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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
30
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