Prof. Basheer E. v. Muslim Association Trivandrum and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941** ## **RSA.No.269 OF 2019** **AGAINST THE JUDGMENT IN AS 194/2018 DATED 06-03-2019 OF II ADDITIONAL DISTRICT COURT, TRIVANDRUM** **AGAINST THE JUDGMENT IN OS 2261/2016 DATED 29-11-2018 OF II ADDITIONAL MUNSIFF COURT, TRIVANDRUM** **-------** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** - **1 PROF.BASHEER.E, S/O. EBRAHIMKUTTY, AGED 78 YEARS, RESIDING AT HOUSE NO.22, SAGARAM, PSC NAGAR, NEERAZHI LANE, ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, 695 011. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER FASILUDEEN.S., S/O. SUBAIR.T.C., AGED 74 YEARS, T.C.1/920, THOPPIL LANE, KUMARAPURAM, THIRUVANANTHAPURAM - 695 011.** - **2 MOHAMMED AZAM.A, S/O. ANSAR JAN, AGED 45 YEARS, PRESENTLY RESIDING AT TC.49/249, CRA-147, MANACAUD, KAMALESWARAM, THIRUVANANTHAPURAM - 695 009.** **BY ADV. SRI.P.B.KRISHNAN BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - **1 MUSLIM ASSOCIATION TRIVANDRUM, REG. NO.40/1966, REPRESENTED BY ITS SECRETARY, NANDAVANAM, THIRUVANANTHAPURAM - 695 033.** - **2 PM.PAREED BAVA KHAN, S/O. PEER MUHAMMED, AGED 68 YEARS, SECRETARY, MUSLIM ASSOCIATION THIRUVANANTHAPURAM, REG.NO.40/1966, THIRUVANANTHAPURAM, RESIDING AT APARTMENT 15-E, TOWER- 5, ASSET SIGNATURE, MENAMKULAM, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM - 695 582.** **RSA.No.269 OF 2019 -2-** **3 E.M. NAJEEB, S/O. ELLIYAS MOHAMMED, AGED ABOUT 68 YEARS, PRESIDENT, MUSLIM ASSOCIATION TRIVANDRUM, REG.NO.40/1966, THIRUVANANTHAPURAM, RESIDING AT 1ST FLOOR, NEW CORPORATION BUILDING, PALAYAM, THIRUVANANTHAPURAM - 695 033.** - **4 PROF. S.MEERAN MALUK MOHAMMED S/O. SAYED KANNU, AGED 79 YEARS, RESIDING AT 'JAMEELATH', PARIS ROAD, THYCADU VILLAGE, THIRUVANANTHAPURAM - 695 014.** - **5 ASEEM A., AYISHA NIVAS, MANGALAPURAM, THONNAKKAL P.O., THIRUVANANTHAPURAM - 695 317.** - **6 SHIHABUDHEEN M,** **DELUXE CEMENT BLOCK, KUZHINADA, PANAYAMUTTOM P.O., THIRUVANANTHAPURAM - 695 561.** - **7 MOHSIN ASHARAF** **NOORLIM, HOUSE NO.22, RESIDING AT KAILAS GARDENS, SREEKARYAM P.O., THIRUVANANTHAPURAM - 695 017.** - **8 K. AMANULLA AGED 70 YEARS S/O. V.J KAFFAR, PLEASENT, GRA-A-10, GANDHIPURAM, SREEKARYAM P.O., THIRUVANANTHAPURAM - 695 017.** - **9 N.BASHIR AGED 71 YEARS S/O. NOOHUKHAN, T.C.15/351(1), CSM 203, CSM NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 010.** - **10 SHIBU MATHER K.B., BAPPU MATHER, 5.B, BEACON GREEN LILLIES APARTMENT, VETTAMUKKU, THIRUMALA, THIRUVANANTHAPURAM - 695 006.** **R1-3 BY ADV. SRI.T.KRISHNANUNNI (SR.) R1-2 BY ADV. SRI.LIJU.V.STEPHEN R1-2 BY ADV. SMT.INDU SUSAN JACOB** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = RSA No.269 of 2019 = = = = = = = = = = = = = = = = = = Dated this the 29[th] day of October, 2019** ## **JUDGMENT** The defeated plaintiff is the appellant. The suit is one for declaration. The issue involved relates to the induction of new members to the first defendant association. 2. “The Muslim Association, Trivandrum” - the first defendant, is a society registered under the Travancore-Cochin (Literary, Scientific and Charitable Societies) Registration Act, 1955. Ext.A2 is the bye-law of the Society. In the General Body Meeting of the Association held on 30.06.2007, it was resolved that since various illegalities had occurred in the issuance of membership, norms are to be formulated for the grant of membership and for the said purpose a committee is to be constituted, based on whose report the bye-law is to be amended. It was further resolved that, till such report is obtained, fresh RSA No.269 of 2019 **:-** 2 **:-** membership need not be issued. Pursuant to the decision, though committees were constituted and reconstituted, practically nothing took place till 9.6.2011 when the Committee submitted its recommendations. Even thereafter, except for constituting another Sub Committee to study the report and consider regarding amendment of the byelaws, the process did not culminate. 3. While so, the 49[th] Annual General Body of the Association was held on 24.09.2016. Discussions were held regarding bye-law amendment and grant of membership. The president informed that the committee constituted for the purpose on 2.10.2015 had submitted its report in August, 2016 and that it will be discussed in the Executive Committee and the recommendations for amendment of the bye-law will be placed before a Special General Body. It was unanimously accepted by the General Body. Taking note of the fact that for the past ten years, no new members were inducted, it was unanimously resolved to induct at least 250 members, in addition to the induction of legal RSA No.269 of 2019 **:-** 3 **:-** heirs of deceased members. It was decided to take steps in the said regard expeditiously. 