Biswanath Mukharjee vs Netaji Sangha And Others
2023 Latest Caselaw 7283 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK

                      RSA NO.300 OF 2012

(From the judgment dated 13th August, 2012 passed by
learned 2nd Addl. District Judge, Cuttack in R.F.A.
No.107/2010 who allowed the said appeal by reversing the
judgment and decree dtd.6th October, 2010 and 28th
October, 2010 respectively passed in by learned Civil Judge
(S.D.), 1st Court, Cuttack in C.S. No.485/2007).

     Biswanath Mukharjee

                                                ...        Appellant

                                  -versus-

      Netaji Sangha and others
                                               ...         Respondents



  Advocates appeared in the case through hybrid mode:

  For Appellants :                          Mr. Gouri Mohan Rath,
                                                Advocate

                                              -versus-

  For Respondents 1 and 2: Mr.Bibekananda
                              Bhuyan, Advocate


  For Respondent No.3:                       Mr.D.N. Mohapatra,
                                                   Advocate
  ---------------------------------------------------------------------------
         CORAM:

                        JUSTICE SASHIKANTA MISHRA

RSA No.300 of 2012                                           Page 1 of 21
                                         JUDGMENT

05.7.2023.

Sashikanta Mishra,J. The present appeal is directed against the

reversing judgment passed by the Second Addl.

District Judge, Cuttack in RFA No.107/2010 on 13th

August, 2012. The present appellant was the

Defendant No.1 in C.S. No.485/2007 of the Court of

learned Civil Judge (Sr. Division), 1st Court, Cuttack.

The said suit filed by the present Respondents-

Plaintiffs was for declaration that as per the resolution

passed on 9th November, 2007 by the General Body of

the Plaintiff Sangha, Defendant No.1 is no longer the

Secretary of the said Sangha and has no authority to

represent it in the body of Orissa Cricket Association

(OCA)-Defendant No.2, as its representative with

further declaration that the Sangha had not passed

any resolution on 15th December, 2006 electing its

office bearers and for appointment of receiver/observer

for conducting the election of the office bearers of the

Sangha on or before 23rd January, 2008. Further

declaration was prayed for that the Plaintiffs are the

lawfully elected care-taker office bearers of the Sangha

as per extraordinary General Body Meeting dated 9th

November, 2007 and are therefore authorized to

represent the Sangha for all purposes and for a

direction to the Defendant No.2 to recognize the elected

representatives of the Sangha in its body as members.

As per judgment passed on 6th October, 2010 followed

by a decree, learned Civil Judge (Sr. Division), 1st Court

Cuttack dismissed the suit on contest. The said

judgment and decree as already stated was reversed by

the First Appellate Court by decreeing the suit in part.

2. The present appeal has been admitted on the

following substantial questions of law;

"(i) Whether the learned 1st Appellate Court has committed gross error of law in arriving at a conclusion that the order dt.8.11.2007 vide Ext.Q passed in C.S. No.67/2004 will stand as resjudicata under Section 11 C.P.C. and thus debarred the learned trial Court from exercising its

jurisdiction to adjudicate the issue relating to the resolution dt.15.1.2004, specifically when the said order dt.8.11.2007 was not passed on merit nor the same is based on any assessment of any evidence on record on the issue of validity of the resolution dt.15.1.2004 in the earlier suit.

(ii) Whether the learned Court below committed gross error of law by holding that there is no valid resolution on 15.12.2006 re-electing the appellant as the Secretary of the Sangha, specifically when there is no challenge to the said resolution from any side in the earlier suit although it was very' much filed by the appellant in the previous C.S. No.67/2004 and hence the instant claim is barred under Section 11 Exp.IV of C.P.C."

For convenience, the parties are referred to as

per their respective status in the trial Court.

3. Briefly stated, the facts of the case are that

Netaji Sangha (Plaintiff No.1) is a Society registered

under the Societies Registration Act, 1860 in the year

1971-72 having been established, inter alia, to develop

sportsmanship among its members through

participation in different sports events. The OCA

granted affiliation to the Plaintiff Sangha with its

Secretary being an ex-officio member of the

association. Defendant No.1 was elected as the

Secretary of the Plaintiff Sangha on 20th December,

2001. There being allegations of mismanagement of the

affairs of the Sangha and mis-appropriation of its

funds etc. an extraordinary General Body of the

Sangha was held on 15th January, 2004, whereby he

was removed from the post of Secretary as also from

primary membership of the Sangha. One Siba Prasad

Mukherjee was elected as President and one Tarun

Kumar Mukherjee as Secretary of the Sangha.

Challenging the Resolution dated 15th January, 2004

as illegal and unconstitutional, Defendant No.1 filed

Civil Suit No.67/2004 in the Court of learned Civil

Judge (Sr. Division), 1st Court, Cuttack seeking a

declaration that he was still continuing as the

Secretary of the Sangha and for permanent injunction

against the so-called newly elected members. During

pendency of the suit, an interim order was passed by

the Trial Court whereby the Defendant No.1 (Plaintiff in

the suit) was permitted to continue as the Secretary.

On 8th November, 2007, the suit was dismissed for

disappearance of cause of action. On 9th November,

2007 an Extraordinary General Body Meeting was

convened, whereby one Ashis Kumar Majumdar was

chosen as the working President and Tarun Kumar

Mukherjee as the working Secretary of the Sangha.

Though such resolution was communicated to OCA, it

did not recognize the same. On the other hand,

Defendant No.1 claimed to have been elected as the

Secretary pursuant to Resolution dated 15th December,

2006. As such, the Plaintiffs filed the suit claiming the

reliefs as aforementioned.

The Defendant No.1 (present appellant)

contested the suit mainly on the ground that he was

elected for a period of 5 years as per resolution dated

20th December, 2001 and he continued as the

Secretary till 20th December, 2006 whereupon he was

re-elected for another term of 5 years. It was further

claimed that there was no extraordinary General Body

Meeting of the Sangha on 15th January, 2004. He

denied the allegation of mis-management,

misappropriation and acting in connivance with the

OCA. He further questioned the locus standi of Tarun

Kumar Mukherjee and Ashis Kumar Majumdar to file

the present suit.

4. Basing on the rival pleadings, the Trial Court

framed as many as thirteen issues. Issue Nos.III, IV,

VI, VII, VIII and IX were considered together at the

outset. After examining the oral and documentary

evidence on record, the trial Court held that Defendant

No.1 had continued as Secretary of the Sangha on the

strength of interim order passed by the Court in the

earlier suit (C.S. No.67/2004) and therefore, his tenure

was for a period of five years. As such the subsequent

election of the Plaintiffs for a period of one year after

dismissal of the suit is illegal. The Trial Court

therefore, held that the Plaintiffs are not the office

bearers of the Sangha, rather Defendant No.1 is

elected Secretary as per Resolution dated 15th

December, 2006. Consequently the Resolution dated

9th November, 2007 was held to be prima facie illegal.

The Trial Court, thereafter took up the remaining

issues and held that the Plaintiffs have no locus standi

to institute the suit. The suit was thus dismissed.

5. Being aggrieved, the Plaintiffs carried the matter

in appeal. The First Appellate Court took into

consideration whether the judgment passed in the

previous suit i.e. C.S. No.67/2004 would act as bar for

the Trial Court to exercise its jurisdiction to adjudicate

the same issue relating to the Resolution dated 15th

January, 2004. After taking into account the settled

position of law as laid down in several decisions of the

Apex Court, the First Appellate Court held that the

question relating to Resolution dated 15th January,

2004 was directly and substantially in issue, both in

the former suit (C.S. No.67/2004) and the present suit.

The First Appellate Court further observed that the

interim order passed during pendency of the earlier

suit as lodged with the final order of dismissal of the

suit on the ground of disappearance of cause of

action. It was further held that such dismissal was not

on any technical ground, but must be treated as a

judgment passed on contest. Moreover, the said

judgment was never challenged by Defendant No.1 and

therefore, the plea taken by him in the present suit

denying the validity or legality of the Resolution dated

15th January, 2004 is hit by the principle of estoppel

by accord. The First Appellate Court thus found that

the Trial Court had overlooked the vital aspect of the

suit being hit by resjudicata. The First Appellate Court

further held that in view of the Resolution dated 15th

January, 2004, the Defendant No.1 was no longer a

Member of the Sangha and therefore, he could not

have been elected as a office bearer by Resolution

dated 15th December, 2006. The Resolution dated 9th

November, 2007 passed immediately after dismissal of

the earlier suit was also taken note of by the First

Appellate Court whereby the plaintiffs were elected as

working President and working Secretary of the

Sangha which was not wrong. According to the First

Appellate Court, the Trial Court was swayed away by

the interim order passed during pendency of the

former suit and therefore, wrongly dismissed the suit

by holding the defendant no.1 to be entitled to

continue as Secretary for five years.

