S.K Agarwal, J.— This order will dispose of an application of the defendants under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short the CPC) praying for rejection of the suit.
2. Brief facts are: that the plaintiff filed a suit against defendant No. 1- The National Rifle Association of India (for short NRAI), and its Secretary General, Baljit Singh Sethi (defendant No. 2), alleging therein that defendant No. 1, a society registered under Societies Registration Act, 1860, was established to promote the sport of marksmanship throughout India and to train the citizens in safe and efficient handling of fire arms. It is alleged that the plaintiff is more than 77 years of age, having business and agricultural income from 70 acres of farmland; that he had been the member of NRAI for last about 30 years and had held the post of Vice President and Governing Body member for about 10 years; that he was associated with several prestigious organisations and thus he enjoyed very high reputation and unblemished record; that during the first Commonwealth Shooting Championship held between 19th November, 1995 to 27th November, 1995 the plaintiff was appointed as honorary Range Administrator (Clay Target) and his responsibility was supervisory; that during practice session he used to issue chits to the storekeeper for issuance of clay pigeons, which are used in trap and skeet shooting events. In May, 1996 the plaintiff and some other persons opposed the candidature of defendant No. 2 Baljit Singh Sethi (The present Secretary General), his father Shri Sajjan Singh Sethi (The Life President), his brother Shri Jagjit Singh Sethi and his brother in law Shri Avtar Singh Sethi on various issues so that the association is not run as a family owned fiefdom; that ever since then defendant No. 2 started nursing personal grudge and animosity against the plaintiff. In October 1996 defendant No. 2 and some of his group persons with a view to humiliate the plaintiff initiated a malicious and baseless enquiry against him for alleged shortage of about 4000 clay pigeons at the Commonwealth Championship and vide letter dated 24th October, 1996 the plaintiff was asked to explain the shortage. On 18th November, 1996 the plaintiff replied stating that his responsibility was purely technical and was not to ensure accounting of clay pigeons at the end of the day and the same was the responsibility of the staff of NRAI; that his responsibility was to ensure that there is no shortage of clay pigeons during the practice session and competition; that clay pigeons are extensively used to ensure correct performance of the machines and lot of clay pigeons are used for the same, further lot of them are even found broken in the boxes and that at the first Asian Championship event took place in the month of November, 1995 and accounts for the Championship were taken on its completion; that even the books of the defendant ending 31st March, 1996 did not reflect any shortage. It was also stated that the letter in question was the outcome of the plaintiff's not supporting defendant No. 2 in the Governing Body of defendant No. 1's elections in May, 1996. In reply, defendant No. 2 took an exception and stated that the letter dated 18th November, 1996 of the plaintiff would be placed before the Governing Body as the letter was derogatory and asked the plaintiff to unconditionally withdraw the said letter; that on 30th December, 1996 the plaintiff wrote another letter stating that if the Governing Body feels that any part of his letter was derogatory the same be treated as deleted. On 16th December, 1996 the plaintiff received another letter from G.S Jhunjhunwala asking about the shortage of 4000 clay pigeons in November 1995 Championship, the plaintiff again sent reply on 1st January, 1997 taking the same position stating that he was not responsible for any such shortage It is pleaded that there was an attempt to embarrass the plaintiff for baseless and extraneous reasons. The plaintiff apprehended that defendant No. 2 along with his group with mala fide intentions would like to humiliate him by terminating his membership thereby causing irreparable harm and injury to his reputation. It is also alleged that the defendants are planning to take action against the plaintiff on the basis of the letter dated 18th November, 1996 alleging the same to be defamatory. It is alleged that without any enquiry and in violation of principles of natural justice, defendant No. 2 is proposing to expel the plaintiff from the membership of defendant No. 1 society. On the basis of these averments the plaintiff has prayed for injunction restraining the defendants not to take action against him on the basis of the said letter written by him.
3. Summons in the suit and notice on the application under Order 39 Rules 1 and 2, CPC, (IA No. 1076/97) for interim relief were issued to the defendants on 4th February, 1997. It was also ordered:
“that in case the defendants are going to take action against the plaintiff they will issue him 5 days” prior notice.”
4. On 25th February, 1997 defendants appeared. Learned counsel for the defendants took the stand that plaintiff was already expelled from the membership of the Association on 29th January, 1997; this fact was disputed by counsel for the plaintiff; defendants sought time to file written statement and they were allowed to do so within four weeks. It was further ordered that:
“documents in power and possession of the parties on which they intend to rely may be filed within six weeks along with affidavit of discovery and production.”
