Devkishan Sharma vs Udaipur Vishwakarma Jangid Vikas ...
2023 Latest Caselaw 1875 Raj

[2023/RJJD/005734]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 156/2022

1. Devkishan Sharma S/o Ambalal Sharma, Aged About 50 Years, R/o 8 Hajareshwar Colony, Hospital Road, Udaipur. (Raj.)

2. Brijmohan Sharma S/o Gangaram Sharma, Aged About 65 Years, Obrawal, R/o 225 Paneriyo Ki Madri, Near Government Seinor Secondary School Udaipur. (Raj.)

----Petitioners Versus Udaipur Vishwakarma Jangid Vikas Sanstha, Bhuvana Vistar Yojna Phase-2, Chitrakoot Nagar, Udaipur through President Rajendra Sharma S/o Lalchandra Sharma, R/o Udaipur (Raj.)

----Respondent

For Petitioner(s) : Mr. Deelip Kawadia For Respondent(s) : Mr. R.S. Mankad

HON'BLE MS. JUSTICE REKHA BORANA

Order

17/02/2023

The present revision petition has been preferred against the

order dated 22.08.2022 whereby the application under Order VII

Rule 11 of the Code of Civil Procedure preferred by the

petitioners-defendants has been rejected.

The case of the petitioners is that the suit for cancellation of

the elections as preferred by the respondent-plaintiff deserves to

be dismissed on four grounds: Firstly, that the suit as preferred

by the plaintiff Rajendra Sharma alleging himself to be the

President of the Society could not be maintained as on the date of

institution of the suit, he was not the President of the Society.

Therefore, he had no right to sue and hence, the suit deserves to

[2023/RJJD/005734] (2 of 5) [CR-156/2022]

be dismissed. Secondly, subsequently the fresh elections had

been conducted and a new Committee had come into existence.

The Committee so constituted ought to have been impleaded as

party which has not been impleaded and as a consequence, the

relief for cancellation of the election as prayed for, cannot be

granted. Therefore, in terms of the settled proposition of law, if it

is found prima facie that the relief as prayed for cannot be

granted, the suit itself deserves to be dismissed at the threshold.

Thirdly, a bare reading of the plaint makes it clear that no cause

of action had arisen to the plaintiff who alleged himself to be the

President of the Society. Fourthly, the suit is barred by law as in

terms of the Cooperative Societies Act, 1912, the present suit is

not maintainable before a Civil Court.

Learned counsel for the petitioners submitted that a bare

reading of the plaint and the documents annexed with the plaint

are sufficient to prove that Rajendra Sharma was not the

President of the Society on the date of filing of the suit and

therefore, he had no right to sue. Counsel submitted that the

plaint itself specifies that the tenure of the earlier Committee was

for a period of three years which commenced from 16.07.2017.

Meaning thereby, it came to an end on 15.07.2020 whereas the

suit has been instituted in the year 2022 when clearly, Rajendra

Sharma was not the President. Counsel relied upon the Hon'ble

Apex Court judgment in the case of Dahiben Vs. Arvindbhai

Kalyanji Bhanusali (D) thr. L.Rs. and Ors.; (2020) 7 SCC

366, in support of his argument that if no right to sue survives in

favour of the plaintiff, he cannot be said to have any cause of

[2023/RJJD/005734] (3 of 5) [CR-156/2022]

action to prefer the suit and therefore, the suit in absence of any

cause of action deserves to be dismissed at the threshold.

Per contra, learned counsel for the respondent submitted

that firstly, the ground of absence of any cause of action for filing

of the present suit was never pleaded in the application under

Order VII Rule 11, CPC and was not even argued out before the

learned Court below. Secondly, a perusal of the bylaws makes it

clear that the President of the Committee/Society was entitled to

sign all the documents on behalf of the Society and therefore, he

was very much the person entitled to prefer the suit. Counsel

further submitted that it was clear on record that the Secretary of

the Society had resigned due to his personal reasons and

therefore also, the President was the only person who was entitled

to prefer the suit. So far as the maintainability of the suit before

the Civil Court is concerned, counsel submitted that Section 6 of

the Societies Registration Act, 1860 specifically entitles the

President of the Society for the same and therefore, the said

ground as raised by the petitioners cannot be held to be tenable.

Heard learned counsel for the parties and perused the

material available on record.

A perusal of the record as well as the order impugned makes

it clear that the learned Court below has proceeded on to dismiss

the application under Order VII Rule 11, CPC as preferred by the

defendants with the specific reasonings and findings. The learned

Court below has held that the plaintiff had come up with a plea

that it was registered under the Societies Registration Act and not

the Cooperative Societies Act. Therefore, the Bar, if any, for the

suit to be preferred before a Civil Court would be in terms of the

[2023/RJJD/005734] (4 of 5) [CR-156/2022]

Cooperative Societies Act and the same would not be applicable to

the present plaintiff as it was registered under the Societies

Registration Act.

So far as the ground of non-impleadment of the new

Committee to the present suit is concerned, the learned Court

below rightly reached to the conclusion that the said cannot be a

ground for rejection of a suit under Order VII Rule 11, CPC. Mis-

joinder or non-joinder of parties can be a ground for rejection of

the suit ultimately but cannot be a ground for rejection in terms of

Order VII Rule 11, CPC.

So far as the right to sue is concerned, a perusal of the

bylaws annexed with the plaint makes it clear that Clause 16 of

the said bylaws provides for the powers of a President which

specifically includes the power to sign on the constitutional as well

as the other documents. Moresoever as averred in the plaint, the

Secretary of the Committee had resigned and therefore, in overall

circumstances and in terms of the bylaws governing the society, it

cannot be held that Rajendra Sharma who alleged to be the

President of the Committee did not have any right to sue.

Regarding the fact whether Rajendra Sharma was not the

President on the date of institution of suit, in the opinion of this

Court, that is the bone of contention in the matter and the same

would be decided by the Court only after adjudication on basis of

the evidence led. The same is a question of fact which requires

determination by the Court. Any finding on the said fact at this

stage is totally uncalled for.

So far as the judgment relied upon by learned counsel for

the petitioners is concerned, there is no dispute over the position

[2023/RJJD/005734] (5 of 5) [CR-156/2022]

of law that if the plaint does not disclose any cause of action, the

same can be dismissed at the very instance and at the threshold.

So far as the present matter is concerned, a bare perusal of the

plaint shows that all the pleadings regarding the constitution of

the Committee, the notification of the elections to be conducted by

the said Committee, an adhoc Committee being constituted by

some persons, elections notified by the said adhoc Committee

etc. have been specifically pleaded in the plaint and on basis of

the said facts, the consequential prayer has been made for

cancellation of the elections as declared to be held by the said

adhoc Committee. Therefore, in view of the clear and specific facts

pleaded in the plaint, it cannot be concluded that it does not

disclose a cause of action.

In view of the above observations, this Court does not find

any ground to interfere with the order dated 22.08.2022 and the

present revision petition is therefore, dismissed.

The stay petition also stands dismissed.

(REKHA BORANA),J 26-Sachin/-

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