Karnataka High Court
Thirumala Babu vs Sri. Kanteerava Narasimharaja Sports ... on 15 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 539 of 2024
C/W RSA No. 529 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.539 OF 2024
C/W
REGULAR SECOND APPEAL NO.529 OF 2024
IN RSA NO.539/2024:
BETWEEN:
1. THIRUMALA BABU,
S/O SHRI. M.V. NAIDU,
AGED ABOUT 60 YEARS,
RESIDING AT NO.119,
5TH CROSS, MODEL HOUSE,
INDIRANAGAR,
NAZARBAD MOHOLLA,
MYSURU - 570 010.
...APPELLANT
Digitally signed (BY SRI. SAMARTHA S., ADVOCATE)
by DEVIKA M
Location: HIGH AND:
COURT OF
KARNATAKA
1. SRI. KANTEERAVA NARASIMHARAJA SPORTS CLUB,
[MYSORE SPORTS CLUB],
REGISTERED UNDER SOCIETIES
REGISTRATION ACT,
NARASIMHARAJA BOULEVARD,
LALITH MAHAL PALACE ROAD,
NAZARBAD, MYSURU-570 011,
REPRESENTED BY ITS
HON. SECRETARY.
2. SHRI. SANJAY K. SHETTY,
AGED ABOUT 72 YEARS,
R/AT NO.35/A, ASHRAYA,
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RSA No. 539 of 2024
C/W RSA No. 529 of 2024
HC-KAR
ADICHUNCHANAGIRI ROAD,
KUVEMPUNAGAR,
MYSURU - 570 023.
3. SRI. SOMASHEKAR M.C.,
S/O LATE CHANNABASAVANNA,
AGED ABOUT 74 YEARS,
RESIDING AT NO.2664/1-A,
D-52/A, 2ND FLOOR,
FLAT NO.202, PRABHU NIVASA,
VANI VILAS MOHALLA,
MYSURU - 570 002.
4. SHRI. SUNIL BALIGA,
AGED ABOUT 72 YEARS,
RESIDING AT NO.52,
DEBONAIR REGENCY APARTMENTS,
7TH MAIN, JAYALAKSHMI PURAM,
MYSURU - 570 012.
5. SHRI. SANJAY URS T.H.,
S/O HARIN NANJARAJ URS T.N.,
AGED ABOUT 54 YEARS,
RESIDING AT NO.45,
5TH MAIN, JAYALAKSHMIPURAM,
MYSURU-570 012.
6. SHRI. A.S.BALU,
AGED ABOUT 62 YEARS,
RESIDING AT NO.2944,
3RD CROSS, SARASWATHIPURAM,
MYSURU - 570 009.
7. SHRI. M. RAJENDRA KUMAR,
AGED ABOUT 64 YEARS,
RESIDING AT NO.22,
SARVAMANGALA SADANA,
1ST MAIN, 2ND CROSS,
VIJAYASHREEPURA LAYOUT,
MYSURU - 570 006.
...RESPONDENTS
(BY SRI. N.K.RAMESH, ADVOCATE FOR C/R1)
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RSA No. 539 of 2024
C/W RSA No. 529 of 2024
HC-KAR
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.09.2023
PASSED IN R.A.NO.334/2021 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 11.12.2020 PASSED IN
O.S.NO.295/2020 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, MYSURU.
IN RSA NO.529/2024:
BETWEEN:
1. THIRUMALA BABU,
S/O SHRI. M.V. NAIDU,
AGED ABOUT 60 YEARS,
RESIDING AT NO.119,
5TH CROSS, MODE HOUSE,
INDIRANAGAR,
NAZARBAD MOHALLA,
MYSURU-570010.
...APPELLANT
(BY SRI. SAMARTHA S., ADVOCATE)
AND:
1. SRI. KANTEERAVA NARASIMHARAJA SPORTS CLUB,
(MYSORE SPORTS CLUB),
REGISTERED UNDER
SOCIETIES REGISTRATION ACT,
NARASIMHARAJA BOULEVARD,
LALITH MAHAL PALACE ROAD,
NAZARBAD, MYSURU-570011,
REPRESENTED BY ITS PRESIDENT,
MR. SANJAY K SHETTY.
...RESPONDENT
(BY SRI. N.K.RAMESH, ADVOCATE FOR C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.09.2023
PASSED IN R.A.NO.333/2021 ON THE FILE OF THE III
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RSA No. 539 of 2024
C/W RSA No. 529 of 2024
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ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE ORDER
DATED 16.07.2021 PASSED ON I.A.NO.III IN
O.S.NO.265/2021 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, MYSURU, ALLOWING THE
I.A.NO.III FILED UNDER ORDER 7 RULE 11(a) AND (d) R/W
SECTION 151 OF CPC FOR REJECTION OF PLAINT.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant and the learned counsel for
respondent No.1.
