IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.06.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.433 of 1998 and Cross Objection No. 55 of2004 H.Rajeshkumar .. Appellant/respondent in
Cross Objection No.55/2004
-vs-
Fairlands Recreation Club rep. By its Secretary Salem-636 016 .. Respondent/Cross Objector in Cross Objection No.55/2004 Both appeal and cross objection are filed against the Preliminary Decree and Judgment dated 30.3.1998 in O.S.No.3 of 1996 of 1993 on the file of the Second Additional District Judge, Salem. For appellant/respondent : : Mr.T.Gowthaman,Advocate For respondent/ Cross Objector : : Mr.D.Shivakumaran,Advocate C O M M O N J U D G M E N T
This appeal has been preferred by the plaintiff in O.S.No.3 of 1996 against the dismissal of his prayer for the relief of permanent injunction restraining the defendant from committing any acts like amending the rules of defendant’s society in derogation to the plaintiff’s voting right in the defendant’s society. The defendant has preferred cross objection against the decree and judgment in O.S.No.3 of 1996 on the file of the Court of Additional District Judge, Salem in respect of declaration that the defendant’s Committee decision dated 18.12.1995 in respect of plaintiff’s voting right in the defendant’s society is void, contrary to law and unenforceable.
2. The short facts of the case of the plaintiff in the plaint relevant for deciding this appeal are as follows: The plaintiff had joined the defendant’s Club as a member in the year 1989 as a patron. He had taken part in all the Annual General Body Meetings and the election proceedings of the defendant from the date of joining till the year 1995. In fact many of plaintiff’s category had served as elected members of defendant’s various Executive Committee. The plaintiff’s father had also an elected committee member for the year 1991-93 subsequent to this defendant’s election as Secretary of the Department Society. In the month of August,1995 the plaintiff was orally informed by the then Committee members that the plaintiff has no voting right in the defendant club being an associate member of Fairlands Co-operative House Building Society No.864. Hence the plaintiff had addressed to the defendant on 25.8.1995 to enroll his name in the voter’s list of defendant’s society to enable him to take part in ensuing election of the defendant’s society for the year 1995-96 and to provide the voter’s list. The election for the management of defendant’s society had also conducted on 17.9.1995 along with Annual General Body Meeting without any regard to the plaintiff’s demand. On 10.11.1995, the plaintiff had forwarded a reminder to the defendant’s society to explain the defendant’s societies stand about the plaintiff’s demand for inclusion of his name in the voter’s list of the defendant and the reasons for not replying to his demand. The defendant had not chosen to reply for the best reasons known to him. On 11.12.1995, a fervent appeal was made by the plaintiff to the defendant for the reinforcement of his voting right. On 20.12.1995, the plaintiff was served with a letter dated 19.12.1995 from the defendant informing that the Executive Committee of the defendant had decided that an associate member of Fairland Cooperative House Building Society has no voting right in the defendant’s club. The decision of the Executive Committee of defendant in respect of the plaintiff’s voting right is unjust and the same is contrary to the Rules and Regulations of the defendant. The defendant’s society is estopped from denying the plaintiff’s rights, since from the date of joining the defendant’s society, the plaintiff had been serving with defendant’s club with full voting right only. Hence the suit for declaration and injunction.
3. The defendant in his written statement would contend that the plaintiff has never attended the General Body Meeting or took part in the election proceedings of the defendant till 1995. The Bye-law 9(b) clearly states that who are the persons who have voting rights. The defendant is acting according to bye-law. Merely because the father of the plaintiff was elected as Committee Member it does not mean that he has voting right and the plaintiff has acquired any voting right in consequence to the same. The plaintiff and his father were residing for some time in one of the houses within the Fairlands and therefore, they had the voting right. There cannot be any oral information. The bye-laws are printed and given to the members. The defendant never sent any letter to the plaintiff dated 25.8.1995 as alleged in the plaint. The election proceedings are mentioned in the memorandum of Rules and Regulations of the Club and that had been strictly followed for all these years. When the letter was received from the plaintiff, the same was placed before the Executive Committee and its decision was communicated to the plaintiff. If the plaintiff has any grievance, he would have approached the General Body Meeting and the finding of the General Body was binding on all the parties. This Court has no jurisdiction to try the matter. The plaintiff has no cause of action. Hence the suit is liable to be dismissed.
4. On the above pleadings, the learned trial Judge has framed three issues in O.S.No.3 of 1996 for trial. O.S.No.3 of 1996 was jointly tried with O.S.No.1 of 1996 by the learned trial Judge and both the suits were disposed of by a common Judgment. The plaintiff in O.S.No.1 of 1996 viz., Hariram Sharma was examined as P.W.1 and Exs A1 to A11 were marked on the side of the plaintiff. The Secretary of the defendant’s society was examined as R.W.1 and Exs B1 to B3 were marked on the side of the defendant. After giving due deliberation to the submission made by the learned counsel on both sides and after thorough scrutiny of the exhibits placed before him, the learned trial Judge has come to a conclusion that the plaintiff in O.S.No.3 of 1996 is entitled to the relief of declaration as prayed for but is not entitled to the relief of permanent injunction and accordingly decreed the suit in respect of declaratory relief and dismissed the suit in respect of the relief of injunction. The other connected O.S.No.1 of 1996 was decreed as prayed for by the learned trial judge. Against the decree and Judgment in O.S.No.1 of 1996, there was no appeal preferred. Against the dismissal of the relief of permanent injunction in O.S.No.3 of 1996, the plaintiff has preferred A.S.No.433 of 1998 and the defendant in O.S.No.3 of 1996 against the decree in respect of declaratory prayer has preferred Cross Objection 55 of 2004.
