Thomas Mathai v. Cochin Suburban Club

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 29TH DAY OF NOVEMBER 2013/8TH AGRAHAYANA, 1935** ## **OP(C).No. 3348 of 2013 (O)** ## **---------------------------** **AGAINST THE JUDGMENT IN CMA 36/2013 of I ADDL.DISTRICT COURT, ERNAKULAM DATED 12-09-2013** **AGAINST THE ORDER IN I.A. NO.2758/2013 IN O.S. NO.430/2013 DATED 18.6.2013 OF PRINCIPAL MUNSIFF'S COURT, ERNAKULAM** ## **PETITIONER/RESPONDENT/PLAINTIFF:** **--------------------------------------------------------** **THOMAS MATHAI AGED 65 YEARS S/O. A.P.MATHAI, THADAVILLE, CHANGAMPUZHA NAGAR KOCHI-33** **BY ADVS.SRI.M.RAMESH CHANDER (SR.) SRI.ANEESH JOSEPH SMT.DENNIS VARGHESE** ## **RESPONDENT/APPELLANT/DEFENDANT:** **----------------------------------------------------------** **COCHIN SUBURBAN CLUB REPRESENTED BY ITS SECRETARY, CHANGAMPUZHA NAGAR KOCHI 682 033.** **BY ADVS. SRI.T.KRISHNAN UNNI (SR.)** **SMT.P.A.SHEEJA SMT.MEENA.A. SRI.SAJU.S.A SRI.K.C.KIRAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 3348 of 2013 (O)** **---------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **-------------------------------------** **EXHIBIT P1 : COPY OF THE CONSTITUTION AND BYE-LAWS OF THE IST DEFENDANT CLUB (RELEVANT PORTION OF THE BYE-LAWS) EXHIBIT P2 : COPY OF THE PLAINT IN OS NO.430/2013 OF THE MUNSIFF'S COURT, ERNAKULAM EXHIBIT P3 : COPY OF IA NO.2758/2013 IN OS 430/2013 OF THE MUNSIFF'S COURT, ERNAKULAM DATED 24/1/2013 EXHIBIT P4 : COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS TO EXT.P2 SUIT OS 430/2013 OF THE MUNSIFF COURT, ERNAKULAM EXHIBIT P5 : COPY OF THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN IA NO. 2758/2013 EXHIBIT P6 : COPY OF THE ORDER IN IA NO.2758/2013 IN OS 430/2013 OF THE MUNSIFF COURT, ERNAKULAM DATED 18/6/2013 EXHIBIT P7 : COPY OF THE MEMORANDUM OF APPEAL IN CMA NO.36/2013 EXHIBIT P8 : COPY OF THE ORDER IN CMA NO.36/2013 ON THE FILE OF THE DISTRICT JUDGE, ERNAKULAM DATED 12/9/2013. EXHIBIT P9 : COPY OF THE RECEIPT ISSUED BY THE RESPONDENT CLUB IN FAVOUR OF THE PETITIONER DATED 20.6.2013** **RESPONDENT'S EXHIBITS ---------------------------------------** ## **NIL** **//TRUE COPY//** **P.A. TO JUDGE** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ O.P.(C) No. 3348 of 2013 -----------------------------------------Dated this the 29[th] day of November, 2013 ## **J U D G M E N T** This petition is filed by the plaintiff in a suit for injunction. In the suit he also sought for a declaration to the effect that the decision taken by the respondent – Club and its office bearers to terminate the plaintiff from the life membership of the Club is null and void. A temporary injunction was sought for. The trial court granted a temporary injunction restraining the respondent from obstructing the plaintiff from entering the premises of the respondent - Club and in enjoying the benefits available to the plaintiff as a life member of that Club. But the appellate court set aside the order of injunction. Hence, this petition is filed under Article 227 of the Constitution of India. ## **O.P.(C) No.3348/2013** **-2-** 2. Before the trial court Exhibits A1 to A22 and B1 to B20 were marked. It was contended by the plaintiff that the Managing Committee of the respondent – Club was not managing the affairs of the Club. The auditing of accounts was not done for several years and they failed to submit the minutes, audited accounts etc and so the plaintiff/petitioner had occasion to question the same. Thus defendants 2 and 3 had taken action to harass the members, including the members who questioned their illegal activities. 3. It was stated that on 5.1.2013, a notice was issued by the plaintiff demanding explanation for not considering the complaint filed by him, to which no reply was sent. On 9.1.2013 a notice demanding the account details was sent to which also no reply was sent. Enraged by the sending of notice, the defendants placed the plaintiff **-3-** ## **O.P.(C) No.3348/2013** under suspension. That was challenged by filing the suit in which the application for temporary inunction was filed. 4. The plaintiff contended that since he was placed under suspension, he was prevented from enjoying his right as a member of the Club. It is further contended that disciplinary enquiry was initiated against the plaintiff and that the enquiry was not conducted complying with the principles of natural justice. The request for summoning the documents under the custody of the 3[rd] defendant was disallowed by the Disciplinary Committee. Mr.Jovin, a staff of the Club and Mr.Sam Jose were requested to be examined. But those witnesses were not examined. Enquiry was conducted in a prejudicial manner. The questions and answers were not properly recorded by the Disciplinary Committee. After enquiry, the plaintiff was terminated from the membership. That is also being challenged in the suit. ## **O.P.