4. Thereafter, Ext.B12 communication dated 17.11.16 was issued by the Secretary to the members, calling upon them to make recommendations for membership. It is thereupon that the instant suit is filed alleging that the steps to induct members are being taken in violation of the decision of the General Body held on 30.06.07 not to induct new members till norms are formulated and the bye-laws are amended. The Society in defence contend that, the general body decision on 30.06.07 was to the effect that the ban will be in force till the submission of recommendation by the Committee. The Committee submitted its recommendations on 09.06.11. On submission of the recommendations, the ban ceased to be in force and therefore the Society is entitled to induct new members. 5. The suit as originally laid was only regarding the right of the association to induct new members in view of the decision of the General RSA No.269 of 2019 **:-** 4 **:-** Body dated 30.06.07. Since new members were inducted pending suit, amendments were carried out and further reliefs incorporated challenging their induction and also the subsequent meetings and decisions of the General Body held with the newly inducted members. The allegation is that there had been flagrant violation of the bye-laws with regard to the procedure prescribed for induction of new members and that it is done to induct members of the choice of the defendants. The defendants denied the allegations. 6. The trial court held that the ban on issuance of fresh membership imposed in the General Body held on 30.06.07 has subsequently ceased and that the Association was entitled to induct new members. As regards the challenge regarding the mode of induction of the new members, it was found that there has been substantial compliance of the bye-laws of the Society and hence it is not vitiated. Accordingly, the suit was dismissed. The appellate court concurred with the trial court. It is aggrieved thereby that this appeal is filed. RSA No.269 of 2019 **:-** 5 **:-** 7. Heard Sri.P.B.Krishnan, learned counsel for the appellants-plaintiffs and Sri.T.Krishnanunni, learned Senior Counsel for the contesting respondent-the Society, on the following substantial questions of law:- _“(a) Is the suit bad for non-compliance of Order I Rule 8 of the Code of Civil Procedure?_ _(b) Is the interpretation given by the Courts below to the decisions of the general body dated 30.06.07 and 24.09.2016 to hold that the ban on induction of new members had ceased, reasonable and proper?_ _(c) Lack of good faith in induction of members having been alleged and brought out by materials, and violation of the bye-law having been found, did not the Courts below err in overlooking the same, holding it to be minor deviations?”_ 8. Before I enter into discussions on the issues, it is to be noted that the parties have no RSA No.269 of 2019 **:-** 6 **:-** objection in so far as it relates to the induction of legal heirs of deceased members, since according to them, it is only the continuation of an existing membership. 9. On the challenge to the maintainability of the suit, learned Senior Counsel for the defendant Society contends that the very same frame of the suit is defective and the suit is bound to fail on that sole ground. According to him, the provisions of Order I Rule 8 of the Code of Civil Procedure have been violated. The prayers included by way of amendment of the plaint affects the right of the subsequently inducted members. No such newly elected persons have been impleaded as representing the interests of the other numerous newly admitted members. This violates Order I Rule 8 of the Code of Civil Procedure, is the submission. However, the records shows that the provisions of Order I Rule 8 have been complied with. The plaintiffs had filed IA.3151/17 seeking to implead additional defendants 5 to 7, who are newly elected members, to represent the other such inducted members. The prayer in RSA No.269 of 2019 **:-** 7 **:-** ## IA.3151/17 reads thus:- “For the reasons stated in the accompanying affidavit, it is most humbly prayed that this Hon'ble Court may be pleased to implead the following persons as Addl. Defendants 5 to 7 in the suit to represent all the illegally inducted members in the 1st defendant Association.” Paragraph 8 of the affidavit filed in support of the application reads thus:- “Three such illegally inducted persons are sought to be impleaded in the suit as Addl. defendants 5 to 7 and the plaintiffs may be permitted to proceed with the suit on behalf of all the persons interested in the suit. Since there are numerous persons having same interest in the suit, a publication regarding this suit under Order 1 Rule 8 CPC is necessary and the same may be allowed.” 