F.J. Jerome vs P. Vijayakumar

P.R. Shivakumar, J.—The petitioners in I.A. No.55/2013 in O.S. No.980/2011 pending on the file of the Principal District Munsif, Madurai Town are the petitioners in the present civil revision petition. The respondents 1 to 9 in the civil revision petition are the plaintiffs in the above said suit. The respondents 10 to 32 in the Civil Revision Petition are the defendants in the above said suit.

The above said suit came to be filed by the respondents 1 to 9 herein, as a representative suit, for themselves and for the benefit of the members of Victoria Edward Hall, which is shown as the first defendant in the original suit and figures as the 10th respondent in the civil revision petition, for a declaration that the election for the period 2011-2014 conducted to the 10th respondent society/first defendant society was illegal, null and void, nonest and invalid and for an injunction restraining the respondents 11 to 24/defendants 2 to 15 from functioning and discharging their duties as office bearers and Managing Committee members to manage the affairs of the 10th respondent society/first defendant society and also for appointment of a Receiver or any other authority to manage the affairs of the 10th respondent society/first defendant society. They have also prayed for a direction to hold fresh election/reelection to be conducted by the Receiver or such other authority to be appointed by the court on the basis of a valid voters'' list after setting aside the election held on 31.7.2011.

As the suit was filed by the respondents 1 to 9 herein/plaintiffs 1 to 9 for themselves and also on behalf of and for the benefit of the members of the 10th respondent society/1st defendant society, which according to them, has got approximately about 1200 members, excluding the associate members having no voting right. In this regard, a petition in I.A. No.895/2011 under Order 1 Rule 8(1)(a) and (b) of CPC read with Sections 94(e) and 151 of CPC came to be filed by the respondents 1 to 9 herein/plaintiffs, praying for an order permitting them to sue for themselves and on behalf of and for the benefit of all members of the 10th respondent society/first defendant society, namely Victoria Edward Hall, Madurai stating that it was not practicable to give personal notice to all of them of the institution of the suit, a plea had been made for the service of notice to the members by way of publication. Accordingly, permission was granted and with the permission of the court, notice to the members of the society was given by effecting publication.

One Vijayakumar and 9 others filed a Memo raising protest for the grant of permission to the respondents 1 to 9 herein/plaintiffs to file the suit as a representative suit. The petitioners in the revision, who are 32 in number, filed a petition under Order 1 Rule 8 and Section 151 CPC as I.A. No.55/2013 seeking a direction to the plaintiffs to implead them as party defendants in the suit. The same was resisted by the respondents 1 to 9 herein/plaintiffs. Five batches of persons consisting of 20 Nos filed similar petitions in I.A. Nos.23/2013, 34/2013, 36/2013, 37/2013 and 127/2013 objecting to the grant of permission to the respondents 1 to 9 herein/plaintiffs to file the suit as a representative suit representing the members of the 10th respondent society/first defendant society, namely Victoria Edward Hall. Yet another similar objection petition was also filed by 19 other persons as I.A. No.38/2013. The learned trial judge heard all the above said applications together and passed a common order on 12.3.2013 dismissing all the above said petitions, viz. I.A. Nos. 23/2013, 24/2013, 37/2013, 38/2013, 55/2013 and 127/2013. However, the learned trial judge chose to observe that the defendants 3 to 15 would represent all the above said objectors, who are 151 in number and that a list of the said 151 objectors shall be prepared separately and kept in the record and the same shall form part of the court records.

Aggrieved by and challenging the common order in so far as it relates to I.A. No.55/2013 and the decretal order passed thereon, the revision petitioners have come forward with the present revision on various grounds set out in the grounds of revision. The civil revision petition was taken up for hearing after issuing notice of motion to the respondents.

The arguments advanced by Mr. S. Nates Rajaa representing M/s. B.S.G. Firm, learned counsel for the petitioners, by Mr. A. Arumugam, learned counsel for the respondents 1 to 9, Mr. G.R. Swaminathan, learned counsel for the respondents 10 to 23, Mrs. N. Krishnaveni, learned counsel for the 24th respondent and Mr. K.M. Thambi, learned counsel for the 25th respondents were heard. The copy of the common order impugned in the civil revision petition and the copies of the other connected records produced in the form of typed set of papers were also perused.

