Sadananda Anchan vs Vittal G. Poojary
2023 Latest Caselaw 6247 Kant

                                               -1-
                                                          NC: 2023:KHC:31537
                                                        RSA No. 1273 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 1ST DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 1273 OF 2021 (INJ)

                   BETWEEN:

                   1.    SADANANDA ANCHAN
                         S/O. KITTA POOJARY
                         AGED ABOUT 62 YEARS
                         HINDU, BILLAVAR AND
                         ELECTRICAL CONTRACOTR
                         R/AT KEDAR, BOLJE OF
                         UDAYAVARA VILLAGE, P.O.
                         UDAYAVARA
                         UDUPI TALUK AND DISTRICT
                                                                 ...APPELLANT

                                   (BY SRI N.S.BHAT, ADVOCATE)

                   AND:

Digitally signed   1.    VITTAL G. POOJARY
by SHARANYA T
                         S/O. GIRIA POOJARY
Location: HIGH           AGED ABOUT 70 YEARS
COURT OF
KARNATAKA                HINDU , BILLAVAR
                         AGRICULTURIST
                         AND LIC AGENT
                         R/AT KEDAR BOLJE
                         UDAYAVARA VILLAGE
                         UDUPI TALUK AND DISTRICT - 576 101.

                   2.    DINESH M. SALIAN
                         S/O. MUTHA POOJARY
                         AGED ABOUT 60 YEARS
                         HINU, BILLAVAR AND HOTEL
                         KEEPER BY PROFESSION
                                -2-
                                          NC: 2023:KHC:31537
                                        RSA No. 1273 of 2021




     R/AT MATADANGADI OF
     UDAYAVARA VILLAGE P.O.
     UDAYAVARA
     UDUPI TALUK AND DISTRICT-576 101.

3.   BRAHAM BAIDARKALA
     GARADI SEVA SAMITHI®
     REPTD. BY (a) PRESIDENT
     AND (b) SECRETARY
     HAVING THEIR OFFICE
     AT BOLJE UDAYAVAR VILLAGE
     UDUPI TALUK AND DISTRICT - 576 101.
                                             ...RESPONDENTS

     THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 23.03.2020
PASSED IN R.A.NO.47/2014 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, UDUPI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 27.10.2014 PASSED IN O.S.NO.161/2002 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE AND JMFC, UDUPI.

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

                          JUDGMENT

This matter is listed for admission and I have heard the

learned counsel for the appellant.

2. The factual matrix of the case of the appellant-

plaintiff before the Trial Court while seeking the relief of

injunction is that he was elected as General Secretary of

Sri Brahma Baidarkala Garadi Seva Samithi, Bolje, Udayavara.

In the suit filed against the defendants, the plaintiff has

NC: 2023:KHC:31537 RSA No. 1273 of 2021

contended that the election to the members of managing

committee of the third defendant-Samith be held either on

04.08.2022 or any other date in any place calling for an

election to the members of the managing committee and

moved an I.A. for grant of temporary injunction. The plaintiff

also contend that, once he has been elected as General

Secretary, the defendants ought to have handed over the

charge to him. Hence, he filed the suit for the relief of

injunction.

3. The defendants appeared and filed the written

statement contending that the plaintiff had ceased to be a

member of said Samithi and he was disqualified. It is also

contended that the defendants were discontinued in the office

of Samithi from and after 02.06.2002 and the same is illegal

and not handed over any charge to the plaintiff and also

contend that Extraordinary General Body meeting was held on

04.08.2002 and subsequently, the election was conducted and

the same is valid and legal and the suit is bad for non-joinder

of necessary parties when the suit is filed for the relief of

permanent injunction.

NC: 2023:KHC:31537 RSA No. 1273 of 2021

4. The Trial Court has given opportunity to both the

parties and accordingly, the plaintiff examined himself as P.W.1

and mainly relied upon the documents of Exs.P1 to P11. On

the other hand, the defendants examined the defendant No.2

as D.W.1 and got marked the documents as Exs.D1 to D12.

5. The Trial Court, after considering both oral and

documentary evidence placed on record, answered issue Nos.1

and 2 as 'negative' in coming to the conclusion that the plaintiff

has not proved that he was elected as General Secretary of Sri

Brahma Baidarkala Garadi Seva Samithi in the Annual General

Body Meeting of the Samithi held on 02.06.2002. On the other

hand, answered issue Nos.3 and 4 as 'affirmative', in coming to

the conclusion that defendant No.3-Samithi has continued and

no charge was handed over to the plaintiff and General Body

Meeting was called and new Samithi office bearers were

elected. Hence, dismissed the suit.

