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Rajendra Nath Tikku v. Royal Calcutta Turf Club
Structured Summary of the Opinion
Factual and Procedural Background
The matter relates to an application to amend the plaint and for leave under Order 1, Rule 8 of the Code to sue proposed defendants as representing all members of the Royal Calcutta Turf Club (the "Club"), together with consequential reliefs. The plaintiff originally instituted a suit on 22 January 1963 against the Royal Calcutta Turf Club seeking, inter alia, declarations that a notice dated 28 January 1957 was void, a declaration of his entitlement to enter the Club's race course and reciprocal race courses, and injunctions restraining the Club from interfering with his rights or giving effect to the 28 January 1957 notice.
The pleaded factual matrix in the plaint (as summarized in the opinion) is that the petitioner had pledged two horses to a member of the Club; the Club auctioned the horses; the pledgee was obliged to account and pay sums due to the petitioner but failed to do so; a complaint under Club rules led to an inquiry by the Stewards; on 28 January 1957 the Stewards "warned off" the petitioner for corrupt practices and the order appeared in the Racing Calendar dated 14 February 1957. The petitioner alleges he was never furnished with any charge or informed of any rule and challenges the legality and validity of the Stewards' order.
Procedurally, the plaintiff sought to amend the cause title and to obtain leave under O.1 r.8 to sue persons as representatives of all Club members after discovering (by a Chamber summons served 15 March 1963 and other events) that the Club was not registered under the Societies Registration Act, contrary to his prior belief. The alleged misdescription of the defendant was said to have come to his knowledge on or about 8 May 1963, and he sought leave to rectify the misdescription by amendment.
Legal Issues Presented
- Whether the description of the defendant as the Royal Calcutta Turf Club is a curable "misdescription" that can be corrected by amendment so as to permit suing proposed defendants in a representative capacity under Order 1, Rule 8.
- Whether an unincorporated, unregistered members' club (such as the Royal Calcutta Turf Club) can be sued in its club name or whether the suit must be prosecuted against identifiable persons or members (and whether that defect, if any, is one of mere misdescription).
- Whether allowing the proposed amendment would relate back so as to affect limitation and thereby prejudice the defendants' limitation defence.
- Whether the persons proposed to be brought on record in a representative capacity could properly represent all members (including those who may not have been members at the relevant time) and whether they could represent the Stewards who conducted the adjudication.
Arguments of the Parties
Petitioner's Arguments
- The cause title suffered from a misdescription as to the defendants and such misdescription is curable by amendment.
- He relied on precedents (Municipal Commissioners, Dacca v. Gangamani Chaudhuri and Harishchandra Khunderao Kothare v. A.B. Craig) to support the proposition that the defendant's misdescription could be corrected and that suing in a representative capacity was permissible in the circumstances described in those decisions.
- The amendments sought were necessary for adjudication of the issues in the suit and were advised after the petitioner learned of the true nature of the Club's registration status.
Respondent's Arguments
- The Club, being an unincorporated and unregistered members' club, is not a legal entity capable of being sued in its own name; therefore the present suit as constituted is a nullity and not merely a case of misdescription.
- A distinction must be drawn between a firm (where a firm name may operate as a compendious name for partners) and a club name; a club name should not be equated to a firm or trading name.
- The proposed amendments would (a) convert the suit into an entirely different suit by bringing different parties in different capacities, (b) effectively relate back the cause of action when limitation might have already barred it on the date of taking out the summons, and (c) bring in as defendants persons who had nothing to do with the Stewards' decision.
