ORDER
Haridas Das,
1. This Civil Revision application by the plaintiff /petitioners is directed against an order dated March 17, 1992 passed by the learned District Judge, Alipore, in Misc. Appeal No. 70/92 arising out of an application for temporary injunction made by the plaintiffs in Title Suit No. 66/92.
2. It appears that the plaintiffs instituted that suit for declaration and permament injunction. The case of the plaintiffs in that suit inter alia is that the defendant No. 1 Dalhousie Institute is a society registered under the Societies Registration Act. The defendant No. 1 Institute is a social club of which the plaintiff No. 1 and his wife plaintiff
No. 2 are associate members since 1986. The defendant No.1 hereinafter referred to as the
club is administered by a Council comprising defendant Nos. 2 to 9. The defendant No. 2 is
the President of this Council while the defendant No. 9 is the Honorary Secretary of that Council, By a letter dated October 26, 1991 being Annexure ‘B’ to the revisional application the Honorary Secretary informed the plaintiffs that they have been removed from the membership roll of the Institute under Rule 20(6) of the Institute’s Rules and Bye laws with immediate, effect.
3. The petitioners after instituting the suit on March 4, 1992, also made an application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure before the learned Munsif praying for temporary injunction restraining the defendants from giving effect or further effect to the resolution of the Dalhousie Club removing the membership of the petitioners from the said club. The learned Munsif by his order dated March 4, 1992 refused to grant any interim order of injunction. Aggrieved thereby the plaintiffs preferred an appeal being Misc. Appeal No. 70/92 before the learned District Judge at Alipore. On March 12, 1992 an interim order was passed by the learned lower appellate Court directing the respondents not to give effect to the resolution dated October 26, 1991 being Annexure ‘C’ to the present revisional application until further Orders. After final hearing the learned lower appellate Court disposed of the appeal by making the following directions:–
The respondents are restrained from giving further effect to the resolution dated October 26, 1991 till the disposal of the suit and the appellants (meaning the petitioners herein) are also restrained from visiting the Institute till the disposal of the suit. The application for temporary injunction pending before the learned Munsif is also deemed to be disposed of and the learned Munsif is directed to take appropriate steps for disposal of the suit finally after giving the respondents an opportunity to file written statement as early as possible.”
4. While making the above, order the
learned lower appellate Court pointed out that hearing of the matter in detail after taking evidence was necessary and that till such date effect of the resolution should not be given. The learned lower appellate Court further observed that to avoid disturbance it was desirable that the appellant should not visit the Institute till the disposal of the suit. Aggrieved by the aforesaid order dated March 17, 1992 the plaintiffs have preferred this revisional application.
5. On a perusal of the resolution of the Council of the club taken in the meeting held on October 26,1991 (Annexure ‘D’) it appears that the Council inter alia adopted the following resolution with regard to the removal of the petitioners from their membership.
“Mr. Charles Mantosh and Mr. Roy George Mantosh have been disturbing the peace and harmony amongst the members and also normal functioning of the Institute which is not becoming of a member of the Institute. It is therefore unanimously resolved that Mr. Charles Mantosh and Mr. Roy George Mantosh along with their wives be removed from the membership rolls and that they cease to be members with immediate effect of the Institute and sub-rule (b) of Rule 20 of the Rules and Bye-Laws of the Institute. Further under Rule 91 (d)(iv) they may not be introduced as guests.”
6. The copy of the resolution was not of course sent to the petitioners. In the letter dated October 26, 1991 Annexure ‘B’ to the revisional application reference to this resolution was not made but it was simply said that the petitioners were removed from their membership roll of the Institute under Rule 20(b) Rules of the Institute.
7. Mr. Roy appearing for the petitioners has contended that the impugned resolution and the intimation about the removal of the petitioners by the letter Annexure ‘B’ are invalid in law since the Council adopted the resolution for removal of the petitioners from the membership of the Club without affording opportunities of hearing to them. It is pointed out by Mr. Roy that Rule 20(b) of the
Rules can have no application to the alleged removal of the petitioners since it is not a case of removal by the Council in the exercise of its power under that Rule. It is pointed out by Mr. Roy that allegations were made against the petitioners that they were creating disturbances and were disturbing the peace and harmony amongst the members and were also disturbing the normal functioning of the club and the Council adopted the resolution to remove the petitioners from membership because of such alleged misconduct on the part of the petitioners. The contention of Mr. Roy is that in view of such allegations Rule 32 of the Rules is attracted. It is accordingly submitted that as the order of removal was passed without giving petitioners any opportunity of hearing, such order is ex facie bad in law and should not therefore be allowed to stand.
8. Mr. Ghosh, the learned Senior Advocate on the other hand has submitted that no injunction in a case of the present nature can be granted in favour of a member who has been removed from the Club which is a private organisation. Firstly, it is pointed out that the petitioners instituted the suit and prayed for injunction long after they were removed and long after the order removing the petitioners from the membership was already given effect to and therefore by a temporary injunction the existing position as on the date of institution of the suit should not be altered, Mr. Ghosh has secondly urged that in the communication which was made to the petitioners, there is no reference to the resolution and therefore the resolution should not be connected with the letter which was sent to the petitioners. Thirdly, Mr. Ghosh has submitted that since the Club has absolute authority to remove an associate member, no purpose will be served by granting temporary injunction restraining the Club from giving effect to the resolution when the Club can again pass a resolution removing the petitioners. Lastly, Mr. Ghosh has submitted that having regard to the power of the Council to remove an associate member at any point of time without assigning any reason, no permanent injunction can be granted. If no permanent injunction can be granted, no temporary
injunction should also be granted. It is also submitted by Mr. Ghosh that the High Court should not interfere when there is no error in law in the impugned judgment of the learned lower appellate Court. Reliance has been placed upon the decision of the Supreme Court in the case of
Thegodis greatgod is greatgod is great TheJohri Singh v. Sukh Pal Singh . Mr. Ghosh also cited the decision in the cse of Premier Automobiles v. K. S. Wadke reported in AIR 1973 SC at page 2238 (sic) in support of the proposition that the contract between the petitioners and the club being determinable cannot be specifically enforced.