5. The suit was listed thereafter on number of dates. The said order dated 25th February, 1997 was not complied with by the defendants. The plaintiff also moved an application under Order 11 Rule 21 read with Section 151 CPC (IA No. 2701/97) for striking out the defence. The defendants moved an application (IA 10658/2000) for rejection of the suit. The defendants were again directed to comply with the directions as contained in the order dated 25th February, 1997 and to produce documents in their possession on which they intend to rely within six weeks along with affidavit of discovery and production. On 12th May, 1998 again time was taken by the defendants to comply with the said directions. Ultimately, on 25th January, 1999 defence of the defendants was struck out under Order 11 Rule 21 in terms of the order dated 9th November, 1998. Against this order defendants filed an appeal (FAO(OS) No. 37/2000). A Division Bench of this court on 9th March, 2000 dismissed the appeal passing strictures against the defendants and observed:—
“To be remembered that by the wilful and dilatory tactics they are purposely delaying the Application for interim relief which has also been appearing oh Board on all the above mentioned dates and which cannot be decided without Knowing what are all the documents in possession of Appellants proving expulsion and intimation thereof. As appellants were wilfully not complying the defence was struck off by order dated 25th January, 1999. This order was passed in IA 2701/97 which is an application for striking of the defence under Order 11 Rule 21 of the CPC.”
6. It was further observed:
“It must also be mentioned that even though the affidavit of documents is purported to be filed there is no document proving that the purported. Resolution expelling the Respondent had been sent to him or that any intimation of expulsion was sent to him. It must also be mentioned that we directed the Appellant to produce the original Minutes Book to show that such a Resolution was passed. In spite of the opportunity given the Original Minutes Book has not been produced in the court. All that is shown to the Court is a loosely bound book containing Xerox copies of minutes. No reliance could be placed on such documents. Even in this loosely bound book on the last page of the Minutes of the Meeting held on 29th January, 1997 there are certain hand written remarks which are scored out. This is the Meeting at which the purported Resolution is supposed to have been passed. It prima facie appears that the Appellant are concealing facts from the court. This can only be with the intention to ensure that Court does not pass orders against them.”
7. Against the said order of appellate court special leave petition was also dismissed by the Supreme Court.
8. I have been learned counsel for the parties and have been taken through the record.
9. Learned counsel for the defendants submitted that although the order dated 25th January, 1999 striking out the defence of defendants has become final, even then their application under Order 7 Rule 11 CPC for rejection of the plaint still survives and the same should be heard in the first instance before proceeding further in the suit.
10. Learned counsel for the defendant, while referring to clause 39 of the Memorandum of Association of defendant No. 1, firstly argued that all cases of internal disputes are liable to be referred to Indian Council of Arbitration for arbitration under the Arbitration Act, 1940, and that the suit is liable to be stayed. No application either under Section 34 of the Arbitration Act, 1940 or under Section 8 of the Arbitration and Conciliation Act, 1996 was moved. As noticed above, since 25.2.1997 defendants had been participating in the proceedings and contesting the suit thereby submitting to the jurisdiction of the court, for the purposes of adjudication of the controversy in the suit. Law in this regard is well settled. In State of UP v. Janaki Saran, AIR 1973 SC 2071 the Apex Court while interpreting Section 34 of the Arbitration Act, 1940 observed that:—
“It is, however, to be clearly understood that the mere existence of an arbitration clause in an agreement does not by itself operate as a bar to a suit in the court. It does not by itself impose any obligation on the court to stay the suit or to give any opportunity to the defendant to consider the question of enforcing the arbitration agreement. The right to institute a suit in some Court is conferred, on a person having a grievance of a civil nature, under the general law. It is a fundamental principal of law that where there is a right there is a remedy. Section 9 of the Code of Civil Procedure confers this general right of suit on aggrieved person except where the cognizance of the suit is barred either expressly or impliedly. A party seeking to curtail this general right of suit has to discharge the onus of establishing his right to do so and the law curtailing such general right has to be strictly complied with. To enable a defendant to obtain an order staying the suit, apart from other conditions mentioned in Section 34 of the Arbitration Act, he is required to present his application praying for stay before filing his written statement or taking any other step in the suit proceedings”. (emphasis supplied)
11. Section 8 of the Arbitration and Conciliation Act, 1996 substantially corresponds to Section 34 of the Arbitration Act, 1940. Now the party has to make an application in the court alleging existence of an arbitration agreement “not later than submitting his statement on the substance of the dispute.” No such application till date has been made; as the defendants did not choose to file the application under this section, this court could deal with the matter notwithstanding the existence of an arbitration clause. In this case, right from beginning defendants have been participating in the adjudication of the suit: In fact, from the conduct of the defendants seeking adjournments, time and again, for filing written statement, it has to held that the defendants right to move any such application to get the matter adjudicated through arbitration under Section 8 of the Arbitration Act, stood waived. On 25th January, 1999 even their defence was struck out. Under these circumstances, there is no force in this argument and the suit cannot be stayed.
12. Learned counsel for the defendants next argued that the suit is liable to be rejected under sub-rule (a) of Rule 11 of Order 7 CPC as the plaint and the documents filed by the plaintiff do not disclose any cause of action. In support of this argument, learned counsel for the defendants placed reliance on a Supreme Court decision in TP Daver v. Lodge Victoria, No. 863, AIR 1963 SC 1144 wherein it was held:—
“The principes may be gathered from the above discussion are: (1) A member of a masonic lodge is bound to abide by the rules of the lodge; and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. (2) The lodge is bound to act strictly according to the rules; whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of construction in that regard(3) The jurisdiction of a civil court is limited; it cannot sit as a court of appeal from decisions of such a body; it can set aside the order of such a body, if the said body acts without jurisdiction or does not act in good faith or acts in violation of the principles of natural justice.” (emphasis supplied)
13. Bearing the said principles in mind, it is necessary to recapitulate the averments made in the plaint. It is alleged that in May 1996 during Governing Body elections, the plaintiff opposed the candidature of defendant No. 2, Baljit Singh Sethi (The present Secretary General), his father Shri Sajjan Singh Sethi (The Life President), his brother Shri Jagjit Singh Sethi and his brother in law Shri Avtar Singh Sethi. It is alleged that they were running the office of defendant society as a family fiefdom. It is further alleged that defendant No. 2 had been nursing grudge against the plaintiff with mala fide intentions and in violation of the principles of natural justice they made totally false allegations regarding the shortage of some clay pigeons in the Asian Championship event held in November 1995 with an intent to humiliate and harm the plaintiff. At this stage, in view of the averments made in the plaint it cannot be said that the plaint does not disclose any cause of action. The basic ingredients of sub-rule (a) of Rule 11 of Order 7 CPC are not fulfilled. Therefore, this argument is also not sustainable and has to be rejected.
14. Learned counsel for the defendant also relied upon the decision of Supreme Court in Samar Singh v. Kedar Nath, 1987 (Suppl) SCC 663. The facts of that case were entirely different. It was an election petition wherein necessary ingredients were even not pleaded. It was under those circumstances, Supreme Court held that no cause of action is disclosed in the petition, which is not so in the case at hand.
15. For the foregoing reasons the application seeking rejection of the plaint is dismissed. No order as to the costs.
IA. 1076/97 & 2705/2000 in S. 240/97
16. By these applications under Order 39 Rules 1 and 2 read with Section 151 of the Code, of Civil Procedure, the plaintiff has inter-alia prayed ad interim injunction for stay of the operation of the order dated 29.1.1997, expelling the plaintiff from the membership of defendant No. 1. The defence of the defendants was struck out under Order 11 Rule 21, on 25.1.1999 The defendants appeal against this order was dismissed by the Division Bench of this court, holding that “it prima-facie appears that the appellant are concealing facts from the court. This can only be with the intention to ensure that court does not pass orders against them.” The application (IA 10658/97) of the defendants under Order 7 Rule 11 has also been dismissed today.
17. From perusal of the pleadings, documents as well as the affidavit filed on record, a case for grant of ad interim injunction is made out as the object of granting injunction may be defeated by delay. Under the circumstances, operation of the order dated 29.1.1997 passed by the defendants terminating the membership of the plaintiff is hereby stayed till further orders.
Dasti as well.
IA stands disposed of.