- Authorities dealing with unincorporated associations and representative defendants (including Mercantile Marine Service Association v. Toms and Campbell v. Thompson) were relied upon to show that the proposed representative relief should not be allowed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Municipal Commissioners, Dacca v. Gangamani Chaudhuri, A.I.R. 1940 Calcutta 153 | Authority for correcting misdescription where the plaintiff's intention to sue the proper entity was manifest; consideration of the nature of allegations and relief to determine the real party sued. | The petitioner relied on this decision. The opinion summarized the decision but ultimately did not accept that the present case amounted to a curable misdescription permitting the proposed amendment. |
| Harishchandra Khunderao Kothare v. A.B. Craig, A.I.R. 1945 Bombay 465 | Authority on amendment and leave under O.1 r.8 to sue an unregistered society or its members in a representative capacity in certain circumstances. | The petitioner relied on this decision to support amendment. The court reviewed the decision but did not consider it sufficient to permit the amendment sought in the present case. |
| Baroda Railway case, 65 I.A. 182 | Referenced in Municipal Commissioners decision as an authority regarding whether a nominal defendant was in reality the state/real party; illustrates limits of remedies where the suit effectively targets a different entity. | The Calcutta decision had referred to it; the opinion notes that in the Baroda Railway case the suit was found to be in reality against a different entity and was dismissed. The present court considered that distinction in its analysis. |
| Monilal v. Purushottant, 1961 (1) S.C.R. 982 | Holds that suing a foreign firm in the firm name (though not recognized by the Code) may be treated as a misdescription because the partners effectively are sued. | The court cited this Supreme Court authority to explain the concept of 'misdescription' in the context of firms. The decision was used as a point of comparison when distinguishing firms from clubs. |
| London Association for Protection of Trade (Lord Parker), (1916) 2 A.C. 15 | Statement that an association which is not a corporate body, partnership or statutory creation cannot be made a defendant in its name. | The court referenced Lord Parker's statement to support the respondent's contention that an unincorporated members' club is not a legal entity that can be sued in its own name. |
| Munshilal & Sons v. Modi Bros., 51 C.W.N. 563 | Observation distinguishing a club name from a firm/trading name; a club name is not a compendious name like a firm name. | The court expressly accepted and respected the observation of Das, J. in this decision and stated it was unable to reject that reasoning in the present case. |
| Mercantile Marine Service Association v. Toms, (1916) 2 K.B. 243 | Authority on the limits of bringing members of an unregistered association on record in a representative capacity, particularly in tort actions. | The respondent relied on this decision. The court considered it supportive of the proposition that allowing the proposed representative defendants would be inappropriate for an unincorporated association, especially in the tort/adjudicatory context. |
| Wood v. McCarthy, (1893) 1 Q.B. 775; Temperton v. Russell, (1893) 1 Q.B. 435 | Cases referred to in Mercantile Marine decision regarding representative questions and capacity to sue or be sued in certain forms. | Referred to by the court as part of the line of authorities considered in assessing whether representative defendants may be introduced for an unincorporated association; used to inform the court's view against allowing the amendment. |
| Campbell v. Thompson, 1953 (1) Q.B.D. 445 | Authority relied on to show that proposed representative defendants could not validly represent members who were not members at the relevant time and could not represent adjudicators such as the Stewards. | The respondent relied on this decision; the court accepted the relevance of these concerns and incorporated them into its reasoning against permitting the amendment. |
Court's Reasoning and Analysis
The court proceeded by first defining the scope of "misdescription"—a defect where a defendant has not been correctly described. It acknowledged authorities where a compendious name (such as a firm name) may amount to a misdescription because the partners are in effect sued under that name.
The court then considered whether the Royal Calcutta Turf Club (an unincorporated, unregistered members' club) fell into the same category as a firm or other compendious trading name. It accepted the distinction drawn in Munshilal & Sons v. Modi Bros. (and referred to the ruling in Monilal v. Purushottant concerning firms) that a club name is not to be treated as a compendious firm name. The court cited Lord Parker's observation in the London Association case that an association not being a corporate body, partnership or statutory creation cannot be sued in its own name.
Having reviewed the precedents relied upon by the petitioner (including the Calcutta and Bombay decisions), the court concluded that the present situation was not one of mere misdescription curable by amendment. The court accepted the respondent's submissions that permitting the sought amendments would have multiple adverse consequences:
- It would convert the existing suit into an entirely different suit by substituting different parties in different capacities.
- It would, in effect, relate back the cause of action by amendment in a way that would harm the defendants' limitation plea — i.e., the amendment could be used to avoid a limitation defence that existed when the summons was taken out.
- It would bring into the record persons in a representative capacity who, the court found, had nothing to do with the Stewards' decision (and could not properly represent the Stewards' role).
The court also relied on authorities (notably Mercantile Marine Service Association v. Toms and Campbell v. Thompson) to support the proposition that representative relief of the kind sought is not appropriate for unincorporated members' clubs (particularly in the context of the type of adjudicatory/tortious grievance raised here).
For these reasons the court found the application to be misconceived and unsustainable on the law and facts as presented.
Holding and Implications
Holding: The court's final disposition was to dismiss the application. The court's ruling (as stated in the opinion) is:
APPLICATION DISMISSED WITH COSTS.
Implications:
- The plaintiff is not permitted to amend the plaint in the manner sought to bring proposed defendants on record as representative members of the Royal Calcutta Turf Club.
- The court held that the defect alleged by the petitioner was not a curable misdescription; treating the Club as a litigable legal entity in its own name was not appropriate in the circumstances described.
- The court expressed concern that allowing the amendment would prejudice the defendants' limitation defence and would change the character of the suit into a materially different proceeding.
- No broader precedent was purportedly established by this order beyond the direct effect on the application: the immediate consequence was dismissal of the application with costs. (The opinion does not state that it was laying down any new rule of general application.)
