P.T Ummer Koya, Hon.... v. Tamil Nadu Chess Ass...

1. Since the issue raised is one and the same in both the appeals, they are being disposed of by the following common order. O.S.A No. 65 of 2005 has been filed against the order of learned Single Judge of this Court dated 17.3.2005 made in Application No. 755 of 2005 in C.S No. 52 of 2005 in and by which the learned Judge dismissed the said application filed to revoke the leave to sue granted in Application No. 279/2005 in C.S No. 52/2005 dated 25.1.2005 O.S.A No. 72/2005 has been filed against order of the learned Judge dated 28.3.2005 passed in Application No. 1453/2005 in C.S No. 211 of 2005 on the file of Original jurisdiction of this Court in and by which the learned Judge dismissed the said application filed to revoke the leave to sue granted to the plaintiffs for filing suit on 2.3.2005 in Application No. 1088/2005 in C.S No. 211/2005. The learned Judge by separate but giving identical reasons dismissed both the applications; hence the above appeals.

2. P.T Ummer Koya, Honourary Secretary of All India Chess Federation (‘AICF’ in short), Calicut is the appellant in O.S.A No. 65/2005; whereas V.R Bobba, Honorary Treasurer, All India Chess Federation (‘AICF’ in short), Vijayawada, Andhra Pradesh is the appellant in O.S.A No. 72/2005.

3. Heard both parties.

4. The only point for consideration in both these appeals is, whether the Original Side of this Court has got jurisdiction in respect of the reliefs prayed for in both the suits; and whether the learned Single Judge is right in holding that the suits laid before the Original Side of this Court are maintainable and right in dismissing the applications filed for revocation of the leave.

5. Tamil Nadu State Chess Association, Chennai-3, Delhi Chess Association, New Delhi-9, and Maharashtra Chess Association, Sangli-16 through their Honorary Secretaries filed suit in C.S No. 52 of 2005 before the Original Side of this Court against M.N Srinivasan, Honorary President of All India Chess Federation; P.T Ummer Koya, Honorary Secretary, All India Chess Federation, Calicut; and Sowmen Majumdar, Honourary Treasurer, All India Chess Federation, Kalkotta-17 praying for the following reliefs:

(a) permanent injunction restraining the second and third defendants from holding any post in the All India Chess Federation till they are absolved of the charges of misfeasance and malfeasance; and

(b) permanent injunction restraining the second and third defendants from interfering with the day-to-day administration and activities of the All India Chess Federation in any manner and in any capacity.

Since defendants 2 and 3 are residing outside the original jurisdiction of this Court, the plaintiffs filed Application No. 279/2005 and obtained leave to sue at Chennai. They also filed Original Application No. 61/2005 praying for an interim injunction restraining the 2nd respondent from acting as All India Chess Federation's representative and functioning as the Vice-President of FIDE and Chairman of the Commonwealth Chess Association, pending disposal of the suit. They also filed O.A No. 62/2005 praying for interim injunction restraining the second and third respondents from interfering with the day-to-day administration and activities of the All India Chess Federation in any manner and in any capacity pending disposal of the suit. By Order dated 31.1.2004 in both O.As interim injunction were granted by a Single judge of this Court. The second defendant, namely, P.T Ummer Koya, Honorary Secretary of the AICF filed Application Nos. 517 and 518/2005 praying to vacate the temporary injunction granted in O.A Nos. 61 and 62/2005 dated 31.1.2005 respectively. He (P.T Ummer Koya) filed another Application namely Application No. 755/2005 to revoke the leave to sue granted in Application No. 279/2005 dated 25.1.2005 As in the other case, the very same plaintiffs in C.S No. 52/2005 also filed another suit namely C.S No. 211/2005 before the Original Side of this Court against (1) P.T Ummer Koya of Kozhikode, Kerala State; (2) S.L Harsh, Bikaner; (3) P.K Bhaskaran of Kozhikode, Kerala State; (4) V.R Bobba of Vijayawada, Andhra Pradesh; and (5) State Bank of Travancore, Meenchantha Branch, Kozhikode for:

(a) declaring that the Meeting claimed to be held at 12 Noon on 19.2.2005 by the supporters of the first defendant was invalid and improper as per the provisions of the Constitution and Bye Laws of AICF and the legal requirements to convene such meeting had not been adopted;

(b) declaring that the first, second, third and fourth defendants have not been elected in any post of office bearers of the All India Chess Federation as the General Body of the All India Chess Federation can elect any such office bearers to the All India Chess Federation only by its Annual General Body Meeting convened as per the Bye Laws; and

(c) permanent injunction restraining the first defendant from holding any post or interfering in the affairs of the All India Chess Federation in any manner of his charges misfeasance and malfeasance.

