Punjab-Haryana High Court
Major Gurcharan Singh Ahluwalia vs Manjit Singh And Others on 9 September, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:118032
CR-5150-2023 (O&M) and -1-
CR-5237-2023 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(113)
1. CR-5150-2023 (O&M)
Major Gurcharan Singh Ahluwalia (retd.) through his LRs
....Petitioners
Versus
Manjit Singh and others
.....Respondents
2. CR-5237-2023 (O&M)
Major Gurcharan Singh Ahluwalia (retd.) through his LRs
....Petitioners
Versus
Manjit Singh and others
.....Respondents
Date of Decision: - 09.09.2024
CORAM : HON'BLE MR. JUSTICE VIKAS BAHL
Present:- Mr. Vaibhav Narang, Advocate,
for the petitioner.
****
VIKAS BAHL, J. (ORAL)
1. This order will dispose of two revision petitions, i.e., Civil
Revision No.5150 of 2023 and Civil Revision No.5237 of 2023. Both the
said revision petitions have been filed challenging the orders arising from
the same suit and both petitions have been filed by defendant No.1-Major
Gurcharan Singh Ahluwalia.
2. Challenge in Civil Revision No.5150 of 2023 is to the order
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dated 22.05.2023 (Annexure P-6) passed by the Civil Judge, Senior
Division, Ludhiana whereby an application filed by plaintiff
No.1/respondent No.1 under Order 1 Rule 10 CPC for impleading
respondents No.8 to 16 herein has been allowed.
3. Challenge in Civil Revision No.5237 of 2023 is to the order
dated 22.05.2023 (Annexure P-6) passed by the Civil Judge, Senior
Division, Ludhiana whereby the application under Order 6 Rule 17 CPC
filed by plaintiff No.1/respondent No.1 seeking amendment of plaint has
been allowed.
4. Reference to the documents is from Civil Revision No.5150
of 2023, except where specifically mentioned otherwise.
5. Brief facts of the case are that respondents No.1 to
3/plaintiffs (hereinafter referred to as 'the plaintiffs') had filed a suit in the
year 2019 with the following prayers: -
"It is, therefore, respectfully prayed that-
a) A decree for the grant of permanent injunction
restraining the defendants-
i) From making any obstruction to the entry of the plaintiffs to
the School premises i.e. Sri Guru Hargobind Public School,
Thakkarwal, Pakhowal Road, Ludhiana;
ii) From making any obstruction in taking part by plaintiffs in
the management and other affairs of the School Sri Guru
Hargobind Public School, Thakkarwal, Pakhowal Road,
Ludhiana being run by Sri Guru Hargobind Educational
Society;
iii) From making any obstruction in holding general body
meeting of Sri Guru Hargobind Educational Society and
further to take suitable steps for smooth running of the
School and Society by the plaintiffs;
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iv) From making any obstruction in participating the plaintiffs
in the meetings of Sri Guru Hargobind Educational Society;
v) From operating bank accounts in the name of Sri Guru
Hargobind Educational Society bearing No.32607386578 in
State Bank of India, Pakhowal Road, Village Phullanwal,
Tehsil and District Ludhiana, account No. C/A
7862002100000439 in Punjab National Bank, Pakhowal
Road, Village Daad Tehsil and District Ludhiana, and
Saving account No. 78620001000013217 in Punjab
National Bank, Pakhowal Road, Village Daad, Tehsil and
District Ludhiana by the defendants exclusively without
joining the plaintiff No. 1 in operating the same;
vi) From committing any act of waste and damage to the
property of Sri Guru Hargobind educational Society as well
as Sri Guru Hargobind Public School, Village Thakkarwal,
Tehsil and District Ludhiana and further from using any
assets as well name of the Society/School by the defendants
for their exclusive use;
vii) Defendant No.4 from allowing defendant No.1 and other
defendants from operating the Bank account No.
