Parma Nand Doda and Others vs Shree Sanatan Dharam Sabha and Others

S.S. Grewal, J.—This revision petition is directed against the order of Additional District Judge, Sonepat dated 1.2.1992 whereby the order of the trial Court dated 28.1991 dismissing the application filed on behalf of the plaintiffs under Order 39 Rules 1 and 2 read with Section 151 of the CPC was upheld. Aggrieved against the orders of the Courts below the plaintiffs have filed the present revision petition.

In brief facts relevant for the disposal of this petition are that Shri Sanatan Dharam Sabha (hereinafter referred to as the defendant Society) is a registered Society under the Haryana Societies Act and the said Society manages temples, educational Institutions and undertakes to preach religion and work for social uplift according to the principles of Sanatan Dharma. The plaintiffs are members of the said defendant Society from the very beginning of its formation and had been attending meetings of the general body of the defendant Society. It was next pleaded that they tried to pay the annual sub-scription to the defendants but the defendants have been avoiding to receive the same on one pretext or the other. The plaintiffs also approached the State Bank of Bikaner and Jaipur with its branch at Sonepat, for depositing the annual membership subscription of the defendant Society in its account with the said Bank but the office bearers of the defendant Society instructed the Bank not to accept any membership fee from the plaintiffs. It was further averred that some of the plaintiffs sent their subscription through money order but the same was refused by the defendants who wanted to terminate the membership of the plaintiffs for non-payment of the annual subscription fee as members to which they have no right. The plaintiffs accordingly filed suit for declaration to the effect that they are members of the defendant Society and continue to be so till date and defendants be restrained from terminating their membership and be also restrained from enrolling fresh members. On similar grounds application for grant of temporary injunction was moved by the plaintiffs. The learned trial Court initially granted ad interim injunction against the defendants.

The defendants contested the suit as well as the stay application. It was pleaded that the plaintiffs are no longer members of the defendant Society as they have already forfeited their membership. It was pleaded that plaintiff No. 6 has already shifted to Delhi where he is residing with his family members and as such is no longer resident of Sonepat and cannot continue as member of the defendant Society ; that according to Rule 2 sub Rule (iv) of Rules and Regulations of the Society, a person who is not a resident of Sonepat, cannot continue as member of the defendant Society ; that vacancies caused have been filled up according to Rules and Regulations of the Society. It was also pleaded that plaintiff Nos. 7 and 8 i. e. Bhagwan Dass and Harish Nagpal have not paid the annual subscription for the year 1990-91 according to the orders passed by Shri Lalit Batra, Sub judge Ist Class, Sonepat and they are no longer members of the defendant Society. Ram Saran Dass and Ram Narain plaintiff Nos 9 and 10 have not deposited their annual subscription for the year 1991-92 which was to be paid on 15 7.1991 and they also forfeited their membership It was next pleaded that plaintiff Nos. 1 to 5 and 11 did not deposit the requisite annual subscription, which has been raised to Rs. 101/-, for the year 1991-92 and the same was to be deposited by 15 7.1991 in the office of the defendant Society with the General Secretary or the President of the defendant Society ; that on account of vacancies caused due to forfeiture of the memberships of the plaintiffs, new members had already been taken by the governing body of the defendant Society in their meeting held on 22.7.1991 and the suit for permanent injunction was not maintainable.

The learned counsel for the parties were heard.

Normally this Court while exercising its power in revision u/s 115 of the CPC would be reluctant to reverse or set aside the concurrent finding of the Courts below. Reference in this regard may be made to the authority of the apex Court in The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, . wherein it was observed as follows :

"In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it may. The order of the first appellate Court may be right or wrong, may be in accordance with law or may not be in accordance with law ; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction u/s 115 of the Civil Procedure Code."

However, the fact remains that in case this Court does not exercise its power in the present petition wherein both the Courts below have exercised its jurisdiction illegally and with material irregularity, this would certainly occasion failure of justice.