The order in the opinion concludes with the notation "Certified for counsel" and the initials "S.N.G." as recorded in the opinion.
2. This is an application for amendment of the plaint and also for order for leave under O. 1, r. 8 of the Code to sue the proposed defendants as representing all the members of the Royal Calcutta Turf Club, and for consequential reliefs. The plaintiff instituted this suit on January 22, 1963 against the Royal Calcutta Turf Club inter alia, for a declaration that the notice dated January 28, 1957 alleged in the plaint is bad, void and of no legal effect, and for a declaration that the petitioner is entitled to enter Calcutta Race Course of the Royal Calcutta Turf Club as well as other race courses at other places having reciprocal arrangements and for an injunction restraining the Club and/or its officials or agents or servants from interfering with the petitioner's right to enter the race course, and for a perpetual injunction restraining the Club and/or its officials or agents or servants from giving effect to the notice dated January 28, 1957. The petitioner's case in the plaint, in short is that he pledged two horses to a member of the Royal Calcutta Turf Club. The two horses were auctioned by the Club and the pledgee had to render an account and pay sums due to the petitioner. The pledgee failed to pay the petitioner's dues and a complaint was lodged under the Rules of the Club. An enquiry was ordered by the Stewards. On January 28, 1957 the Stewards informed the petitioner that he had been warned off as he was guilty of corrupt practices. The order appeared in the Racing Calendar dated February 14, 1957. The petitioner's allegation is that he was never furnished with any charge or informed of any rule and the order dated January 28, 1957 that the petitioner committed a breach of the Racing Rules is impeached by the petitioner as illegal and void.
3. The suit is instituted against the Royal Calcutta Turf Club. In paragraph 20 of the petition the petitioner alleges that he was all along under the impression that the Royal Calcutta Turf Club is a registered society under the Societies Registration Act. In paragraph 21 it is alleged that on March 15, 1963 the petitioner's solicitor was served with a copy of Chamber summons dated March 15, 1963, and the petitioner has come to know from the affidavit in support of the said summons that the society is not registered under the Societies Registration Act.
4. In paragraph 22 of the petition the petitioner alleges that the misdescription of the defendant came to the petitioner's knowledge on or about May 8, 1963 for the first time. In paragraph 23 the petitioner states that he has been advised to rectify the misdescription. In paragraph 24 the petitioner states that the amendments are absolutely necessary for adjudication of the issues involved in the suit.
5. Counsel appearing on behalf of the petitioner contended that the cause title suffered from misdescription in relation to the defendants and submitted that such misdescription was curable by amendments. Counsel for the petitioner relied on a Bench decision Municipal Commissioners, Dacca v. Gangamani Chaudhuri (1) reported in A.I.R 1940 Calcutta 153 and a Bombay decision Harishchandra Khunderao Kothare v. A.B Craig (2) reported in A.I.R 1945 Bombay 465 in support of the proposition that a misdescription of the nature in the present case could be amended. In the Calcutta decision a suit was instituted for a declaration that the assessment made by the municipal commissioners was ultra vires and illegal. The suit was instituted against the Chairman of the municipal commissioners instead of the commissioners themselves as required by sec. 15 of the Bengal Municipal Act of 1932. It was held that it was a case of misdescription which could be corrected. The plaintiff's intention to sue the commissioners was manifest and that is why the suit against the Chairman of the commissioners was found to be a misdescription for the commissioners, who were the real parties. There is an observation in the decision to the effect that the name is not always the true criterion for determining the party really sued; the nature of the allegations in the plaint and the nature of the relief sought should be considered. The plaint in the Calcutta case was judged in the light of those observations and a perusal of the plaint made it quite clear in that case that the plaintiff sought to bind the Corporation by the decree which he prayed for. The decision in the Baroda Railway case (3) (65 I.A 182) was referred to in that case. But in the Baroda Railway case though the suit was not in terms against the State of Baroda, but against the Gaekawar Baroda State Railway through Manager and Engineer-in-chief, it was found to be in reality a suit against the Gateway and therefore the suit was dismissed. In the Bombay decision the suit was filed by a solicitor for damages, for breach of an alleged contract of employment by the G.I.P Railway Employees Mutual Benefit Fund Society. Two persons were made party defendants and were sued on behalf of themselves and all other members of the said Society. When the suit was filed leave was obtained under O. 1, r. 8 of the Code. At that time the prayers were only for a decree against the defendants for a sum of Rs. 90,000/- and for costs. The defendants thereafter took out a summons to revoke the leave granted ex parte. It was held that on the averments in the plaint the prayer for a decree against all individuals of the society personally was not permitted by law and the ex parte leave was set aside. Thereafter the plaintiff took out a summons for amendment of the plaint and for leave under O. 1, r. 8 to sue the defendants in their representative capacity, and for leave under cl. 12 of the Letters Patent. It was held that a suit for damages for breach of an alleged contract of employment against the unregistered society whose property and funds were not vested in any individual but belonged to and remained vested in the members of the society, through some of its members was maintainable. The amendments asked for in the Bombay decision were for a declaration that the members of the society were liable to pay and the plaintiff was entitled to receive from them the amount claimed as damages.