10. Therefore, they were impleaded as representing persons having similar interests viz. the other newly inducted members and the publication under Order I Rule 8 of CPC was RSA No.269 of 2019 **:-** 8 **:-** effected pursuant to orders on IA 3151/17. Therefore, the interests of the newly inducted members were adequately represented by defendants 5 to 7 and the necessary publication in the said regard as provided under Order I Rule 8 of CPC is also effected. The challenge based on the frame of the suit accordingly, fails. 11. Moving on to the contentions on the merits, the first point for determination is, did the decision of the General Body on 30.06.07 that imposed a ban on induction of new members to the Society, cease to be in force at any point of time and if so, when? 12. The learned counsel for the appellant would contend that the spirit, purport and intend of the decision of the General Body on 30.06.07 is that, till norms are framed and bye-laws amended, there shall not be induction of any new members. It was so understood by all the parties and it is evident from the subsequent General Body Meetings wherein it was affirmed that there has been no induction of members for the past years. Any other RSA No.269 of 2019 **:-** 9 **:-** interpretation would defeat the very purpose of the decision. 13. According to the defendant-association, the ban ceased to be in force as and when the report was submitted by the Committee constituted for the purpose. Ext.B3 is the report dated 09.06.2011 submitted by the Committee constituted for the purpose. Therefore, according to the defendants the ban ceased on 09.06.2011. It is further contended that thereafter members were inducted to the Society on 25.05.2013, 28.10.2014, 21.01.2015 and 10.09.2015. 14. The learned Counsel for the appellant would on the other hand submit that, since the decision dated 30.06.07 there has been no induction of new members to the Society and the members allegedly inducted after 30.06.07, are only legal heirs of deceased members in respect of whom none of the parties have any objection since it is only a continuation of the membership that already existed. No new members in its strict sense, have been inducted since the General Body Meeting of RSA No.269 of 2019 **:-** 10 **:-** ## 30.06.07, submits the learned counsel. 15. The relevant portion of the General Body decision dated 30.06.07 being the basis for the contest, is extracted hereunder:- “...... അഅംഗതതഅം നൽകുന്നതതിൽ അനനീതതി നടതതിയതിട്ടുണണ്ടെനഅം മമേലതിൽ അതുണ്ടെണ്ടാകണ്ടാൻ പണ്ാതില. അഅംഗതത ഫനീസസ് നതിലവതിലുള്ള നതിരകതിൽ തണന്ന തുടരണഅം. എന്നണ്ടാൽ പുതുതണ്ടായതി നൽകുന്ന അഅംഗങ്ങളുണട എണഅംനതിലവതിലുള്ള എണതതിണന അഞ്ചു ശതമേണ്ടാനമേണ്ടാമയണ്ടാ, 100 എണമേണ്ടാമയണ്ടാ നതിജണപ്പെടുത്തുക. ഇകണ്ടാരര്യതതിൽ വതിശദമേണ്ടായ പ ഠനഅം നടതതി ആവശര്യമേണ്ടായ ബബൈലമഭേദഗതതി ഉപ നതിർമദ്ദേശങ്ങൾ സമേർപ്പെതികണ്ടാൻ ഒരു സമേതിതതിണയ നതിയമേതിക് . .....” “......അഅംഗതതഅം നൽകുന്ന കണ്ടാരര്യതതിൽ തണ്ടാണഴ പറയഅം പ്രകണ്ടാരഅം തനീരുമേണ്ടാനങ്ങൾ ബകണകണ്ടാണ.” മ “ണമേ ർഷതിപ്പെസ് ലഭേതിചതിട്ടുള്ള അമപക്ഷകളതിൽ എകതികക്യൂടനീവസ് കമതിറതി പണ്ടാസണ്ടാകതിയതസ് ഒഴതിച്ചുള്ള എലണ്ടാ അമപക്ഷകളുഅം നതിരസതിക്കുവണ്ടാനഅം അവയണട അമപക്ഷണ്ടാ ഫനീസസ് (100 രൂപ) തതിരതിചസ് നൽകുവണ്ടാൻ ലനീഗൽ ഒപ്പെനീനനീയനസ് വതിമധേയമേണ്ടായതി നടപടതി സതനീകരതിക്കുവണ്ടാനഅം തനീരുമേണ്ടാനതിച്ചു. മമലതൽ ണമമർഷതപ നൽകനതസ സഅബനതച പഠനഅ നടതത നയഅ രപനകരതകണൻ ആവശരമണയ ബബല അമനണമന ശപണർശ ണചയവണൻ ഒര RSA No.269 of 2019 **:-** 11 **:-** കമതറതണയ ചമതലണപടതവണനഅ അവരണട റതമപണർട ലഭതകനതവണര പതതയ അഅഗതതഅ നൽമകണ എനഅ തനരമണനതച. ” 16. I am unable to agree with the contention that the ban ceased to exist on the mere submission of the report by the Committee. However, I am also unable to agree with the contention that the ban continued even on the date of the suit. On 30.06.07, the General Body taking note of the fact that there has been various illegalities and infirmities in the induction of new members, decided that the same be corrected. It was further decided to reject all the pending applications and to return the application fee paid by them. It was also decided that, regarding the grant of future membership norms have to be formulated and the byelaw amended, for which a Committee is to be constituted and till its report is obtained new membership shall not be granted. “Obtaining of report” can never be considered as the mere ministerial act of submission of the report by the RSA No.269 of 2019 **:-** 12 **:-** said Committee. It can only be, the placing and consideration of the report before the General Body, whereupon the General Body may take appropriate decision. Till then, no membership could be issued. That can only be the reasonable and purposive understanding of the decision of the General Body taken on 30.06.07. Therefore, I reject the contention of the defendants that the ban on induction of new members ceased with effect from the date of submission of Ext.B3 report dated 09.06.11. 