IA 9943/98 (Order 6, Rule 17 in S. 240/97)
18. By this application under Order 6 Rule 17 read with under Section 151 of the Code of Civil Procedure, the plaintiff is seeking to amend the para 12 of the plaint. Brief facts are that on 3.2.1997, plaintiff filed a suit for declaration and permanent injunction against the defendants inter-alia praying therein:
“It is therefore prayed that this Hon'ble court may pleased to pass a decree:—
i. Of declaration to declare that no action can be taken by the Defendants on the letter dated 18.11.96 as it is not derogatory and in any case as the plaintiff had withdrawn the same by his letter dated 30.12.96 as desired by the defendants and even otherwise as no hearing has been given to the plaintiff on the said, letter and no inquiry has been conducted on the question whether the letter is derogatory or not.
ii. Of permanent prohibitory injunction to restrain the defendants and its officers from taking any action against the plaintiff on the basis of the allegations of the alleged shortage of about 4000 Clay Pigeons during the November, 1995 Commonwealth Shooting Championship and on the basis of any correspondence in relation thereto.
iii. xxxxx
iv. xxxx”
19. On 4.2.1997, summons/notice were issued to the defendants and it was ordered that “in case the defendants are going to take action against the plaintiff, they will issue him five days prior notice”. Learned counsel for defendants on 25.2.1997, stated that the plaintiff was already expelled from the membership of the association on 29.1.1997 This fact was disputed by the learned counsel for plaintiff. Defendants were granted four weeks time to file written statement. It was also ordered that “documents in power and possession of the parties on which they intend to rely may be filed within six weeks along with affidavit of discovery and production”. The defendants did not file documents despite several opportunities and on 25.1.1999, their defence was stuck out under Order 11 Rule 21. The defendants' appeal against this order was also dismissed holding that “it prima-facie appears that the appellant are concealing facts from the court. This can only be with the intention to ensure that court does not pass orders against them.” Special Leave Petition filed by defendants against this order was dismissed by the Supreme Court.
20. Now the plaintiff is seeking amendment of the plaint and add the following paragraphs in the plaint:
28A. That the defendants have stated to have passed a resolution dated 29.1.97 wherein they have sought to expel the plaintiff from the membership of defendant No. 1 on the basis of the letter dated 18.11.96
28B. That no such minutes or any letter in furtherance thereof have ever been communicated to the plaintiff.
Para 30A. That irreparable harm and injury would be caused to the plaintiff if the alleged resolution dated 29.1.97 is not set aside, the same being mala fide, an after thought, against the facts and the law, violative of the principles of natural justice and having never been communicated to the plaintiff.
Para 31A. That the balance of convenience is also in favour of the plaintiff to restrain the operation of the alleged resolution dated 29.1.97 on the basis of the letter dated 18.11.96
Add at the end of prayer (i):—
“and a such set aside the resolution of defendant No. 1 dated 29.1.1997”
To read
i. Of declaration to declare that no action can be taken by the defendants on the letter dated 18.11.96 as it is not derogatory and in any case as the plaintiff had withdrawn the same by his letter dated 30.12.96 as desired by the defendants and even otherwise as no hearing has been given to the plaintiff on the said letter and no enquiry has been conducted on the question whether the letter is derogatory and as such set aside the resolution of defendant No. 1 dated 29.1.1997
21. I have heard learned counsel for the parties and have been taken through the record. Law with regard to the amendment of pleadings is well settled. An amendment should be generally allowed where the nature of the suit is not altered provided it does not cause prejudice or surprise the opposite party. The Supreme Court in Suraj Prakash Bhasin v. Smt. Raj Rani Bhasin & Ors., AIR 1981 SC 485 observed:—
“The liberal principles which guide the exercise, of discretion in allowing amendments have been laid down in numerous decisions of this court. Multiplicity of proceedings being avoided is one criterion. Amendments which do not totally alter the character of the action are readily granted while care is taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment of pleadings. The court must be guided by the rule of justice expressed by the Privy Council in Ma Shwe Mya v. Maung Po Haaung, AIR 1992 SC 249 PP 250-251 : see P.1283-1284 of AIR Comm. CPC (1908) 9th Edn. Vol 2.
22. All rules of court are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless, no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.”
23. In this case the amendments sought would not in any way alter the nature or character of the suit. Additional facts are sought to be pleaded are in respect of pleas already existing in the plaint. No injustice or prejudice would be caused to the defendants, if the amendments are allowed. The proposed amendments are necessary to effectively adjudicate upon the dispute between the parties.
24. For the foregoing reasons the application for amendment of the plaint is allowed. Amended plaint be taken on record. No order as to the costs.
IA stands disposed of.