Thirumala Babu Vs Sri. Kanteerava Narasimharaja Sports Club

THIRUMALA BABU, S/O SHRI. M.V. NAIDU, AGED ABOUT 60 YEARS, RESIDING AT NO.119, 5^TH CROSS, MODEL HOUSE, INDIRANAGAR, NAZARBAD MOHOLLA, MYSURU - 570 010.

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…APPELLANT

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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(BY SRI. SAMARTHA S., ADVOCATE)

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AND:

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SRI. KANTEERAVA NARASIMHARAJA SPORTS CLUB, [MYSORE SPORTS CLUB], REGISTERED UNDER SOCIETIES REGISTRATION ACT, NARASIMHARAJA BOULEVARD, LALITH MAHAL PALACE ROAD, NAZARBAD, MYSURU-570 011, REPRESENTED BY ITS HON. SECRETARY.

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SHRI. SANJAY K. SHETTY, AGED ABOUT 72 YEARS, R/AT NO.35/A, ASHRAYA,

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HC-KAR

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ADICHUNCHANAGIRI ROAD, KUVEMPUNAGAR, MYSURU - 570 023.

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SRI. SOMASHEKAR M.C., S/O LATE CHANNABASAVANNA, AGED ABOUT 74 YEARS, RESIDING AT NO.2664/1-A, D-52/A, 2^ND FLOOR, FLAT NO.202, PRABHU NIVASA, VANI VILAS MOHALLA, MYSURU - 570 002.

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SHRI. SUNIL BALIGA, AGED ABOUT 72 YEARS, RESIDING AT NO.52, DEBONAIR REGENCY APARTMENTS, 7^TH MAIN, JAYALAKSHMI PURAM, MYSURU - 570 012.

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SHRI. SANJAY URS T.H., S/O HARIN NANJARAJ URS T.N., AGED ABOUT 54 YEARS, RESIDING AT NO.45, 5^TH MAIN, JAYALAKSHMIPURAM, MYSURU-570 012.

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SHRI. A.S.BALU, AGED ABOUT 62 YEARS, RESIDING AT NO.2944, 3^RD CROSS, SARASWATHIPURAM, MYSURU - 570 009.

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SHRI. M. RAJENDRA KUMAR, AGED ABOUT 64 YEARS, RESIDING AT NO.22, SARVAMANGALA SADANA, 1^ST MAIN, 2^ND CROSS, VIJAYASHREEPURA LAYOUT, MYSURU – 570 006.

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…RESPONDENTS

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(BY SRI. N.K.RAMESH, ADVOCATE FOR C/R1)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.09.2023 PASSED IN R.A.NO.334/2021 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.12.2020 PASSED IN O.S.NO.295/2020 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU.

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IN RSA NO.529/2024:

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BETWEEN:

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THIRUMALA BABU, S/O SHRI. M.V. NAIDU, AGED ABOUT 60 YEARS, RESIDING AT NO.119, 5^TH CROSS, MODE HOUSE, INDIRANAGAR, NAZARBAD MOHALLA, MYSURU-570010.

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...APPELLANT

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(BY SRI. SAMARTHA S., ADVOCATE)

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AND:

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SRI. KANTEERAVA NARASIMHARAJA SPORTS CLUB, (MYSORE SPORTS CLUB), REGISTERED UNDER SOCIETIES REGISTRATION ACT, NARASIMHARAJA BOULEVARD, LALITH MAHAL PALACE ROAD, NAZARBAD, MYSURU-570011, REPRESENTED BY ITS PRESIDENT, MR. SANJAY K SHETTY.

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...RESPONDENT

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(BY SRI. N.K.RAMESH, ADVOCATE FOR C/R)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.09.2023 PASSED IN R.A.NO.333/2021 ON THE FILE OF THE III

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HC-KAR

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ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 16.07.2021 PASSED ON I.A.NO.III IN O.S.NO.265/2021 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU, ALLOWING THE I.A.NO.III FILED UNDER ORDER 7 RULE 11(a) AND (d) R/W SECTION 151 OF CPC FOR REJECTION OF PLAINT.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for respondent No.1.