17. However, it is to be noticed that in the General Body Meeting held on 24.09.2016, taking note of the fact that the bye-laws are yet to be amended and that for the past ten years induction of new members have been stalled, it was decided to re-start the issuance of membership. It was unanimously resolved that the Executive Committee may induct new members, not less than 250, in addition to induction of legal heirs of deceased members. The relevant portion of the decision is extracted hereunder:- RSA No.269 of 2019 **:-** 13 **:-** “കഴതിഞ്ഞ പതസ് വർഷങ്ങൾകതിടയതിൽ അമസണ്ടാ സതിമയഷനതിൽ ഒരണ്ടാണളമപണ്ടാലുഅം പുതുതണ്ടായതി അഅംഗ മേണ്ടായതിമചെർതതിടതില. മേണ്ടാത്രമേല, നതിരവധേതി അഅംഗ ങ്ങൾ മേരണണപ്പെട്ടുമപണ്ടായതിട്ടുണണ്ടെനഅം അമസണ്ടാ സതിമയഷണന നതിലവതിണല സതിതതി കണകതി ണലടുതസ് എകനീകക്യൂടനീവസ് കമതിറതിയക്തണമേന്നസ് കരുതുന്നയത്രയഅം അഅംഗങ്ങണള എന്നണ്ടാൽ കുറഞ്ഞതസ് 250 മപണരണയങതിലുഅം ഉടണനതണന്ന അഅംഗങ്ങളണ്ടായതി മചെർകണണമേനഅം ഇതുകൂടണ്ടാണത നതിലവതിലുള്ള അഅംഗങ്ങളുണട മേകമളയഅം മേരുമേക മളയഅം മയണ്ടാഗര്യതയനസരതിചസ് അഅംഗങ്ങളണ്ടാ കണണമേന്നസ് മയണ്ടാഗതതിൽ പണങടുത നതിരവധേതി അഅംഗങ്ങൾ ആവശര്യണപ്പെടതസ് മയണ്ടാഗഅം ഐകര്യ കമണര്യന അഅംഗനീകരതിക് യഅം തുടർന്നസ് നടന്ന ചെർചയതിൽ എത്രയഅം ണപണടന്നസ് തണന്ന അതതിനള്ള നടപടതികൾ എകനീകക്യൂടനീവസ് കമതിറതി വതിളതിച്ചുകൂടതി പൂർതതിയണ്ടാക്കുന്നതണ്ടാണണന്നസ് പ്രസതി ഡനസ് മയണ്ടാഗണത അറതിയതിക് യഅം ണചെയ.” 18. The resolution is unambiguous that, the ban ceased from 24.09.16. Hence the prayer sought for in the original plaint, for a declaration that no new members can be inducted in violation of the General Body decision dated 30.06.07 is only liable to be rejected. The first substantial question of law is answered accordingly. RSA No.269 of 2019 **:-** 14 **:-** 19. Now coming to the other reliefs claimed in the suit, it is necessary to refer to the events that transpired after the filing of the suit. The suit was filed on 01.12.16. The court granted an interim order of injunction on the said date, on IA 1078/16, from inducting new members in violation of the General Body decision dated 30.06.07. The membership committee in its meeting held on 01.12.16 recommended names for induction. The Executive Committee accepted the recommendations in its meeting held on 02.12.16. Thereafter the plaint was amended challenging the validity of the induction of new members and further praying for a declaration that the subsequent meetings and the decisions taken in the General Body Meetings with the presence of the newly inducted members are vitiated. The ground of challenge is that the procedure as contemplated under the bye-laws of the Society have been flagrantly violated and that the action of the Membership Committee and the Executive Committee in the induction of new members lacks good faith and smacks mala fides. The RSA No.269 of 2019 **:-** 15 **:-** allegations in the plaint as it originally stood and after amendment is to the effect that attempts are being made by the Association to induct members of their choice by creating false application forms in violation of the bye-laws. It is alleged that the bulk induction of new members is in violation of the bye-laws. The bye-laws contemplate an application prescribed in Appendix-A thereto, which is to be obtained on payment of `100/-. The said application is to be considered by the Membership Committee and its recommendations therein are to be forwarded to the Executive Committee. The Executive Committee may decide to reject the applications/ recommendations. This procedure contemplated under the bye-laws have been flagrantly violated, is the allegation. It is in the said scenario that the plaintiff prays for a declaration that the members inducted subsequent to the institution of the suit and also the General Body Meetings and the decisions taken with their presence, is bad in law. 20. Coming to the question as to whether there has been violation of the provisions of the bye-law RSA No.269 of 2019 **:-** 16 **:-** with regard to the procedure for admission of new members, it would be appropriate to refer to the relevant provisions of the bye-laws. Ext.B2 is the bye-law. Rule 6 deals with membership. Rule 6(a) reads thus:- “6(a) Any person, irrespective of caste, colour or religion not below eighteen years of age shall be eligible to become, subject to the decision of the Executive committee, a member of the Association.” 21. Rule 6(b) deals with the categories of members, which reads as follows:- “There shall be two categories of members, namely, **==> picture [37 x 41] intentionally omitted <==** 1. Patrons 2. Life Members.” 