P. V. Vinod and Sivaprakash v MadhavaraJa Club and President, MadhavaraJa Club

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 5TH DAY OF APRIL 2017/15TH CHAITHRA, 1939 OP(C).No. 3013 of 2015 (O) ------------------------------------AGAINST THE JUDGMENT DATED 14.10.2015 IN CMA 99/2015 of THE DISTRICT COURT, PALAKKAD IN I.A.No.1497/2015 IN O.S.No.430/15 OF THE ADDITIONAL MUNSIFF COURT, PALAKKAD ## PETITIONERS/RESPONDENTS/PETITONERS/PLAINTIFFS : - ------------------------------------------------------------------------------------- ## 1. P.V.VINOD, S/O.LATE VISWANATHAN, AGED 50 YEARS, PARUVAYIL HOUSE, ENGLISH CHURCH ROAD, PALAKKAD TALUK AND DISTRICT. ## 2. SIVAPRAKASH, S/O.RAMAN MOOTHAN, AGED 52 YEARS, YASORAM JEWELLERY, T.B.ROAD, PALAKKAD. BY ADVS.SRI.BECHU KURIAN THOMAS (SR.) SRI.S.SREEDEV RESPONDENTS/APPELLANTS/RESPONDENTS/DEFENDANTS :- -------------------------------------------------------------------------------------------- 1. MADHAVARAJA CLUB, ENGLISH CHURCH ROAD, PALAKKAD TALUK, REPRESENTED BY HONOURARY SECRETARY. 2. PRESIDENT, MADHAVARAJA CLUB, ENGLISH CHURCH ROAD, PALAKKAD TALUK AND DISTRICT. R1 & 2 BY ADV. SRI.S.RADHAKRISHNAN R1 & 2 BY ADV. SRI.S.RAJ MOHAN R1 & 2 BY ADV. SRI.S.SUDARSANAN R1 & 2 BY ADV. KUM.R.ANJALI THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.02.2017. THE COURT ON 05.04.2017 DELIVERED THE FOLLOWING: OP(C).No. 3013 of 2015 (O) -------------------------------------- ## **APPENDIX** ## PETITIONERS' EXHIBITS : - ---------------------------------------- EXT.P1 : TRUE COPY OF THE ARTICLE VIII OF THE BYELAWS OF MADHAVA RAJA CLUB. EXT.P2 : TRUE COPY OF THE PLAINT IN OS 430/2015 ON THE FILES OF THE MUNISFF COURT, PALAKKAD. EXT.P3 : TRUE COPY OF THE PETITION IN IA 1497/2015 IN OS 430/2015. EXT.P4 : TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 2/6/2015. EXT.P5 : TRUE COPY OF THE COUNTER AFFIDAVIT DATED 6/6/2015 FILED BY THE DEFENDANTS IN OS NO.430/2015. EXT.P6 : TRUE COPY OF THE ORDER DATED 24/6/2015 IN IA NO.1497/2015 IN OS NO.430/2015. EXT.P7 : TRUE COPY OF THE JUDGMENT DATED 14/10/2015 IN CMA NO.99/2015 ON THE FILES OF THE DISTRICT COURT, PALAKKAD. RESPONDENTS' EXHIBITS : - --------------------------------------- EXHIBIT R1(a) : TRUE COPY OF THE AGENDA OF THE EXTRA ORDINARY GENERAL BODY MEETING HELD ON WEDNESDAY, 24.12.2014 ALONG WITH THE PROPOSAL FOR AMENDMENT TO CLAUSE 15(a) OF ARTICLE 8. EXHIBIT R1(b) : TRUE COPY OF THE MINUTES OF THE EXTRA-ORDINARY GENERAL BODY MEETING HELD ON 24.12.2014. // TRUE COPY // P.A. TO JUDGE DMR/- ## **P. SOMARAJAN, J.** ------------------------------------------------ O.P.(C). No.3013 of 2015 -----------------------------------------------Dated this the 5[th] day of April, 2017 ## J U D G M E N T Challenge in this petition is against Exhibit P7 order in C.M.A.No.99 of 2015 dated 14.10.2015 of the Additional District Court, Palakkad by the plaintiffs/petitioners. A suit in O.S.No.430 of 2015 was filed challenging inclusion of certain persons as members of the first defendant club. Application in I.A.No.1497 of 2015 was filed for a declaration that induction of new members to the club without receiving admission fee in lumpsum in violation of the bye law is void. The practice prevailed as per the bye law in inducting new members is to receive membership fee in lumpsum and then they shall be put in a selection process by voting by its existing members. The said process is called as election of new members. 2. The main challenge is with respect to the inclusion of certain persons as new members to the club. It was also contended by the petitioners/plaintiffs that the membership fee payable was at Rs.3,00,000/-. The general body has decided to enhance the membership fee to Rs.5,00,000/-, as per the decision taken in the extra ordinary general body meeting held O.P.(C). No.3013 of 2015 2 on 24.12.2014 with a condition that those who submit their applications on or before 31[st] March 2015 need pay only Rs.3,00,000/- and taxes. The increased membership fee of Rs.5,00,000/- and taxes will come into effect only from 01.04.2015 and those who submit the application after 31.03.2015, i.e. from 01.04.2015, alone need pay the increased fee of Rs.5,00,000/-. As per the amended bye law dated 24.12.2014, the membership fee can be received either by D.D. or by cheque or by cash and the cheque will be subject to realization before election. 11 new members have applied for getting membership within the cut-off date, 31.03.2015. Only two of them remitted the admission fee of Rs.3,00,000/in lumpsum. Others effected only a part payment which was brought to the notice of this court by issuing a Commission who prepared an inventory. 3. The specific case advanced by the plaintiffs was that the first defendant was proceeding to elect the above said members as new members by conducting voting by all members. Their names and addresses were circulated to all members and the election was scheduled to be conducted on 06.06.2015 and hence the suit and the injunction application. O.P.(C). No.3013 of 2015 3 4. The Munsiff's Court on hearing both the parties granted an interim injunction restraining the defendants from conducting election for electing ordinary members of the club against the amended bye law of the club with effect from 24.12.2014 by its order dated 24.06.2015. The matter was taken up in appeal in C.M.A.No.99 of 2015. The first appellate court reversed the order of the Munsiff's Court mainly on the reason that the election process has already been started and hence it is not proper to prevent the election process and the aggrieved person can challenge the election after its completion, relying on the decision drawn in **Abdul Latheef v. Haneefa** [2015 (3) KLT 299]. Aggrieved by the said order, the petitioners/plaintiffs came up before this court. 