2. These two appeals are filed against the order
passed by the Trial Court in O.S.No.295/2020 dated
11.12.2020 and O.S.No.265/2021 dated 16.07.2021,
respectively in allowing the I.A. filed under Order 7 Rule 11(a)
and (d) read with Section 151 of CPC for rejection of the
plaint and confirmation of the said order by the First Appellate
Court.
3. The factual matrix of the case of the plaintiff
before the Trial Court in a suit filed by the plaintiff challenging
his termination from the membership of the Club dated
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29.02.2020, it is specifically contended that the termination
made by the respondent Club is erroneous and the same is
not in compliance with the principles of natural justice. It is
also specifically contended that the termination is also bad in
law and even extracted the procedure to be adopted in
terminating him and the same is not in terms of the byelaw.
The byelaw of the Club under Rule 10 is also extracted in the
plaint and also contend that the same is not in consonance
with the byelaw, only Rule 10(f) to be invoked if it is complied
under Rule 10(e), that there must be 3/4th majority while
terminating him and not having the majority of 3/4th while
passing such an order of termination as contemplated under
sub clause (e) of byelaw No.10. Hence, filed a suit seeking
the relief of declaration to declare that the impugned notice of
termination of the plaintiff from the defendant's Club dated
29.02.2020 is in gross violation of the byelaws of the Club
and the same is null and void and also to declare that the act
of the defendants jointly and severally in terminating the
plaintiff under the notice of termination without suspending
him first is in gross violation of the byelaws of the Club and as
against the very basic principles of natural justice and also
sought for damages and also sought to restrain the defendant
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from terminating the plaintiff, who is a permanent member
vide membership No.T015 of the Mysore Sports Club,
permanently by a decree of permanent injunction.
4. In both the suits i.e., O.S.No.295/2020 and
O.S.No.265/2021, similar grounds are urged. The respondent
herein filed an application before the Trial Court under Order
7 Rule 11(a) and (d) read with Section 151 of CPC contending
that there is no cause of action to initiate the suit. The
plaintiff has impugned the notice of termination being the
cause of action for the suit, which is contrary to the facts of
the case, wherein termination order has been passed by
defendant No.1. The plaintiff has made only six of the
committee members as parties and not all the members and
hence the suit is bad for non-joinder of necessary parties. It
is also contended that the suit is barred by law in view of Rule
10(e) of the byelaws of defendant No.1 Club, wherein the
termination of the membership can be appealed within 30
days from the date of termination order dated 29.02.2020.
Without exhausting the remedy, the plaintiff has filed the suit.
5. This application was resisted by filing an objection
statement by the plaintiff contending that cause of action
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does exist when the defendants have not adhered to the
byelaws that govern the conduct of all the parties. For
rejection of plaint only the plaint averments can be considered
and not the defence of the defendants. The decision of
defendant No.1 does not sustain as appeal, when it does not
adhere to the provisions of byelaws. Before terminating his
membership, no cause of action has been issued, no enquiry
has been conducted, he was not suspended pending enquiry,
he was never asked to appear before the Managing
Committee, no order of the Managing Committee of intended
action was served on the plaintiff. The termination order was
not served, but affixed to the notice board. Hence, the very
application filed by the defendant invoking Order 7 Rule 11(a)
and (d) read with Section 151 of CPC is not sustainable.
6. The Trial Court having considered the grounds
urged in the application as well as the objection statement,
taken note of the pleadings of the parties. The Trial Court in
O.S.No.295/2020, having considered the judgments which
have been relied upon, comes to the conclusion that the
byelaws does not show as to in whose name defendant No.1
Club has to be sued. In such circumstances, such person shall
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be appointed by the governing body for the occasion. Further,
it is stated that if any person having a claim or demand
against the society against the club, it can sue the President
or Chairman or Principal Secretary or the Trustees, if on
application to the governing body, some other officer or
person is not nominated to be the defendant. In this case,
the byelaws does not show as to in whose name the
defendant Club has to be sued. Further, the governing body
of defendant No.1 Club has not appointed any such person in
whose name defendant No.1 Club shall be sued. In such a
situation, the defendant ought to have filed an application to
the governing body to nominate some other officer or person
to be sued or to be represented by defendant No.1 club. The
defendant has not filed any such application, he has
straightaway filed the suit Honorable Secretary of defendant
No.1 Club. In view of the above provisions and the decision
of the Hon'ble High Court of Karnataka, the suit is barred by
Section 15 of the Act. Apart from that, an observation is
made that the suit is bad for non-joinder of necessary parties
and the same is barred by time. But, those contentions
require evidence to be recorded. Hence, on those grounds
the plaint cannot be rejected. But in paragraph No.22, opined
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that the suit filed by the plaintiff does not disclose the cause
of action and also it is barred by time. Hence, the learned
counsel for the appellant brought to notice of this Court that
the very reasoning given by the Trial Court in paragraph
Nos.21 and 22 are contrary to each other. Once comes to the
conclusion that the contentions require evidence to be
recorded and plaint cannot be rejected on the ground of
barred by limitation, but dismissed the same.