22. Rule 6(c) deals with membership fee and the application fee, which reads as follows:- “A Patron shall pay Rs.15,000/- and life member shall pay Rs.1500/-. Application fee of Rs.100/- shall be paid by the applicant towards the cost of the application form. The membership RSA No.269 of 2019 **:-** 17 **:-** fee shall be paid after intimation of the decision of the Executive Committee to admit the applicant and the membership will be effective only on payment of the membership fee.” 23. Rule 6(d)(i) deals with the application, which reads as follows:- “Application for membership shall be submitted in Form-A given in the Appendix, together with one copy of the Passport size photograph affixed in the application form and two spare copies.” 24. Rule 6(g) deals with the membership committee which scrutinises and recommends the applications to the Executive Committee, which reads as follows:- “There shall be a Membership Committee consisting of 5 members constituted by the Executive committee from among themselves for scrutinising the applications and to submit its recommendations on the eligibility of the applicant for membership with reference to clause 6(a). RSA No.269 of 2019 **:-** 18 **:-** The President, Secretary and Treasurer will be ex-officio members of the committee.” 25. Rule 6(h) deals with the power of the Executive Committee to reject applications, which reads as follows:- “The Executive Committee shall have the power to reject any application for membership without assigning any reason. However, the Executive Committee may consider the recommendation of the Membership Committee also, while deciding the matter. When an application is rejected, the amount paid in advances as per clause 6(c) shall be refunded.” 26. Rule 6(i) deals with the right of the appeal to the General Body against rejection of application. Rule-8(d)(iii) deals with amendment of bye-laws which shall be done only by the General Body and that too with 2/3[rd] majority. 27. The above provisions make it clear that the procedure for enrolling a member is that, an application form as given in the Appendix to the RSA No.269 of 2019 **:-** 19 **:-** bye-law is to be obtained on payment of `100/- and has to be submitted to the membership committee. The membership committee will consider the same and recommend it to the executive committee, which will take a decision upon the same. 28. According to the appellants-plaintiffs, there has been violation of the above provisions of the bye-laws. When the Membership Committee is said to have considered the recommendations, no applications were even issued to the aspirants. This shows that the averments made in the original plaint, of the attempt to induct members even without proper application, were justified and correct, is the contention. 29. The learned Senior Counsel for the defendant association would submit that, in order to avoid the refund of the application fee when an application is rejected, a decision was taken to issue application forms only after the Executive Committee takes a decision to admit a person as member. This is substantial compliance of the byelaw and hence the action of the Association cannot RSA No.269 of 2019 **:-** 20 **:-** be faulted with. Learned Senior Counsel further contends that, even the bye-law as it stands contemplates submission of application in the prescribed form given in the appendix, only after decision is taken in the Executive Committee to admit a person as a member. According to the learned senior counsel, the same is evident from the statements in the application form itself. He relies on the following sentence in the application form, to canvass the said contention:- “..... I am paying herewith `15,000/-, `1,500/- towards membership fee. .....” 30. In terms of Rule-6(c), membership fee is payable only after intimation of the decision by the Executive Committee to grant membership. Therefore, the submission of application in the prescribed form is to be done only after the decision by the Executive Committee to admit a person, is the submission. I am unable to agree with the said submission for reasons more than one. Rule 6(c) deals with cost of application form; 6(d) RSA No.269 of 2019 **:-** 21 **:-** deals with submission of application forms; 6(g) deals with the scrutinizing of applications; 6(h) deals with the rejection of the applications. Rule6(c) and (d) deal with only one application which is to be in the prescribed form as given in Form-A in the Appendix. So also Rule-6(h) provides that when an application is rejected, the amount paid in advance in terms of Rule-6(c), which includes the cost of the application form, to be refunded. The very provision in the bye-law to refund the cost of the application form on the application being rejected by the Executive Committee, itself shows that the application in the prescribed form is submitted prior to consideration by the membership Committee since, the executive committee considers the application forwarded by the Membership committee. These apart, in the last portion of the