5. Heard the learned counsel appearing for the respondent who had preferred cross objection in respect of the declaratory prayer. The contention of the defendant is that the plaintiff is only an associate member of the defendant Fairlands Recreation Club is not entitled to have the voting right in the executive Body of the Association. The learned counsel appearing for the appellant/ respondent in cross objection would contend that even in the year 1990, he is a member of Salem Fairlands Cooperative Housing Building Society Limited and as per bye law of the defendant’s society, he is having the right of vote in the Executive Committee election. This point has been elaborately discussed by the learned trial Judge extracting the memorandum of Rules for the defendant’s society as “Article 9(f)(i) of the memorandum of Rules, a patrons, life members and ordinary members of defendant-Fairlands Recreation Club is entitled to voting right”. Two main criteria required for a member of the defendant’s society to exercise his voting right is that he should be a member of the Salem Fairlands Cooperative House Building Society Limited or the residents of the Fairlands Colony, then only he will be eligible to vote in the Annual General or Exordinary General Body Meeting of the Club. Even in the plaint, the plaintiff has specifically stated that he is a patron as well as a life member of the Fairlands cooperative House Building Society. According to the plaintiff, he is the life member of the defendant’s society whereas according to the defendant, he is an associate member and not life member. But to show that the plaintiff is only an associate member of the defendant’s society, the defendant has not produced any material. The communication sent by the defendant to the plaintiff under Ex B4 reads that since the plaintiff is only an associate member of the society he is not entitled to vote in the General Body meeting as per the Tamil Nadu Cooperative Societies Rules. There is no relevant provision produced by the learned counsel for the cross objector in the Tamil Nadu Cooperative Societies Rules 1988 to show that an associate member of the society is not eligible to vote in the General Body meeting of the society. So as per Article 9(f)(i) of the defendant’s memorandum, being a member of the Fairlands Cooperative House Building Society Limited, the plaintiff is entitled to vote in the executive meeting. The apprehension of the plaintiff is that now the defendant is making an attempt to amend the memorandum of Rules of the defendant’s society in derogation to the plaintiff’s voting right. So on the date of filing of the suit, there is no memorandum of Rules in the defendant’s society, debarring the plaintiff, a member of the Fairlands Cooperative House Building Society Limited from exercising the right of his franchise in the election to the General Body of the defendant. In the absence of any material to show that the plaintiff is only an associate member of the Fairlands Cooperative House Building Society Limited and that he is not a member of the Fairlands Cooperative House Building Society to vote in the General Body Meeting, the cross objection filed by the defendant cannot stand scrutiny for a moment.
6. As far as the appeal regarding the dismissal of relief of injunction is concerned, I am of the view that the defendant’s society has got every right to amend the Rules , the learned counsel for the appellant would state that the learned trial Juduge while disposing of O.S.No.3 of 1996 has also disposed of O.S.No.1 of 1996 a case of similar nature wherein he has granted decree for declaration as well as for injunction. But the copy of the plaint in O.S.No.1 of 1996 is not produced along with the type set of papers. But a reading of the Judgment in O.S.Nos. 1 of 1996 and 3 of 1996 would go to show that the injunction sought for under O.S.No.1 of 1996(at paragraph 19 of the Judgment) is as to restrain the defendant’s society from in any manner committing any acts in interfering with plaintiff’s right to take part in the affairs of the defendant’s society. So there is vast difference between the injunction relief asked for in O.S.No.3 of 1996 and the injunction asked for under O.S.No.1 of 1996. There is no prayer of injunction asked for against defendant in O.S.No.1 of 1996 to restrain him from amending the Rules of the defendant’s society. Under such circumstances, only the learned trial Judge has allowed the injunction prayer asked for under O.S.No.1 of 1996 and dismissed the relief of injunction asked for in O.S.No.3 of 1996, I am of the view that the defendant’s society has got every right to amend the Rules of its society. After the amendment, if the plaintiff thinks that his right or liberty has been affected of infringed by way of amendment, it is open for him to challenge before the appropriate forum by way of writ. Further the Rules cannot also be amended in a way to affect particular member’s right. Generally, the Rules of the defendant’s society shall be applicable to all the members of the society and it cannot also be amended in derogation to affect a particular individual or member of the society. Under such circumstances, I do not find any reason to interfere with the findings of the learned trial Judge in respect of the dismissal of the relief for permanent injunction also. The learned counsel appearing for the cross-objector/defendant would also raise the contention before this Court that the suit filed by the plaintiff itself is not maintainable since he is having an efficacious remedy before the Registrar of Co-operative Societies and also before the District Collector. But there is no material to show that the suit filed by the plaintiff has to fail as per Section 9 of C.P.C.
7. In fine, both appeal as well as the cross objection fails and the same are dismissed confirming the decree and Judgment of the learned Trial Judge in O.S.No.3 of 1996 on the file of the Court of Second Additional District Judge, Salem. No costs.
20.06.2008
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Sg
To
1. The Second Additional District Judge,Salem
2. The Record Section, High Court, Madras
A.C.ARUMUGAPERUMAL ADITYAN,J
sg
A.S.NO.433 of 1998
and
Cross Objection No.55/2004
20.6.2008