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THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 31ST DAY OF OCTOBER 2012

BEFORE

THE HON’BLE MR.JUSTICE N.ANANDA

M.F.A.No.5541/2012 C/W MFA No.8251/2012 (CPC) &WP.No.17767/2012

BETWEEN:

Sri M.K.MarattukalamS/o late K.T.Marattukalam, 63 Years,Member & President of Bangalore ClubR/at Villa-14, Prestige CedarNo.7, Convent Road, Richmond Town,Bangalore – 560 025. ... Common Appellant/Petitioner

(By Sri S.S.Naganand, Senior Advocate for M/s.Giridhar &Co., Advocates)

MFA.No.5541/2012 & WP.No.17767/2012

AND:

1. Mr.A.P.VelayudhanS/o M.Palani, 71 Years,R/at No.120, 6th Cross,10th Main, Indiranagar II Stage,Bangalore – 560 038.

2. Mr.N.Banu, 64 YearsS/o B.NarayanaPresently R/at ‘Rathna Building’‘4th Floor, No.143, Richmond Road,Bangalore – 560 025.

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3. Mr.J.K.BihaniS/o late H.P.Bihani, 68 YearsPresently R/at No.11A/38,Cunningham Road,Bangalore – 560 052.

4. Mr.V.Kumar SubramanianS/o late K.V.Vaidyanathan, 52 Years,Presently R/at No.54, 6th Cross,Cambridge Layout, Ulsoor Road,Bangalore – 560 008.

5. Mr.Feroze Sattar SaitS/o Haji Abdul Sattar Sait, 52 YearsVice President, M/s.Bangalore Club#10/1, Field MarshallK.M.Cariappa RoadBangalore – 560 001. …. Common Respondents

(By Sri Ashok Harnahalli, Senior Advocate for SriB.K.Sampath Kumar & Associates, Advocates for R1 to R4;Sri Arvind Kamath, Advocate for M/s.ALMT Legal, Advocatesfor R5)

MFA 5541/2012 is filed under order 43 Rule 1(r) CPC,against the order dated 02.06.2012, passed on IA.No.2 inO.S.No.3372/2012, on the file of the 42nd Additional CityCivil & Sessions Judge, Bangalore, allowing IA.No.2 and etc.

W.P.No.17767/2012 is filed under articles 226 & 227of the Constitution of India, against the order dated02.06.2012, passed on IA.No.3 in O.S.No.3372/2012, on thefile of the 42nd Additional City Civil & Sessions Judge,Bangalore, allowing the application for impleading thepetitioner in accordance with IA.No.3 and etc.

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MFA.No.8251/2012

AND:

1. Bangalore ClubAn unregistered body of personsHaving its office at No.10Field Marshal K.M.Cariappa RoadBangalore – 560 025.Rep. herein by its Acting Secretary

2. Feroz Sattar Sait, MajorS/o Haji Abdul Sattar SaitPresident, Bangalore ClubR/at ‘Safina Flaza’No.84/85, Infantry RoadBangalore – 560 001.

3. Mr.N.Babu, 64 Years,S/o B.NarayanaPresently R/at Rathna Complex,‘4th Floor, No.143, Richmond Road,Bangalore – 25.

4. Mr.A.P.VelayudhanS/o M.Palani, 71 Years,R/at No.120, 6th Cross,10th Main, Indiranagar,II Stage, Bangalore – 560 038.

5. Mr.N.Kishan DasS/o late M.G.Narayandas, 70 Years,R/at No.38, 4th Main,Malleshwaram, Bangalore – 3.

6. Sanjay MalikS/o H.P.Malik, 54 Years,R/at Farah Fort Manor,

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Jayamahal I MainBangalore – 26. … Respondents

(By Sri Ashok Harnahalli, Senior Advocate for SriB.K.Sampath Kumar & Associates, Advocates for R3 to R4;Sri Prashant Popat, Advocate for M/s.ALMT Legal, Advocatefor C/R1; M/s.LPE Rego, Advocates for R2; Sri AnanthMandgi, Senior Advocate for R5 & R6)

MFA 8251/2012 is filed under order 43 Rule 1(r) CPC,against the order dated 22.08.2012, passed on IA.No.1 inO.S.No.5015/2012, on the file of the 42nd Additional CityCivil & Sessions Judge, Bangalore, dismissing IA.No.1 andetc.

These appeals and writ petition having been heard andreserved for orders on 16.10.2012, coming on forpronouncement this day, the court delivered the following:-

J U D G M E N T

The subject matter of these appeals and writ petition is

one and the same. Therefore, they are taken up for decision

by this common judgment.

2. The appellant in MFA 5541/2012 was the President

of Bangalore Club for the year 2011-12, his term of office

came to end on 24.06.2012 and he quit the office on

24.06.2012. Respondents 1 to 3 are the members and

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respondent No.5 was the Vice President of Bangalore Club.

Respondents No.1 to 4 had instituted O.S.No.3372/2012

against respondent No.5 namely Mr.Feroze Sattar Sait, Vice

President of Bangalore Club interalia contending that

appellant as a President had committed several acts of

omission and commission leading to an overwhelming

disturbance of the peace and harmony of the club; he had

misused his office and authority in the club to settle the

personal scores and had shown scant respect for the rules

and Bye-laws of the club; he had resorted to suspension of

members, victimisation of applicants for membership and

guests in the club. The plaintiffs in O.S.No.3372/2012 had

sought for following reliefs:

“Wherefore, the plaintiffs pray for a judgmentand decree against the defendant directing him byway of a mandatory injunction to convene anExtraordinary General Meeting in compliance withthe requisition dated 9/5/2012 of the plaintiffsand 213 other permanent members of theBangalore Club granting simultaneously to theplaintiffs their costs, counsel’s fee and suchfurther or other reliefs as this Hon’ble courtdeems fit or the nature of the case requires.”

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They had also filed interlocutory application under

Order 39 Rule 1 & 2 CPC, for grant of an ad-interim exparte

order of temporary mandatory injunction directing the

defendant to call for an Extra-ordinary General Meeting of

the Bangalore Club in terms of the resolution dated

09.05.2012 pending disposal of the above suit.