5. Heard Sri. Bechu Kurian Thomas, learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. 6. The main challenge is with respect to the induction of 11 persons by accepting admission fee. There is no much dispute with respect to the fact that the membership fee was enhanced to Rs.5,00,000/- from Rs.3,00,000/- as per the decision taken in the extra ordinary general body held on O.P.(C). No.3013 of 2015 4 24.12.2014. It is the further case of defendants that in that meeting it was also resolved to receive application up to 31.03.2015 at the old rate of admission fee of Rs.3,00,000/and taxes and the increased membership fee of Rs.5,00,000/with taxes would be applicable only with effect from 01.04.2015. It is an admitted case of both the parties that 11 persons have submitted their applications for ordinary membership of Rs.3,00,000/- before the cut-off date 31.03.2015. The challenge is with respect to those applications submitted by 11 persons on the ground that only two out of the eleven persons paid the admission fee in lumpsum and others paid only a part of the admission fee, which, according to the plaintiffs, is in gross violation of mandate under Rule 12 of Exhibit P1 bye law that admission fee shall be paid in lumpsum. It was _inter alia_ contended that in the decision taken on 24.12.2014 the bye law was amended for enabling payment of admission fee by D.D. or by cheque or by cash with a condition that the acceptance of cheque will be subject to realization before election. In short, the dispute involved is pertaining to applications submitted by 11 persons and their status as ordinary members to the first defendant club. But, in O.P.(C). No.3013 of 2015 5 the suit as well as in the interlocutory application, none of them were made as parties/defendants, though the dispute is pertaining to the issuance of membership and acceptance of their membership application to the first defendant. 7. The decision rendered in **Abdul Latheef's** case (supra) may not have any application in the present suit and the interim injunction application simply on the reason that it is not at all pertaining to any election process or election of any office bearers. It is only relating to compliance of mandate in selecting and giving admission to new members by voting by all existing members. In fact, it cannot be termed as an election process to the office of first defendant. It is only a process of selection of new members who have applied for it by making payment of admission fee. So, it cannot be termed as an election to the office bearers of any organization and as such the above said decision has no application. 8. In the matter of selection of new members, there are two mandates in accordance with the bye law, that is payment of required admission fee and selection of new members by voting by majority of existing members. It is really a scrutinizing process by the members of first defendant in O.P.(C). No.3013 of 2015 6 admitting new members. The said process is simply called as election though it is only a selection of new members by majority. 9. The question involved in the suit as well as the interim injunction application is with respect to induction of 11 persons who applied for getting new membership. In fact, the question involved is with respect to their selection as new members by conducting voting by the existing members. But, the suit as well as the interim injunction application are filed without impleading the above said 11 persons who were sought to be elected/selected under the process by the first defendant. Without impleading them, the plaintiffs are seeking a blanket decree and order of injunction. Needless to say that even in a case filed challenging the election process, the contesting candidate should be made as party to the suit otherwise no relief can be raised or asked against the contesting candidate. Here in this case, 11 persons who were seeking membership by voting were not made as parties to the suit or to the interim injunction application and no notice was issued to them and no opportunity of being heard was also afforded to them though the order sought is against them and their right to have an O.P.(C). No.3013 of 2015 7 entry in the membership of first defendant. The principle of _audi alteram partem_ is not complied with while passing an order by the Munsiff's Court without hearing the above said 11 persons sought to be elected/selected by conducting the election. The issue involved and relief sought in the suit as well as in the interim injunction application cannot be adjudicated without the juncture of the above said 11 persons. In fact, they are necessary parties to the suit. The question of non-joinder of necessary party, whether raised or not, will not stand in the way in exercising the power under Order I Rule 10 (2) CPC. The suit instituted and the interim injunction application filed seeking relief against the first defendant as well as the 11 persons who are not parties to the suit is mischievous in nature and liable to be dismissed at the threshold by the lower court, especially when it was filed at the verge of selection process. It is true that it is within the purview of jurisdiction of the lower court to add parties or strike out parties for which the name and address of the party who ought to have been joined should be supplied by the plaintiff, because the plaintiff being the master of the suit can decide against whom a suit can be instituted. Hence, the O.P.(C). No.3013 of 2015 8 interim injunction application filed is liable to be dismissed. The present petition deserves no merits and is liable to be dismissed. In the result, this original petition is dismissed by confirming the order of the first appellate court. No order as to costs. **P. SOMARAJAN (JUDGE)** DMR/-