6. The term ‘misdescription’ a fortiori means that a defendant has not been correctly described. It has been recently held by the Supreme Court in the decision of Monilal v. Purushottant (4) reported in 1961 (1) S.C.R 982 that if a foreign firm is sued in the firm name though the Code does not recognise such a procedure, the plaint is not bad and such a defect or irregularity is one of misdescription of the defendant because all the partners who from the firm are in effect sued as defendants but their names are not set out behind the firm cloak used for the sake of brevity in the plaint. Counsel for the respondent contended in the present case that the suit as constituted against the Royal Calcutta Turf Club was a nullity because such a Club cannot be sued in its Club name. It may be stated here that Lord Parker in the London Association for Protection of Trade case (5) (1916) 2 A.C 15 said that an association which is not a corporate body, nor a partnership nor a creation of statute could not be made a defendant in its name. A members' club which is an un-incorporated and unregistered body is not a legal entity which can be sued in its own name. If that is so, is the amendment of the nature sought in the present case an attempt to describe the defendant correctly? In my opinion, counsel for the respondent is right in his contention that it is not a case of misdescription at all. He relied on the distinction between a firm and a club and relied on the decision in Munshilal & Sons v. Modi Bros. (6) reported in 51 C.W.N 563 on the observations appearing at page 589. Das, J. as he then was, said, “I do not think that the notion of a firm name or a joint family business name ought to be extended to a Club name. A club name is not regarded as a compendious name in the sense that a firm name or the trading name of a joint Hindu family business is regarded by lawyers and business people.” This observation was sought to be answered by counsel for the petitioner by submitting that I should not follow it. I am unable to accept such submission. This observation is entitled to great respect.
7. Counsel for the respondent relied on the decision in Mercantile Marine Service Association v. Toms (7) (1916) 2 K.B 243) in support of his contention that an unincorporated body having been sued and amendment to bring on record the defendants in a representative capacity should not be allowed. The Imperial Merchant Service Guild was an unregistered association. It had 15,000 members. It was regulated by its rules and its business and affairs were conducted by its managing committee. The plaintiffs in that case asked for an order that the defendants T.M and G. who were Chairman, Secretary and Vice-Chairman respectively “be appointed to represent all other members in an action of libel.” The plaintiffs in the next place asked for leave to add as defendants A.K and A.W who with M. were trustees of the invested funds of the guild. It should be stated here that in that case the defendant T, G and M had been sued “on their own behalf and on behalf of all other members of the I.M Service Guild”. Swinfen Eady, L.J said that if this were merely an application for leave to add defendants there would be no objection to it. The plaintiff there asked for an order that the defendants might be appointed to represent all the members of the Guild. The decision in Wood v. McCarthy (8) (1893) 1 Q.B 775 and the decision in Temperton v. Russell, (1893) 1 Q.B 435 were referred to. It was held that in cases of action of tort there was no application for bringing on record the chairman, the vice-chairman and the Secretary in the representative capacity.
8. Counsel for the respondent contended that the proposed amendments in the present case would have first the effect of converting the suit into an entirely different suit by bringing on record different parties in different capacities in place of a defendant who is not a legal entity, and secondly, of relating back a cause of action by amendment when the cause of action is barred by limitation on the date of taking out of the summons, and thirdly, of bringing into record as defendants in a representative capacity persons who had nothing to do with the decision of the Stewards. He also relied on the decision in Campbell v. Thompson (9) 1953 (1) Q.B.D 445 in support of his contention that as to unincorporated Members' Club the proposed defendants in the representative capacity could not first represent members who might not have been members at the relevant time and secondly they would not represent the Stewards who entered into the adjudication pursuant to the Racing Rules. In my opinion counsel for the defendant is right in his contentions. To my mind the present application is misconceived. I hold that there is no mis-description and it is not curable by amendment as contended for. Secondly, I hold that allowing the application would be doing incalculable harm to the defendants by reason of the plea of limitation. Thirdly, the bringing into record the defendants in a representative capacity would be to change the suit into one of an entirely different character. For these reasons I am of opinion that the application fails. The application is dismissed with costs. Certified for counsel.
S.N.G
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