The appellant herein had filed an application under

Order 1 rule 10 (2) CPC, to implead him as defendant in

O.S.No.3372/2012 interalia contending that he is necessary

party to suit and his interest is directly involved in the suit.

The learned trial judge considering both applications

passed a common order dated 02.06.2012 rejecting

application filed under Order 1 Rule 10 (2) CPC, and granted

an order of temporary mandatory injunction reading as

hereunder:

“I.A.No.2 filed by the plaintiffs under Order39 Rule 1 and 2 of CPC is allowed.

The defendant is hereby ordered anddirected by way of temporary mandatory

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injunction to convene an Extra-ordinary GeneralMeeting as per the requisition dated 09.05.2012by following the Rules for convening the saidMeeting.”

Aggrieved by the order of temporary mandatory

injunction stated supra, the appellant has filed

MFA 5541/2012 and aggrieved by dismissal of application

under Order 1 Rule 10 (2) CPC, the appellant has filed

W.P.17767/2012.

3. At this juncture, it is necessary to state that

Bangalore Club is an unregistered association of persons. In

O.S.No.3372/2012, the defendant-Vice President of the Club

had not contested the interim application. When the

application was heard, the learned counsel appearing for

defendant had submitted that defendant had no objection for

issue of injunction against him with a direction to call for

extra ordinary general meeting of the Club.

4. The learned trial judge having recorded this

submission, instead of dismissing the application for grant of

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temporary injunction has granted temporary mandatory

injunction, directing defendant to convene Extra-ordinary

general meeting as per the requisition dated 09.05.2012 by

following the rules of Club.

It is seen from the order impugned in MFA 5541/2012

and W.P.No.17767/2012, the learned trial judge had

dismissed the application filed by the appellant under Order

1 Rule 10 (2) CPC. At the same time, the learned trial judge

has considered the written argument filed by the

appellant/proposed defendant to decide the application filed

under Order 39 Rules 1 and 2 CPC, and granted an order of

temporary mandatory injunction as aforestated. In my

considered opinion, the approach of the learned trial judge is

inconsistent.

5. The learned trial judge having dismissed the

application Order 1 Rule 10 (2) CPC, should not have

considered the written argument of proposed defendant on

the application for grant of temporary mandatory injunction.

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It is seen from the order impugned in MFA 5541/2012

that there was no contest by defendant. As already stated,

when the application was taken upon for consideration,

learned counsel appearing for defendant had submitted that

defendant has no objection for issue of injunction against

him with a direction to call for Extra-ordinary General

Meeting of the Club. In the circumstances, the leaned trial

judge should not have granted an order of temporary

mandatory injunction and directed defendant to convene a

Extra-ordinary General Meeting as per requisition dated

09.05.2012.

It is needles to state that court can grant temporary

mandatory injunction to compel defendant to do a particular

act. As already stated, defendant had no objection for issue

of injunction against him however, the defendant had sought

for an order of mandatory temporary injunction as an

insulation for subsequent acts committed by him.

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6. The learned trial judge having noticed that action

contemplated in the Extra-ordinary General Meeting was

against defendant, should not have rejected the application

under Order 1 Rule 10 (2) CPC, more particularly, when the

suit filed in relation to the affairs of Bangalore Club, which is

an unregistered association of persons was a representative

suit. In my considered opinion, the appellant herein was a

necessary party to the suit in O.S.No.3372/2012 as he was

the President and the action contemplated in the Extra-

ordinary General Meeting was against appellant.

7. In MFA 5541/2012, the appellant was granted leave

to prosecute the appeal though his application under Order

1 Rule 10 (2) CPC was rejected by the trial court. On

21.06.2012, MFA 5541/2012 came up for consideration of

the interim relief. On hearing learned counsel for parties,

this court passed an interim order reading as hereunder:

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“Sri.B.K.Sampath Kumar, learned Counsel

undertakes to file vakalath for respondent Nos.1

to 4 (plaintiffs).

I have heard Sri.Udaya Holla, learned Senior

Counsel for the appellant and Sri.B.K.Sampath

Kumar, learned Counsel for respondent Nos.1

to 4.

I.A.No.1/2012 is filed by the appellant seeking

leave to prefer this appeal. As the impugned order

is passed without affording an opportunity of

hearing to the appellant, leave sought for is

granted. I.A.No.1/2012 is allowed accordingly.

Sri.Udaya Holla submits that by the order

impugned in this appeal, the Bangalore Club is

holding an Extraordinary General Meeting (EGM)

on 01.07.2012, to consider the proposal to remove

the appellant’s name from the roll of Honour. He

submits that the appellant was the President of

the Bangalore Club during the year 2011-12. He

further submits that as the proposed action is

punitive in nature, only the General Committee of

the Club has the power under Rule 23.10(ix) of the

Rules of the Club to impose any punishment

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except suspension of any member beyond 12

months and expulsion of any member from the

Club, in which event the General Committee will

have to refer the matter to the General Body.

Accordingly, he submits that the proposed EGM

convened to consider the proposal of taking

punitive action against the appellant is not in

accordance with the Rules of the Club.

However, Sri.B.K.Sampath Kumar, by

referring to Rule 17.1 of the Rules of the Club,

submits that an EGM has to be convened, if there

is any requisition by 150 permanent members of

the Club. The requisition now given is by 217

members and therefore, the convening of the

Extraordinary General Meeting on 01.07.2012 is

in accordance with Rule 17.1.

Prima facie, I find no legal infirmity in

directing convening of the Extraordinary General

Meeting as the requirement stipulated in Rule

17.1 of the Rules is satisfied.

However, prima facie, there appears to be no

reference to ‘removal of name from the roll of

Honour’ either in Rule 23.10(ix) or in any other

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Rule in the Rules of the Club. There also does not

appear to be any Rule conferring power on any

committee or any body of the Club to impose the

kind of action proposed against the appellant.

The matter requires consideration.

Emergent notice re-admission to respondent

No.5.