6. Being aggrieved by the judgment and decree of the

Trial Court, an appeal is filed before the First Appellate Court in

R.A.No.47/2014 and the First Appellate Court, on

re-appreciation of both oral and documentary evidence placed

NC: 2023:KHC:31537 RSA No. 1273 of 2021

on record, formulated the point whether the judgment and

decree of the Trial Court is illegal, perverse and capricious and

the same is answered as 'negative'. The First Appellate Court

also, having considered the material on record, comes to the

conclusion that the suit of the plaintiff was mainly dismissed on

the ground that the plaintiff has failed to prove that he was the

elected General Secretary of the third defendant and the

plaintiff had ceased to be a member of third defendant. The

Trial Court has also taken note of the fact that the plaintiff has

failed to pay annual subscription and failed to fulfill the

conditions of subscription and also failed to prove that he was

resident of Kemthur, Korangrapady and Manipura Village. The

plaintiff has to pay the subscription of Rs.1,500/- which was

due to the third defendant. Apart from that the Trial Court has

come to the conclusion that Ex.P5- minute book prepared by

the plaintiff does not bear the signatures of President,

Secretary and other office bearers and reassessed the evidence

on record and comes to the conclusion that the plaintiff has not

proved his case. Hence, dismissed the appeal. Being aggrieved

by the said finding of the Trial Court and the First Appellate

Court, the present appeal is filed.

NC: 2023:KHC:31537 RSA No. 1273 of 2021

7. The learned counsel for the appellant-plaintiff would

vehemently contend that the Trial Court has not framed proper

issues and the First Appellate Court also not framed proper

points for determination and failed to consider the fact that the

plaintiff has proved that he was elected as the General

Secretary of the third defendant-Samithi in its Annual General

Body Meeting held on 02.06.2002 and this aspect has not been

properly appreciated. The counsel also would contend that the

Trial Court and the First Appellate Court misconstrued the

document of Ex.D1 and erroneously dismissed the suit. Hence,

this Court has to frame substantial question of law whether

both the Courts were justified in interpreting the document of

Ex.P5-minute book and Ex.D1-resolution book in a proper

perspective and whether both the Courts have committed an

error in dismissing the suit for bare injunction. Hence, it

requires interference.

8. Having heard the learned counsel for the appellant-

plaintiff and also on perusal of the material available on record,

admittedly, the suit is filed for the relief of bare injunction and

while filing the suit, the plaintiff claims that he was elected as

General Secretary of said Samithi and the Trial Court comes to

NC: 2023:KHC:31537 RSA No. 1273 of 2021

the conclusion that the same is not proved. Though the plaintiff

relied upon the document of Ex.P5-minute book, the same does

not contain the signatures of the President, Secretary and other

office bearers and it is also not in dispute that even though the

plaintiff claims that he was elected as General Secretary,

charge was not handed over to him and Extraordinary General

Body Meeting was called and election was held on 04.08.2002

and new office bearers were elected. When such being the

case, both the Trial Court and the First Appellate Court having

taken note of the material on record that he has not taken any

charge and Extraordinary General Body Meeting was conducted

and decision was taken and the resolution book which is

marked as Ex.D1 is also taken note of by the First Appellate

Court and in terms of Ex.D1, the First Appellate Court discussed

the issue involved between the plaintiff and the Samithi since,

other office bearers have immediately resigned their post as

soon as the name of the plaintiff was proposed to be the

General Secretary and also in the Extraordinary General Body

Meeting, a resolution was passed.

9. When such being the material on record and when

the plaintiff has not continued in the post of General Secretary

NC: 2023:KHC:31537 RSA No. 1273 of 2021

and charge was not handed over and Extraordinary General

Body Meeting was held on 04.08.2002 itself and he was ceased

to be a member of Samithi. Hence, both the Courts have given

finding that the plaintiff has not proved the fact that he took

the charge as General Secretary. When such being the case, I

do not find any error committed by the Trial Court and the First

Appellate Court in dismissing the suit for injunction and while

seeking the relief of permanent injunction, the plaintiff has to

establish that he was appointed as General Secretary and took

charge and the very issue Nos.1 and 2 framed with regard to

the same is answered as 'negative' and issue Nos.3 and 4 are

answered as 'affirmative', in coming to the conclusion that the

very membership of the plaintiff was ceased. Hence, I do not

find any merit in the second appeal to come to the conclusion

that the said finding is perverse. Therefore, no ground is made

out to admit the appeal and frame substantial question of law.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

ST