The Victoria Edward Hall, which is shown as the 10th respondent in the civil revision petition (first defendant in the original suit), is a registered society and its object is to maintain and improve the Victoria Edward Library for the benefit of the public. There is no dispute regarding the existence of the registered society with the above said object and there is also no controversy over the fact that it has got its own Memorandum of Association, By-laws and Rules and regulations. The suit came to be filed by the respondents 1 to 9 herein, as plaintiffs, making the following averments in their plaint:-

(i) As per the By-Laws, the Society shall be managed by a Management Committee consisting of a President, Vice President, Secretary, Treasurer and 10 committee members to be elected at a meeting of the General Body convened on the last Sunday in the Month of July once in three years for the purpose of election. However, Rule No.7 of the By-laws says that the Management Committee elected for three years shall continue in office notwithstanding the expiry of the three year period and till a succeeding Management Committee duly elected for the succeeding period assume office. The said rule, according to the plaintiffs, is illegal as it is contrary to Section 15(4) of the Tamil Nadu Societies Act. Under such circumstances, at the end of the previous period when the election for the next triennium, namely 2008-2011 was due to be conducted on 27.07.2008, a suit in O.S. No.85 of 2008 came to be filed in the Court of the District Munsif, Tiruchirappalli.

(ii) As there was controversy over the removal of certain members and induction of certain members, the election was conducted on 27.07.2008 by virtue of an order of the said Court. However, two ballot boxes were provided, one meant for the ballot papers of the undisputed members and the other meant for the ballot papers of the disputed members. Though such election was conducted, the votes were not counted as the said Court had directed that the counting would be done subject to the result of the said case. However, on 18.01.2011, the Court of District Munsif, Tiruchirappalli, disposed of the said case holding that the removal of certain members with effect from 01.08.2005 was illegal and such removed members should be re-admitted. It also directed a fresh election to be conducted for the remaining period of triennium 2008-2011 in which the re-admitted members would also cast their votes. Despite the fact that such a direction had been issued to the District Registrar of Societies (South), Madurai for conducting Election for the remaining period of the triennium 2008-2011, no such election was conducted. As such, at least from the date of judgment of the District Munsif, Tiruchirappalli, namely 18.01.2011, there was no valid lawful and duly elected Management Committee. However, relying on Rule 7 of the By-laws, which cannot have legal validity, the office bearers and the earlier Management Committee continued to function as Office bearers and members of the Management Committee.

(iii) The fourth defendant, who had been elected as Secretary for the previous period, created a vote Bank with an evil design to be in power for ever and conducted an election for the triennium 2011-2014 on 31.07.2011 in which the entire team of defendants 2 to 15 emerged as successful for the respective posts for which they contested since they were able to achieve the same by admitting as many as 160 new members after the judgment was pronounced on 18.01.2011 by the District Munsif Court, Tiruchirappalli. As such, the voters list prepared for the triennium 2011-2014, which includes the newly elected members numbering 160 is illegal as the said persons were not admitted by a legally elected Managing Committee. Rule 3-A of the By-laws of the first defendant Society states that persons can be admitted as members to the Society by the Managing Committee alone as there was no lawful elected Managing Committee with effect from 18.01.2011, no valid resolution could have been passed for admitting new members. However, the fourth defendant with an evil design of defeating the judgment of the Trichy court, chose to include 160 persons as new members and conducted the election for the triennium 2011-2014 permitting such illegal elected members to cast their votes. The voters list prepared for the triennium 2011-2014 is also ex-facie illegal as the illegally removed members, who had been ordered to be re-admitted by the Court had not been re-admitted and included in the voters list. Therefore, the election conducted for the first defendant''s society on 31.07.2011 for the triennium 2011-2014 should be declared illegal, null and void and invalid and the defendants 2 to 15 should be restrained by a decree of injunction from functioning and discharging as office bearers and Management Committee members and a fresh election should be conducted on the basis of a valid voters list by a Receiver or any other competent authority.

In view of the fact that there were numerous members of the 10th respondent society/first defendant society, it had become necessary for the plaintiffs to file the suit in the representative capacity and hence they filed I.A. No.895/2011 under Order 1 Rule 8(1)(a) and (b) r/w Section 94(3) and 151 of CPC seeking permission to file the suit as a representative suit for themselves and for the benefit of the members of the Society. Subsequently, the respondents 1 to 9 herein/plaintiffs chose to not press the said application in I.A. No.895/2011 and filed an application in I.A. No. 707/2012 under Order 6 Rule 17 CPC for amending the plaint converting the suit into an ordinary suit from a representative suit. The said prayer had been allowed. As against the same, defendants 1 and 3 to 15 preferred a revision before this court under Article 227 of the Constitution of India. A learned Judge of this court (Mr. Justice G. Rajasuria) allowed the said revision C.R.P.(NPD)(MD) No.2458/2012, set aside the order passed by the trial court on 18.10.2012 in I.A. No.707/2012 converting the suit into an ordinary suit. Besides setting aside the order dated 18.10.2012 made in I.A. No.707 of 2012 in O.S. No.980 of 2011, the learned single Judge has chosen to direct that the suit should be proceeded as a representative suit in accordance with the original plaint. The learned Judge also directed for the disposal of the suit within a period of three months from the date of receipt of a copy of the said order dated 4.12.2012. However, the office bearers and managing committee members, who were elected for the previous period continued to function as such for 2008-2011 also by virtue of Rule 7, since the election held for the period 2008-2011 was not completed and the votes polled were not counted. Though a fresh election was ordered to be conducted for the remaining period of the said triennium by the District Munsif, Trichy, they continued to be in office almost for the remaining period of the triennium 2008-2011 without the election as ordered by the Court being conducted.