As the proposal is to remove the appellant’s

name from the roll of Honour which is punitive in

nature and as no opportunity of hearing is

afforded to the appellant, it is appropriate to

direct that no such punitive action shall be taken

against the appellant in the Extraordinary

General Meeting of the Club scheduled to be held

on 01.07.2012, without affording an opportunity

of hearing to him relating to the misconduct

alleged against him. Ordered accordingly.

8. Pursuant to the aforestated interim order,

Extra-ordinary General Meeting was held on 01.07.2012 and

the following resolution was passed:

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“Resolved that the General body ofPermanent Members of the Bangalore club,effective 9th May 2012, has lost confidence in itsthen President Mr.M.K.Marattukalam owing to hismisuse of his office, for violation and breach of theRules of the Club, transgression of prevailingstatutes, systems and procedures and grosslyfailing to uphold the dignity of the said office ofPresident. Further resolved to remove his namefrom the Roll of Honour, which hall be deemed tomean the plaque hung in the Main Lounge of theClub and other areas of the Club where on thenames of former Presidents are indicated.Mr.M.K.Marattukalam shall not be referred to, orbe part of the current General Committee in thecapacity of the immediate Past President andMr.M.K.Marattukalam shall not be entitled to anyprivileges, facilities, benefits and honoursconventionally and traditionally accorded toformer Presidents of the Club.”

Aggrieved by the same, the appellant has filed

O.S.5015/2012 against Bangalore Club represented by its

Secretary and President (defendants No.1 and 2) for following

reliefs:

“i) Declaring that the Resolution dated01.07.2012 passed at the Extraordinary GeneralMeeting of the Defendant Club is not inaccordance with the Rules and bye-laws of theClub being ultravires, illegal and incapable ofbeing acted upon; AND CONSEQUENTLY

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ii) Restraining the defendant, its members,office bearers, Secretary, other officers, servantsand agents by issue of an order of perpetualinjunction from giving effect to or acting upon theresolution dated 01.07.2012 passed at theExtraordinary General Meeting of the DefendantClub;

iii) Grant an order of mandatory injunctiondirecting the defendant to communicate andpublish at its cost the declaration as per prayer (a)to all its members;

iv) Grant costs of these proceedings;

v) And grant such other or further orders asthis Hon’ble Court may deem fit on the facts and inthe circumstances of the case, in the interest ofjustice and equity.”

The plaintiff had also filed an application under Order

39 Rules 1 and 2 CPC, for grant of an ad-interim order of

temporary injunction restraining the defendants, its

members, office bearers, Secretary, other officers, servants

and agents from giving effect to or taking any steps pursuant

to the resolution dated 01.07.2012 passed by the General

Body of members of the Club at the Extra-ordinary General

Meeting held on 01.07.2012, until the disposal of the suit.

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The suit and application were contested by defendants

namely Bangalore Club represented by its Secretary and the

President.

The learned trial judge dismissed the application for

grant of temporary injunction. The plaintiff has filed MFA

8251/2012 against the order of dismissal of application for

grant of temporary injunction,

9. I have heard Sri.S.S.Naganand, learned Senior

counsel appearing for appellant in MFA Nos.5541/2012,

8251/2012 and petitioner in W.P.No.17767/2012. I have

heard Sri.Ashok Haranahalli, learned Senior Counsel and

Sri.B.K.Sampath Kumar, Sri L.P.E.Rego, learned counsel for

respondents and Sri.Ananth Mandagi, learned Senior

Counsel for impleaded respondents in MFA 8251/2012.

10. Before referring to submissions made by learned

counsel for parties, it is necessary to state brief facts leading

to these litigations.

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As already stated, the appellant namely

M.K.Marattukalam was the President of Bangalore Club

during the year 2011-12. On 23.04.2012, he had received

requisition from certain members of the Club to hold Extra-

ordinary General Meeting of the Club to pass a resolution

expressing ‘no confidence’ in the appellant and also removing

appellant’s name from the roll of honour of the Club. The

appellant had filed O.S.No.3227/2012 against certain

members of the Club for certain reliefs in respect of meeting

to be held on 23.04.2012. An order of temporary injunction

was granted restraining defendants in O.S.No.3227/2012

from conducting Extra-ordinary General Meeting pursuant to

request dated 23.04.2012.

11. On 09.05.2012, some of the permanent members

of Club had sent a requisition to convene Extra-ordinary

General Meeting of the Club for initiating ‘no confidence

motion’ against appellant and also for ensuring that

appellant’s name is not entered on the roll of honour.

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12. On 16.05.2012, four permanent members of the

Club had filed O.S.No.3372/2012 seeking temporary

mandatory injunction as aforestated. The learned trial judge

rejected the application filed by appellant under Order 1

Rule 10 (2) CPC, to implead himself as defendant in

O.S.No.3372/2012 and granted an order of temporary

mandatory injunction as extracted in the earlier part of

judgment.

13. In the earlier part of this judgment, I have held

that temporary mandatory injunction granted

in O.S.No.3372/2012 was to insulate acts of the

defendant-Vice President. The Vice President of the Club

had no objection to hold Extra-ordinary General Meeting as

sought for by plaintiffs in O.S.No.3372/2012.

The learned trial judge by ignoring settled principles of

law granted an order of temporary mandatory injunction,

directing defendant to hold Extra-ordinary General Meeting

though the application had not been contested by defendant.

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The appellant herein has field MFA 5541/2012. On

21.06.2012, this court has passed the interim order.

Thereafter, Extra-ordinary General Meeting was held on

01.07.2012 and aforestated resolution was passed.

14. Sri.S.S.Naganand, learned Senior Counsel for

appellant referring to aforestated proceedings and the orders

impugned in these appeals and writ petition has made

following submissions:

I The learned trial judge has committed an error in

granting temporary mandatory injunction in

O.S.No.3372/2012 directing defendant to hold Extra-

ordinary General Meeting, though defendant had no

objection to hold Extra-ordinary General Meeting as

requested by plaintiffs.