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These two appeals are filed against the order passed by the Trial Court in O.S.No.295/2020 dated 11.12.2020 and O.S.No.265/2021 dated 16.07.2021, respectively in allowing the I.A. filed under Order 7 Rule 11(a) and (d) read with Section 151 of CPC for rejection of the plaint and confirmation of the said order by the First Appellate Court.

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The factual matrix of the case of the plaintiff before the Trial Court in a suit filed by the plaintiff challenging his termination from the membership of the Club dated

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29.02.2020, it is specifically contended that the termination made by the respondent Club is erroneous and the same is not in compliance with the principles of natural justice. It is also specifically contended that the termination is also bad in law and even extracted the procedure to be adopted in terminating him and the same is not in terms of the byelaw. The byelaw of the Club under Rule 10 is also extracted in the plaint and also contend that the same is not in consonance with the byelaw, only Rule 10(f) to be invoked if it is complied under Rule 10(e), that there must be 3/4^th majority while terminating him and not having the majority of 3/4^th while passing such an order of termination as contemplated under sub clause (e) of byelaw No.10. Hence, filed a suit seeking the relief of declaration to declare that the impugned notice of termination of the plaintiff from the defendant’s Club dated 29.02.2020 is in gross violation of the byelaws of the Club and the same is null and void and also to declare that the act

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of the defendants jointly and severally in terminating the plaintiff under the notice of termination without suspending him first is in gross violation of the byelaws of the Club and as against the very basic principles of natural justice and also sought for damages and also sought to restrain the defendant

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from terminating the plaintiff, who is a permanent member vide membership No.T015 of the Mysore Sports Club, permanently by a decree of permanent injunction.

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In both the suits i.e., O.S.No.295/2020 and O.S.No.265/2021, similar grounds are urged. The respondent herein filed an application before the Trial Court under Order 7 Rule 11(a) and (d) read with Section 151 of CPC contending that there is no cause of action to initiate the suit. The plaintiff has impugned the notice of termination being the cause of action for the suit, which is contrary to the facts of the case, wherein termination order has been passed by defendant No.1. The plaintiff has made only six of the committee members as parties and not all the members and hence the suit is bad for non-joinder of necessary parties. It is also contended that the suit is barred by law in view of Rule 10(e) of the byelaws of defendant No.1 Club, wherein the termination of the membership can be appealed within 30 days from the date of termination order dated 29.02.2020. Without exhausting the remedy, the plaintiff has filed the suit.

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This application was resisted by filing an objection

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statement by the plaintiff contending that cause of action

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does exist when the defendants have not adhered to the byelaws that govern the conduct of all the parties. For rejection of plaint only the plaint averments can be considered and not the defence of the defendants. The decision of defendant No.1 does not sustain as appeal, when it does not adhere to the provisions of byelaws. Before terminating his membership, no cause of action has been issued, no enquiry has been conducted, he was not suspended pending enquiry, he was never asked to appear before the Managing Committee, no order of the Managing Committee of intended action was served on the plaintiff. The termination order was not served, but affixed to the notice board. Hence, the very application filed by the defendant invoking Order 7 Rule 11(a) and (d) read with Section 151 of CPC is not sustainable.

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The Trial Court having considered the grounds

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urged in the application as well as the objection statement, taken note of the pleadings of the parties. The Trial Court in O.S.No.295/2020, having considered the judgments which have been relied upon, comes to the conclusion that the byelaws does not show as to in whose name defendant No.1 Club has to be sued. In such circumstances, such person shall

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be appointed by the governing body for the occasion. Further,

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it is stated that if any person having a claim or demand against the society against the club, it can sue the President or Chairman or Principal Secretary or the Trustees, if on application to the governing body, some other officer or person is not nominated to be the defendant. In this case, the byelaws does not show as to in whose name the defendant Club has to be sued. Further, the governing body of defendant No.1 Club has not appointed any such person in whose name defendant No.1 Club shall be sued. In such a situation, the defendant ought to have filed an application to the governing body to nominate some other officer or person to be sued or to be represented by defendant No.1 club. The defendant has not filed any such application, he has straightaway filed the suit Honorable Secretary of defendant No.1 Club. In view of the above provisions and the decision of the Hon’ble High Court of Karnataka, the suit is barred by Section 15 of the Act. Apart from that, an observation is made that the suit is bad for non-joinder of necessary parties and the same is barred by time. But, those contentions require evidence to be recorded. Hence, on those grounds the plaint cannot be rejected. But in paragraph No.22, opined

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that the suit filed by the plaintiff does not disclose the cause of action and also it is barred by time. Hence, the learned counsel for the appellant brought to notice of this Court that the very reasoning given by the Trial Court in paragraph Nos.21 and 22 are contrary to each other. Once comes to the conclusion that the contentions require evidence to be recorded and plaint cannot be rejected on the ground of barred by limitation, but dismissed the same.