7. The learned counsel for the appellant in
R.S.A.No.529/2024 submits that when a similar application
was filed before the Trial Court, the same was considered by
the Trial Court in O.S.No.265/2021 and formulated the point
whether the defendant has made out grounds to allow
I.A.No.3 filed under Order 7 Rule 11(a) and (d) read with
Section 151 of CPC? The Trial Court having considered the
judgment of the Apex Court in the case of CHHOTANBEN v.
KIRITBHAI JALKRUSHNABHAI THAKKAR reported in
(2018) 6 SCC 422 with regard to the rejection of plaint,
observed that the Court has to look into the plaint averments
and also relied upon other judgments. The Trial Court in
paragraph No.17, comes to the conclusion that earlier this
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Court already allowed the application filed under Order 7 Rule
11(a) and (d) read with Section 151 of CPC. Even though
Order 7 Rule 13 of CPC provide for presenting fresh plaint on
same cause of action, but in O.S.No.295/2020 already Court
held that the plaintiff has no cause of action to file the suit
and the suit is barred by time. The plaintiff without filing the
appeal against the said order filed this suit on the same cause
of action. Hence, comes to the conclusion that the plaint is
liable to be rejected and also comes to the conclusion that
Rule 10(1)(f) of byelaw is very clear that there is an appeal
provision. In paragraph No.21, the Trial Court referred to the
judgment of the Apex Court in the case of T.
ARIVANDANDAM v. T.V. SATHYAPAL AND ANOTHER
reported in AIR 1977 SC 2421, wherein it is held that, if on
meaningful not formal reading of the plaint it is manifestly
vexatious and meritless, in the sense of not disclosing a clear
right to sue, the Trial Court should exercise its power under
Order 7 Rule 11 of CPC taking care to see that the ground
mentioned therein fulfilled. The Trial Court should insist
imperative on examining the party at first hearing so that
bogus litigation can be shot down at the earliest stage.
Having considered the said judgment, the Trial Court comes
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to the conclusion that already when similar plaint was
rejected, there is no cause of action to file the suit. The
plaintiff should file an appeal against the said order and
rejected the plaint on the ground that the suit itself is not
maintainable.
8. The learned counsel for the appellant would
vehemently contend that the reason assigned in passing of
subsequent order also is an erroneous approach that already
similar I.A. was allowed and hence the suit is not
maintainable. The learned counsel contend that while
invoking Order 7 Rule 11(a) and (d) read with Section 151 of
CPC, the Court has to look into the averments made in the
plaint. In the plaint averments, specific grounds have been
urged, including Rule 10 and also specific cause of action is
pleaded i.e., termination of the appellant from the
membership. When such cause of action is mentioned in the
plaint and also considering the grounds which have been
urged, the very reasoning given by the Trial Court that there
is no cause of action and also the same is barred by law is an
erroneous approach. The learned counsel also brought to the
notice of this Court that in the earlier suit, contrary reasons
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are given by the Trial Court in paragraph Nos.21 and 22 that
time barred suit requires a detailed enquiry, but invoked
Order 7 Rule 11(d) that the same is barred by law.
9. The learned counsel for the appellant in support of
his arguments relied upon the judgment of this Court passed
in R.F.A.No.749/2022 dated 05.12.2023, regarding
maintainability of the civil suit and brought to notice of this
Court paragraph No.27, wherein discussed with regard to
giving of an opportunity and if any violation of principles of
natural justice, the suit is maintainable and discussion was
also made with regard to the evidence of parties. The learned
counsel would contend that when an application is filed under
Order 7 Rule 11(a) and (d) read with Section 151 of CPC and
specific averments are made in the plaint with regard to the
right of the appellant that the principles of natural justice has
not been met, the suit is maintainable and also the defence of
the defendant cannot be considered while entertaining an
application under Order 7 Rule 11(a) and (d) read with
Section 151 of CPC.