(C) No.3348/2013** **-4-** 5. The respondent in that injunction petition contended that the allegations are incorrect and that proper opportunity was given to the plaintiff to place his case before the Committee. Charges were properly framed to which reply statement was filed by the plaintiff. The request to engage a lawyer for cross examination was denied since there was no provision in the bye-law to enable a delinquent to obtain assistance of a lawyer. There was no violation of natural justice. Maximum opportunity was given to the plaintiff. It is further contended that the plaintiff had not established a _prima facie_ case and balance of convenience is not in favour of the plaintiff; if injunction is granted it would cause prejudice to the members and the respondent – Club. 6. It was contended that the plaintiff had a definite case that the complaint filed against the plaintiff by the Manager of the Club was, in fact, at the behest of the President and Secretary of the Club. Since as per the **-5-** ## **O.P.(C) No.3348/2013** complaint one Jovin was present at the time of the incident, the plaintiff should have been given opportunity to cross examine that Jovin; for which Jovin should have been examined by the Disciplinary Committee and as such there was denial of natural justice. Mr. Sam Jose, who was another witness, suggested by the plaintiff was also not examined. Considering all the aspects, the trial court found that there is a _prima facie_ case in favour of the plaintiff that enquiry was conducted without observing the principles of natural justice. 7. One contention that was raised by the defendant was that as per clause 25(14) of Ext.B1 – Bye law, the decision of the Managing Committee can be challenged before the General Body and if the plaintiff is aggrieved by the decision taken by the Managing Committee, the remedy of the plaintiff is to file an appeal before the General Body; ## **O.P.(C) No.3348/2013** **-6-** which has to be filed through the Secretary of the Club and if such an appeal is filed by the Secretary, then certainly the meeting of the General Body will be convened and the General Body, by three fourth majority of the eligible members present and voting, the decision taken by the Managing Committee can be set aside. The plaintiff did not choose to do so. Since such an adequate and efficacious remedy was available and since that remedy was not availed of, the plaintiff is not entitled to get an order of injunction. The learned counsel for the petitioner would submit that the alternative remedy stated to be available to the plaintiff is not adequate or efficacious. 8. Mr. Ramesh Chander, learned senior counsel for the petitioner, has relied upon the decision of the Supreme Court in **T.P. Daver v. Lodge Victoria – AIR 1963 SC 1144** . In that case each of the charges was put to vote and the members present unanimously held that every one of **-7-** ## **O.P.(C) No.3348/2013** the charges levelled against the appellant was established and thus they passed a resolution excluding the appellant from the Lodge until the exclusion was confirmed by the District Grand Lodge under Law 199 of the Constitution. The appeal filed against that order was dismissed. On further appeal to the Grand Lodge of Scotland, the said lodge considered the sentence imposed on the appellant as one of “suspension sine die” and recommended to the Lodge Victoria to review the suspension after a period of 12 months. Thereafter, the appellant instituted a suit in the Court of the Civil Judge, Senior Division, for a declaration that the resolution was illegal and void and that he continued to be a member of the Lodge, despite the resolution. Injunction was also sought restraining the Officers of the lodge from preventing the appellant from exercising his rights therein. That suit was dismissed. The appeal filed by the appellant to the High Court was also **-8-** ## **O.P.(C) No.3348/2013** dismissed. Hence, he moved the Hon'ble Supreme Court. It was held by the Hon'ble Supreme Court: “The source of the power of associations like clubs and lodges to expel their members is the contract on the basis of which they become members. This principle has been restated by **Lord Morton in Bonsor v. Musicians' Union, 1956 AC 104** .” 