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The learned counsel for the appellant in R.S.A.No.529/2024 submits that when a similar application was filed before the Trial Court, the same was considered by the Trial Court in O.S.No.265/2021 and formulated the point whether the defendant has made out grounds to allow I.A.No.3 filed under Order 7 Rule 11(a) and (d) read with Section 151 of CPC? The Trial Court having considered the judgment of the Apex Court in the case of CHHOTANBEN v. KIRITBHAI JALKRUSHNABHAI THAKKAR reported in (2018) 6 SCC 422 with regard to the rejection of plaint, observed that the Court has to look into the plaint averments and also relied upon other judgments. The Trial Court in paragraph No.17, comes to the conclusion that earlier this

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Court already allowed the application filed under Order 7 Rule 11(a) and (d) read with Section 151 of CPC. Even though Order 7 Rule 13 of CPC provide for presenting fresh plaint on same cause of action, but in O.S.No.295/2020 already Court held that the plaintiff has no cause of action to file the suit and the suit is barred by time. The plaintiff without filing the appeal against the said order filed this suit on the same cause of action. Hence, comes to the conclusion that the plaint is liable to be rejected and also comes to the conclusion that Rule 10(1)(f) of byelaw is very clear that there is an appeal provision. In paragraph No.21, the Trial Court referred to the judgment of the Apex Court in the case of T.

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ARIVANDANDAM v. T.V. SATHYAPAL AND ANOTHER

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reported in AIR 1977 SC 2421, wherein it is held that, if on meaningful not formal reading of the plaint it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the Trial Court should exercise its power under Order 7 Rule 11 of CPC taking care to see that the ground mentioned therein fulfilled. The Trial Court should insist imperative on examining the party at first hearing so that bogus litigation can be shot down at the earliest stage. Having considered the said judgment, the Trial Court comes

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to the conclusion that already when similar plaint was rejected, there is no cause of action to file the suit. The plaintiff should file an appeal against the said order and rejected the plaint on the ground that the suit itself is not maintainable.

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The learned counsel for the appellant would vehemently contend that the reason assigned in passing of subsequent order also is an erroneous approach that already similar I.A. was allowed and hence the suit is not maintainable. The learned counsel contend that while invoking Order 7 Rule 11(a) and (d) read with Section 151 of CPC, the Court has to look into the averments made in the plaint. In the plaint averments, specific grounds have been urged, including Rule 10 and also specific cause of action is pleaded i.e., termination of the appellant from the membership. When such cause of action is mentioned in the plaint and also considering the grounds which have been urged, the very reasoning given by the Trial Court that there is no cause of action and also the same is barred by law is an erroneous approach. The learned counsel also brought to the notice of this Court that in the earlier suit, contrary reasons

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are given by the Trial Court in paragraph Nos.21 and 22 that time barred suit requires a detailed enquiry, but invoked Order 7 Rule 11(d) that the same is barred by law.

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The learned counsel for the appellant in support of his arguments relied upon the judgment of this Court passed in R.F.A.No.749/2022 dated 05.12.2023, regarding maintainability of the civil suit and brought to notice of this Court paragraph No.27, wherein discussed with regard to giving of an opportunity and if any violation of principles of natural justice, the suit is maintainable and discussion was also made with regard to the evidence of parties. The learned counsel would contend that when an application is filed under Order 7 Rule 11(a) and (d) read with Section 151 of CPC and specific averments are made in the plaint with regard to the right of the appellant that the principles of natural justice has not been met, the suit is maintainable and also the defence of the defendant cannot be considered while entertaining an application under Order 7 Rule 11(a) and (d) read with Section 151 of CPC.