II The learned trail judge should not have dismissed the

application filed under Order 1 Rule 10 CPC, more

particularly, when the action contemplated by plaintiffs was

against appellant.

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III The order passed in O.S.No.3372/2012 was

challenged in MFA 5541/2012 and this court passed the

interim order as aforestated. On 01.07.2012, Extra-ordinary

General Meeting was held to pass a resolution as

aforestated. After the purpose was achieved, plaintiffs in

O.S.No.3372/2012 got the suit dismissed as withdrawn on

03.07.2012.

IV The plaintiffs by their conduct have demonstrated that

O.S.No.3372/2012 was filed against a non-contesting

defendant to obtain an order of temporary mandatory

injunction to hold Extra-ordinary General Meeting to pass

the aforestated resolution against appellant. Later, they have

withdrawn the suit. In the circumstances, plaintiffs in

O.S.No.3372/2012 had instituted the suit only for the

purpose of interim relief.

V In view of withdrawal of suit in O.S.No.3372/2012,

the interim relief granted by way of temporary mandatory

injunction has to be neutralized as plaintiffs had gained

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undeserved and unfair advantage by invoking the

jurisdiction of the court for tentative purpose of interim relief

against non-contesting defendant to the determent of

interest of appellant.

VI In the Extra-ordinary General Meeting held on

01.07.2012, respondents had neither followed the

Byelaws of Club nor the principles of natural justice.

VII The learned trial judge should not have permitted

plaintiffs to withdraw O.S.No.3372/2012 when MFA

5541/2012 filed against interim order was pending

consideration before this court.

VIII In O.S.No.5015/2012, the learned trial judge has held

that respondents have conducted Extra-ordinary General

Meeting in conformity with the interim order passed by this

court on 21.06.2012 in MFA No.5541/2012. The learned

trial judge has erroneously held that Extra-ordinary General

Meeting held on 01.07.2012 was in accordance with the

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interim order dated 21.06.2012 passed in MFA

No.5541/2012.

IX The learned trial judge has erroneously held that main

relief sought for in the suit was for declaration. Therefore,

plaintiff cannot seek interim relief on the same lines and

grant of interim relief would tantamount to grant of main

relief.

X The learned trial judge has erroneously held that the

respondents have given effect to resolution dated

01.07.2012; the name of plaintiff has already been removed

from the roll of honour and steps have been taken to deny

the plaintiff, privileges available to him as the immediate

past president. Therefore, the suit has become infructuous.

XI The resolution passed on 01.07.2012 would manifest

oblique motives of respondents to assassinate character of

appellant let alone, removing his name from the roll of

honour and denying him his right to be a member of General

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Committee as the immediate past President in terms of Rule

23.1 of the Club.

The learned senior counsel would submit that the

interim order made in O.S.No.3372/2012 shall be

neutralized relegating parties to their pre-resolution position.

15. The learned Senior counsel for appellant has

relied on the following decisions:

1) (2010) 9 SC 437

2) AIR 1963 SC 1144

3) ILR 1975 1957

4) AIR 1990 SC 867

5) 1993 (2) KAR. L.J. 230

6) 1938 BOMBAY LAW REPORTER 1213

16. Sri.Ashok Haranahalli, learned Senior Counsel,

Sri.B.K.Sampath Kumar and Sri L.P.E.Rego, learned counsel

for respondents and Sri.Ananth Mandagi, learned Senior

Counsel for impleading respondents in MFA 8251/2012 have

made following submissions:

[

[[

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I In view of withdrawal of O.S.No.3372/2011,

MFA 5541/2012 does not survive for consideration.

II The appellant had deliberately avoided to convene

Extra-ordinary General Meeting to complete his term as the

President of Club. Therefore, the plaintiffs in

O.S.No.3372/2012 were constrained to file the suit. The

appellant on completing his term as the President quit the

office on 24.06.2012. In view of subsequent developments,

the suit filed in O.S.No.3372/2012 became infructuous. In

the circumstances, no oblique motive could be attributed to

plaintiffs for withdrawing O.S.No.3372/2012.

III The Extra-ordinary General Meeting held on

01.07.2012 was pursuant to the interim order passed by this

court on 21.06.2012. Therefore, withdrawal of suit does not

provide a ground for appellant to urge that interim order of

temporary mandatory injunction granted in

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O.S.No.3372/2012 has to be neutralized relegating parties to

pre-resolution position.

IV The appellant has filed O.S.No.5015/2012 challenging

the resolution dated 01.07.2012, therefore, resolution dated

01.07.2012 cannot be annulled.

V The suit filed in O.S.No.5015/2012 is not

maintainable. The privileges claimed by the appellant as the

immediate past president are not enforceable rights. The

appellant cannot invoke the jurisdiction of civil court under

Section 9 CPC.

VI The plaintiff had failed to appear before the

Extra-ordinary General Meeting held on 01.07.2012 despite

receipt of notice. Therefore, appellant cannot be heard to

say that opportunity of being heard was denied to him.

VII In the matters relating to internal affairs of the Club

and resolution passed in the Extra-ordinary General Meeting

dated 01.07.2012, civil court cannot interfere; the civil court

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cannot sit as court of appeal on decisions of Extra-ordinary

General Meeting unless it is established that the act was not

in good faith or it was in violation of principles of natural

justice.

VIII The Bangalore Club is an unregistered association of

persons. The plaintiff should have instituted the suit as

representative suit by seeking leave under Order 1 Rule 8

CPC. Therefore, O.S.No.5015/2012 is not maintainable.

IX The right asserted by appellant to be a member of

General Committee as the immediate past president and

display of his name in the plaque of roll of honour cannot be

enforced as of right.

X In terms of Bye-law 23.1, the General Committee

consists of President, Vice President and 7 members elected

by the General Body, immediate past president and two

members of defense services invited by the committee. The

appellant can only be an invitee to the meetings of General

Committee. The functions of General Committee shall be

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performed by the elected members in accordance with

Byelaws of the Club. The invited members viz., immediate

past president, two members of defense services do not have

voting power in the decisions taken by General Committee.