9. The other question which was considered by the Hon'ble Supreme Court was 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. It was held that the answer to that question will depend upon 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 **-9-** ## **O.P.(C) No.3348/2013** appears. 10. The observations of Maugham J. in **Maclean** 's case, **1929 1 Ch.602** was noticed by the Supreme Court in the aforesaid case. In **Maclean** 's case it was observed: “A person who joins an association governed by rules under which he may be expelled, ..... has in my judgment no legal right of redress if he be expelled according to the rules, however unfair and unjust the rules or the action of the expelling tribunal may be, provided that it acts in good faith ... The phrase, “the principles of natural justice,” can only mean in this connection the principles of fair play so deeply rooted in the minds of modern Englishmen that a provision for an inquiry necessarily imports that the accused should be given his chance of **-10-** ## **O.P.(C) No.3348/2013** defence and explanation. On that point there is no difficulty. Nor do I doubt that in most cases it is a reasonable inference from the rules that if there is anything of the nature of a lis between two persons, neither of them should sit on the tribunal.” 11. Considering all those aspects it was held by the Supreme Court: “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 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 **-11-** ## **O.P.(C) No.3348/2013** 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 aside 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.” 12. The learned senior counsel submits that though the jurisdiction of the Civil Court is limited, the Disciplinary Committee was bound to abide by the rules and if there was violation of the rules and denial of natural justice then the Civil Court can certainly consider whether the Disciplinary Committee acted without jurisdiction or whether it acted _mala fide_ in violation of the principles of natural justice. Mr.Jovin was not examined; the request for examination of another witness was turned down and so many other factors ## **O.P.(C) No.3348/2013** **-12-** were pointed out by the learned senior counsel to state that the principles of law expostulated by the Hon'ble Supreme court, in the decision cited supra, do have bearing on the facts of this case. 13. The decision in **Fisher v. Keane – Vol.XL page 353** has also been relied by the learned senior counsel for the petitioner in support of his submission that any committee of a club, being a quasi-judicial tribunal, are bound in proceeding under their rules against a member of the club for alleged mis-conduct, to act according to the ordinary principles of justice, and are not to convict him of an offence warranting his expulsion from the club without giving him due notice of their intention to proceed against him, and affording him an opportunity of defending his conduct; and the court will, at the instance of any member so proceeded against, declare any resolution passed by the ## **O.P.(C) No.3348/2013** **-13-** committee without previous notice to him, based upon _ex parte_ evidence and purporting to expel him from the club, to be null and void and will restrain the committee by injunction. It is true that in the case on hand the decision was not taken _ex parte;_ notice was given to him; his objection was received and enquiry was conducted. But according to the plaintiff, enquiry was not conducted properly. 14. The learned senior counsel Sri. Krishnan Unni appearing for the respondent – Club would submit that the expulsion was made in the interest of the Club and that there was no _mala fide_ or improper motive in causing his expulsion. The learned senior counsel has also pointed out the antecedents of the plaintiff to show that his conduct was unbecoming of a member of that Club and so his expulsion was well justified. It is further submitted that even if **-14-** ## **O.P.(C) No.3348/2013** Mr.Jovin was not examined by the Disciplinary Committee there was no reason why the plaintiff did not produce that witness before the Committee for cross examination. But that contention has been refuted by the plaintiff pointing out that unlike a judicial proceeding where attendance of the witness can be secured by issuing summons, warrant etc, the presence of a witness cannot be secured in a disciplinary enquiry unless the presence of that witness is secured by the Disciplinary Committee itself. Anyway, I am not delving deep into those matters since those are matters to be considered at the time of trial. 