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Per contra, the learned counsel for respondent No.1 would vehemently contend that only on perusal of the

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plaint averment itself, the Trial Court invoked Order 7 Rule 11(a) and (d) read with Section 151 of CPC, that there is no cause of action, since there is a specific proviso in the byelaw that, if any termination is not in accordance with the law, the same to be challenged in an appeal as per byelaw No.10(f). The learned counsel also brought to the notice of this Court that the plaintiff must exercise this right within 30 days of receiving the Managing Committee termination notice and also make request to the Honarary Secretary to call for a Special General Body meeting and the Honarary Secretary shall call for a Special General Body meeting within 3 months. When such specific byelaw is provided for an appeal to the aggrieved party, instead of filing an appeal, approached the Civil Court and hence the Civil Court comes to the conclusion that there is no cause of action and also the same is barred by time and hence it does not require interference of this Court.

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The learned counsel for respondent No.1 relied upon the order passed by this Court in M.F.A.No.9785/2018 dated 21.06.2019 and brought to the notice of this Court paragraph No.12, wherein an observation is made that the suit filed by the respondents without availing the remedy to

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prefer an appeal in accordance with Rule 19.15.6 may not be maintainable. In the case on hand also, when the appeal is not filed, there cannot be any civil suit.

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The learned counsel also relied upon the judgment of the Apex Court in the case of T.P. DAVER v. LODGE VICTORIA reported in AIR 1963 SC 1144 and brought to the notice of this Court paragraph No.5, wherein it is held that 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. The learned counsel also brought to the notice of this Court the discussion made in paragraph No.9 that, 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. In the case on hand, the learned counsel would contend that the respondents have invoked the byelaws and terminated the appellant from the membership and hence it does not require any interference of this Court.

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Having heard the learned counsel for the appellant

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and the learned counsel for respondent No.1 and considering the grounds which have been urged in the appeals, the

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following substantial question of law arise for the

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consideration of this Court:

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(i) Whether both the Courts have committed an error in invoking Order 7 Rule 11(a) and (d) read with Section 151 of CPC in rejecting the plaint and whether it requires interference of this Court?

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(ii) What order?

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Point No.(i):

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Having heard the respective learned counsel and having considered the substantial question of law framed by this Court in both the appeals and considering the prayer sought, in the prayer specific relief is sought for declaration that notice dated 29.02.2020 is in gross violation of the byelaws of the Club and also sought the relief to declare that the act of defendants jointly and severally in terminating plaintiff under the notice of termination without suspending him is in gross violation of the byelaws of the Club and also sought for the relief of permanent injunction. In the plaint, it is pleaded regarding the byelaws and in paragraph No.29, byelaw No.10 is also extracted and in paragraph Nos.30 and 31 pleaded with regard to the non-compliance of byelaws and

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also would contend that 3/4^th members must be present while terminating him under byelaw No.10(e) and the same has not been complied.

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The main contention of respondent No.1 is that the appellant ought to have filed the appeal instead of filing a civil suit. No doubt, this Court in its judgment passed in R.F.A.No.749/2022 held that suit is maintainable, in case if any violation of principles of natural justice as well as noncompliance of byelaws. The judgment which has been relied upon by the learned counsel for respondent No.1 in the case of T.P.Daver (supra), it is clearly held with regard to the compliance of byelaw in paragraph Nos.5 and 9 and this Court

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in M.F.A.No.9785/2018, held that if the respondents are having remedy to prefer an appeal in accordance with rules, the suit is not maintainable. Having perused the principles laid down in the judgments and also the material available on record, it is settled law that when an application is filed under Order 7 Rule 11(a) and (d) read with Section 151 of CPC, the Court has to look into the plaint averments and not the defence. The main defence of the defendant is that there is an appeal provision under Rule 10(e) of the byelaw. The Trial

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Court taken note of the judgment of the Apex Court in the case of T.Arivandandam (supra), that it is well settled principle that while considering an application for rejection of plaint, the Court has to look into the plaint averments only and nothing else. It has to be noted that the earlier order passed by the Trial Court in O.S.No.295/2020 is the basis for rejection of the suit in O.S.No.265/2021.

