Dismissed

Devkishan Sharma v. Udaipur Vishwakarma Jangid Vikas Sanstha

Rajasthan HC17 Feb 2023CR/156/2022

Case brief

AI extract

What is this about?

This revision petition challenged an order dismissing a CNRs under Order VII Rule 11 CPC. The HC held the lower court was correct in rejecting preliminary objections regarding non-joinder of parties and lack of cause of action, finding the suit maintainable as the President filed it under the Societies Registration Act.

What did the court decide?

Revision petition dismissed; stay petition dismissed.

Devkishan Sharma Vs Udaipur Vishwakarma… — Civil Procedure and Limitation | Rajasthan HC (2023)

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[2023/RJJD/005734]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Revision Petition No. 156/2022

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Devkishan Sharma S/o Ambalal Sharma, Aged About 50 Years, R/o 8 Hajareshwar Colony, Hospital Road, Udaipur. (Raj.)

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Brijmohan Sharma S/o Gangaram Sharma, Aged About 65 Years, Obrawal, R/o 225 Paneriyo Ki Madri, Near Government Seinor Secondary School Udaipur. (Raj.)

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----Petitioners

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Versus

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Udaipur Vishwakarma Jangid Vikas Sanstha, Bhuvana Vistar Yojna Phase-2, Chitrakoot Nagar, Udaipur through President Rajendra Sharma S/o Lalchandra Sharma, R/o Udaipur (Raj.)

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----Respondent

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For Petitioner(s)	: Mr.	DeelipKawadia
For Respondent(s)	: Mr.	R.S. Mankad

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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17/02/2023

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The present revision petition has been preferred against the order dated 22.08.2022 whereby the application under Order VII Rule 11 of the Code of Civil Procedure preferred by the petitioners-defendants has been rejected.

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The case of the petitioners is that the suit for cancellation of the elections as preferred by the respondent-plaintiff deserves to be dismissed on four grounds: Firstly, that the suit as preferred by the plaintiff Rajendra Sharma alleging himself to be the President of the Society could not be maintained as on the date of institution of the suit, he was not the President of the Society. Therefore, he had no right to sue and hence, the suit deserves to

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be dismissed. Secondly, subsequently the fresh elections had been conducted and a new Committee had come into existence. The Committee so constituted ought to have been impleaded as party which has not been impleaded and as a consequence, the relief for cancellation of the election as prayed for, cannot be granted. Therefore, in terms of the settled proposition of law, if it is found prima facie that the relief as prayed for cannot be granted, the suit itself deserves to be dismissed at the threshold. Thirdly, a bare reading of the plaint makes it clear that no cause of action had arisen to the plaintiff who alleged himself to be the President of the Society. Fourthly, the suit is barred by law as in terms of the Cooperative Societies Act, 1912, the present suit is not maintainable before a Civil Court.

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Learned counsel for the petitioners submitted that a bare reading of the plaint and the documents annexed with the plaint are sufficient to prove that Rajendra Sharma was not the President of the Society on the date of filing of the suit and therefore, he had no right to sue. Counsel submitted that the plaint itself specifies that the tenure of the earlier Committee was for a period of three years which commenced from 16.07.2017. Meaning thereby, it came to an end on 15.07.2020 whereas the suit has been instituted in the year 2022 when clearly, Rajendra Sharma was not the President. Counsel relied upon the Hon'ble Apex Court judgment in the case of Dahiben Vs. Arvindbhai Kalyanji Bhanusali (D) thr. L.Rs. and Ors.; (2020) 7 SCC 366, in support of his argument that if no right to sue survives in favour of the plaintiff, he cannot be said to have any cause of

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action to prefer the suit and therefore, the suit in absence of any cause of action deserves to be dismissed at the threshold.

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Per contra, learned counsel for the respondent submitted that firstly, the ground of absence of any cause of action for filing of the present suit was never pleaded in the application under Order VII Rule 11, CPC and was not even argued out before the learned Court below. Secondly, a perusal of the bylaws makes it clear that the President of the Committee/Society was entitled to sign all the documents on behalf of the Society and therefore, he was very much the person entitled to prefer the suit. Counsel further submitted that it was clear on record that the Secretary of the Society had resigned due to his personal reasons and therefore also, the President was the only person who was entitled to prefer the suit. So far as the maintainability of the suit before the Civil Court is concerned, counsel submitted that Section 6 of the Societies Registration Act, 1860 specifically entitles the President of the Society for the same and therefore, the said ground as raised by the petitioners cannot be held to be tenable.

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Heard learned counsel for the parties and perused the material available on record.

¶27

A perusal of the record as well as the order impugned makes it clear that the learned Court below has proceeded on to dismiss the application under Order VII Rule 11, CPC as preferred by the defendants with the specific reasonings and findings. The learned Court below has held that the plaintiff had come up with a plea that it was registered under the Societies Registration Act and not the Cooperative Societies Act. Therefore, the Bar, if any, for the suit to be preferred before a Civil Court would be in terms of the

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Cooperative Societies Act and the same would not be applicable to the present plaintiff as it was registered under the Societies Registration Act.

¶32

So far as the ground of non-impleadment of the new Committee to the present suit is concerned, the learned Court below rightly reached to the conclusion that the said cannot be a ground for rejection of a suit under Order VII Rule 11, CPC. Misjoinder or non-joinder of parties can be a ground for rejection of the suit ultimately but cannot be a ground for rejection in terms of Order VII Rule 11, CPC.

¶33

So far as the right to sue is concerned, a perusal of the bylaws annexed with the plaint makes it clear that Clause 16 of the said bylaws provides for the powers of a President which specifically includes the power to sign on the constitutional as well as the other documents. Moresoever as averred in the plaint, the Secretary of the Committee had resigned and therefore, in overall circumstances and in terms of the bylaws governing the society, it cannot be held that Rajendra Sharma who alleged to be the President of the Committee did not have any right to sue.

¶34

Regarding the fact whether Rajendra Sharma was not the President on the date of institution of suit, in the opinion of this Court, that is the bone of contention in the matter and the same would be decided by the Court only after adjudication on basis of the evidence led. The same is a question of fact which requires determination by the Court. Any finding on the said fact at this stage is totally uncalled for.

¶35

So far as the judgment relied upon by learned counsel for the petitioners is concerned, there is no dispute over the position

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of law that if the plaint does not disclose any cause of action, the same can be dismissed at the very instance and at the threshold. So far as the present matter is concerned, a bare perusal of the plaint shows that all the pleadings regarding the constitution of the Committee, the notification of the elections to be conducted by the said Committee, an adhoc Committee being constituted by some persons, elections notified by the said adhoc Committee etc. have been specifically pleaded in the plaint and on basis of the said facts, the consequential prayer has been made for cancellation of the elections as declared to be held by the said adhoc Committee. Therefore, in view of the clear and specific facts pleaded in the plaint, it cannot be concluded that it does not disclose a cause of action.

¶40

In view of the above observations, this Court does not find any ground to interfere with the order dated 22.08.2022 and the present revision petition is therefore, dismissed .

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The stay petition also stands dismissed.

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(REKHA BORANA),J

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26-Sachin/-

Devkishan Sharma v. Udaipur Vishwakarma Jangid Vikas Sanstha

Case brief

What is this about?

What did the court decide?

Devkishan Sharma v. Udaipur Vishwakarma Jangid Vikas Sanstha

Case brief

What is this about?

What did the court decide?

What the court decided

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