XI The claim of appellant to have his name in the roll of

honour is not a right recognized under the Byelaws of Club.

XII In the Extra-ordinary General Meeting held on

01.07.2012, the members of the Club having considered the

acts of misconduct committed by appellant have passed

aforestated resolution.

XIII The appellant was aware of charges leveled against

him when he was still holding the office as a President.

Therefore, the appellant cannot contend that aforestated

resolution was passed without giving an opportunity to him

and there was violation of principles of natural justice.

17. The learned Senior counsel for respondents have

relied on following judgments:

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i) AIR 1994 SC 1591

ii) 1974 (2) Kar LJ 357

iii) 1985 ILR (Kar) 2298

iv) AIR 2004 SC 2093

v) AIR 1999 SC 1823

vi) AIR 1961 SC 1720

vii) ILR 1999 KAR 2016

viii) AIR 1931 BOM 273

ix) AIR 1957 ALLAHABAD 219

18. The first point for consideration is:

Whether the temporary mandatory injunction granted

in O.S.No.3372/2012 and consequent action taken by the

respondents has to be neutralised in terms of the judgment

of the Supreme Court reported in (2010) 9 SCC 437 (in the

case of Kalabharati Advertising –vs- Hemant Vimalnath

Narichania and Others) ?

In the discussion made supra, I have held that the

learned trial judge was not justified in granting an order of

temporary mandatory injunction in O.S.No.3372/2012.

I have also referred to the interim order passed by this court.

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It is true that plaintiffs in O.S.No.3372/2012 have

withdrawn the suit when MFA 5541/2012 was pending

consideration before this court. However, by withdrawal of

O.S.No.3372/2012, MFA No.5541/2012 has not been

rendered infructuous for the following reasons :

The application filed by appellant to implede himself as

defendant in O.S.No.3372/2012 was dismissed by the

trial court. The appellant was permitted by this court to

prosecute MFA 5541/2012. It is true that after withdrawal

of suit, the interim order ceased to be operative however, it

does not mean that withdrawal of suit had frustrated the

appeal pending in this Court.

19. The learned counsel for appellant relying on the

judgment of Supreme Court reported in (2010) 9 SCC 437

(in the case of Kalabharati Advertising –vs- Hemant

Vimalnath Narichania and Others) would submit that,

plaintiffs in O.S.No.3372/2012 had approached the court

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only for interim relief. It is demonstrated by the conduct of

plaintiffs and defendants that it was a collusive suit.

In O.S.No.3372/2012, plaintiff and defendants wanted

to insulate themselves to hold an Extra-ordinary General

Meeting by obtaining an order of temporary mandatory

injunction from the trial court. After holding the Extra-

ordinary General Meeting the suit was withdrawn. The

plaintiffs have used the court only for the interim relief. The

plaintiffs having obtained interim relief should not have

avoided final adjudication of suit on merits more

particularly, after having achieved their object by using

temporary mandatory injunction.

20. The learned Senior counsel for respondents would

submit that the Extra-ordinary General Meeting held on

01.07.2012 was pursuant to the interim order dated

21.06.2012 passed by this court in MFA 5541/2012. The

appellant had completed the term of office as President of the

Club on 24.06.2012. Therefore, O.S.No.3372/2012 did not

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survive for consideration. In the circumstances, no fault can

be found with plaintiffs for withdrawing suit, even if suit had

been continued, it would not have served any purpose.

The plaintiff had filed O.S.No.5015/2012 and sought

for temporary injunction not to implement the resolution

dated 01.07.2012. Therefore, the question of annulling

resolution dated 01.07.2012 does not arise at all.

21. In the discussion made supra, I have referred to

proceedings and interim order passed by this court in MFA

5541/2012. In O.S.No.3372/2012, the learned trial judge

had granted temporary mandatory injunction directing

defendant to convene Extra-ordinary General Meeting as per

requisition dated 09.05.2012 by following the rules. The

appellant has challenged this order in MFA 5541/2012.

When MFA 5541/2012 was taken up for consideration of

interim relief, this court after hearing learned counsel for

parties passed interim order dated 21.06.2012 and permitted

respondents to convene Extra-ordinary General Meeting on

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01.07.2012. Therefore, the Extra-ordinary General Meeting

held on 01.07.2012 was pursuant to the interim order

passed by this court on 21.06.2012.

22. In the discussion made supra, I have held that the

trial court was not justified in granting temporary mandatory

injunction in O.S.No.3372/2012. The Extra-ordinary

General Meeting was held on 01.07.2012 pursuant to

interim order passed by this court on 21.06.2012, the

withdrawal of suit in O.S.No.3372/2012 has no bearing on

MFA 5541/2012 or on the interim order passed by this court

in MFA 5541/2012.

23. The plaintiff has filed O.S.No.5115/2012 for

following reliefs:

“i) Declaring that the Resolution dated01.07.2012 passed at the Extraordinary GeneralMeeting of the Defendant Club is not inaccordance with the Rules and bye-laws of theClub being ultravires, illegal and incapable ofbeing acted upon; AND CONSEQUENTLY

ii) Restraining the defendant, its members,office bearers, Secretary, other officers, servantsand agents by issue of an order of perpetual

33

injunction from giving effect to or acting upon theresolution dated 01.07.2012 passed at theExtraordinary General Meeting of the DefendantClub;

iii) Grant an order of mandatory injunctiondirecting the defendant to communicate andpublish at its cost the declaration as per prayer (a)to all its members;

iv) Grant costs of these proceedings;

v) And grant such other or further orders asthis Hon’ble Court may deem fit on the facts and inthe circumstances of the case, in the interest ofjustice and equity.”

In the circumstances, the question of neutralising the

order of temporary mandatory injunction passed in

O.S.No.3372/2012 does not arise.

24. The other points for determination would be:

1) Whether the learned trial judge was justified in

rejecting the application for temporary injunction in

O.S.No.5015/2012 ?

2) Whether the Extra-ordinary General Meeting held on

01.07.2012 was in accordance with Byelaws of the

Club and the principles of natural justice?

