This
court
has
to
bear
in
mind,
a
fact
that
the
membership of any social club or association is often a matter
When it comes to need of good
etiquettes law has its limited role.
and good behavior
26.
of honour than a right.
The conduct of parties to the private contract cannot be
supervised on day-to-day basis and even on this ground, a
decree for specific performance would not be ordered by the
court.
Therefore, the plaintiff's claim is of such nature
that though declaration that the termination may eventually be
found to be contrary to principles of natural justice, yet a
decree for injunction cannot be granted,
since observance of
principles of natural justice is neither condition prescribed
by any law nor is provided by contract between the parties.
27.
In the given situation in absence of plaintiff succeeding
in showing before the trial Court or this court any statutory
obligation enforceable as contract and/or law a decree for
injunction
cannot be passed,
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Ramswaroop Sunderlal Goyal
Vs.
North India Association
FIRST APPEAL NO.15 OF 2013
WITH
CIVIL APPLICATION NO.91 OF 2013 IN F.A.NO.15 OF 2013
: A. H. JOSHI, J.
DATED CORAM : 29TH APRIL, 2013.1
Citation 2013(5) ALL M R380 bombay
1.
Appeal is taken up for final disposal with consent of
parties.
Heard at length.
Perused the record as produced.
2. This is the first appeal by unsuccessful plaintiff.
3. The
plaintiff's
case
espoused
in
the
plaint
is
as
follows:-
(a)
The plaintiff was member of the defendant's
association.
The defendant is society registered
under Societies Registration Act.
By the letter dated 9th September, 2010 the
from
assigned is
his
life
membership.
Reason
that the plaintiff had misbehaved on
3rd September, 2010
plaintiff
managing committee of the defendant has removed the
by physically assaulting the
staff of association and that misbehavior of the
plaintiff
was
recurrent
and
repeated
inspite
of
warning and even suspension in past.
(c)
The
defendant
had
failed
to
prove
the
complaint
and
(d)
basis
took decision.
on
which
managing
ig
committee
the
misbehavior and even failed to produce copy of the
The plaintiff's request made through letter
not acceded.
dated 29th January, 2011 asking for documents was
4.
The foundation for claim and basis of the relief, as
is
averred in paragraph 6 of the plaint reads as follows :-
“6.
The
alleged
Plaintiff also pointed
out
termination / dismissal
that
was
the
invalid,
illegal and bad in law on the following grounds,
viz:
(a)
No
show
cause
notice
is
given
to
the
Plaintiff.
(b)
Copy of Complaint/s
are not furnished to the
Plaintiff.
(c)
Opportunity
of
cross-examination
is not
is not
given.
(d)
Opportunity
of
filing
Reply/defence
Opportunity of personal hearing is not given.
(f) The
purported
decision
is
(e)
given.
arbitrary
and
malafide as the present management are victimizing
the Plaintiff.”
(quoted from page 46 of appeal paperbook)
Based on these pleadings the plaintiff has prayed for the
5.
“(a) That
declare
this
that
relief as under :
Hon'ble
the
Court
may
please to
termination
Plaintiff's
be
/
dismissal as Defendant's membership
dated 09/09/2010
and
liable
to
vide letter
is invalid, illegal, bad in law
be
quashed
and
the
same
stands
quashed by this Hon'ble Court.
(b)
For
a
permanent
as
also
interim
and
ad-
interim order and injunction of this Hon'ble Court
restraining
upon
or
the Defendant from enforcing, acting
implementing
the
said
letter
dated
09/09/2010 copy Exhibit “A” to the Plaint whereby
it has allegedly terminated / dismissed of the
Plaintiff's membership.”
(quoted from page 48 of appeal paperbook)
6.
The defendant filed the written statement opposing the
plaintiff's claim and prayers.
Plaintiff's
misbehavior.
conduct
was
According to the defendant :-
uncivil,
rowdy
and
a
grave
Earlier plaintiff's membership was suspended by
letter dated 2nd February, 2009.
He was
already informed
that if he misbehaves thereafter it will entail dismissal from
The committee
received
complaint
membership on 3/9/2010.
the Plaintiff.
from the employees/staff about abusing and assault on them by
Therefore, the committee
took decision
dismiss the plaintiff from its membership,
to
considering that
the conduct of plaintiff fell within tooth of clause 10(v) of
memorandum of association.