application given in Appendix-A there is a column which reads thus:- “Admitted/rejected by the Executive Committee meeting dated... ” RSA No.269 of 2019 **:-** 22 **:-** 31. The endorsement is to be made by the office. It shows that the application submitted in the prescribed format is being considered by the Executive Committee. Therefore, the submission of the learned counsel that, the bye-laws contemplate application in the prescribed form only after decision on the membership by the Executive Committee is liable to be repelled, and I do so. 32. The other limb of the argument of the learned Senior Counsel for the association is that, in order to avoid the procedure of re-funding the cost of the application form of a person whose application was rejected, a method was evolved by the Membership Committee whereby, it was decided that applications need be issued only to the persons who are being admitted as members. The relevant portion of the resolution of the Membership Committee meeting held on 14.11.16 reads thus:- “പതസ് വർഷങ്ങൾകസ് മമസ് അവസണ്ടാനമേണ്ടായതി അമസണ്ടാസതിമയഷനതിൽ അഅംഗങ്ങണള മചെർത സഅംഗതതിയതിൽ ഉണ്ടെണ്ടായ വതിവണ്ടാദങ്ങൾ ആവർ RSA No.269 of 2019 **:-** 23 **:-** തതികണപ്പെടണ്ടാതതിരതികണ്ടാനഅം അമപക്ഷകരതിൽ നതിനഅം ബകപ്പെറതിയ അമപക്ഷ ഫനീസസ് തതിരതിച്ചു ണകണ്ാകണ്ടാനണ്ടെണ്ടായ സണ്ടാഹചെരര്യഅം ഒഴതിവണ്ടാകണ ണമേനഅം കമതിറതി ആമഖമേണ്ടായതി അഭേതിപ്രണ്ടായണപ്പെട്ടു. അതതിനണ്ടായതി പുതുതണ്ടായതി അഅംഗങ്ങണള മചെർകണ്ടാ നള്ള തനീരുമേണ്ടാനഅം എലണ്ടാ അഅംഗങ്ങമളയഅം അറതിയതിക്കുവണ്ടാനഅം പുതുതണ്ടായതി അഅംഗതതഅം നൽകുവണ്ടാൻ അർഹതയണണ്ടെന്നസ് ഓമരണ്ടാ ണയ അഅംഗവഅം അഭേതിപ്രണ്ടായണപ്പെടുന്ന വര്യക് സഅംബൈനതിക്കുന്ന വതിവരങ്ങൾ ണസക്രടറതിണയ മരഖണ്ടാമൂലഅം ഒരണ്ടാഴ്ചക്കുള്ളതിൽ അറതിയതിക്കുവണ്ടാൻ അഅംഗങ്ങമളണ്ാസ് ആവശര്യണപ്പെടുവണ്ടാനഅം മയണ്ടാഗഅം തനീരുമേണ്ടാനതിച്ചു.” 33. In tune therewith, Ext.B12 communication dated 17.11.16 was issued by the Secretary of the Society to its members seeking for recommendations for membership. According to the defendant association, the Membership Committee in its meeting held on 01.12.16 considered such proposals and recommended 495 names to the Executive Committee for grant of membership, and the applications were considered by the Executive Committee in its meeting held on 02.12.16. The procedure is in accordance with the bye-laws, RSA No.269 of 2019 **:-** 24 **:-** according to the Society. 34. As submitted by the learned counsel for the appellants-plaintiffs, the minutes of the Membership Committee dated 01.12.16 indicates that the Committee considered three materials namely, the recommendations, applications and bio-data of all the persons sought to be inducted as members. The relevant portion of the said minutes reads thus:- “പുതുതണ്ടായതി അമസണ്ടാസതിമയഷനതിൽ അഅംഗതതഅം കണള നൽമകണ്ടെ വര്യക് സഅംബൈനതിചസ് 17.11.2016-ണല അമസണ്ടാസതിമയഷണന അഭേര്യർ ത്ഥനണയ തുടർന്നസ് 750 അഅംഗങ്ങൾ അവരുണട ദ ള നതിർമ ്ദേശങ്ങ ുഅം നതിർമദ്ദേശതികണപ്പെട വര്യക് കളുണട ” യ റയ അമപക്ഷ അം ബൈമയണ്ടാമഡ അം ലഭേതിച്ചു. When even according to the Association, application was to be issued only after the decision by the Executive Committee to enroll a person as a member, there is no question of consideration of his application by the Membership Committee. 35. The learned counsel for the appellantsplaintiffs further points out that, in the original RSA No.269 of 2019 **:-** 25 **:-** written statement filed by the Association it is contended that, issuance of formal application forms is limited to those whom the Executive Committee decides to admit as members; the Executive Committee meeting was admittedly held only at 4.30 pm on 02.12.16. However, as is evident from the accounts of the Association, 466 applications were sold on 02.12.16. In paragraph 5(i) of the original written statement dated 22.05.17 it is submitted thus:- “The Membership Committee met on 14.11.2016 had recommended that in order to avoid repetition of the past unsavory episode in rejecting applications and to refunding the Application fee as noted in the decision of the Annual General Body meeting on 30.06.07, proposals/requests from the members with necessary details have to be obtained so as to confine and limit issuance of formal application Forms only to those whom the Executive Committee decides to admit as members.” ## 36. Therefore, as rightly pointed out by the RSA No.269 of 2019 **:-** 26 **:-** learned counsel for the appellants, the application forms were sold prior to the decision by the Executive Committee. This does not go in tune with the pleading, the decision of the Membership Committee and also the reasons projected by the Association, for taking such a decision. However, the averments in paragraph 11 of the additional written statement filed by the Society dated 22.06.17, is at variance from that stated in the original written statement referred to above. The said portion reads thus:- “.... After having shortlisted the candidates by the membership Committee as submitted above, application forms were sold to them by collecting application fee and filled up applications were collected and considered by the Executive Committee along with recommendation of Membership Committee.” 