(d) permanent injunction restraining the second, third and fourth defendants without authority or designation to interfere or cause any obstruction in the affairs and day-to-day administration and activities of the All India Chess Federation.

The plaintiffs in that suit obtained leave in Application No. 1088/2005 since some of the defendants are residing outside the original jurisdiction of this Court. They also obtained an order of injunction in O.A No. 258/2005 on 7.3.2005 The 4th respondent therein, namely, V.R Bobba, Honorary Treasurer of AICF filed O.A No. 755/2005 for vacation of the interim order. He also filed O.A No. 1453/2005 for revocation of the leave granted in Application No. 1088/2005 on 2.3.2005 As said earlier, both the applications, namely, O.A Nos. 755/2005 and 1453/2005 were dismissed by the learned Single Judge; hence the above two appeals have been filed questioning the same.

6. Mr. T.V Ramanujam, learned Senior Counsel appearing for the appellant in O.S.A No. 65/2005, would contend that the learned Judge failed to see that All India Chess Federation is a Society registered under Societies Registration Act, 1860 and the Bye-law and Memorandum of Bye-law have been further amended and registered under the Central Act before the Registrar of Societies, Calicut, Kerala and even now functioning as per the Bye-laws registered at Calicut in Registration No. 825/1991 under the Central Act; hence the learned Judge ought to have revoked the leave granted earlier. He also contended that if at all the Court at Calicut or the High Court, Kerala at Cochin alone has jurisdiction, the learned Judge ought not to have dismissed Application No. 755/2005 filed by P.T Ummer Koya, 2nd defendant to revoke the leave to sue granted earlier. Mrs. Nalini Chidambaram, learned Senior Counsel for appellant in C.S No. 72/2005, while reiterating the same argument, would also contend that inasmuch as the All India Chess Federation is having activities all over India, they are continued to be governed under the Central Act and since the bye-laws have been amended and registered under the Central Act before the Registrar of Calicut, this Court has no jurisdiction. She also contended that the appellant has raised at the earliest point of time questioning the jurisdiction as could be seen from the counter affidavit filed in Application No. 258/2005.

7. We heard the arguments of Mr. N.S Sivam, Mr. K. Duraisami, learned Senior Counsel, Mr. R. Gandhi, learned Senior Counsel and Mr. P.S Raman, learned Senior Counsel and Mr. A.S Vijayaragavan.

8. It is settled law that in order to ascertain whether the Court has jurisdiction or not we have to take note of the averments made in the plaint. It is useful to refer a Division Bench decision of this Court in Scientific Compounds & Processes Private Limited v. National Soapnut Works, Bangalore, 1998 (1) L.W 640, wherein it has been held that the averments made in the plaint alone should have been taken into consideration in order to decide the jurisdiction. The cause of action for filing the suit on the file of Original Side of this Court have been stated in para 35 of the plaint to the effect that the All India Chess Federation was registered with Registrar of Societies, Chennai North on 12.12.1958 and the first plaintiff, namely, Tamil Nadu Chess Association, Chennai-3 has its office located in Jawaharlal Nehru Stadium, Chennai and is paying all the contributions to AICF only from Chennai. It is also stated that the audited accounts and statutory forms of the ACIF are to be filed with the Registrar of Societies, Chennai North and for any lapses in compliance of statutory requirements, action is being taken by the Registrar of Societies, Chennai North; that first defendant-the President of AICF-empowered with the powers to administer AICF which is at Chennai and the Central Council Meetings and Annual General Meetings of the AICF have been held in Chennai in 2002, 2003 and 2004 and deductions in the prize money of the players from Chennai are made between 1st June to 31st December, 2004. The suit has been filed mainly on the ground that the second and third defendants as Honorary Secretary and Honorary Treasurer respectively of AICF have committed various acts of misfeasance and malfeasance which resulted in financial crunch. Apart from this, in the cause of action paragraph in the plaint viz., para 6 also states that AICFI is the Society registered under the Societies Registration Act, 1860 at Madras on 12.12.1958 bearing Registration No. 125/1958. It further states that with the enactment of Tamil Nadu Societies Registration Act 1975, the All India Chess Federation is now regulated by the provisions of the Tamil Nadu Societies Registration Act, 1975. It is also stated that the certified copy of the Registration Certificate issued by the Registrar of Societies, Chennai North establishes that All India Chess Federation remains as active Society under the control of the said authority. It is also relevant to note that apart from the specific averments in the plaint, the plaintiffs have also produced a Xerox copy of certified copy of the bye-laws of All India Chess Federation registered on 12.12.1958 under Registration No. 126 of 1958 issued by the Registrar of Societies, Chennai North dated 10.12.2004 The said document has been enclosed as Serial Number One in the list of documents filed by the plaintiffs under Order VII, Rule 14(1), C.P.C However, it is the claim of the second defendant who filed an application for revocation of the leave that the suit for permanent injunction against the AICF is to be instituted in a District where the headquarters of the Federation situates. A reliance was made on Clauses 3 and 4 of the Constitution of AICF. As rightly pointed out by the learned Judge, once the Society is registered at Madras in the year 1958, it is not clear why the same was registered once again in every place, particularly at Calicut in 1991. This aspect has not been properly either explained or agitated either before the learned Single Judge or before us. In the absence of such details and in view specific assertion in the plaint supported by the first plaint document, we hold that there is no valid reason to revoke the leave granted earlier and the learned Judge is perfectly right in dismissing both the applications. It was argued that as per the amendment carried out in the bye-law of the Society, the suit against the All India Federation is to be instituted in a District where the headquarters of the Federation is situated. Here again, as rightly pointed out, the suit is filed not against the AICF, but against the defendants by name and their office.