34

3) Whether the appellant can enforce privileges as the

immediate past President of the Club by filing a civil

suit invoking Section 9 CPC ?

4) Whether the appellant should not have sought for an

order of temporary injunction in a representative suit

without the leave of the court under Order 1 Rule 8

CPC ?

5) What order ?

25. My findings on above points and reasons thereon

are as follows:

Re. Point No.1 and 2

Before considering submissions of learned counsel for

parties with reference to impugned order, it is necessary to

refer to the judgment of Supreme Court reported in AIR

1963 SC 1144 (in the case of T.P.Daver Vs. Lodge

Victoria No.363, S.C. Belgaum), wherein the Supreme

Court has held:

“16. The following principles may begathered from the above discussion. (1) Amember of a masonic lodge is bound to abide by

35

the rules of the lodge; and if the rules provide forexpulsion, he shall be expelled only in themanner provided by the rules. (2) The lodge isbound to act strictly according to the rules,whether a particular rule is mandatory ordirectory falls to be decided in each case, havingregard to the well settled rules of construction inthat regard. (3) The jurisdiction of a civil court israther limited; it cannot obviously sit as a courtof appeal from decisions of such a body; it canset aside the order of such a body, if the saidbody acts without jurisdiction or does not act ingood faith or acts in violation of the principles ofnatural justice as explained in the decisionscited supra.”

The learned trial judge has failed to consider whether

the resolution passed in Extra-ordinary General Meeting

held on 01.07.2012 was in good faith and in accordance with

the principles of natural justice.

26. As already stated, the Extra-ordinary General

Meeting was held pursuant to the interim order passed by

this court on 21.06.2012. When the interim order was

passed by this court on 21.06.2012, this court has held that

there are no specific Byelaws for removal of the name of

President from the Roll of honour. This court has held that

36

proposal to remove the name of appellant from the roll of

honour is punitive in nature. Therefore, it is appropriate to

direct that no such punitive action shall be taken against the

appellant in the Extra-ordinary General Meeting of the Club

scheduled to be held on 01.07.2012 without affording an

opportunity of hearing to him relating to the misconduct

alleged against him.

Before the Extra-ordinary General Meeting was held,

the appellant was served with a notice, notifying the date of

Extra-ordinary General Meeting however, the charges which

he had to answer in the Extra-ordinary General Meeting

were not furnished to him.

27. The learned counsel for respondents would submit

that requisition to hold the Extra-ordinary General Meeting

was given on 09.05.2012. The charges of misconduct were

furnished to appellant. Therefore, the appellant had the

knowledge of charges leveled against him and the charges

37

which he had to answer in the Extra-ordinary General

Meeting dated 01.07.2012.

28. The learned counsel for respondents relying on the

judgment of Supreme Court reported in AIR 1963 SC 1144

(in the case of T.P.Daver Vs. Lodge Victoria No.363, S.C.

Belgaum), would submit that the appellant had been

summoned to appear before the Extra-ordinary General

Meeting to offer his explanation for the misconduct alleged

against him. He had not appeared before the Extra-ordinary

General Meeting held on 01.07.2012. Therefore, the

appellant cannot be heard to say that he was denied the

opportunity of being heard.

29. In order to appreciate this submission, it is

necessary to state that Extra-ordinary General Meeting held

on 01.07.2012 was not pursuant to the requisition dated

09.05.2012. Therefore, submission of learned Senior

counsel for respondents that charges which had been

furnished to appellant along with requisition dated

38

09.05.2012 were sufficient notice of charges, which

appellant had to answer in the Extra-ordinary General

Meeting, cannot be accepted.

30. As already stated, the Extra-ordinary General

Meeting was held on 01.07.2012 pursuant to the interim

order passed by this court on 21.06.2012. In the

circumstances, the respondents were bound to communicate

to appellant acts constituting misconduct alleged against

appellant. The resolution passed in the Extra-ordinary

General Meeting held on 01.07.2012 reads as follows:

“Resolved that the General body ofPermanent Members of the Bangalore club,effective 9th May 2012, has lost confidence in itsthen President Mr.M.K.Marattukalam owing to hismisuse of his office, for violation and breach of theRules of the Club, transgression of prevailingstatutes, systems and procedures and grosslyfailing to uphold the dignity of the said office ofPresident. Further resolved to remove his namefrom the Roll of Honour, which hall be deemed tomean the plaque hung in the Main Lounge of theClub and other areas of the Club where on thenames of former Presidents are indicated.Mr.M.K.Marattukalam shall not be referred to, orbe part of the current General Committee in thecapacity of the immediate Past President and

39

Mr.M.K.Marattukalam shall not be entitled to anyprivileges, facilities, benefits and honoursconventionally and traditionally accorded toformer Presidents of the Club.”

31. On consideration of the resolution extracted above,

I find in the Extra-ordinary General Meeting held on

01.07.2012, it was resolved by the members that members

have no confidence in it’s the then President (appellant) with

effect from 09.05.2012.

As already stated the term of appellant as President of

the Club came to an end on 24.06.2012. Thereafter, he

ceased to be the President of the Club. Therefore, ‘no

confidence motion’ moved in the Extra-ordinary General

Meeting held on 01.07.2012 against the appellant who had

ceased to be President on completion of his term on

24.06.2012 is opposed to principles of natural justice. The

appellant had completed his term as President of the Club

on 24.06.2012. On 01.07.2012, the members of the Club

did not have any right to move ‘no confidence motion’

against appellant who had already ceased to be the

40

President. This action taken in the Extra-ordinary General

Meeting held on 01.07.2012 was not in good faith.

In the Extra-ordinary General Meeting it was resolved

that the appellant had misused his office, violated the rules

of the Club, transgressed the prevailing statutes, systems

and procedures and grossly failed to uphold the dignity of

the office as President. It was further resolved to remove the

name of President from the roll of honour, which shall be

deemed to mean the plaque hung in the main lounge of the

Club and other areas of the Club where on the names of

former Presidents are indicated. The name of appellant shall

not be referred to and the appellant cannot be a part of

current General Committee in the capacity of the immediate

past President and shall not be entitled to any privileges,

facilities, benefits and honours conventionally and

traditionally accorded to former Presidents of the Club.