37. Therefore, evidently inconsistent stand is taken by the Association. 38. There is yet another aspect to be considered. The meeting of the Membership Committee RSA No.269 of 2019 **:-** 27 **:-** was at 2.00 p.m. on 01.12.16, wherein 750 proposals are stated to have been considered. The present suit was filed on 01.12.16. Along with the suit an interlocutory application was filed as IA 1078/16 for an interim injunction. The Membership Committee decides upon all the 750 proposals on the very same day. 466 applications are sold, filled up with necessary details including the signature of the proposers and the applicants and submitted for consideration by the Executive Committee in its meeting held at 4.30 p.m. on 02.12.16. This is very difficult to be accepted. A perusal of the applications that were produced before the court reveals that many are incomplete and that the signatures seen therein also does not inspire confidence. It is not disputed before the court that the signature of the same person found as proposer in various application forms varies. Apart from the same, it appears that some of the applications were submitted not on 02.01.17, but on subsequent dates; as is evident from the application of one P.M.Ranees, son of O.K.Khalid RSA No.269 of 2019 **:-** 28 **:-** which is dated 05.01.17. Such applications could not have been considered in the Executive Committee held on 02.12.16, whereas going by the case of the Association the applications of all these persons were considered by the Executive Committee on 02.12.16 and assent was signified to admit them as members. Evidently, the attempt of the Association was to evade the process of law and the intervention of the court. Though the interim injunction application i.e. IA 1078/16 was heard and dismissed by the trial court on 13.01.17, the undue haste and the procedure adopted by them as noticed above cast shadow of suspicion on the conduct of the Association. This needs to be considered in the background of the allegation raised even in the original plaint that, members are sought to be inducted by the defendant even without proper application. 39. These apart, there is the basic question as to, whether the Managing Committee could have taken a decision to give away the stipulations in the bye-law requiring submission of application forms. RSA No.269 of 2019 **:-** 29 **:-** The Society is formed by a memorandum of association and its registration under the Travancore-Cochin (Literary, Scientific and Charitable Societies) Registration Act, 1955. Section 3 of the said Act reads thus:- **“3. Societies formed by memorandum of association and registration.—** Any seven or more persons associated for any literary, scientific or charitable purpose, or for any such purpose as is described in Section 32 of this Act, may by subscribing their names to a memorandum of association and filing the same with the Registrar, form themselves into a society under this Act.” Section 2(b) of the Act provides that, 'Member' is a person admitted in accordance with the rules and regulations of the Society. The said Section reads thus:- “(b) 'Member' means a person who, having been admitted in a society according to the rules and regulations thereof, shall have paid a subscription or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations.” RSA No.269 of 2019 **:-** 30 **:-** 40. Therefore, the admission to membership has to be in accordance with the bye-laws. The Society and its members are bound by the bye-laws. The byelaws can be amended only by 2/3rd majority of the General Body, as has been noticed first above. When the bye-laws require the process of induction of new members to be conducted in a particular manner, the Membership Committee, which is only a recommendatory body having only the powers of recommending membership, is not entitled to alter or modify the procedure stipulated under the byelaws. 41. Regarding the binding nature of the Rules of a Society or an Association, law has been laid down by the Apex Court in 'masonic lodge case' T.P.Daver v. Lodge Victoria ( AIR 1963 SC 1144 ). Therein the Apex Court considered the question as to whether deviation from the Rule of the association is permissible or not. In paragraph 6 the Court held thus:- RSA No.269 of 2019 **:-** 31 **:-** “The next question is whether the doctrine of strict compliance with rules implies that every minute deviation from the rules, whether substantial or not, would render the act of such a body void. The answer to this question will depend upon the nature of the rule infringed; whether a rule is mandatory or directory depends upon each rule, the purpose for which it is made and the setting in which it appears. We shall consider this aspect of the doctrine when we deal with the argument of the learned counsel that in the present case the rules have not been complied with.” 42. Therein, the Apex Court also dealt with the power of the Civil Court to adjudicate upon the question of violation of the bye-laws, and laid down the following principles:- “The following principles may be gathered from the above discussion. (1) A member of a masonic lodge is bound to abide by the rules of the lodge; and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. (2) The lodge is bound to act strictly RSA No.269 of 2019 **:-** 32 **:-** according to the rules; whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of construction in that regard. (3) The jurisdiction of a civil court is rather limited; it cannot obviously sit as a court of appeal from decisions of such a body; it can set aide the order of such a body, if the said body acts without jurisdiction or does not act in good faith or acts in violation of the principles of natural justice as explained in the decisions cited supra. 43. In Zoroastrian Co-operative Housing Society Ltd. and Another v. District Registrar, Cooperative Societies (Urban) and Others [(2005) 5 SCC 632] the Apex Court held that though the byelaws of the Society does not have the status of a statute and it governs only the internal management of the Society they are binding between the persons affected by them. 44. In Parayakattu N. Devaswom v. Padmanabhan [1983 KLT 803] this Court held that, when the right conferred on a member of the Society under the bye- RSA No.269 of 2019 **:-** 33 **:-** laws is infringed or is sought to be infringed or where he reasonably apprehends that his right will be infringed, he can certainly approach a civil court to get his right established, provided the jurisdiction of the civil court is not ousted either expressly or implied by the provisions in the Act. 45. In Board of Control for Cricket, India v. Netaji Cricket Club [AIR 2005 SC 592] , considering the binding force of the bye-laws of an association and also the manner of exercise of the powers by the office-bearers, the Apex Court held thus:- “An association or a club which has framed its rules are bound thereby. The strict implementation of such rules is imperative. Necessarily, the office-bearers in terms of the Memorandum and Articles of Association must not only act within the four corners thereof but exercise their respective powers in an honest and fair manner, keeping in view the public good as also the welfare of the sport of cricket. It is, therefore, wholly undesirable that a body incharge of controlling the sport of cricket should RSA No.269 of 2019 **:-** 34 **:-** involve in litigations completely losing sight of the objectives of the society. It is furthermore unfortunate that a room for suspicion has been created that all its dealings are not fair. The Board has been accused of shady dealings and double standards.” 46. On the facts as noticed supra, I do not think it possible to hold that, the manner of admission of new members was in accordance with the bye-laws and also that the officials of the association have acted in a fair and bona fide manner. One cannot be oblivious of the fact that the very basis for the general body decision on 30.06.07 was, “illegal grant of membership” and it was to avoid that, that grant of membership was put on hold and bye-laws were suggested to be amended. The same vice as was intended to be done away with is not to be perpetuated. I find violation of byelaws and lack of good faith on the part of the Association. The effect of violation of the bye-law is to be considered in the background of the allegations regarding mala fides. Thus I hold the RSA No.269 of 2019 **:-** 35 **:-** induction of new members on 02.12.16 to be vitiated. The substantial questions of law are thus answered in favour of the appellants. 47. Having found that the induction of new members on 02.12.16 to be vitiated, the subsequent decisions taken by the General Body held on 11.02.17 and 21.05.17 with their presence are to be declared void. In the result, this appeal is allowed. The decision of the Executive Committee in its meeting held on 02.12.16 inducting new members to the Association is vitiated and the membership so granted are declared void. The decisions taken in the Special General Body Meeting held on 11.12.17 and 21.05.17 with the participation of the members inducted on 02.12.16 are also declared void. The suit will stand decreed accordingly. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge