IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 OP(C).No. 3392 of 2011(O) ------------------------------------- CMA.67/2011 of D.C. & SESSIONS COURT, ERNAKULAM OS.461/2011 of PRL.M.C.,ERNAKULAM (IA.3912/2011) .................... PETITIONER (S)/APPELLANT/PETITIONER ------------------------------------------------------------ T.G.VINAYAKUMAR @ VINAYAN PROPRIETOR OF AAKASH FILMS, S/O.GOVINDAKURUP AGED 52 YEARS, BHARATHY, PALARIVATTOM ERNAKULAM , COCHIN 25. BY ADV. SRI.SHAJI P.CHALY SMT.LIJITTA G.MATHEW SMT.S.K.SREEKALA RESPONDENT(S): RESPONDENT/RESPONDENTS ------------------------------------------------------------------------- 1. KERALA FILM PRODUCERS ASSOCIATON HAVING ITS OFFICE AT KERALA FILM CHAMBER BUILDING XL/7425, 2ND FLOOR, M.G.ROAD, NEAR TO JAYALAKSHMI SILKS, ERNAKULAM, COCHIN-35, REPRESENETD BY ITS SECRETARY SURESH KUMAR, AGED 52, S/O.DR.GOPINATHAN NAIR. 2. THE EXECUTIVE COMMITTEE OF THE KERALA FILM PRODUCERS ASSOCIATON ,REPRESENETD BY ITS SECRETARY SURESH KUMAR, AGED 52, S/O.DR.GOPINATHAN NAIR,KERALA FILM CHAMBER BUILDING XL/7425, 2ND FLOOR, M.G.ROAD, NEAR TO JAYALAKSHMI SILKS, ERNAKULAM, COCHIN-35. 3. SABU CHERIYAN, AGED ABOUT 50 YEARS S/O.CHERIYAN, PRESIDENT,KERALA FILM PRODUCERS ASSOCIATION,HAVING ITS OFFICE AT KERALA FILM CHAMBER BUILDING XL/7425, 2ND FLOOR,M.G.ROAD, NEAR TO JAYALAKSHMI SILKS, ERNAKULAM, COCHIN-35. R1- R2 BY ADVS. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE, SRI.M.F.MOHAMMOD SIYAD. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.3392/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE AMENDED PLAINT ALONG WITH DOCUMENTS. P2:- COPY OF THE IA. 3912/11. P3:- COPY OF THE COUNTER. P4:- COPY OF THE SAID ORDER PASSED BY THE LEARNED MUNSIFF'S COURT IN IA. 3912/11 DTD. 4.8.11. P5:- COPY OF THE APPEAL MEMORANDUM ALONG WITH THE ADDITIONAL DOCUMENTS NAMELY COPY OF THE WRIT PETITION AND THE COUNTER AFFIDAVIT. P6:- COPY OF THE ORDER OF THE LEARNED ADDL. DISTRICT COURT IN CMA. 67/2011. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P JOSEPH, J. ----------------------------------- O.P.(C)No.3392 of 2011 --------------------------------- Dated this the 23rd day of November, 2011 JUDGMENT Third respondent is served but there is no response. 2. This original petition is in challenge of Ext.P4, order passed by the learned Principal Munsiff, Ernakulam on I.A.No.3912 of 2011 in O.S.No.461 of 2011 as confirmed by the learned Additional District Judge, Ernakulam by Ext.P6, judgment in C.M.A.No.67 of 2011. 3. Dispute concerns membership and expulsion of petitioner from the first respondent-association of which second respondent is the executive committee, represented by its secretary. Petitioner filed the suit claiming that he is a member of the first respondent and that respondents 1 to 3 are interfering with his privilege and rights as such member. He therefore, prayed for a decree for prohibitory injunction against infringement of his privileges and rights by the respondents. He also filed I.A.No.2880 of 2011 for an order of temporary injunction. In answer to that, respondents 1 and 2 contended that petitioner O.P.(C)No.3392 of 2011 2 was expelled from the first respondent in its meeting held on 06.04.2010. Thereon, petitioner amended the plaint to challenge the alleged expulsion and filed I.A.No.3912 of 2011 for an order of injunction restraining respondents from interfering with the privileges/benefits enjoyed by him as a member of the first respondent till disposal of the suit. Petitioner contended that the expulsion if any, on 06.04.2010 is illegal since the agenda for the meeting 06.04.2010 did not contained any proposal for expulsion of petitioner. Respondents 1 and 2 resisted I.A.No.3912 of 2011 contending that petitioner was acting against the interest of the first respondent since long, notice to that effect was given to him as early as in the year 2007 and that it is at a time when the activities of petitioner went too far against the first respondent that petitioner was expelled in the meeting held on 06.04.2010. According to respondents 1 and 2, it was within the power of president of the first respondent to allow other matters not included in the agenda to be considered in the meeting. It is the further contention of respondents 1 and 2 that notwithstanding the fact of expulsion on 06.04.2010 being known to the O.P.(C)No.3392 of 2011 3 petitioner, he filed the suit without mentioning about the expulsion. 4. Learned Munsiff found on I.A. No.3912/2011 that the expulsion was not proper but, refused to grant injunction to the petitioner since there was no evidence to show that he had paid the subscription for 2010-2011. 5. Petitioner challenged that order before learned Additional District Judge in C.M.A.No.67 of 2011. Learned Additional District Judge was not inclined to accept the finding of learned Munsiff that expulsion was prima facie not valid. Learned Additional District Judge, relying on Ext.P1, judgment of this Court in W.P. (c) No.32841 of 2010 held that in the said proceeding, petitioner contended that he was not a member of the first respondent during the time that Writ Petition was filed. Other findings entered by the learned Munsiff were confirmed. Accordingly, the C.M.Appeal was dismissed. 6. Learned counsel for petitioner contends that learned Additional District Judge was not correct in reversing the finding of learned Munsiff that the expulsion was prima facie invalid. O.P.(C)No.3392 of 2011 4 According to the learned counsel, expulsion being a serious matter affecting the civil right of petitioner, could not have been so lightly handled by the first respondent. Reliance is placed on the decision in St.Philomina Sadhujana Samajam v. Mathew (1974 KLT 731) to contend that the power to expel must be exercised in accordance with the principles of natural justice. It is contended that the agenda for the meeting on 06.04.2010 did not contain any proposal for expulsion of petitioner. That according to the learned counsel violated the right of petitioner to resist the move for his suspension. It is also pointed out by the learned counsel that in Ext.P1, judgment there is no finding, nor any admission made by petitioner that he was not a member of the first respondent during the relevant period. Learned counsel, inviting my attention to the copy of Writ Petition which is a part of Ext.P5, contended that nowhere petitioner has admitted that he was not a member of the first respondent. According to the learned counsel, Ext.P1, judgment only refers to an alternative argument raised by counsel for petitioner in the course of the argument. O.P.(C)No.3392 of 2011 5 7. So far as alleged non-payment of subscription is concerned, learned counsel has relied on Exts.A6 and A7 to show payment of subscription for the previous period and the practice of the first respondent sending receipt for payment of subscription by registered post. It is contended that subscription for 2010-2011 was accordingly paid by petitioner and received by the first respondent but, no receipt was issued. 8. Learned counsel for respondents 1 and 2 invited my attention to the observations made by the learned Judge of this Court in paragraph 6 of Ext.P1, judgment and contended that according to the petitioner he was not a member of the first respondent. Learned counsel submitted that petitioner did not pay the subscription for 2010-11 and for the period thereafter and there is no evidence to show that subscriptions for 2010-11 was remitted by petitioner. Hence, the question of issue of receipt did not arise. 9. In view of the manner in which I propose to dispose of this Original Petition, it is not necessary for me to consider the question whether expulsion of petitioner is prima facie valid or O.P.(C)No.3392 of 2011 6 not. On going through the copy of writ petition which is part of Ext.P5, I do not find any admission made by petitioner that he was not a member of the first respondent. There is some weight in the argument of learned counsel for petitioner that observation in paragraph 6 of Ext.P1, judgment is only an alternative argument advanced by the learned counsel on behalf of petitioner having regard to the reliefs prayed for in that writ petition. But, I am not expressing any final opinion on that argument also since it is to be decided whether petitioner is entitled to be a member of the first respondent due to his alleged failure to pay subscription. Parties have to adduce evidence in the trial court whether petitioner had remitted subscription for 2010-11 and whether there was any failure on the part of the first respondent to send the receipt by registered post as allegedly was the practice. 10. Having regard to the respective contentions, it is only appropriate that respondents are directed to receive the subscription payable by petitioner for the period from 2010-11 onwards and until disposal of the suit which shall be subject to O.P.(C)No.3392 of 2011 7 the result of the suit. But, such payment shall not entitle petitioner, until disposal of the suit for any privilege or right as member of the first respondent. Resultantly, this Original Petition is disposed of as follows: 1. Respondents are directed to receive the subscription if any, paid by petitioner within two weeks from the date on which a copy of this judgment is notified to be delivered to the petitioner for the period 2010-11 and thereafter, until disposal of the suit which be subject to the result of the suit. 2. It is made clear that the payment and receipt of subscription as above stated will not confer any right or privilege on petitioner as a member of the first respondent until the trial court decides otherwise in the suit. 3. When receipts are issued to petitioner for payment of subscription as above stated, O.P.(C)No.3392 of 2011 8 respondents shall endorse on those receipts that the issue of receipts is subject to the result of the suit. 4. The trial court is directed to dispose of the suit as early as possible untrammeled by the observations contained in Ext.P4, order or Ext.P6, judgment. sd/- THOMAS P JOSEPH, JUDGE /True copy/ P.A. to judge ln