Therefore the defendant had prayed for dismissal of the
The suit proceeded.
The plaintiff led his evidence by
7.
ig
suit.
way of affidavit of examination in chief and also produced
certain documents.
request
plaintiff
relied
mainly on his
for production of documents which was not complied by
the plaintiff.
which
The
relate
He has also placed on record certain documents
to
his
suspension
and
copy
of
the order of
in chief on
dismissal from membership.
8.
In
the
evidence
affidavit the plaintiff
by
way
of
examination
has averred in paragraphs 6 and 7 as
follows :-
“6.
I say that since I was not provided with same
as above and did not expect any justice from the
Defendant, I vide my Advocate's letter dated 20th
January, 2011 called upon the Defendant to comply
with the following :-
(a)
Give particulars of the meeting of the
Managing
Committee
held
wherein
the
said
Furnish copy of Notice calling
meeting,
copy
of
Agenda
and
Resolution.
(c)
for the
(b)
decision is taken.
copy
of
Furnish copy of the Rules and Regulation
of the Association.
Give
particulars
of
the
alleged
gross
(d)
(e)
ig
behavior of our client.
Give particulars of the alleged assault
of
staff
of
Association
with
proof
of
employment.
the
(f)
Furnish copy of Complaint/Statement of
to cross-examine.
(g) of
the staff with opportunity
Give
particulars
the
alleged
Repeated warnings/suspension in the past.
7.
I
say
that
I
also
pointed
out
that
the
alleged termination/dismissal was invalid, illegal
and bad in law on the following grounds, viz:
(a)
No show cause notice is given to our
client.
(b)
Copy of Complaints are not furnished to
our client.
(c)
Opportunity of cross-examination is not
given.
(d)
Opportunity of filing Reply/defence is
(e)
not given.
Opportunity of personal hearing is not
(f)
given.
The purported decision is aribtrary and
malafide
as
the
present
management
victimising our client.”
are
The
defendant
did
not
led
any
ig
9.
(quoted from page 81 and 82 of appeal paperbook)
evidence
and remained
by impugned
10.
The
learned
content with its plea of denial.
Judge
dismissed
the
suit,
judgment and decree.
11. It is seen that learned trial Judge held on facts that
the plaintiff's
considering
the
misbehavior
past record
plaintiff
had
failed
was
an
admitted
of misbehavior
to
prove
fact
and
of the plaintiff,
that
dismissal
of
his
membership was contrary to law etc.
12.
In this appeal
the points which are urged are summarised
as follows :-
(a)
The termination of membership
was contrary
to law.
(b)
The
principles
of
natural
justice
were
violated while membership was terminated.
The defendant has failed to prove misconduct
of the applicant either by holding inquiry
13.
or
before the court.
(c)
Heard both sides and perused the record tendered in court
as and by way of additional compilation which is made part of
The questions which arise
for consideration of this
14.
the paperbook.
court while deciding this appeal are as follows :-
of
Has the plaintiff proved that the termination
his
membership
done
(a)
by
the
defendant
is
contrary to :-
(i)
to any provision of law or statutory
rule;
(ii) to any bye-laws of the society or
any
rules
contained
in
memorandum
of
association;
(iii)
to
any
civil
right
or
customary
right, which can be enforced by decree of
specific performance.
(b)
Was the defendant under obligation to give
hearing and opportunity to defendant's dismissal
by observing
(c)
Has
the
principles of natural justice ?
plaintiff
proved
that
breach
of
contract has occurred due to non observance of any
of the clause of
memorandum of association, and
that said wrong is remediable by grant of a decree
The relief in nature
of injunction as under specific
15.
for declaration and injunction ?
relief Act is meant for preventing recurrent breach of the
right
of
the
plaintiff
and
reciprocal
defendant.
obligation
of
the
Therefore, the plaintiff was under obligation to prove
that the defendant was bound in law or by virtue in terms of
or
otherwise
in
general
ig
contract
law
to
perform
particular obligation which has a reciprocal
any
vested civil,
contractual or legal right of the plaintiff, in performance of
said duty, the defendant had failed.
16.
In
the
process
of
hearing
learned
Advocate
for
the
plaintiff was called to pinpoint and show the rule of law,
statutory rules etc. due to which it is obligatory on the part
of defendant to observe principles of natural justice before
terminating the membership.
17.
The appellant was not able
to show that by virtue of any
of the provisions of law or rules contained in bye-laws of the
society that observance
a
condition
stipulation
precedent
laid
down
of principles of natural justice was
or
was
by
Association or Constitution,
the
termination
of
a
the
condition
bye-laws
of
or
contract or
Memorandum of
that observed before effecting
membership,
the
procedure
such
as
show
cause, hearing and observance of principles of natural justice
18.
shall be imperative.
It has to be inferred that plaintiff wants to urge that
the observance of principles of natural justice is an implied
condition of contract.
This court has to bear in mind that :-
The
person
defendant's
and
it
not
association
an
is
authority of
(a)
a
juristic
state
or
a
ig
19.
statutory body created as an organ or agency of the
and duties.
(b)
State to perform any or many statutory functions
The defendant's creation is done by private
individuals by a memorandum of association created
by
law
rather
registered
its
under
creation
Societies
is
recognised
Registration
and
Act
as
legal entity.
(c)
The status and personality of the defendants
is that of “Private individual and not of State or
authority of State”.
(d)
Relations
of
society
with
its
members
are
contractual and are not governed by statute law or
a rule having force of a statute.
20.
Therefore,
it
was
not
obligatory
on
defendant, in absence of mandatory statutory
prove
to
principles
prove
of
misconduct
natural
of
justice
the
the
of
the
law or rule to
appellant
before
part
by
observing
terminating
the
plaintiff's
status
as
a
life
member
of
the
defendant
21.
association.
Moreover, the Plaintiff had never denied his acts, rather
had in a tacit way admitted his acts of misbehavior through
letter
dated
21.1.2011
and
also
admitted
those
in
some
indirect manner through the averments contained in paragraph 8
The respondent – defendant, therefore, does not have any
receiprocal
statutory
ig
22.
of the plaint.
obligation
to
observe
natural justice in process of terminating
of
the members.
The termination of membership, if at all argued to be
23.
principles
contrary to principles of natural justice as understood in
common
parlance, even in such an eventuality, the
respondent
may amount to
action of
a breach of a term or stipulation
of contract i.e. the Memorandum of Association, and hence said
breach cannot be remedied by injunction though it is a entity
juristic person.
The relief in nature of enforcement
contractual obligation
individuals i.e.
relationship and/or
which is to be performed
association
of
personal
is
contract
service,
and
of
by group of
of
it
personal
cannot
be
enforced by a decree of Civil Court.
24.
Last submission is that the of allegation made against
plaintiff are not proved against him by legal evidence and
indirectly
committed
breach
of
contract
of
continuing
as
amount to be a breach of contract and could
if not disproved
member of the association, could at the most, if proved, and
be remedied by award of liquidated damages.
However, any
such claim too has to be legally proved by the Plaintiff in
which the Plaintiff has failed to prove.
25.
This
court
has
to
bear
in
mind,
a
fact
that
the
membership of any social club or association is often a matter
When it comes to need of good
etiquettes law has its limited role.
and good behavior
26.
of honour than a right.
The conduct of parties to the private contract cannot be
supervised on day-to-day basis and even on this ground, a
decree for specific performance would not be ordered by the
court.
Therefore, the plaintiff's claim is of such nature
that though declaration that the termination may eventually be
found to be contrary to principles of natural justice, yet a
decree for injunction cannot be granted,
since observance of
principles of natural justice is neither condition prescribed
by any law nor is provided by contract between the parties.
27.
In the given situation in absence of plaintiff succeeding
in showing before the trial Court or this court any statutory
obligation enforceable as contract and/or law a decree for
injunction
cannot be passed, in view of the embargo which
emerges from collective reading of sections 14 (1) and 41 (e)
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12
fa15.13
This
entitled
court
for
is
any
satisfied
relief
and
that the
the suit
plaintiff
was
not
28.
and (i) of Specific Relief Act.
has
been
rightly
dismissed, and appeal has no merit and the appeal is hereby
dismissed with costs.
Civil application does not survive and is disposed of.
30. Ad-interim order granted by this court stands vacated.
(A. H. JOSHI, J.)
ig
29.
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