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Now this Court has to consider the order passed in O.S.No.295/2020, wherein discussion was made in detail with

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regard to the grounds which have been urged in the application and also the statement of objections and with regard to suing of the parties also discussed in paragraph No.20 considering the judgment of this Court in the case of

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MUDDAPPA v. PANCHAKSHARAIAH reported in ILR 1985

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KAR 1230 . It has to be noted that, all the members of the Managing Committee who took decision were made as parties in the original suit. It is important to note that in paragraph No.21 of the Trial Court order, an observation is made that the defendants have also contended that suit is bad for nonjoinder of necessary parties and it is barred by time. While considering the said ground, the Trial Court comes to the

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conclusion that those contentions require evidence to be recorded, but comes to the conclusion that on those grounds, plaint cannot be rejected and it requires the trial and evidence has to be recorded. But contrary to this observation, comes to the conclusion that the suit filed by the plaintiff does not disclose the cause of action when it was specifically pleaded in the plaint that cause of action is for issuance of notice dated 29.02.2020 and also an observation is made that it is barred by time.

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The Apex Court in its recent judgment in the case of P. KUMARAKURUBARAN v. P. NARAYANAN AND

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OTHERS reported in 2025 SCC Online SC 975, has held that when an application is filed under Order 7 Rule 11(d) of CPC that the suit is barred by law, the same involves mixed question of fact and law and the same has to be considered only after recording the evidence. The Trial Court made an observation that those contentions requires evidence to be recorded and the plaint cannot be rejected. But, contrary decision was taken in paragraph No.22 that the plaint does not disclose the cause of action and specific cause of action has been pleaded in the plaint and also even extracted byelaw

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10 in the plaint and urged the ground. When such being the case, the Trial Court has not framed any issue with regard to the maintainability of the suit, but invoked Order 7 Rule 11(a) and (d) read with Section 151 of CPC. When the matter requires trial with regard to the grounds which have been urged under Order 7 Rule 11(a) and (d) read with Section 151 of CPC, the same involves mixed question of fact and law and the Trial Court ought not to have invoked Order 7 Rule 11(a) and (d) read with Section 151 of CPC. The defence cannot be raised while considering an application filed under Order 7 Rule 11(a) and (d) read with Section 151 of CPC and only to see that whether cause of action is stated in the plaint. The Trial Court though comes to a conclusion that it is settled principle that only plaint averments has to be looked into, but committed an error in coming to the conclusion in the subsequent order that already there was an order rejecting the suit and when this Court comes to the conclusion that invoking of Order 7 Rule 11(a) and (d) read with Section 151 of CPC is erroneous, the question of relying upon the very same order in the other suit in O.S.No.265/2021 does not arise.

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It is also settled law that when the issue is raised

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with regard to the suit is barred by time and also barred by law, the Trial Court with regard to the maintainability is concerned, can frame an issue and consider the same and instead of doing the same, invoked Order 7 Rule 11(a) and (d) read with Section 151 of CPC in coming to an erroneous conclusion that there is no cause of action and also the same is barred by law and instead of using the same as barred by law, it is mentioned as barred by time. The Apex Court in its recent judgment in the case of P. Kumarakurubaran (supra), has held that it involves mixed question of fact and law to invoke Order 7 Rule 11(d) of CPC and the same has to be enquired into. When the Trial Court comes to the conclusion in the earlier suit in O.S.No.295/2020 making an observation in paragraph No.21 that it requires evidence to be recorded, but contrary to that, in paragraph No.22 held that the same is barred by time and no cause of action and hence the very approach of the Trial Court is erroneous and hence, I answer the substantial question of law in the affirmative.

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Point No.(ii):

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) Both the appeals are allowed.

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(ii) The impugned order passed by the Trial Court under Order 7 Rule 11(a) and (d) read with Section 151 of CPC in O.S.Nos.295/2020 and 265/2021, are set aside. The matter is remitted back to the Trial Court to restore the suit and consider the same in accordance with law. Having restored the suit, the appellant has to decide which suit could be continued.

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Sd/- (H.P.SANDESH) JUDGE

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MD List No.: 1 Sl No.: 45

Thirumala Babu v. Sri. Kanteerava Narasimharaja Sports Club

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Thirumala Babu v. Sri. Kanteerava Narasimharaja Sports Club

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