32607386578 exclusively without joining plaintiff No. 1 in
operating the same:
viii) Defendant No.5 from allowing defendant No.1 and other
defendants from operating of Bank account No. C/A
7862002100000439 in Punjab National Bank, Pakhowal
Road, Village Daad Tehsil and District Ludhiana, and
saving account No. 78620001000013217 in Punjab National
Bank, Pakhowal Road, Village Daad, Tehsil and District
Ludhiana exclusively without joining plaintiff No.1 in
operating the same;
And
Decree for Mandatory Injunction directing the defendants to
handover all the account books, minute books and other
record of Sri Guru Hargobind Educational Society as well
as Sri Guru Hargobind Public School, Village Thakkarwal,
Pakhowal Road, Ludhiana to the plaintiffs,
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May please be passed in favour of the plaintiff and against
the defendant with all costs of the suit.
b) Any other relief to which this Hon'ble Court deems fit the
plaintiffs are entitled to in law and equity, may also be
grated in favour of the plaintiff."
6. Learned counsel for the petitioner has informed the Court
that the above-said suit was filed on 09.07.2019.
7. In the plaint, the plaintiffs had averred that the Sri Harbobind
Educational Society was a registered body registered with the Registrar of
Firms and Societies and that one of the aims of the said society was to
establish and run a Public School known as Sri Guru Hargobind Public
School at village Thakkarwal. It was averred in para 2 of the plaint that
plaintiff No.1 had made a major contribution to the society as well as to
the school and that plaintiff No.1 was the Chairman, plaintiff No.2 was
the Vice President and plaintiff No.3 was the General Secretary of the
society. It was also averred in the plaint that all the operations of the
school ran smoothly until January, 2019 but thereafter the defendants
started causing trouble in the smooth running of the society and that of
the school and they interfered unnecessarily in the same and even illegally
took possession of the minutes book and account books etc. of the society
and in spite of best effort of the plaintiffs the original minutes book,
accounts books etc. were not provided to them. It was averred that the
plaintiffs had even requested the defendants to hold a meeting of the
society as per the rules of the society, but the defendants failed to do the
same and also did not allow the plaintiffs to hold any meetings of the
society. In para 8 of the plaint, it was averred that the Bank accounts in
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two Banks were to be operated by two members, one of whom was
plaintiff No.1 and the same could not be operated by a single person,
however, defendant No.1/petitioner started operating the accounts himself
alone without consulting, discussing and involving the plaintiff No.1 and
that others defendants also joined hands in the misdeeds of defendant
No.1 and the same cast a doubt about the integrity of defendant No.1. It
was further averred that the defendants had now taken complete control
over the affairs of the school on their own. In para 12 of the plaint, it was
averred that as per the rules and regulations, no blood relation member
could be there in the committee and that the blood relation member
already in the committee were required to be removed but the defendants
No.1, 2 and 3 did not agree to the same which led to a conflict between
the plaintiffs and the defendants. In para No.13 of the plaint, it was
specifically averred that the plaintiffs had received some registered letters
in which some waste papers were enclosed and when the plaintiffs
confronted the defendants about the same, they did not disclose anything
to the plaintiffs. It was reiterated in para No.14 of the plaint that the
defendants had illegally taken possession of the accounts books, minute
books and all the other related records of the society and the school.
8. A written statement was filed by defendant No.1/petitioner
and defendant No.2 and the same has been annexed as Annexure P-2 and
in the said written statement, the plea was taken that on 28.12.2019 and
20.01.2019 meetings were held and the members of the society
unanimously decided to dismiss the plaintiffs. Other pleas were also taken
in the written statement.
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9. Two applications were filed by the plaintiffs. One application
being an application dated 19.11.2019 under Order 6 Rule 17 CPC for
amendment of the plaint and another application also dated 19.11.2019
being an application under Order 1 Rule 10 CPC for impleading certain
defendants. It is not in dispute that on the date when the said applications
were filed, the issues were not framed and the trial had not commenced.
In the application under Order 1 Rule 10 CPC, it was averred that the
plaintiffs had learnt that in the meeting held on 20.01.2019, they had been
dismissed from the society and further they had learnt that Sri Guru
Hargobind Educational Society through petitioner/defendant No.1 had
filed a suit for the grant of permanent injunction and in the said suit, a
copy of resolution dated 08.08.2019 had been filed, in which, name of
certain persons had been mentioned as members and the said persons
were sought to be impleaded as parties as the said persons were necessary
and proper parties for the final adjudication of the case. It was also
averred that another application under Order 6 Rule 17 CPC was also
being filed alongside. In the application under Order 6 Rule 17, which has
been annexed as Annexure P-4 along with Civil Revision No.5237 of
2023, it was averred that the plaintiffs had learned that vide various
resolutions, the plaintiffs had been dismissed, thus, they wanted to amend
the plaint to challenge the said resolutions. In addition to the same, para
13-A was also sought to be incorporated to give details as to why the said
resolutions deserve to be set aside. Further, at the end of para No.15 of
the plaint, certain lines were also sought to be added to state that the
newly added defendants No.7 to 14 had no right to pose themselves as
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members of the society or to act as members or to participate in the affairs
of the society. It was specifically stated in the application that the case
was at preliminary stage. Replies were filed by the petitioner to both the
said applications.
10. Learned trial Court vide order dated 22.05.2023 (Annexure
P-6, annexed along with Civil Revision No.5237 of 2023) had allowed
the application under Order 6 Rule 17 CPC of the plaintiffs. The trial
Court, in the said order, observed that the present suit was at its initial
stage and even issues were not framed and that the amendment sought by
the plaintiffs was necessary to adjudicate the dispute between the parties
and in order to avoid multiplicity of proceedings. It was observed that in
case the plaintiffs are not permitted to challenge their dismissal from the
society, then, the very purpose of filing the present suit would be
frustrated and filing of a separate suit would lead to multiplicity of
litigation. It was further observed that by virtue of the amendment
application even challenge to the memberships of other persons who as
per their case, had joined as members of the society against the bye-laws
of the society, was also sought. The application under Order 1 Rule 10
CPC was also allowed vide order dated 22.05.2023 (Annexure P-7,
annexed along with Civil Revision No.5237 of 2023) and in the said
order, it was specifically observed that it was the case of the plaintiffs that
the persons who were sought to be impleaded were illegally appointed by
the society and some of them were also members of the meeting in which
the resolution was passed to dismiss the plaintiffs from the society and
thus, they were necessary parties required to be impleaded, in order to
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avoid the multiplicity of litigation. It is the said two orders which have
been challenged by the petitioner before this Court.
11. A perusal of both the paper-books would show that the
matter had been adjourned on more than six occasions at the request of
the learned counsel for the petitioner.
12. Learned counsel for the petitioner has raised three points to
challenge the impugned orders. The first argument raised is that the
amendment should not have been allowed as the same would result in
withdrawal of an admission. In respect to this argument, learned counsel
for the petitioner has referred to para 6 of the plaint to highlight the fact
that it had been stated that the school was running properly up till
January, 2019 and it was only thereafter that the defendants had started
troubling the plaintiffs but in the amendment sought by the plaintiffs, the
averments which have been made would show that allegations have been
made by the plaintiffs against the defendants with respect to their
wrongdoing even prior to January, 2019 and thus, by virtue of making the
said amendments, the admission made in para 6 of the plaint is sought to
be withdrawn. It is submitted that the same is not permissible in law.
Thus, the order allowing the amendment deserves to be set aside on the
said ground alone. The second argument raised by the learned counsel for
the petitioner challenging the order by which the amendment has been
allowed is that a perusal of Annexure P-9 (annexed along with CR-5237-
2023), which is a list of documents, would show that the copy of the
resolution dated 15.06.2017 has been mentioned in the said list of
documents and it is the said resolution which has been challenged by
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virtue of the amendment sought. On the basis of the same, it has been
submitted that the plaintiffs were in knowledge of the said resolution and
the same should have been challenged along with the original plaint and
thus, they cannot be permitted to challenge it subsequently. The third
argument raised by the learned counsel for the petitioner against the order
allowing the amendment is that in the list of documents (Annexure P-9,
annexed along with Civil Revision No.5237 of 2023), the copy of the
letter dated 08.03.2019 written to SBI, Pakhowal Road is also a part of
the said list of documents. Further reference has been made to the letter
dated 15.05.2019 (Annexure P-10, annexed along with Civil Revision
No.5237 of 2023) vide which the Punjab National Bank had informed the
plaintiff No.1 that he is not in the list of the governing body. It is argued
that the said documents were in possession of the plaintiffs at the time of
filing the plaint and thus, should have made the necessary
averments/challenge in the original plaint itself. It is submitted that on the
basis of the same, the impugned order deserves to be set aside and the
present revision petitions deserve to be allowed.
13. This Court has heard learned counsel for the petitioner and
has perused the paper-books.
14. It is not in dispute that on the date when the applications for
amendment and for impleading the parties were filed by the plaintiffs and
also on the date when the impugned orders were passed, the issues were
not framed and the trial had not commenced. From the pleadings of the
parties, it is apparent that the primary grievance of the plaintiffs in the suit
was that they were also members of the society, inasmuch as, in para 3 of
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the plaint, it had been stated that plaintiff No.1 was the Chairman,
plaintiff No.2 was the Vice President and plaintiff No.3 was the General
Secretary of the society. It was further averred in the plaint that the
defendants had completely taken over the society as well as over the
functioning of the school and had also taken over the accounts book,
minutes books, etc. From the amendment sought by the plaintiffs, it is
apparent that there were certain resolutions which had been passed by
virtue of which the present plaintiffs had been dismissed and certain other
members had been appointed as members. It would be a matter of trial to
ascertain whether the plaintiffs had been illegally dismissed and the
persons who had been as appointed members were legally appointed and
thus, the amendment sought is very necessary for the proper and final
adjudication of the case and also for avoiding multiplicity of litigation.
The trial Court has rightly observed that the present suit for permanent
injunction would stand frustrated in case, the resolutions are not
challenged. Moreover, filing of a separate suit would result in
unnecessary multiplicity of litigation. Thus, this Court is of the view that
the amendment sought is necessary for proper and final adjudication of
the case.
15. The Hon'ble Supreme Court in the case of "Rajesh Kumar
Aggarwal & Ors. vs. K.K. Modi & Ors." reported as 2006(2) RCR (Civil)
577 had observed that all the amendments that may be necessary for
determining the real question in controversy between the parties should be
allowed and the Court while allowing the amendment should not go into the
correctness or falsity of the case set up in the amendment, as it is not
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required to record a finding on the merits of the amendment and the merits
of the amendment are not required to be adjudged at the stage of allowing
the prayer for amendment. The relevant portion of the said judgment is
reproduced hereinbelow:-
"13. The object of the rule is that Courts should try the
merits of the case that come before them and should,
consequently, allow all amendments that may be necessary for
determining the real question in controversy between the
parties provided it does not cause injustice or prejudice to the
other side.
xxx xxx xxx
17. While considering whether an application for
amendment should or should not be allowed, the Court should
not go into the correctness or falsity of the case in the
amendment. Likewise, it should not record a finding on the
merits of the amendment and the merits of the amendment
sought to be incorporated by way of amendment are not to be
adjudged at the stage of allowing the prayer for amendment.
This cardinal principle has not been followed by the High
Court in the instant case.
xxx xxx xxx
Since the Court has entered into a discussion into the
correctness or falsity of the case in the amendment, we have
no other option but to interfere with the order passed by the
High Court. Since it is settled law that the merits of the
amendment sought to be incorporated by way of amendment
are not to be adjudged at the stage of allowing prayer for
amendment, the order passed by the High Court is not
sustainable in law as observed by this Court in Sampath
Kumar vs. Ayyakannu and Another ,
(2002) 7 SCC 559."
16. The arguments raised by learned counsel for the petitioner
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challenging the impugned orders are meritless and deserve to be rejected.
17. With respect to the argument raised to the effect that a
perusal of the list of documents (Annexure P-9, annexed along with Civil
Revision No.5237 of 2023) would show that a reference was made to the
copy of the resolution dated 15.06.2017 as well as to the copy of the letter
dated 08.03.2019 to SBI, Pakhowal Road and since as per the case of the
petitioner the said list was annexed along with the original plaint, thus,
the challenge to the resolution dated 15.06.2017 should have been made
along with the original suit. In this regard, it is observed that a perusal of
the said document (Annexure P-9), annexed along with CR-5237-2023)
would show that the same is a relevant extract of a document. The
photocopy of the said document (Annexure P-9) has been annexed at
running page No.117 of Civil Revision No.5237 of 2023 and the said
document is stated to be continuing on a second page, however, the
second page has not been annexed along with the present paper-book.
There is no date mentioned on the said document (Annexure P-9) and
even a complete copy of the said document (Annexure P-9) has not been
annexed. Learned counsel for the petitioner could neither show that the
said document had been signed by the plaintiffs nor could authentically
show that the said document was annexed along with the plaint. In fact,
several documents to which reference has been made in the said list
(Annexure P-9) have not been referred to in the plaint and thus, this Court
is not fully satisfied as to whether the said list of documents (Annexure P-
9) was submitted by the plaintiffs or not, as to what is the date of the said
document, and whether the same was annexed alongwith the plaint or not.
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Moreover, even assuming for the sake of arguments that the said list of
documents was submitted by the plaintiffs along with the plaint and the
resolution dated 15.06.2017 was annexed with the plaint, yet, since the
trial has not commenced and the issues have not been framed, thus, there
is no bar to the plaintiffs to move an application for amendment for
challenging the resolutions by which the plaintiffs were dismissed,
including the resolution dated 15.06.2017. It is a matter of settled law that
the Court has to be liberal in allowing the amendment, in case, the same
has been filed prior to the commencement of the trial, in order to avoid
multiplicity of litigation, moreso, when the same is necessary to finally
adjudicate the case. At any rate, by virtue of the amendment, several other
resolutions including those dated 20.01.2019 and 10.01.2019 were also
sought to be challenged, regarding which it cannot be said that the same
were in the knowledge of the plaintiffs prior to the filing of the written
statement by the present petitioner and defendant No.2. Further reliance
placed upon the letter dated 15.05.2019 (Annexure P-10, annexed along
with CR-5237-2023) is completely misplaced. A perusal of the list of
documents (Annexure P-9, annexed alongwith CR-5237-2023) would
show that there was no reference to the letter dated 15.05.2019 in the said
list of documents and thus, for the reasons mentioned herein above with
respect to the resolution dated 15.06.2017 and also on account of the
additional fact of the said letter not being referred to in the list (Annexure
P-9), no reliance could be placed upon the document dated 15.05.2019 so
as to impute prior knowledge to the plaintiff. Moreover, a perusal of the
document dated 15.05.2019 does not show that any resolution, much less,
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resolutions dated 10.01.2019 and 20.01.2019 were supplied to the
plaintiffs. In the said document, it was only mentioned that the plaintiff''s
name was not in the list of the governing body.
18. A perusal of the original plaint would show that the
averments were made by the plaintiffs to the effect that the defendants
were not permitting the plaintiffs from participating in the management of
the society and the school and thus, the amendment sought by the
plaintiffs is in consonance with the pleadings of the plaintiffs even in the
original suit.
19. The third argument raised by the learned counsel for the
petitioner to the effect that there is a withdrawal of an admission, is
completely misconceived. As has been detailed hereinabove, a reading of
the entire plaint clearly shows that although the plaintiffs were earlier
occupying important positions in the society being the Chairman, Vice
President and the General Secretary yet the defendants, including the
present petitioner, had restrained the plaintiffs from holding meetings and
also from participating in the same and had also taken the original
minutes book and other documents. The averments made in the
application for amendment is in consonance with the pleas raised by the
plaintiffs in the original suit. Moreover, this Court has considered the
averments made in the application under Order 6 Rule 17 CPC and is not
convinced with the arguments raised by learned counsel for the petitioner
that any specific admission made by the plaintiffs stands withdrawn by
virtue of the averments now sought to be incorporated in the amendment
application. Rather, the amendment sought is very necessary for the
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proper and final adjudication of the case. Even the impleadment of the
persons who were present during the resolution, vide which the plaintiffs
were dismissed, and who have been appointed as new members, which as
per the case of the plaintiffs is contrary to the bye-laws, are necessary to
be impleaded as they are necessary parties and thus, both the impugned
orders have been legally passed and the same deserve to be upheld.
20. The petitioner should not shy away from the entire matter
being tried and adjudicated, on the basis of complete and detailed
pleadings. The petitioner would also have a right to file an amended
written statement and the entire dispute between the parties would be
finally adjudicated upon.
21. Keeping in view the above-said facts and circumstances, this
Court is of the opinion that the impugned orders passed by the trial Court
are legal and do not call for any interference and the present civil revision
petitions being meritless, deserve to be dismissed and are accordingly
dismissed.
( VIKAS BAHL )
September 09, 2024 JUDGE
naresh.k
Whether reasoned/speaking? Yes/No
Whether reportable? Yes/No
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