9. Another important aspect is that the second defendant in C.S No. 52/2005 filed two applications, namely, O.A Nos. 517 and 518/2005 for vacation of the injunction orders. We have perused their counter affidavit and the averments made therein. In the affidavit, duly sworn on 4.2.2005 by P.T Ummer Koya, appellant in O.S.A No. 65/2005, though in para 3 there is a reference that the present suit is not maintainable and this Court does not have jurisdiction over the matter, as rightly argued, there is no specific plea for revocation of leave granted earlier. On the other hand, the perusal of the said affidavit dated 4.2.2005 amply shows that he has very much agitated over the grant of injunction and prayed for vacation of the temporary injunction granted in O.A No. 62/2005 dated 31.1.2005 He filed the said affidavit only on 15.2.2005 The said P.T Ummer Koya filed an application to revoke the leave to sue granted in Application No. 279/2005 dated 24.1.2005 In other words, as rightly pointed out, the appellant herein/2nd defendant participated in the proceedings subjected himself by filing counter affidavit for vacation of the same and later on filed petition to revoke the leave to sue. In such a circumstance, as rightly observed by the learned Judge, he (second defendant) acquiesced the jurisdiction of this Court and thereafter it would not open to him to contend that the leave granted is bad. In the other appeal, though it is argued that the said bar is not applicable, as rightly pointed out by Mr. Sivam, there again an affidavit was filed opposing the injunction order and then only separate application was filed for revocation of leave. In this regard, it is useful to refer a judgment of the Supreme Court in Chittaaranjan v. Baaarhoo, AIR 1953 S.C 472. In that case, a suit was instituted on 17.2.1947 and the respondent entered appearance on 11.3.1947 While considering similar objection, Their Lordships have held that complaining that leave had been improperly granted to file the suit in Calcutta, as he should have done at the earliest possible opportunity, and asking for all proceedings to be stayed until that question was settled, the respondent availed himself of the pending suit to have a consent order passed by the Court appointing the solicitors of the parties as joint receivers to collect and hold the sum of Rs. 21,000 due from the military authorities at Tollygunge. They further held that having secured this advantage, he contested the appellant's application for injunction and receiver in other respects and got it dismissed on 25.4.1947 They further observed that this proceeding would not have gone on and the appellant would not have had to incur the incidental expenses if the application for revocation had been filed and all proceedings stayed soon after the respondent entered appearance on 11th March. In such a circumstance, Their Lordships have held that the respondent has not only acquiesced in the steps taken by the appellant to carry forward the progress of the suit incurring considerable expenses but, made use of the existence of the suit to obtain such interlocutory reliefs as he though would be to his own advantage, at the hands of the Court which he now claims should not try the suit. The above position makes it clear that the person aggrieved of the grant of leave has to approach the Court at the earliest point of time and seek for revocation without due participation in the other proceedings. In other words, an application for revocation of leave should be made at the early stage of the suit and delay and acquiescence is a bar to such an application. Though Mr. T.V Ramanujam vehemently contended that mere filing of vakalath would not amount to participation in the proceedings, as demonstrated before us, the appellants herein not only filed affidavit questioning the grant of injunction but also prayed for vacation of the same and thereafter filed the separate application for revocation of leave. We are satisfied that by their conduct in participating the proceedings by filing affidavit opposing the injunction, they are acquiesced jurisdiction of this Court and they cannot be permitted to contend otherwise for revocation of leave. No doubt, based on the averments in the written statement, it would be open to the Court to frame a specific issue regarding jurisdiction and consider the same at the time of trial.

10. In the light of our discussion, we are in agreement with the conclusion arrived at by the learned judge and hold that there is no merit in the applications filed for revocation of leave and the same were rightly dismissed by the learned Judge. The above view of us is a prima facie conclusion for the disposal of the applications and we have not gone into the merits of the reliefs prayed for in the suits. Net result, both the Original Side Appeals are dismissed as devoid of merits. No costs. Consequently, connected miscellaneous petitions are closed.