9. I have given my most careful considerations to the submissions made and have also gone through the materials placed before me. If there is any illegality or material irregularity in the impugned order, the High Court can interfere in revision.
10. I cannot appreciate the reasoning given by the learned Lower Appellate Court for restraining the petitioners from joining the club. When the learned lower Appellate Court directs that the defendants should not give effect to the resolution, it necessarily follows that if the resolution is not to be given effect to then automatically the petitioners will have the right to join the club. When the learned lower appellate Court came to the conclusion that the resolution should not be given effect to, it was not appropriate to direct that the petitioners should also be restrained from attending the Club. If it was thought fit that the petitioners should not be allowed to join the Club then there was no point in staying the resolution. Therefore, I have to take into considerations the different facts and the rules for the purpose of coming to a conclusion whether the plaintiffs have a prima facie case for stay of the order removing them from the membership of the Club.
11. Rule 20(a) and (b) of the Rules of the Club Rules read as follows:–
20(a) Married couples and individual ladies and gentlemen may be admitted to Associate Membership at the complete discretion of the Council. An Associate Member will be
subject to all the Rules and By-laws of the Institute and entitled to all other privileges of membership excepting the right to serve on the Council, attending General Meeting, having any voice in the management or voting for any purpose whatsoever. Subject, however, to the sanction of the Council, An Associate member may be co-opted on a subcommittee on such terms and conditions as they direct.
b) The Council shall have full power without assigning any reason therefor to remove at any time the name of any Associate Member from the membership roll and thereupon such Associate Member shall cease to be a Member.
Rule 32 of the Rules reads as follows :–
32(1) The Council shall have full and absolute powers and their decision shall be final and binding and cannot be questioned in any manner whatsoever, to warm suspend for a period of not more than six months, or to remove the name of a member from the membership roll if in the opinion of the Council,
(a) he does anything which is not becoming a member or which constitutes misconduct.
(b) It is no longer desirable in the interest of an Institute that he should continue as a Member.
(2) Before arriving at a decision, a member whose conduct is called in question under the preceding sub-rule shall be given an opportunity to appear in person and explain his conduct. He shall be given a week’s notice specifying the date, time and place of the meeting, and if he should fail to attend, the Council shall act in his absence, unless he shows good cause of inability to be present and asks for an extension of time. Such time shall be reasonable and no second extension shall be granted except under exceptional circumstances. Such meetings of the Council shall be held in camera and only the member whose conduct is called in question and such other persons as the Council may consider necessary shall be heard and examined.
12. On a perusal of Rule 20(a) and (b) there cannot remain any manner of doubt that the Council has full power without assigning any reason to remove an Associate member., but Rule 32 unmistakably makes it abundantly clear that when a member is sought to be removed for conduct which is unbecoming of the conduct of a member, he must be given an opportunity of hearing. It is settled law that merely because an order on the face of it does not specify the reason except exercise of power under a Rule but such order is actually grounded upon other reasons, the Court has a power to go behind the order and to see whether the order is legally valid. I need not at this stage decide the question finally. But prima facie the resolution adopted by the Council shows that the Council did not approve of the conduct of the plaintiffs/petitioners and that is why the Council adopted the resolution to remove them and pursuant to such resolution the letter annexure ‘B’ was issued to the petitioners. In my view the petitioners have a strong prima facie-case, since apparently they were not given any opportunity of hearing before the order removing them from membership was passed. I am not forgetful of the position that the Council may at any time remove a member and such power is unfettered. If the Council exercises the power in that way, there can be no occasion to question that order. Since the Council adopted the resolution for removal of the petitioners from the membership without giving them any opportunity of hearing and since the letter and order (Annexure ‘B’) is a sequel to that resolution, the learned lower appellate Court restrained the opposite parties from giving effect to that order. In the circumstances there can be no reason to restrain the petitioners from joining the Club, pending the disposal of the suit particularly when the petitioners have made out a prima facie case. I must, however, hasten to add that the petitioners should behave in such a fashion as are expected from the members of the Club and they must not create any disturbance if and when they go to the Club nor shall they disturb or interfere with the function of the Club.
13. For the foregoing reasons I allow this
revisional application. The impugned order of the learned lower appellate Court is modified. That part of the learned lower appellate Court by which the petitioners were restrained from visiting opposite party No. 1, the Institute till the disposal of the suit is set aside. The other part of the order of the learned lower appellate Court is affirmed.
14. Mr. Ghosh, the learned advocate appearing for the opposite parties submits that the operation of the order may be stayed for six weeks. Mr. Roy, the learned counsel appearing for the petitioners opposes the prayer for stay. I am inclined to grant stay of operation of the order for a period of 4 (four) weeks. The operation of this order shall remain stayed for four weeks from today.
15. On the prayer of the parties, let xerox copies of this order be given to the learned Advocates for the parties on payment of usual charges and on an undertaking to pray for and obtain certified copy of this order.
16. Revision allowed.