10. Per contra, the learned counsel for respondent
No.1 would vehemently contend that only on perusal of the
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plaint averment itself, the Trial Court invoked Order 7 Rule
11(a) and (d) read with Section 151 of CPC, that there is no
cause of action, since there is a specific proviso in the byelaw
that, if any termination is not in accordance with the law, the
same to be challenged in an appeal as per byelaw No.10(f).
The learned counsel also brought to the notice of this Court
that the plaintiff must exercise this right within 30 days of
receiving the Managing Committee termination notice and
also make request to the Honarary Secretary to call for a
Special General Body meeting and the Honarary Secretary
shall call for a Special General Body meeting within 3 months.
When such specific byelaw is provided for an appeal to the
aggrieved party, instead of filing an appeal, approached the
Civil Court and hence the Civil Court comes to the conclusion
that there is no cause of action and also the same is barred
by time and hence it does not require interference of this
Court.
11. The learned counsel for respondent No.1 relied
upon the order passed by this Court in M.F.A.No.9785/2018
dated 21.06.2019 and brought to the notice of this Court
paragraph No.12, wherein an observation is made that the
suit filed by the respondents without availing the remedy to
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prefer an appeal in accordance with Rule 19.15.6 may not be
maintainable. In the case on hand also, when the appeal is
not filed, there cannot be any civil suit.
12. The learned counsel also relied upon the judgment
of the Apex Court in the case of T.P. DAVER v. LODGE
VICTORIA reported in AIR 1963 SC 1144 and brought to
the notice of this Court paragraph No.5, wherein it is held that
the source of the power of associations like clubs and lodges
to expel their members is the contract on the basis of which
they become members. The learned counsel also brought to
the notice of this Court the discussion made in paragraph
No.9 that, a member of a masonic lodge is bound to abide by
the rules of the lodge; and if the rules provide for expulsion,
he shall be expelled only in the manner provided by the rules.
In the case on hand, the learned counsel would contend that
the respondents have invoked the byelaws and terminated the
appellant from the membership and hence it does not require
any interference of this Court.
13. Having heard the learned counsel for the appellant
and the learned counsel for respondent No.1 and considering
the grounds which have been urged in the appeals, the
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following substantial question of law arise for the
consideration of this Court:
(i) Whether both the Courts have committed an
error in invoking Order 7 Rule 11(a) and (d)
read with Section 151 of CPC in rejecting the
plaint and whether it requires interference of
this Court?
(ii) What order?
Point No.(i):
14. Having heard the respective learned counsel and
having considered the substantial question of law framed by
this Court in both the appeals and considering the prayer
sought, in the prayer specific relief is sought for declaration
that notice dated 29.02.2020 is in gross violation of the
byelaws of the Club and also sought the relief to declare that
the act of defendants jointly and severally in terminating
plaintiff under the notice of termination without suspending
him is in gross violation of the byelaws of the Club and also
sought for the relief of permanent injunction. In the plaint, it
is pleaded regarding the byelaws and in paragraph No.29,
byelaw No.10 is also extracted and in paragraph Nos.30 and
31 pleaded with regard to the non-compliance of byelaws and
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also would contend that 3/4th members must be present while
terminating him under byelaw No.10(e) and the same has not
been complied.
15. The main contention of respondent No.1 is that
the appellant ought to have filed the appeal instead of filing a
civil suit. No doubt, this Court in its judgment passed in
R.F.A.No.749/2022 held that suit is maintainable, in case if
any violation of principles of natural justice as well as non-
compliance of byelaws. The judgment which has been relied
upon by the learned counsel for respondent No.1 in the case
of T.P.Daver (supra), it is clearly held with regard to the
compliance of byelaw in paragraph Nos.5 and 9 and this Court
in M.F.A.No.9785/2018, held that if the respondents are
having remedy to prefer an appeal in accordance with rules,
the suit is not maintainable. Having perused the principles
laid down in the judgments and also the material available on
record, it is settled law that when an application is filed under
Order 7 Rule 11(a) and (d) read with Section 151 of CPC, the
Court has to look into the plaint averments and not the
defence. The main defence of the defendant is that there is
an appeal provision under Rule 10(e) of the byelaw. The Trial
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Court taken note of the judgment of the Apex Court in the
case of T.Arivandandam (supra), that it is well settled
principle that while considering an application for rejection of
plaint, the Court has to look into the plaint averments only
and nothing else. It has to be noted that the earlier order
passed by the Trial Court in O.S.No.295/2020 is the basis for
rejection of the suit in O.S.No.265/2021.
16. Now this Court has to consider the order passed in
O.S.No.295/2020, wherein discussion was made in detail with
regard to the grounds which have been urged in the
application and also the statement of objections and with
regard to suing of the parties also discussed in paragraph
No.20 considering the judgment of this Court in the case of
MUDDAPPA v. PANCHAKSHARAIAH reported in ILR 1985
KAR 1230. It has to be noted that, all the members of the
Managing Committee who took decision were made as parties
in the original suit. It is important to note that in paragraph
No.21 of the Trial Court order, an observation is made that
the defendants have also contended that suit is bad for non-
joinder of necessary parties and it is barred by time. While
considering the said ground, the Trial Court comes to the
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conclusion that those contentions require evidence to be
recorded, but comes to the conclusion that on those grounds,
plaint cannot be rejected and it requires the trial and evidence
has to be recorded. But contrary to this observation, comes
to the conclusion that the suit filed by the plaintiff does not
disclose the cause of action when it was specifically pleaded in
the plaint that cause of action is for issuance of notice dated
29.02.2020 and also an observation is made that it is barred
by time.
17. The Apex Court in its recent judgment in the case
of P. KUMARAKURUBARAN v. P. NARAYANAN AND
OTHERS reported in 2025 SCC Online SC 975, has held
that when an application is filed under Order 7 Rule 11(d) of
CPC that the suit is barred by law, the same involves mixed
question of fact and law and the same has to be considered
only after recording the evidence. The Trial Court made an
observation that those contentions requires evidence to be
recorded and the plaint cannot be rejected. But, contrary
decision was taken in paragraph No.22 that the plaint does
not disclose the cause of action and specific cause of action
has been pleaded in the plaint and also even extracted byelaw
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10 in the plaint and urged the ground. When such being the
case, the Trial Court has not framed any issue with regard to
the maintainability of the suit, but invoked Order 7 Rule 11(a)
and (d) read with Section 151 of CPC. When the matter
requires trial with regard to the grounds which have been
urged under Order 7 Rule 11(a) and (d) read with Section 151
of CPC, the same involves mixed question of fact and law and
the Trial Court ought not to have invoked Order 7 Rule 11(a)
and (d) read with Section 151 of CPC. The defence cannot be
raised while considering an application filed under Order 7
Rule 11(a) and (d) read with Section 151 of CPC and only to
see that whether cause of action is stated in the plaint. The
Trial Court though comes to a conclusion that it is settled
principle that only plaint averments has to be looked into, but
committed an error in coming to the conclusion in the
subsequent order that already there was an order rejecting
the suit and when this Court comes to the conclusion that
invoking of Order 7 Rule 11(a) and (d) read with Section 151
of CPC is erroneous, the question of relying upon the very
same order in the other suit in O.S.No.265/2021 does not
arise.
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18. It is also settled law that when the issue is raised
with regard to the suit is barred by time and also barred by
law, the Trial Court with regard to the maintainability is
concerned, can frame an issue and consider the same and
instead of doing the same, invoked Order 7 Rule 11(a) and
(d) read with Section 151 of CPC in coming to an erroneous
conclusion that there is no cause of action and also the same
is barred by law and instead of using the same as barred by
law, it is mentioned as barred by time. The Apex Court in its
recent judgment in the case of P. Kumarakurubaran
(supra), has held that it involves mixed question of fact and
law to invoke Order 7 Rule 11(d) of CPC and the same has to
be enquired into. When the Trial Court comes to the
conclusion in the earlier suit in O.S.No.295/2020 making an
observation in paragraph No.21 that it requires evidence to be
recorded, but contrary to that, in paragraph No.22 held that
the same is barred by time and no cause of action and hence
the very approach of the Trial Court is erroneous and hence, I
answer the substantial question of law in the affirmative.
Point No.(ii):
19. In view of the discussions made above, I pass the
following:
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ORDER
(i) Both the appeals are allowed.
(ii) The impugned order passed by the Trial Court
under Order 7 Rule 11(a) and (d) read with
Section 151 of CPC in O.S.Nos.295/2020 and
265/2021, are set aside. The matter is remitted
back to the Trial Court to restore the suit and
consider the same in accordance with law.
Having restored the suit, the appellant has to
decide which suit could be continued.
Sd/-
(H.P.SANDESH)
JUDGE
MD
