1049 OF 2011 (DEC)

BETWEEN
S. C. BURMAN, I.P.S. (RETIRED),
S/O LATE M. C. BURMAN,
AGED 71 YEARS,
R/AT.NO.1162, 12TH A MAIN,
HAL II STAGE,
(BEHIND SAGAR CLINIC),
12TH MAIN,
BANGALORE - 560 008.
                                            ...APPELLANT

(BY SRI. SANTOSH S GOGI AND
    SRI.SHARATH S GOGI, ADVOCATE)

AND

INDIRANAGAR CLUB (REGD.),
9TH MAIN, 4TH CROSS,
HAL II STAGE,
BANGALORE - 560 008.
REPRESENTED BY ITS
HONORARY SECRETARY.
                                         ...RESPONDENT

(BY SRI.G.SUKUMARAN, ADVOCATE FOR C/R)

      THIS APPEAL IS FILED UNDER SECTION 96, R/W, O-41,
RULES-1 AND 2 OF CPC, AGAINST THE ORDERS DATED
25.03.2011 PASSED ON I.A.NO.4 IN O.S.6478/2010 ON THE
FILE OF THE XX-ADDL. CITY CIVIL AND SESSIONS JUDGE,
BANGALORE CITY, REJECTING THE APPLICATION FILED U/O-7,
RULE-11 OF CPC.
                              2

     THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:



                        JUDGMENT

This appeal by the plaintiff in O.S.No.6478/2010

is directed against the impugned judgment & decree

dated 25.03.2011 passed by the XX Additional City

Civil & Sessions Judge, Bangalore City, whereby the

application I.A.No.4 filed by the respondent-

defendant-Club under Order VII Rules 11(a) & (d) of

CPC seeking rejection of the plaint was allowed by the

Trial Court, thereby dismissing the suit for declaration

and other reliefs.

2. This appeal is taken up for final hearing with

consent of both the parties in view of allowing

I.A.No.1/2022 filed for early hearing by the appellant.

3. Heard learned counsel for the appellant and

learned counsel for the respondent and perused the

material on record.

4. A perusal of impugned judgment & decree

passed by the Trial Court and the material on record

will indicate that the appellant-plaintiff instituted the

suit for declaration and for other reliefs in relation to

the respondent-club. The said suit was contested by

the respondent-defendant who also filed an

application I.A.No.4 under Order VII Rule 11(a) & (d)

of CPC seeking rejection of the plaint interalia

contending that in view of remedy by way of review

before the Managing Committee under Rule 17 of the

Rules/Byelaws of the club and Rule 20(A)VI of the Bye

laws/Rules, the jurisdiction of the civil court was

ousted by implication and consequently, the suit being

barred by law, was not maintainable and the plaint

was liable to be rejected and suit was also liable to be

dismissed.

5. The said application I.A.No.4 was contested

by the appellant-plaintiff who interalia contended that

having regard to Section 15 of the Karnataka Societies

Registration Act, 1960, which enables the appellant-

plaintiff to institute the suit against the respondent-

Club, which was a registered Society coupled with the

fact that the Byelaws/Rules of the respondent-club did

not have the force of law/statute and was merely in

the nature of a contract between the club and its

members; in the light of inherent jurisdiction of the

Civil Court under Section 9 of CPC, the suit was

perfectly maintainable, particularly when the appellant

had sought for a declaration that Rule 17 of the Rules

/ Byelaws which was invoked by the respondent-club

to terminate its membership were not applicable to

the appellant-plaintiff and as such, there was no merit

in the application and the same was liable to be

dismissed.

6. After hearing the parties, the Trial Court

proceeded to pass the impugned order rejecting the

plaint by coming to the conclusion that in view of the

remedy of review available in favour of the appellant-

plaintiff both under Rule 17 of the Rules/Byelaws of

the Club by filing the review before the Managing

Committee or by filing a review before the general

body of the respondent-Club under Rule 20(A)VI of

the Byelaws/Rules, the suit was not maintainable and

the plaint was liable to be rejected and the suit was

liable to be dismissed.

7. In addition to reiterating the various

contentions urged in the Memorandum of Appeal and

referring to the material on record, learned counsel for

the appellant invites my attention to the judgment of

the Co-ordinate Bench of this Court in the case of

K.M.JOSEPH vs. INDIRANAGAR CLUB - RFA

No.1778/2012 dated 04.07.2013, in order to

contend that this Court has come to the categorical

conclusion that notwithstanding the remedy of review

available in favour of the members under the

Rules/Byelaws, suit before the Civil Court was

maintainable and an application under Order VII Rule

11 seeking rejection of the plaint was liable to be

rejected. While coming to the said conclusion, this

Court has held as under:

"10. So far as review by the general body is concerned, he submits it is not a remedy against removal because the general body may or may not review the decision.

11. A conspectus of Rules 20-A and 30 is necessary for ascertainment as to whether the rules provide for an efficacious remedy to a member of the Club against whom action is contemplated.

"20-A: Disciplinary Action A member may be censured, suspended from membership for a period not exceeding six months or removed from membership by the Managing Committee if such member:-

(a) Is found to have conducted himself or behaved, while in premises of the Club, in a manner adversely affecting the decency, decorum, peace and order or harmony of the Club.

(b) Is found guilty of breach of any rule or regulation of the club.

(c) Does any act which is injurious to the discipline, reputation or interest of the Club.

Provided

(i) No member shall be censured or suspended unless the allegations against him are brought to his notice in writing

and had been given an opportunity to show cause why he shall not be censured or suspended from membership.

(ii) Notwithstanding the proviso (1) The Managing Committee may, suspend the membership of a Member where such action is prima facie is warranted, after giving an opportunity of personal hearing, pending enquiry.

(iii) During suspension, a number, his spouse and dependents shall not be eligible to use the club even as a guest.

(iv) An order of censure or suspension issued by the Managing Committee shall be final.

(v) No member shall be removed from membership under this rule unless the conduct, behaviour or offence alleged to against him has been enquired into by a committee consisting of more than one person appointed for the purpose by the Managing Committee.

(vi) An order of the Managing Committee removing a member from membership shall be open to review by the General Body as provided under Rule 30(1). When a review under this clause is requested by the person concerned, the Managing Committee, shall place the request on the agenda of the ensuing Annual General Body Meeting and give the person concerned an opportunity to be heard in person by the General Body.

(vii) A member whose membership was terminated under this Rules shall not be

enrolled as member again without the approval of the General Body.

"30. Annual General Meeting:

There shall be an Annual General Body Meeting every year within three months after the expiry of the official year to transact the following business:

(a) Consideration and adoption of (1) The Annual Report, (2) The Audited Statements of Accounts, (3) Income and Expenditure Accounts pertaining to each department and (4) The Audit Report.

(b) Approval of the programme of activities of the club for the ensuing year.

(c) Election of Committee.

(d) Appointment of Auditor for ensuing year.

(e) Allocation and sanction of Budget for the ensuing year.

(f) Expulsion/Readmission Members.

(g) Any other matter which may be brought up in accordance with the rule for which due Member to of the Managing member notice has been given or prior permission taken from the Chairman of the meeting.

2. Twenty one days notice excluding the day of the meeting shall be given to all Resident Members of the club as on the date of the notice calling the meeting, before a meeting of the General Body is convened. A copy of the notice shall be exhibited on the Club Notice Board.

3. Non-receipt of the notice by any member or delay in receipt of the such notice shall not invalidate the proceedings of the meeting.

4. The General Body Meeting shall be held at the time and the place mentioned in the notice issued for such meeting and such notice shall specify the business to be conducted.

5. The quorum of the meeting shall be one tenth of the Resident Members on the rolls of the club as on the date of the notice calling the General Body. If there is no quorum at the time fixed, the meeting shall be adjourned by half an hour and the subjects already notified shall be disposed off at the adjourned meeting for which there need be no quorum.

6. The General Body Meeting shall be presided over by the President or in his absence the Vice- President. In the absence of both, the General Body shall elect its own Chairman to preside over the meeting. The Chairman shall be entitled to vote on all questions and in the event of an equal division, he shall exercise the casting vote.

7. Members who desire to have any subjects to be placed before the Annual General Body Meeting shall furnish the same to the Managing Committee at least ten days before the date fixed for the General Body Meeting. The Managing Committee shall consider such subject and decide whether to place the same before the General Body Meeting. If for any reason the Committee decides not to place such subject before the General Body, the Committee shall intimate with reasons to the member concerned or the first signatory in case more than one member has sponsored the subject.

8. Proceedings of all General Body Meetings duly recorded shall be signed by the Chairman of the meeting within ten days from the date of meeting.

9. All issues shall be decided by majority of the members present if the votes are equal, the Chairman of the meeting shall have the casting vote. On or before fourteenth day succeeding the day on which the Annual General Body Meeting is held, there shall be filed with Registrar a list of names, addresses and occupations of the members of the Management Committee then entrusted with the Management of the affairs of the Club and a copy of the audited Balance Sheet and Income and Expenditure Account.

12. The language of Rule 20-A extracted above would make it clear that though the managing committee has been conferred with the power of initiating disciplinary action against a member/associate member or office bearer, proviso (i) to the said rule mandates 'no member shall be censured or suspended unless the allegations against him are brought to his notice in writing and had been given an opportunity to show cause why he shall not be censured or suspended from membership.' Similarly proviso (v)19 mandates 'no member shall be removed from membership under this rule unless the conduct, behaviour or offence alleged against him has been enquired into by a committee consisting of more than one person appointed for the purpose by the managing committee.' Thus this rule ensures that no arbitrary action could be initiated against any member/associate member except as provided by the rule. Whether this rule is followed is a question of fact to be considered is thus subject to review.

13. It is further to be noticed that the order of the Managing committee removing a member/associate member from membership/associate membership is open to review by the general body in the ensuing/forthcoming annual general meeting, as provided under Rule 30(1). But there is no specific appeal/revision provided against the order of the managing committee. The rule only permits review by the general body in its ensuing/forthcoming annual general meeting. How far this could be construed as appeal provision has to be examined."

14. Keeping this in mind, I have examined the case laws cited by Sri Sukumaran, learned counsel for the respondent. In the case of T.P.DEVAR .vs. LORD VICTORIA & OTHERS and others (AIR 1949 PC 313) rendered by the Bench presided over by Hon'ble Mr.Justice Nittoor Sreenivasa Rau and Hon'ble Mr.Justice Hegde, the view taken is that 'when a dispute relates to the working of a private association except insofar as the dispute falls within the scope of Section 9, CPC., it will be within the exclusive domestic jurisdiction of the institution concerned. As long as this jurisdiction is exercised bona fide and in conformity with the rules and in accordance with the principles of natural justice, civil courts will have no jurisdiction to examine the merits of the case. The function of the civil court is mainly to ascertain as to whether the proceedings before the domestic Tribunal is a bona fide one and whether the Tribunal acted in substantial compliance with the Rules by which it is governed and whether it has conformed to the requirement of natural justice.'

15. The nature of adjudication by the civil court is therefore narrowed down. It must be noticed the decision referred to deals with virtually the merit of the case and not whether the plaint was barred by law or was liable to be rejected under the provision of Order VII Rule 11(a) to (d), C.P.C. It must be noticed in the same judgment, the foundation laid is, 'the function of the civil court is merely to ascertain as to whether the proceedings before the domestic tribunal is a bona fide one and whether the tribunal acted in substantive compliance with the rules by which it is governed and whether it has conformed to the requirement of natural justice.' Thus it goes without saying that an enquiry is necessary. Rejection of plaint at the inception virtually bars such adjudication and undoubtedly the person will be non-suited. In this case the order of the trial court is passed in exercise of power under Order VII Rule 11, C.P.C. to reject the plaint for want of cause of action and as barred by law in view of the rules of the association concerned. That was not the subject matter of adjudication in the decision referred to.

16. In the second decision in the case of KRISHNASWAMY & OTHERS .vs. SOUTH INDIA FILM CHAMBER OF COMMERCE & OTHERS (AIR 1969 MADRAS 42), the view taken by the Bench is, 'if a party who has acquiesced in the election to which he objects or he is raising an objection which might have been put forward against himself on a previous election or in the same election in which he participated, the court in exercise of its jurisdiction will refuse to award him any relief. It would not make any difference whether the relief is sought by means of a writ or Quo Warrant or by way of a declaratory suit seeking declaration that the elections were invalid and praying for ad interim injunction therein.' In this

case the plaintiff had sought for a declaration and for an injunctive order. Here again the view taken is, if a person has acquiesced to holding of election, then he will not be permitted to agitate it again through a civil suit. That is not the case at hand.

17. In the case of SECRETARY, BANGALORE TURF CLUB .vs. PRAKASH SRIVATSAVA, the view taken is as under:

'By and large, in the absence of manifest and absolutely glaring illegality that almost constitutes a total perversion or negation of well defined procedural and Natural Justice principles, a Court would refrain from interfering with such proceedings at an interlocutory stage. The issue gets far more complicated however when one reaches a situation of finality because the consequences or adverse orders are invariably harsh. The age old argument that is canvassed in such cases is that having exhausted the prescribed remedies, when the party approaches the Law Court, that the proceeding itself would virtually be rendered almost infructuous unless the adverse order is put into cold storage. The commonest situation is one where the order results in cessation of service or some similar penalty and the argument proceeds on the footing that unless the order is stayed, even if the aggrieved party were to ultimately succeed in the Court proceedings, that the issue would be of little consequence because the damage is irreparable. It is necessary to take into account the damage that occurs during the interim period such as in the case of an employee who is dismissed from service, who undergoes not only personal trauma but domestic and social stigma, economic hardship and all of these cannot be adequately compensated through an order of either reinstatement or backwages at some point in the distant future. A strong case is therefore made out for some sort of relief during the interim period. On the other hand, the Courts need to take cognizance of the unpleasant fact that Judicial

Proceedings undoubtedly take a long time to get disposed of and that if the punishment order comes to be stayed, it is as good as setting it aside vis-à- vis the errant party concerned, as also those on whom it is supposed to have a deterrent constitutes manifest miscarriage of Justice if that order is interfered with merely because some proceedings have been instituted.'

From the pith of the decision, it must be noticed the court expressed anxiety in noticing grant of interim order by which the result of disciplinary action gets stayed and the errant party would enjoy the benefit with the adverse effect on the institution. Again it must be noticed this decision does not lay down the law that disputes of this nature are not cognizable by the civil court or that the jurisdiction of the civil court is barred. All that it refers to is equity and also the rationale in grant of interim order for the mere asking considering the long period of time that cases take to get disposed of. What we are concerned in the present suit is rejection of plaint at the threshold denying the plaintiff an opportunity to substantiate his case.

18. It is a settled principle of law that plaint could be rejected when it does not disclose a cause of action, or where the relief claimed is barred by any law, etc., and any amount of material to the contrary which the defendant may have as defence is not to be considered. The language of Order VII Rule 11 is clear: the plaint shall be rejected in the following cases:

"11. Rejection of plaint The plaint shall be rejected in the following cases:

(a) Where it does not disclose a case of action;

(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct

the valuation within a time to be fixed by the court, fails to do so;

(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d) Where the suit appears from the statement in the plaint to be barred by any law;"

The decision rendered by the trial court is in exercise of power conferred under clauses (a) and (d) of Rule 11 of Order VII CPC. That means the trial court has opined there is no cause of action and the suit is barred by law. The reasons for such conclusion by the trial court is found in paragraph 13 of the order where the trial court has summed up by stating thus:

13. In the instant case, each and every activity of the club is governed by by-laws framed by itself by their body. In the instant case also there is by-law framed by the defendant club, any removal act can be revoked by the Special General Body, if the removal person submits an application for revoking the same, which has been narrated in the by-law of the defendant club. So, there is a efficacious remedy available for the defendant to invoke the relief against the club for the removal act of the plaintiff from the membership of the club. Moreover, there is no cause of action explained by the plaintiff in his plaint, which titled as 'cause of action'. But, however, on entire perusal of the pleadings of the plaint, the removal act of the plaintiff from the membership by the club itself amounts to cause of action as contended by the plaintiff. On entire perusal of the decisions which have been referred by the defendants counsel ascertain that the plaintiff has to approach the body of the club for

revocation of his removal order with written submission, if that written submission is rejected, then, he has got a right to file the suit. So, the filing of the present suit appears to be a premature one without in making efficacious remedy, which is available for him in the by-law of the club. Under such circumstances, the plaint, which has been submitted by the plaintiff is liable to be rejected. So, I answer this point accordingly.

19. The order of the managing committee removing the appellant shall be subject to review in the general body meeting as provided in Rule 30(1). There is no mention either in Rule 20-A that the concerned member has to submit a written statement for review by the general body which the learned judge has quoted. Similarly the judge has quoted such written request from the affected member which will be considered by the special general body. Rule 30 does not refer to special general body. It only refers to Annual General Body Meeting. Therefore on facts learned judge has imported certain things which were not found in the rules. There is no mention in Rule 30(1) that when a written statement is filed by the member, Special General Body Meeting will be called to consider it.

20. In the resultant position, it can easily be concluded that against the order of the managing committee rules do not provide for any right of appeal or review except that the general body has been empowered to review such decision. Clause (vi) of Rule 20-A of the rules no doubt enables a member who has suffered disciplinary action to seek review.

21. To seek review as envisaged in clause (vi) of Rule 20-A, there is no indication in the rule as to when such review would be considered. The only indication is, it will be considered by the general

body in the ensuing annual general meeting. That cannot be considered as a remedy of appeal to the affected person. Besides, there is nothing in Rule 20-A or Rule 30(1) of the rules as to what is the remedy to a member/associate member against whom the managing committee has passed an order terminating his membership to seek immediate relief against such order.

22. Clause (vi) of Rule 20-A provides that 'an order of the managing committee removing a member from membership shall be open to review by the general body as provided under Rule 30(1).' None of these rules provide as to what a member should do if his membership is terminated except stating he has to make a request for review at the annual general meeting and has to wait till the ensuing meeting. There is no rule cited by the learned counsel to show that a member whose membership has been terminated has been provided with any independent right of appeal to the supreme body. No rule is cited which ousts the jurisdiction of Civil Court to adjudicate whether the committee has followed the procedure prescribed to conduct enquiry or impose punishment.

23. Had the rules contained any right of appeal/revision providing for expeditious/efficacious remedy, a view could have been taken that the rules are self- contained. In the absence of it, the aggrieved person can only have recourse to civil law for redressal of his grievance. In the resultant position, it could easily be held that against the order of the managing committee, rules do not provide for any independent right of appeal or review except that the general body has been empowered to review such decision and that too, in its ensuing annual general meeting and

till then the member has to wait. In this fact situation, it cannot be said that the jurisdiction of the civil court is barred.

24. It must further be noticed the safeguard provided under clauses (i) and (v) of Rule 20-A is very specific. Certainly their contravention will generate cause of action to the affected member/associate member to question it on the ground of violation of principles of natural justice and contravention of the rules and that will be sufficient cause of action for him to file a suit in the civil court. In fact, the trial court in paragraph 13 of its order (extracted above)has recorded a finding that the averments in the plaint show existence of cause of action for the appellant-plaintiff to file the suit, but has misled itself ion belief that the remedy of review being available to him, the suit is premature and barred by law.

25. For the reasons stated above, I am satisfied that the appellant-plaintiff had disclosed cause of action for the suit and the court was required to look into it based on the averments in the plaint, particularly in the absence of any specified appeal provided by the rules. The impugned order also suffers from infirmity and is unsustainable because the trial court has failed to notice that the main grievance of the plaintiff was mala fides in the action of the defendant Club against him through the managing committee and that was also required to have been gone into and considered on merit.

26. The impugned order is also not sustainable as the trial court has ignored the material propositions in the plaint which gave rise to framing of relevant issues for consideration. The trial court has further failed to notice that the plaint can be rejected only based on the

averments in the plaint if it discloses no cause of action, or is shown to be barred by law, or in other circumstances enumerated under Rule 11 of Order VII, C.P.C. and not otherwise. When mixed questions of law and fact arise for consideration, the right course was to permit the defendant to file written statement and based on it, to frame relevant issues for consideration.

27. In the result, the impugned order passed by the trial court on 29.6.2012 rejecting the plaint is set aside. The suit is restored to the file of XXXIX Additional City Civil Judge, Bangalore, with a direction to permit the defendant to file written statement and also consider the applications filed by the parties which are pending decision. The trial court shall pass an order on the application filed by the appellant- plaintiff seeking injunctive relief and until such applications are heard and disposed of, there shall be an interim order of stay staying operation of the order dated 11.9.2010 passed by the managing committee terminating the membership of the appellant.

28. The appeal is allowed in terms of this order. In the circumstances, there is no order as to costs."

8. Learned counsel for the appellant submits that

in the light of Section 15 of the Karnataka Societies

Registration Act coupled with the inherent jurisdiction

of the civil court under Section 9 CPC, in addition to

the fact that the bye-laws / rules of the respondent -

club do not have the free of law / statute, the

impugned judgment and decree passed by the trial

court deserves to be set aside.

9. Per contra, learned counsel for the respondent

would support the impugned judgment and decree

passed by the trial court and submits that there is no

merit in the appeal and that the same is liable to be

dismissed.

10. As rightly contended by the learned counsel

for the appellant, while Rule 17 of the Rules enables a

member to raise a dispute by way of review before

the Managing Committee, Rule 20(A)VI provides the

right of review to a member against the respondent-

club by way of review before the general body. As

held by this Court in K.L.Joseph's case supra,

availability of right of seeking review against the

respondent-Club as contemplated under rule 20(A)VI

or Rule 17 (as in the instant case) will not bar/oust

the inherent jurisdiction of the Civil Court (trial court)

as enjoined under Section 9 of CPC and consequently,

in the light of undisputed fact that the Rules/Byelaws

of the respondent-Club do not have the force of

law/statute and the same are merely in the nature of

contract between the appellant-plaintiff and the

respondent-club and other members, the impugned

judgment & decree passed by the Trial Court rejecting

the plaint is clearly unsustainable in law and same

deserves to be set aside. It is needless to state that

this Court has not expressed any opinion on the

merits/demerits of the rival contentions and same are

kept open to be decided by the Trial Court after a full

fledge trial.

11. In the result, I pass the following:-

ORDER

(i) The appeal is hereby allowed;

(ii) The impugned order dated 25.03.2011

passed on I.A.No.IV in O.S.No.6578/2010 by the

learned XX Additional City Civil & Sessions Judge,

Bangalore City and consequent impugned judgment

and decree dismissing the said suit, are hereby set

aside.

(iii) Upon setting aside the impugned order and

the impugned judgment & decree passed by the trial

Court, the suit in O.S.No.6478/2010 passed by the

trial Court is hereby restored to the file of the trial

Court.

(iv) Matter is remitted back to the trial Court for

reconsideration afresh by keeping open all the

contentions to be decided by the Trial Court at the

time of final disposal of the suit.

(v) All rival contentions are kept open and no

opinion is expressed on the same.

(vi) Having regard to the advanced age of the

appellant-plaintiff, the Trial Court is requested to

disposed off the suit as expeditiously as possible and

preferably on or before 16.12.2022.

SD/-

JUDGE

DS/SRL