1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.03.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA (MD) No.136 of 2011 and MP(MD)No.1 of 2011 K.S.Mahesh Babu (for himself and on behalf of the General body members of K.L.N.Sourashtra College of Engineering Council) .. Appellant/Plaintiff Vs. K.L.N.Sourashtra College of Engineering Council rep.by its Secretary having his office at No.69 South Veli street, Madurai-1. .. Respondent/Defendant Second Appeal filed under section 100 of CPC against the Judgment and decree dated 09.02.2011 passed in Appeal Suit No.144 of 2009 by the Principal Sub Court, Madurai confirming the Judgment and decree dated 07.08.2009 passed in Original Suit No.169 of 2008 by the Principal District Munsif Court, Madurai Town. For Appellant : Mr.M.Rajaraman For Respondent : Mr.A.R.Sethupathy JUDGMENT Challenge in this second appeal is to the concurrent Judgments and decrees passed in Original Suit No.169 of 2008 by the Principal District Munsif Court, Madurai Town and in Appeal Suit No.144 of 2009 by the Principal Sub Court, Madurai. 2. The appellant herein as plaintiff has instituted Original Suit No.169 of 2008 on the file of the trial Court for the reliefs of declarations, permanent and mandatory injunctions, wherein the present respondent has been shown as sole defendant. 3. It is averred in the amended plaint that the defendant is a registered society and its Registration number is 221/92 having its office at Door No.69, South Veli street, Madurai-1. The defendant is having its own memorandum, bye-laws and rules etc., and also regulations framed as per the provisions of Tamil Nadu societies Registration Act. The defendant is being managed https://hcservices.ecourts.gov.in/hcservices/ 2 by a Managing Committee to be elected by General Body for a term of three years. As per bye-law managing committee should consist of 11 persons, including office bearers. As per Rule 28 of bye- law, all details of members of General Body should be given to Registrar of Society every year. The defendant is entitled to conduct election for office bearers as per bye-law and the defendant is not entitled to increase number of office bearers without following procedures for amendment of bye-law. On 18.02.2008 the defendant has issued a notification, wherein it is stated that election has been postponed. In that election notification it is stated that 14 members are going to be elected including office bearers. The bye-law of the defendant has not been amended by way of following existing procedure and therefore, election of 14 members is totally illegal. Under the said circumstances the present suit has been instituted so as to declare that the election notification dated 18.02.2008 is illegal. Consequently restraining the defendant from conducting election by means of permanent injunction and also for declaring that the election held on 16.03.2008 is illegal and void and also for directing the defendant to conduct fresh election by means passing of mandatory injunction. 4. In the written statement filed on the side of the defendant it is averred that post of joint secretary is very much available. But in the bys-laws post of joint secretary has not been included. During March 2002 a General Body meeting has been conducted, wherein a resolution has been passed so as to make amendments in the bye-law. After making amendments an election has been conducted. But the plaintiff has not raised his objection. The defendant has been running two engineering colleges and 600 students are studying in final year. It is false to say that no formality has been observed before effecting amendment. The plaintiff has already filed Original Suit No.1274 of 2006 on the file of the Additional District Munsif Court, Madurai and therefore, the present suit is barred under section 10 of the Code of Civil Procedure, 1908. There is no merit in the suit and the same deserves to be dismissed. 5. In the additional written statement filed on the side of the defendant it is averred that the notification mentioned in the plaint cannot be called as null and void. The defendant has conducted election correctly and there is no merit in the suit and the same deserves to be dismissed. 6. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.144 of 2009 on the file of the first appellate Court. 7. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal, whereby and whereunder confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiff as appellant. https://hcservices.ecourts.gov.in/hcservices/ 3 8. As agreed by the learned counsel appearing on either side, the present second appeal is disposed of on merits at the stage of admission. 9. On the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration: (a) Whether the Courts below are correct in law in dismissing the suit? (b) Whether the Courts below are correct in law in holding that defendant registered society can amend the bye-law without any special resolution ignoring the mandatory provisions of Societies Registration Act? (c) Whether the Courts below are correct in law in holding that the amendment of bye-law in the ordinary general body meeting is valid? (d) Whether the Courts below are correct in law in holding that the amendment of bye-law be implemented without the registration of the amendment before the Registrar of Societies? (e) Whether the lower appellate Court is correct in law in holding that the registration of the amendment after the suit is valid? (f) Whether the Courts below are correct in law in holding that the suit is motivated when the suit is filed in the representative capacity under Order 1 Rule 8 CPC after obtaining the permission from the Court? 10. Before perpending the rival submissions made by either counsel, it would be more useful to narrate the nature of the reliefs sought for in the plaint in verbatim. It is therefore, prayed that this Honourable Court may be pleased to pass Judgment and decree in favour of the plaintiff. (a) for a declaration that the election notification dated 18.02.2008 issued by the defendant society proposing to conduct election for 14 posts of the managing committee including the Joint Secretary is illegal, invalid and void and against the bye-law and act. (b) Consequently granting a permanent injunction restraining the defendant, their men and agents, and servants and successors in office from conducting the election on the basis of the illegal notification. (aa) for a declaration that the election held on 16.03.2008 on the basis of the notification dated 18.02.2008 conducted by the defendant society is illegal, in valid and void and against the bye- law of the society and Act and rules. (c) for a mandatory injunction directing the https://hcservices.ecourts.gov.in/hcservices/ 4 defendant society to conduct the election of the members of the managing committee by a commissioner appointed by this Honourable Court per bye-laws and as per the provisions of the societies Registration Act from the general body consisting of the approved list of members at the cost of the defendant society (d) and directing the defendants to pay the costs and (e) Granting such other relieves as this Honourable court deems fit and necessary in the circumstance of the case and thus render justice. 11. The learned counsel appearing for the appellant/plaintiff has attacked the notification dated 18.02.2008 averred in the plaint on the following grounds: (a) Before effecting amendment in the bye-law of the defendant a special resolution is very much essential. (b) If any amendment is required in the bye-law of the defendant there must be an agenda for discussion and no agenda has been prepared before effecting amendment. (c) Proposed amendment should be approved by Registrar of Society. In the instant case no such formality has been observed. 12. Since the above aspects are not present, amendment made in bye-law of the defendant is totally illegal. Under the said circumstances, election notification dated 18.02.2008 is illegal and the defendant is not entitled to conduct election in pursuance of election notification dated 18.02.2008 and further the election conducted on 16.03.2008 also illegal which has been conducted in pursuance of notification dated 18.02.2008 and the defendant is liable to conduct fresh election. Under the said circumstances, the present suit has been instituted. But the trial Court has non suited the plaintiff simply on the ground that all the reliefs sought for in the plaint have become infructuous and the first appellate Court has also simply upheld the Judgment and decree passed by the trial Court and therefore, the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with. 13. In order to dispel the argument advanced by the learned counsel appearing for the appellant/plaintiff, the learned counsel appearing for the respondent/defendant has contended that on 03.03.2002 a General Body meeting has been conducted so as to make proper amendments in bye-law and accordingly amendments have been made in bye-law and thereafter on the basis of amended bye-law, elections have been conducted and final election has been conducted on 20.03.2011 and since the present suit has been instituted on the basis of notification dated 18.02.2008 and subsequently an election has been conducted on 16.03.2008 and thereafter the last election has been conducted on 20.03.2011, the reliefs sought for in the plaint have become infructuous and the Courts below have rightly non suited the plaintiff and therefore, the Judgments and decrees passed by the Courts below need not be interfered with. https://hcservices.ecourts.gov.in/hcservices/ 5 14. As stated earlier, the present suit has been instituted only on the basis of issuance of election notification dated 18.02.2008 and the said notification has been marked as Ex.A3. Ex.A3 is nothing but an election notification, wherein it is stated that election of 14 members and also joint secretary is going to be conducted. 15. The first and foremost attack made on the side appellant/plaintiff is that the bye-law of the defendant has not permitted to elect 14 members and also joint secretary and the defendant has made amendments in the bye-law without passing special resolution and that too without having proper agenda. The learned counsel appearing for the appellant/plaintiff has also accentuated the Court to look into the evidence given by DW1. DW1 has admitted in his evidence that before effecting amendments, no agenda has been prepared and no special resolution has been passed. 16. At this juncture, the learned counsel appearing for the respondent/defendant has contended that on 03.03.2002 a General Body meeting has been convened, wherein it is resolved to make proper amendments in the bye-law of the defendant so as to meet out the present requirements. Ex.B12 is the resolution of the General Body meeting. Ex.B16 contains previous bye-laws as well as amended bye-laws. 17. The main gravamen of the plaintiff is that before making amendment in the bye-law of the defendant which enables the defendant to conduct election for the post of 14 members and also for the post of joint secretary, no special resolution has been passed and further, no agenda has been preferred. As per the evidence of DW1 the Court can easily come to a conclusion that before passing resolution in question which enables amendments in the bye-law of the defendant, no agenda has been preferred. But at the same time, it is seen from Ex.B12 that a General Body meeting has been conducted wherein proposed amendments have been made even without preparing any agenda. Under the said circumstances, the Court can very well come to a conclusion that as per the decision of general body meeting, amendments have been made in the bye-law of the defendant. The only grouse expressed on the side of the plaintiff is that no agenda has been preferred and no resolution has been passed. Considering the fact that amendments have been made in pursuance of the resolution of the General Body meeting conducted on 03.03.2002, the Court cannot come to a conclusion that the amendments are totally illegal and further the present suit has been filed to declare that the election notification dated 18.02.2008 is illegal and consequently for directing the defendant not to conduct any election on the basis of the said notification. Subsequently it is seen from the records that an election has been conducted on 16.03.2008 and thereafter the plaint filed in the present suit has been amended so as to declare that the election dated 16.03.2008 is illegal which has been conducted in pursuance of election notification dated 18.02.2008 and consequently directing the defendant to conduct fresh election by way of passing mandatory injunction. Further it is seen from the representation made on the side of the respondent/defendant that a fresh election has been conducted on https://hcservices.ecourts.gov.in/hcservices/ 6 20.03.2011. Therefore, virtually all the reliefs sought for in the plaint have become infructuous even for the sake of arguments that the amendments made in the bye-law of the society are not inconsonance with the existing procedure. Further the amendment made in the bye-law of the defendant is not an issue in the present case. Since all the reliefs sought for in the present suit have become infructuous and since the amendment in question is not an issue in the present case, it is needless to say that the concurrent Judgments and decrees passed by the Courts below do not suffer from any infirmity nor illegality. In the light of the discussion made earlier, it is needless to say that the contention urged on the side of the appellant/plaintiff is sans merit and whereas the contention urged on the side of the respondent is really having subsisting force and further, the substantial questions of law raised in the present second appeal are not having substance at all and altogether the present second appeal deserves to be dismissed. 18. In fine, this second appeal deserves dismissal and accordingly is dismissed without cost at the stage of admission. Connected Miscellaneous Petition is also dismissed. The concurrent Judgments and decrees passed by the Courts below are confirmed. However, it is made clear that it is open to the appellant/plaintiff to question the validity of amendment subject to limitation. Sd/- Deputy Registrar(LA) /True Copy/ Assistant Registrar To 1.The Principal Sub Court, Madurai 2.The Principal District Munsif Court, Madurai Town +One cc to Mr.M.Rajaraman, Advocate, SR.No.7768 +Two CCs to Mr.T.R.SUbramanian, Advocate, SR.No.7377 mj rl/5c – 6.5.2011 SA (MD) No.136 of 2011 22.03.2011 https://hcservices.ecourts.gov.in/hcservices/