15. The learned senior counsel for the petitioner would further submit that the basic principle to be obeyed is that the Club must be scrupulous in complying with whatever rules that may exist to cover the situation, assuming that these rules, in themselves, comply with the ## **O.P.(C) No.3348/2013** **-15-** principles of natural justice. The right of the member to be heard should not be denied. No doubt, in this case, it cannot be said that the plaintiff was not given opportunity to present his case. But according to him, failure on the part of the Disciplinary Committee to examine important witnesses – Mr.Jovin and Mr.Sam is so vital that it would certainly amount to denial of natural justice. According to the plaintiff, if, in the suit he would be able to secure the presence of those witnesses he could unravel the fallacy of the allegations made by the respondent – Club. Thus the learned counsel submits that this is a case where there is substantial question to be agitated in the suit. The denial of a temporary injunction would certainly cause irreparable injury and loss to the plaintiff. It is further submitted that if injunction is refused that would cause irreparable injury and damage to his reputation which cannot be remedied, if ultimately the plaintiff succeeds in the suit. The contention ## **O.P.(C) No.3348/2013** **-16-** that if ultimately the plaintiff succeeds, his membership can be reinstated is not a ground which can be projected by the respondent since, by that time, incalculable harm and damage would be caused to the plaintiff, it is further argued. 16. The decision of this Court in **St. Philomina Sadhujana Samajam v. Mathew – 1974 KLT 731** has also been relied upon in this connection. In that case it was held that where rules empowers the committee to expel a member for conduct injurious to the club they must not only act _bona fide_ ; they must exercise their discretion judicially, with reasonable and probable cause and that the power of expulsion must be exercised according to the principles of natural justice. 17. The learned senior counsel has vehemently argued that the lower appellate court has found that the General Body of the Club is the supreme authority to decide the **-17-** ## **O.P.(C) No.3348/2013** matter in accordance with the bye-law of the Club and since the Disciplinary Committee conducted enquiry and found that the charges levelled against the plaintiff stood established, there is no _prima facie_ case in favour of the plaintiff. The learned senior counsel submits that in such a case it cannot be said that the balance of convenience is in favour of the plaintiff. The learned senior counsel for the plaintiff would submit that the entire action taken by the respondent smacks of victimisation for the sole reason that he had questioned the activities of the Club and its office bearers. The learned senior counsel for the respondent has narrated the details of the alleged misdemeanour of the petitioner justifying the disciplinary action taken by the Club. It is also trite that it is not necessary to prove the charges beyond reasonable doubt as in a criminal case. Similarly, slight lapses in the procedure followed by the Disciplinary Committee, even if there is any, will not be a ## **O.P.(C) No.3348/2013** **-18-** reason to upset the conclusion and action taken by the Disciplinary Committee. It is not necessary to probe into those aspects. 18. The whole question is whether the temporary injunction granted by the trial court is to be restored and whether by granting such an order it would cause serious prejudice to the respondent – Club. Though, there may be so many valid contentions that can be advanced by the respondent – Club in support of the action taken against the plaintiff, still, I think that immediate expulsion of the plaintiff from the membership would not be conducive. Since the suit itself can be expedited at the earliest, I find that temporary injunction can be granted restraining the respondent – Club and other defendants in causing obstruction to the plaintiff's entry into the respondent – Club. But it is made clear that the plaintiff/petitioner shall not cause interference in the management of the Club by **-19-** ## **O.P.(C) No.3348/2013** the Managing Committee or do anything unbecoming of a member of the Club or act detrimental to the interest of the respondent – Club. The trial court will dispose of the suit at the earliest, untrammelled by the observations made by the courts below or by this court in this judgment. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj