In the High Court of Karnataka at Bangalore
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 24th day of September, 2013
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Civil Revision Petition 249 / 2013 (Misc) Between
1 B S Ashok, 47 yrs S/o M S Sathyanarayana R/a # 9/12, 15th Main Road Ganesha Block, Sultanpalya Bangalore
2 Charles David Lewis, 50 yrs S/o K D K Lewis R/a # G001, A4 Habitat Gnavi Layout, 4th A Cross HRBR Layout, Bangalore
3 R Gopal Reddy, 57yrs S/o late K Ram Reddy R/a 62, 5th A Cross, 16th Main BTM Layout, II Stage MCHS Colony, Bangalore
4 Prashanth Priya Captain, 50 yrs S/o G V Bhakapriaya R/a 302, A block, Royal Residency Brunton Road, Bangalore
5 M Lalitha, 45 yrs W/o S B Manjunath 2
R/a SyconHeritage, A-23 IIFloor, Site # 4, Church Road Basavangudi, Bangalore
6 B S Mukunda, 50 yrs S/o B M Shanthappa Gowda R/a 62, 7th Main, Sharada Colony Basaveshwarnagar Bangalore
7 H Ravi Kumar, 47 yrs S/o M Huliyappa R/a 122/A, `Prarthana' 6th Main, III Stage, 4th Block Basaveshwaranagar Bangalore
8 D Lakshmi Venkatesh, 50 yrs W/o late G Basappa R/a 156, 7th Cross, 10th Main II Stage, Indiranagar (Behind Cauvery School) Bangalore
9 R K Kapoor, 55 yrs S/o B Jkapoor R/a # 401, Prosper Lake Shore Apartment 41st Main, II Cross, BTM Layout II Stage, Bangalore
10 J Giridhar, 47 yrs S/o late Dr C J Reddy R/a # 24, I Block East Byrasandra Main Road Jayanagar, Bangalore 3
11 B T Ramesh, 60 yrs S/o late B M Thammaiah III Block, 3rd Stage R/a 702, 9th Main Road Basaveshwaranagar Bangalore
12 Ghani Haneef, 44 yrs S/o late Abdul Ghani R/a 261/A, Milers Road Cross Benson Town, Bangalore
13 Shivakumar, 47 yrs S/o A Mariyappa R/a 36, 4th Main, I Stage Ashtagrama Layout Near Kamakshipalya Traffic P S Bangalore
14 L Pothegowda, 55 yrs S/o Lingaiah, R/a 790 9th A Main, Indiranagar I Stage Bangalore
15 M R Govindaraj, 55 yrs S/o M G Ramachandra R/a 162, 1st A Cross, 8th Main BTM I Stage, Bangalore
16 Jagadish V Ahuja, 49 yrs S/o late Vasudev B Ahuja R/a 24/6, St. Michael School Road Shanthinagar, Bangalore
17 Mahesh N Bhambahani, 44 yrs S/o Narayan Das, R/a 302, A Block 4
Ravka Plaza apartments 157, Wheeler Road, Frazer Town Bangalore
18 Rakesh H Parekh, 47 yrs S/o H N Parekh, R/a 29/9 38th Cross, 8th Block Jayanagar, Bangalore
19 Ashok Talreja, 59 yrs S/o late Caxmandas R/a 32 & 33, 1st Cross Venkateshwar Layout Near Ramaiah Hospital MSRIT Post, Bangalore
20 P A Suresh, 54 yrs S/o late P N Anantheshwara Naidu R/a 80/A, 1st Block East Byrasandra Main Road Jayanagar, Bangalore
21 Navin Malik, 40 yrs S/o Narindra Malik R/a 778, 13th Main, HAL II Stage Indiranagar, Bangalore
22 Rahul P Totiani, 30 yrs S/o Prakash Muralidhar R/a 5/1, 8th Cross, Laxmi Road Shanthinagar, Bangalore
23 Niranjan Dass G A, 45 yrs S/o T J Dass, R/a # 1 High Street Cross, Cooke Town Bangalore 5
24 Muralidar Hegde, 56 yrs S/o B V Raghuram Hegde R/a 539, 5th Cross Mahalaxmi Layout Bangalore
25 H Narayana, 65 yrs S/o late Hanumanthaiah R/a 280, 2nd Main, 5th Cross BDA AVH Layout, BSK III Stage Bangalore
26 B T Srinivas, 46 yrs S/o T M Thimme Gowda R/a 499, Life Guard Solutions East End Main Road, 9th Block Jayanagar, Bangalore
27 Anirudha S Kamat, 30 yrs S/o Sudhir Kamath R/a 'Indraprasta', # 9 Kingston Road, Richmond Town Bangalore
28 B Prasannaiah, 64 yrs S/oS\Brahhsuraiah, R/a 17 KAS Officers Colony, I Cross J P Nagar 4th Stage, Bangalore
29 Ramachandra V, 66 yrs S/o M V Venkatachalappa R/a # 4, Rajarajeshwari Enclave LG 2 5th Main, 6th Cross, GMR Layout Sanjaynagar, Bangalore 6
30 ShikaripuraN Ranganath, 58 yrs S/o late SRN Iyengar, R/a 59/29 7th Main, 2nd Block, Jayanagar Bangalore Petitioners
(By Mrs Pramila Nesargi, Sr.Adv. For Sri Hemanth Kumar D)
And
1 Bowring Institute # 19, St.Marks Road Bangalore by its Secretary
2 Sanjay Chugh, 39 yrs S/o Gopal N Chugh R/a # 2024, Embassy Habitat Palace Road, Bangalore
3 Sunil Adiga, 42 yrs S/o SMR Adiga R/a # 335, 6th Cross, 8th Main Padmanabhanagar Bangalore
4 Sanchit Sawhney, 42 yrs S/o late Harpal Singh R/a # 33, Sundar Inderjeet Sawhney Layout Opp> B R Ambedkar Medical College Bangalore
5 Sudeep Sood, 43 yrs S/o late M I Sood R/a # 16/2, Promenade Road Frazer Town, Bangalore 7
6 Sanjay Chabria, 43 yrs S/o Srichand Chabria R/a # 17th 6th Cross, Laxmi Road Shanthinagar, Bangalore
7 Mr Manjunath S/o M Mahabalapura R/a Annapurna Nilaya, # 91 6th Main, 4th Stage, 3rd Block Basaveshwaranagar Bangalore
8 H S Srikanth S/o late Mr Sathya R/a # 9, 3rd Cross, Sripuram Sheshadripuram Bangalore
9 Stuart Clarke R/a T-4, 3rd Floor Gayathri Ayle, 7/14 Bearley's Street Cross Shantinagar, Bangalore 27 Respondents
(By SriK B S Manian, Adv. For R1)
Revision Petition is filed under 115, CPC praying to set aside the order dated 4.7.2013 in Misc.No.326/2013 by the Prl. City Civil & Sessions Judge, Bangalore.
Revision Petition coming on for hearing this day, the Court made the following: ORDER
Petitioners have sought for setting aside the order dated 4.7.2013 passed by the Prl. City Civil Judge, Bangalore in Misc.326/2013 – annexure 8
E dismissing the application.
Petitioners had filed a suit for declaration and also permanent injunction in respect of constitution of the enquiry committee as per the
Management Committee resolution dated 6.11.2012 and the report dated
8.4.2013 submitted by the Enquiry Committee as illegal and in violation of the principles of natural justice and void abinitio. Also, to declare the resolution accepting the report of the Inquiry Committee dated 8.4.2013 in the Special General Body Meeting held on 21.4.2013 as illegal and to declare the communication sent to the plaintiffs/petitioners calling upon them to pay Rs.9 lacs additionally as illegal and without jurisdiction and for a permanent injunction restraining the Institute from restraining the plaintiffs from utilising the facilities of the defendant Club as permanent members in terms of the prevailing rules of the Institution and for consequential relief.
The suit OS 25936/2013 filed by the petitioners was pending before
CH 28 at Mayo Hall, Bangalore. The 1st respondent filed a Misc.Petition 9
326/2013 before the Prl. City Civil Judge, Bangalore seeking for transfer of this OS 25936/2013 to the 37th Addl. City Civil Judge, Bangalore before which OS 3063/2013 is pending said to be filed by respondents 2 to 7 against respondents 1, 8 and 9 seeking for a declaration and injunction. The same has been considered and an order was passed transferring OS
25936/2013 pending before the 28th Addl. City Civil Judge, Mayo Hall,
Bangalore. Aggrieved by the said order, plaintiffs therein have filed this revision petition.
The same is contested and an interim order has been granted staying the transfer. Simultaneously, as the interim order was sought to be adjudicated by the court in which the matter was pending, records were ordered to be sent. It appears, in the process of implementation of this order, as the records were not sent back to the same court where the matter was pending, some of the interim applications filed by the petitioners seeking for interim order of stay against the decision taken by the
Management Committee and the general body became infructuous due to delay. The petitioners were directed to pay additional amount of Rs.9 lacs to the 1st 10 respondent and except these petitioners, the others who are in all 238 members have not been asked to pay similar amount by the Committee of the 1st respondent. Also, the membership of these petitioners was sought to be canceled and they were not permitted to participate in the general body meeting. The petitioners have sought to permit them to enjoy the Club
Membership till the case is decided on merits.
It appears IAs 1 and 2 had been filed before this Court four days prior to the general body meeting to be held by the 1st respondent. The respondent also wanted this matter to be heard before the court of first instance as such, these IAs were ordered to be disposed of by the trial court itself. Meanwhile, the trial court though was able to hear the matter prior to the general body to be held by the 1st respondent, the order could not be passed and matter was reserved for orders to be pronounced on 1.10.2013 thereby, the IA filed by the petitioners has become infructuous so far as their participation in the general body meeting on parity and questioning the illegality committed by the respondent Managing Committee members.
However, for the present the issue remaining is with respect to enjoying the 11 membership of the 1st respondent Club pending disposal of the suit.
Another suit said to be filed before the 37th Addl. City Civil Judge which is also pending. According to the petitioners’ counsel, it is in respect of dispute interse between the management. Although it is arising in respect of respondent Club but petitioners are concerned with the action sought to be initiated depriving them of the opportunity and also removal of petitioners from membership of the club. However, this Court having though it fit to allow the relief sought for by the petitioners and as the parties are also different, passed an interim order. But the trial court, although IA was filed for an interim direction, was unable to pass any orders.
So far as the order passed by the Prl. City Civil Judge ordering to club the matters appears to be without looking into the nature of the prayer, thereby when the matter is sought to be taken by the court independently before which it was pending, that court also could not pass such urgent orders against the various irregularities committed by the 1st respondent and 12 its management committee. As argued by the petitioners’ counsel referring to the judgment of the Apex Court in the case of Abdul Rahman Vs
Prasony Bai & Anr - (2003) 1 SCC 488 with reference to S.24, CPC, the
Apex Court has observed “it may be true that normally the High Court does not pass an order under S.24, CPC in a disposed of proceedings. However, in terms of S.24, CPC indisputably the High Court had the requisite jurisdiction to withdraw any suit pending in any court sub-ordinate to it and try or dispose of the same interalia on its own motion, wherefor no notice is required to be issued’. Further, in para 18 it has held that a bare perusal of the said provision leaves no manner of doubt that the High Court had requisite jurisdiction to suo motu withdraw a suit to its file and adjudicate itself all or any of the issues involved therein . Therefore, on the petitioners challenging the order passed under S.24, CPC and the IA filed before this
Court having regard to the urgency and the nature of the suit filed by the plaintiffs vis a vis the suit pending before the other parallel court which was filed by the management in respect of some other dispute which has no relevance to the case herein and the prayer sought for, this Court thought it fit to grant stay. It is also noted the way in which the IA filed before the 13 trial court has been made infructuous as the petitioners were unable to avail the opportunity of getting an early order or the right to participate in the general body meeting subject to the decision of the suit pending therein. In that view of the matter, it is argued, this court can very well assume jurisdiction to pass an interim order or to take any other suitable decision.