On such findings, the First Appeal was allowed

by setting aside the judgment and decree of the Trial

Court. The suit was thus decreed in part by declaring

that Defendant No.1 has no authority to represent the

Plaintiff Sangha in OCA, that Resolution dated 15th

December, 2006 was not passed by the Sangha and

that the election of the Plaintiffs as working Secretary

and President vide Resolution dated 9th November,

2007 was valid and legal.

6. Heard Mr. G.M.Rath, learned counsel for the

Appellant (Defendant No.1), Mr. B.N.Bhuyan, learned

counsel for the Respondent Nos.1 and 2 (Plaintiffs) and

Mr. D.N. Mohapatra, learned counsel for the

Respondent No.3-OCA (Defendant No.2).

7. Assailing the judgment of the First Appellate

Court, Mr. Rath, would contend that the former suit

was dismissed not on merits but on the technical

ground of disappearance of cause of action and

therefore, the said judgment cannot operate as res

judicata in the subsequent suit. Even otherwise the

Plaintiffs having relied upon the Resolution dated 15th

January, 2004, the burden of proving the same was on

them which they failed to do. The First Appellate Court

therefore, committed gross error of law in harping

upon the so called weakness of the Defendant's case

rather than insisting upon the Plaintiffs to prove their

case independently. Mr. Rath, further argued that the

Resolution dated 15th January, 2004 was never

enforced. It was also argued that the bye-laws of the

Society do not provide for a care-taker Governing Body,

which the First Appellate Court did not take into

consideration at all.

8. Mr. B.N. Bhuyan, on the other hand, has

supported the impugned judgment by submitting that

dismissal of the former suit was not on any technical

ground but on the finding that the cause of action

had disappeared by efflux of time. The said suit was

hotly contested. In any event, the judgment passed in

the former suit had not been challenged and therefore,

attained finality.

9. Mr. D.N.Mohapatra submits that OCA being the

parent body cannot have any say as regards the

management of the Plaintiff Society or on the dispute

among its office bearers which is an internal matter of

the Society. He further contends that the OCA grants

affiliation and membership basing on valid decisions

taken by the Governing Body of the Plaintiff Sangha.

10. In view of the foregoing narration, the primary

question that falls for consideration in the present

appeal is, whether dismissal of the former suit (C.S.

No.67/2004) on the ground of disappearance of cause

action can operate as res judicata in a subsequent

suit. Before proceeding further, it would be apposite to

refer to Section 11 of C.P.C. which embodies the rule of

res judicata and reads as under;

"11.Res-judicata-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

                     Xxx        xxx          xxx         xxx

     11.     It      has     been     long   settled     by        several

pronouncement of the Apex Court as well this Court

that the following contingencies must be satisfied to

constitute res judicata;

            (i)      There must be two suits one former
            suit and the other subsequent suit;


            (ii)     The Court which decided the former
            suit      must    be    competent      to   try    to
            subsequent suit;

(iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits.

(iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit.

(v) The parties to the suits or parties

under whom they or any of them claim

must be the same in both the suits;

(vi) The parties in both the suits must have litigated under the same title.

12. The above principles are so basic that it is not

necessary to refer to any case law in this regard. Now,

it is to be considered whether the former suit,

dismissed for disappearance of cause of action would

come within the mischief of Section 11 of C.P.C. and

thereby act as a bar for a subsequent suit between the

parties. As has already been seen, the requirement of

law is that the matter directly and substantially in

issue in the subsequent suit must have been heard

and finally decided by the Court in the former suit.

13. A similar question came up for consideration before

the Apex Court in the case of Sheodan Singh vs. Smt. Daryao

Kunwar; reported in AIR 1966 SC 1332, wherein the Apex

Court observed in Paragraph-14 as under;

" xxx xxx xxx

Reliance in this connection is placed on the well-settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-

joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision

not being on the merits would not be res judicata in a subsequent suit.

Xxx xx xxx xxx xxx xxx xxx"

(Emphasis added)

14. The same principle was considered by the Apex

Court recently in the case of Prem Kishore and

others v. Brahm Prakash and others; reported in

2023 SCC OnLine SC 356, wherein under Paragraph-

34 of the judgment, the Apex Court has reiterated the

same proposition. Thus what follows is, a suit not

decided on merits but on technical grounds cannot

operate as res judicata.

15. Coming to the facts of the case, it is seen that

Defendant No.1 had filed C.S. No.67/2004, inter alia,

seeking a declaration that the meeting held on 15th

January, 2004 under the Presidentship of Siba Prasad

Mukherjee (Defendant No.2 therein) and the Resolution

made therein removing the Plaintiff from the

Secretariship and electing Tarun Kumar Mukheree

(Defendant No.1 therein) as the Secretary of Netaji

Sangha is illegal and unconstitutional. No doubt, the

suit was contested and an interim order was passed by

the Court allowing the Plaintiff (present Defendant

No.1) to continue as the Secretary. However, a petition

was filed by the defendants in the said suit being CMA

No.39 of 2007 for dismissal of the suit as the same had

become infructuous. The Trial Court found that as per

its bye-law the Secretary of the Sangha is to be elected

each year before 23rd January and that in the year

2001 all the Members of the Sangha passed a

Resolution deciding that the Secretary shall continue

for five years. Thus, the tenure of the Plaintiff as

Secretary was still 23rd January, 2006. Under such

circumstances, the cause of action for filing the suit

no longer remained to be adjudicated upon in view of

the fact that after expiry of the previous tenure on 23rd

January, 2006, the Plaintiff had been re-elected as

Secretary vide Resolution passed on 15th December,

2006. The suit was thus dismissed as having become

infructuous. It goes without saying that the matter

directly and substantially in issue in the said suit i.e.

validity and constitutionality of the Resolution dated

15th January, 2004 was never adjudicated. In view of

what has been discussed herein before, the said issue

was available for adjudication even after dismissal of

the suit for disappearance of cause of action.

16. A reading of the judgment passed by the Trial

Court in the present case reveals that it was held that

the Resolution passed on 15th January, 2004 removing

Defendant No.1 from the Secretaryship as well

Membership of the Sangha is illegal on the ground that

the procedure prescribed under the bye-laws had not

been followed. The trial Court further took note of the

Resolution dated 20th December, 2001 whereby

Defendant No.1 was elected as Secretary for five years

and treated it as genuine. Therefore, all the

Resolutions passed electing the care-taker body and

electing working Secretary and working President in

between 15th January, 2004 to 8th November, 2007, i.e.

the date of dismissal of the suit are illegal as the same

were done in violation of the Court's order. The

Resolution dated 20th December, 2001 electing the

Defendant No.1 as Secretary for a period of five years

was never challenged by any one. The Trial Court

therefore held that the Plaintiffs are not office bearers

of Netaji Sangha and rather Defendant No.1 was the

elected Secretary as per Resolution dated 15th

December, 2006. The Trial Court further took note of

the fact that the suit was filed not by the original

President and Secretary but by the working President

and working Secretary. Since the bye-laws of the

Sangha do not provide for any working President or

working Secretary, the suit is not maintainable. Since

Defendant No.1 had duly intimated the Court of his re-

election for a further period of five years as per

Resolution dated 15th December, 2006, the Plaintiffs

have no cause of action to file the suit. The suit was

thus dismissed. After going through the reasoning

adopted by the Trial Court as mentioned above, this

Court finds nothing wrong therein so as to be

persuaded to interfere therewith.

17. Coming to the judgment of the First Appellate

Court, it is observed that the said Court proceeded on

an entirely erroneous perception of law as regards the

principle of res judicata to hold that the judgment

passed in the former suit was on merit despite the fact

that the same was dismissed for disappearance of

cause of action. The Appellate Court further

misdirected itself in holding that the Defendant No.1

was hit by estoppel by accord. In view of the analysis of

facts and law made hereinbefore, it is evident that the

finding of the First Appellate Court is erroneous and

cannot be sustained in law. In view of the findings of

this Court as above, it becomes no longer necessary to

examine the other findings as the same are based on

incorrect application of law. The further finding that

the Trial Court mostly relied on the temporary order

of injunction granted in favour of Defendant No.1 in

the former suit being oblivious of the bar contemplated

under Section 11 of C.P.C. is also erroneous for the

reason that the Trial Court has merely referred to the

interim order of injunction to support its findings that

the claim of the Defendant No.1 of being elected as

Secretary for five years as per Resolution dated 20th

December, 2001 was genuine.

18. Thus, from a conspectus of the discussion of law

and facts made hereinbefore, this Court has no

hesitation in holding that the impugned judgment

being erroneous, warrants interference. Resultantly,

the appeal is allowed. The impugned judgment passed

by First Appellate Court is hereby set aside. The

judgment and decree passed by the Trial Court is

hereby confirmed.

.................................. (Sashikanta Mishra) Judge

Ashok Kumar Behera

Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.R.-CUM-SR.SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Jul-2023 11:21:21