On behalf of the plaintiffs, it was mainly contended that be plaintiffs were inducted as members of the Society from the very beginning and they had tried to deposit the annual subscription as required under the Rules but their subscription was deliberately of accepted by the defendant Society, even though the plaintiffs'' tried to deposit the same in the Bank account of the defendant Society but could not do so because of instructions issued by the office bearers of the defendant Society to the concerned Bank It was also contended that the plaintiffs tried to send their subscription by Money order which too was not accepted by the defendant Society with a View to oust the plaintiffs from their membership of the defendant Society. It was next contended that under Rule 29-A of the Rules and Regulations of the defendant Society, plaintiffs cannot be expelled from the primary membership of the Society without the prior approval of the 1/4 th members of the general body It was further con tended that the trial Court acted illegally and with material irregularity in wrongly holding that no prima facie case was made out in favour of the plaintiffs as they appear to have ceased to be members of the said Society for not paying the annual subscription, and, solely on this score the trial Court further erred in observing that the balance of convenience is not in favour of the plaintiffs and they are not going to suffer any irreparable loss or injury.

Admittedly there is no specific rule concerning the conditions on the basis of which an individual who becomes a member of the defendant Society, subsequently ceases to be such. Rule 2 only deals with the conditions on which a person becomes a member of the Society and that includes payment of Rs. 2/-as annual subscription which was subsequently raised by the General body of the defendant Society to Rs. 11/- on 16-9-1984. Under Rule 29-A no member of the general body can be expelled from the primary membership of the Society without the prior approval of the 3/4 th members of the General body

Besides the Courts below while passing the impugned orders have acted in exercise of their jurisdiction illegally and with material irregularity in holding that the plaintiffs have not been able to make out a prima facie case or that balance of convenience was not in their favour and that they would not suffer an irreparable loss in case the temporary injunction prayed for is not granted and some new members who are stated to have been inaducted in place of the plaintiffs by the defendant Society, are permitted to continue as members of the defendant Society.

Admittedly new election for the office bearers of the defendant Society is fixed for 23rd February, 1992. In the present case the defendant Society has fixed number of members i. e 101. Apart from eleven plaintiffs six: other persons have filed similar suit against the defendant Society and other defendants in which they too have claimed that they are also members of the defendant Society. It is quite apparent that out of the total number of members of the defendant Society i. e 101 in all, rights of individuals who claim to be members of the defendant Society are in dispute. Incase the plaintiffs in both the suits succeed and they are held to be members, they shall certainly suffer an irreparable loss in case they are not permitted to exercise their right to vote in new election, which normally is to be held up to first week of May. 1992. Such an eventuality would lead to unnecessary multiplicity of proceedings and the plaintiffs would suffer an irreparable loss which cannot be compensated by way of costs. It would be desirable, in the interests of justice, that the rights of the plaintiffs are expeditiously adjudicated and then new elections are held. The balance of convenience thus would be in favour of the plaintiffs in getting their rights adjudicated before the new elections are held Since new elections arc to be held on 23.2.1992 and this date was fixed seemingly in a hasty manner during the pendency of the suit, the Courts below had no opportunity to deal with this aspect of the case As per Rules of the defendant Society the present term of the office bearers can continue upto 1st week of May. It would be expedient in the interests of justice that the new elections of the defendant Society fixed for 23.2.1992 are directed to be postponed and held in the first week of May, 1992. The plaintiffs have also been able to make out a prima facie case in their favour. Normally this Court would also be reluctant to grant injunction for holding elections or for post-poning the same but in view of the fact that new elections have been fixed in a hasty manner by some of the defendants during the pendency of the suits in which dispute relates to substantial members out of total numbers of limited membership of the defendant Society and in order to protect the rights of both the parties and to avoid multiplicity of proceedings, it would be desirable to grant temporary injunction restraining the defendants from holding the elections of the office bearers of the defendant Society on 23.2.1992.

For the foregoing reasons, the impugned orders passed by the Courts below are set aside and instead defendant Nos. 2 to 5 are restrained from holding elections of the defendant Society during the pendency of this suit including the one already fixed for 23.2.1992. The trial Court, however, is directed to dispose of the suit expeditiously before Ist of May, 1992 by giving short adjournments and if need be by giving day to day adjournments. It would be open to the trial Court to consolidate both the suits and to permit impleading of the parties whose rights are also likely to be affected. Parties through their counsel are directed to appear before the trial Court on 26.2.1992. The revision petition is allowed accordingly

It is, however, made clear that nothing herein observed for disposal of this petition shall in any manner be construed to affect the rights of the parties on merits. Copy of the order be given dasit to the parties and sent to the trial Court as well as the District Judge, Sonepat for compliance. In the peculiar circumstances of the case, parties are left to bear their own costs.