There was a dispute regarding the election of the office bearers and the managing committee members for the triennium prior to 2008-2011, as the plaintiffs made allegations that the then Secretary, namely the 4th defendant in the original suit illegally removed certain members with an evil design of sticking on to power for ever. Though an election was ordered to be conducted for the remaining period of the triennium 2008-2011 after readmitting the illegally removed members, the same was not done. On the other hand, the fourth defendant and his team without complying with the decree of the District Munsif Court, Tiruchirappalli dated 18.01.2011 made in O.S.No.85 of 2008 by recording readmission of the illegally removed members, simply prolonged his tenure till the end of the triennium and conducted an election for the next triennium 2011-2014 on 31.07.2011 after inducting 160 new members and without re-admitting the members whose removal was held to be illegal and whose re-admission had been directed by the Court for the said election conducted on 31.07.2011, the defendants 2 to 15 became successful in getting elected to the said post. The said election, according to the plaintiffs, was conducted not only after admission of new members, but also without readmitting the members, who had been illegally removed, much against the judgment of the District Munsif, Trichy. Hence they had come forward with the above said suit for a declaration that the election conducted on 31.7.2011 held for the triennium 2011-2014 was illegal, null and void.

Besides filing petitions and revisions to stall the proceedings by raising objection for the prosecution of the suit as a representative suit, the defendants 2 to 15 had made several attempts by making a batches of persons to file interlocutory applications for getting them impleaded as party defendants, that too, after they failed in the previous civil revision petition, wherein this court upheld the propriety of filing of the suit as a representative suit. This court also in categorical terms has held in the earlier civil revision petition that such disputes regarding election to the Society should be filed by the affected members as a representative suit and that the suit should be proceeded only as a representative suit. When the previous civil revision petition was pending, the applications for impleadment by batches of persons came to be filed only to provide a stumbling block for the completion of the proceedings in the suit, which was directed to be disposed of within three months.

The learned trial Judge, after hearing both sides, with a clear vision and on proper appreciation of facts and applying correct principles of law held that the petitions for impleadment by batches of persons were not bona fide and they were aimed at preventing the trial court from disposing of the case within the time fixed by the High Court in its order dated 04.12.2012 made in the previous civil revision petition, namely C.R.P.(PD)(MD) No.2458 of 2012. The learned trial Judge also held in categorical terms that the proceedings would become unwieldy, if 151 persons were impleaded as party defendants and if they were impleaded, the proceedings in the suit would be unreasonably prologned and the suit could not be disposed of in the near future. In order to render complete justice and in order to prevent the office bearers and the managing committee members, who were elected for the period of 2008-2011 from continuing for ever by virtue of Rule 7, which according to the plaintiffs, is against the provisions of the Societies Registration Act, keeping the case pending the learned trial Judge has chosen to put an end to such efforts made by those persons by dismissing all the applications viz. I.A. Nos.23/2013, 34/2013, 36/2013, 37/2013, 38/2013, 55/2013 and 127/2013

This court, after going through the common order of the learned Additional District Munsif, Madurai Town and the relevant portions dealing with I.A. No.55 of 2013 concerned in this civil revision petition, does not find any defect or infirmity in the order passed by the learned Additional District Munsif, Madurai Town warranting interference by this court in exercise of its power of revision. The present civil revision petition has been filed by the applicants in I.A. No.55/2013 alone keeping open the avenue for a further challenge by the applicants in the other applications. Such a device should not be allowed to succeed. There is no defect or infirmity in the order passed by the learned trial judge in all the applications, especially in I.A. No.55/2013 filed by the revision petitioners dismissing the application for impleadment and directing that they will be represented by the already existing defendants. This court has to take such a view that at least for the next triennium, there will be a fair election with proper list of voters. In order to achieve the said end, while deciding to dismiss the civil revision petition, this court hereby directs the trial court to dispose of the suit by the end of the June 2014 by conducting trial on a day to day basis without granting any adjournment.

In the result, the civil revision petition is dismissed. The common order of the learned Additional District Munsif, Madurai Town dated 12.3.2013 so far as it relates to I.A. No.55/2013 in O.S. No.980/2011 is confirmed. The trial court is directed to dispose of the suit by the end of June 2014 by conducting trial on a day to day basis without granting any adjournment. Consequently, the connected miscellaneous petition is closed. However, there shall be no order as to cost.