32. It is manifest from the resolution that the

appellant was held guilty of misuse of office, violation and

41

breach of rules of the Club, he has failed to uphold dignity of

the office of President.

In the first place, the appellant was not notified about

specific acts of misconduct attributed to appellant. In the

circumstances, the contention of appellant that the

resolution passed in the Extra-ordinary General Meeting was

violative of principles of natural justice is prima-facie

tenable.

33. The learned trial judge without noticing the

implications of the resolution dated 01.07.2012 has held

that the Extra-ordinary General Meeting was held in

confirmity with the interim order passed by this court on

21.06.2012. The resolution was implemented. Therefore,

there cannot be an order of temporary injunction to restrain

respondents from implementing the resolution dated

01.07.2012.

The learned trial judge has held that

O.S.No.5015/2012 is filed for declaration declaring that

42

resolution dated 01.07.2012 passed in the Extra-ordinary

General Meeting is not in accordance with the rules and

Byelaws of the Club being ultravires, illegal and incapable of

being acted upon and to restrain the defendants from giving

effect to the resolution. Therefore, the interim order for the

same reliefs cannot be granted.

34. In the discussion made supra, I have held that the

resolution dated 01.07.2012 bears prima-facie indication

that action taken against the appellant in Extra-ordinary

General Meeting is not in good faith and it is violative of

principles of natural justice. In the circumstances, the

learned trial judge should not have held that the plaintiff has

not made out a prima-facie case for grant of temporary

injunction.

The learned counsel for respondents would submit

that plaintiff had sought for aforestated reliefs in

O.S.5015/2012. Therefore, if the trial court had granted

temporary injunction that would have been as good as

43

granting main reliefs sought for in O.S.No.5015/2012. The

learned counsel for respondents submit that an order of

temporary injunction cannot be granted if grant of interim

relief would tantamount to grant of main relief sought for in

the suit.

36. In the discussion made supra, I have held that the

action taken against the appellant in the Extra-ordinary

General Meeting to move ‘no confidence motion’ against him

when he had quit the office as President after completing the

term of office is not in conformity with the principles of

natural justice and action taken was not in good faith. I

have held that the misconduct attributed to appellant

without notifying to appellant acts that would constitute the

alleged misconduct is in violation of principles of natural

justice.

37. The respondents have relied on a judgment of

Supreme Court reported in AIR 1963 SC 1144 (in the case

of T.P.Daver Vs. Lodge Victoria No.363, S.C. Belgaum) to

44

contend that the appellant had not appeared before the

Extra-ordinary General Meeting held on 01.07.2012,

therefore, appellant cannot be heard to say that he was

denied of the opportunity of being heard.

In the aforestated judgment, the Supreme Court has

referred to Maclean’s case reported in (1929) 1 Ch. 602

reading as hereunder:

“In many cases the tribunal is necessarilyentrusted with the duty of appearing to act asprosecutors as well as that of judges; for there isno one else to prosecute. For example, in a casewhere a council is charged with the duty ofconsidering the conduct of any member whoseconduct is disgraceful and of expelling him iffound guilty of such an offence, it constantlyoccurs that the matter is brought to theattention of the council by a report of legalproceedings in the press. The member issummoned to appear before the council. Thecouncil's duty is to cause him to appear and toexplain his conduct. It may be that in so actingthe council are the prosecutors. In one sensethey are; but if the regulations show that thecouncil is bound to act as I have mentioned andto that extent to act as prosecutors, it seems tobe clear that the council is not disqualified fromtaking the further steps which the rulesrequire.”

45

15. Though it is advisable for a club toframe rules to avoid conflict of duties, if therules sanction such a procedure, the party, whohas bound himself by those rules, cannotcomplain, unless the enquiry held pursuant tosuch rules discloses malafides or unfairtreatment.

In the aforestated case, the council which was

constituted for holding disciplinary action against the

member of club had summoned the member to appear before

it. The member had failed to appear before the council.

Therefore, it was held that the action of the member was not

malafide, the member was not meted with unfair treatment.

38. In the case on hand, the Governing Committee had

not held enquiry against the appellant. On the other hand,

appellant was directed to appear before the Extra-ordinary

General Meeting held on 01.07.2012 on the premise that the

appellant had already been furnished with the charges

levelled against him along with requisition dated 09.05.2012.

Even if this position is accepted, it is not possible to hold

that the material furnished to appellant along with

46

requisition dated 09.05.2012 contain the acts committed by

appellant amounting to misconduct and failing to uphold

dignity of the office as President.

Above all, the Extra-ordinary General Meeting held on

01.07.2012 was not pursuant to the requisition dated

09.05.2012. Therefore, submission of learned counsel for

respondents cannot be accepted.

The learned trial judge ignoring all these aspects has

refused to grant an order of temporary injunction. The

learned trial judge has held that grant of temporary

injunction as prayed for in O.S.No.5015/2012 would

tantamount to grant of main relief.

39. In order to consider the correctness of this finding

it is necessary to state the contents of resolution dated

01.07.2012 and denial of certain privileges to appellant as

the immediate past President are rather punitive in nature.

47

In the Extra-ordinary General Meeting held on

01.07.2012, it was resolved to remove the name of appellant

from the roll of honour i.e., from the plaque hung in the

main lounge of the Club and other areas of the Club where

on the names of former Presidents are indicated. Even if it is

held that the appellant cannot assert as a matter of right

that his name should find place on the plaque hung in the

main lounge of the Club and other areas of the Club where

on the names of former Presidents are indicated, the fact

remains that removal of name of appellant as past President

from the plaque hung in the main lounge of the Club and

other areas of the Club is certainly an act of insuniation if

not a punitive act. The action taken in the Extra-ordinary

General Meeting and resolution passed thereon and

consequent removal of name of appellant from the plaque

would provide actionable right to appellant though the

appellant cannot claim this as a matter of right. Therefore,

the resolution to this effect, notwithstanding the fact that

appellant cannot claim this privilege as a matter of right

48

would prima-facie provide actionable right to appellant. If

the name of appellant is not shown in the roll of honour by

indicating his name as the past President on the plaque

hung in the main lounge of the Club and other areas of the

Club, where on the names of former Presidents are

indicated, during pendency of suit, ultimately, if plaintiff

were to succeed in the suit, damage done to plaintiff cannot

be undone. On the other hand, if plaintiff ultimately fails in

the suit, his name could be removed/blocked from the

plaque. Therefore, the interim order to this effect will not

lead to irreversible situation.