The main grievance of the petitioners is, without there being a notice, the inquiry committee had been constituted and the member of which is also a member of the general body and participated in the proceedings, has taken a decision to inquire into the matter of the petitioners thereby, there is violation of the principles of natural justice as such, the IA filed now by the petitioners for an order permitting them to enjoy the privileges of the club, pending disposal of the suit may have to be maintained as the other prayer has been made infructuous. The order has been reserved to be pronounced on 1.10.2013 and the general body meeting was sought to be held on 20th September, 2013. As such, exercising power as is noted in Abdul Rahman’s case cited supra, it is hereby ordered, pending disposal of the suit petitioners be permitted to enjoy the benefits 14 and privileges of the Member which they have obtained. Secondly, the controversy that is being raised by the petitioners is that other members have not been demanded to deposit Rs.9 lacs as is ordered against the petitioners by the 1st respondent and this is discrimination writ large.
Further, petitioners’ counsel submitted, the land is lent by way of lease for a mere sum of Rs.360/- per year as lease amount and the management committee and its members are trying to make a huge profit out of this
Institute which is meant for social activities. Huge amount sought to be paid by the petitioners is discriminatory and as against the members who are in all more than 200 and they are enjoying the privileges without there being any demand as against them. Might be the bye-law/resolution would have been passed to collect the amount. But, when the land is taken from the government on long lease for a paltry sum, the Club should have served the common man and promote cultural and other facilities for the members. On the ground of non-payment of Rs.9 lacs, such a decision is shown to be taken by the 1st respondent and its management committee members. This attitude is like making trade – making business out of the land which is taken for social and cultural activities for the benefit of its 15 members.
So far as the order passed by the Prl. City Civil Judge is concerned, under S.24, CPC, the suit sought to be tried by the 37th Civil Judge with respect to the 1st respondent club is altogether different vis a vis the management committee dispute. So far as the requirement of substantial question of law to be tried, in the context, it will have a bearing on the other side and the case filed by the petitioners before some other court is sought to be clubbed with the other matter, thereby delaying the process of decision making and as a matter of routine, such transfers shall not be made and even as noted, the suit filed by the petitioners and the respondents are two different aspects. In this regard, counsel for the respondent Institute argued that under S.24 CPC r/w S.5 (2) of the Bangalore City Civil Courts
Act, 1979, there is a provision for general transfer and withdrawal. But the fact remains, matter already pending before the 28th Addl. City Civil Judge was sought to be withdrawn by the Prl. City Civil Judge and made over to the 37th Addl. City Civi Judge on the application filed by the 1st respondent 16 which appears to be without considering the prayer of the petitioners vis a vis the prayer of the other side and the hardship that would be caused to the petitioners. The prayers appear to be distinct and independent. What is being dealt under S.24, CPC is with regard to the power of the Prl. City
Civil Judge vis a vis the other civil judges are concerned and that power is conferred for allocation and transfer of cases. Counsel for the 1st respondent sought to rely on the case of DLF Housing & Construction
Company Ltd Vs Sarup Singh – (1969) 3 SCC 807 to argue, revision power under S.115, CPC is limited only in respect of errors of fact and errors of law and when there is any illegality or material irregularity then only the High Court interfere with it. The irregularity sought to be made out by the petitioners is, the order has been passed by the City Civil Judge is under S.24 CPC without looking into the nature of the prayer which is distinct and separate. Accordingly, the Prl. City Civil Judge in the usual course has transferred the case withdrawing the case pending before the
28th Addl. City Civil Judge to 37th Addl. City Civil Judge without considering the nature of the prayer sought for by the petitioners Therefore, material irregularity has been committed by the trial judge who has passed 17 the impugned order.
In view of the above discussion, petition is allowed. Interim order is made absolute. Application filed for interim order before the court for enjoying the privileges by the petitioners pending disposal of the suit is allowed. Though the matter is kept pending for pronouncing the order, having noted the irregularity and as per the decision of the Supreme Court in Abdul Rahman’s case , irrespective of the finding to be given by the civil court on the IA reserved for orders, this Court having taken note of the manner in which the case has been conducted before the trial court and the urgency and also not enabling the petitioners to enjoy the privilege when it is made clear that there is patent violation of the principles of natural justice, it is directed petitioners be allowed by the 1st respondent and its
Committee to enjoy the privileges of membership as is made available to other members also, pending disposal of the suit. However, petitioners can take all contentions before the trial court with regard to various irregularities pointed out by them in support thereof and also any other remedy available to them regarding the illegality committed by the 1st 18 respondent and its members.
Sd/- Judge an