40. In terms of Rule 23.1 of the Club, the General

Committee of the Club consists of a President, Vice President

and seven members elected by the General Body, the

immediate Past President and two Members of the Defence

Services invited by the Committee.

41. The learned Senior Counsel for appellant would

submit that the appellant being the immediate past

49

President cannot be denied of his right to take part in the

meeting of General Committee.

42. The learned counsel for respondents would submit

that the in terms of Rule 23.1, the General Committee of the

Club consists of a President, Vice President and seven

members who are the elected members. The immediate past

President and two Members of the Defence Services would be

the invitees. Therefore, the appellant cannot claim that he

has right to be a member of the General Committee as the

immediate past President.

43. On careful consideration of Byelaws of Club

relating to constitution of General Committee, functions of

General Committee and powers of members of the General

Committee, prima-facie, I am of the opinion that immediate

past President and two members of the Defence Services will

be the invitees of the General Committee.

44. In terms of Rule 23.9, the General committee shall

manage the entire affairs of the Club. The General

50

Committee is in-charge of the entire affairs of the Club and it

has authority to pass resolutions from time to time for

management of the affairs of the Club.

45. In terms of Rule 23.2, the members of the General

Committee have the right to caste their vote for the

Presidential Candidate and Vice President candidate.

46. In terms of Rule 23.7, seven members of the

General Committee shall constitute a quorum of the said

Committee and if for any cause the available number of

members for a meeting has fallen below seven, the meeting

shall be postponed to the same day and time in the following

week.

47. In terms of Rule 23.6, any member of the General

Committee is unable to attend four consecutive committee

meetings without leave of absence shall cease to be a

member of the General Committee.

51

In terms of rules of the Club, the function and meeting

of the General Committee can be conducted if seven

members of the General Committee are present and presence

of seven elected members would be sufficient to constitute a

quorum for the meeting.

48. On careful consideration of the above Byelaws,

I am of the prima-facie opinion that the immediate past

President who is an invitee cannot claim the right to be a

member of the General Committee.

At this juncture, it is necessary to state that in terms

of Rule 23.1 of Club, the immediate past President of Club

and two members of the defense services are invitees. It is

obvious, their participation in the General Committee

meeting has to be followed by an invitation extended by the

General Committee. It is needless to state that an invitation

cannot be demanded but it has to be commanded. However,

members of the Club cannot pass a resolution to prevent the

General Committee from inviting the immediate past

52

President to the General Committee meeting. Therefore, in

the Extra-ordinary General Meeting held on 01.07.2012, the

members of the Club should have left this power to be

exercised by the General Committee.

49. In terms of Rule 23.8, the General Committee shall

hold the meetings twice a month. Notice of the time and

place of meeting shall be sent to every member of the

General Committee. There is no mandatory provision to

invite the immediate past President and two members of the

defense services to conduct meetings of the General

Committee.

In the circumstances, the respondents should not

have passed the resolution to prevent the General Committee

from inviting the immediate past President to attend the

General Committee meeting. On the other hand, this power

should have been left to the General Committee.

50. The learned counsel for respondents have

contended that appellant should not have sought for an

53

order of temporary injunction in a representative suit

without the leave of the court under Order 1 Rule 8 CPC.

This contention was also raised before the trial court.

51. In a decision reported in (2005) 12 SCC 180 (in

the case of Krishnan Vasudevan and others –vs- Shareef

and Others) the Supreme Court has held:

“Civil Procedure Code, 1908 – Order1 Rule 8– Stage at which application under, to be made –Held, Order 1 Rule 8 does not prescribe any stageat which the application can be filed – Trial courterred in refusing to entertain said applicationafter allowing an application to amend the plaint,on ground that said application could not beentertained at that stage.”

The learned trial Judge has noticed that plaintiff had

already filed an application under Order 1 Rule 8 CPC, and it

is pending consideration.

Therefore, the submission of learned counsel for

respondents that appellant should not have sought

temporary injunction without seeking leave of the court

under Order 1 Rule 8 CPC cannot be accepted.

54

52. The learned trial judge has failed to notice that the

impugned resolution is prima-facie violative of the principles

of natural justice and the action taken against the appellant

was not in good faith. In the circumstances, the order made

on I.A.-1/2012 in O.S.No.5015/2012 cannot be sustained.

53. In view of the above discussion, I pass the

following:

ORDER

The impugned order in W.P.No.17767/2012 is set

aside. However, in view of withdrawal of O.S.No.3372/2012,

the trial court cannot be directed to implead the appellant as

defendant in O.S.No.3372/2012.

MFA No.8251/2012 is accepted. The impugned order

is set aside. An order of temporary injunction is granted on

the following terms :

i) The respondents shall not remove/block the name of

appellant from the plaque hung in the main lounge of

55

the Club and other areas of the Club indicating the

names of past Presidents of the Club pending disposal

of suit in O.S.No.5015/2012.

ii) If O.S.No.5015/2012 is dismissed, respondents are at

liberty to remove/block the name of appellant from the

plaque hung in the main lounge of the Club and other

areas of the Club indicating the names of past

Presidents of the Club

iii) It is left to the General Committee to invite the

appellant as the immediate past President to General

Committee meeting.

In view of the relief granted to the appellant in

MFA 5541/2012, no relief can be granted to appellant in

MFA 8251/2012. The appeals and writ petition are

accordingly disposed of.

Sd/- JUDGE

Np/-

2012-11-02T14:15:40+0530N PRAKASH