1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE7H DAY OF JULY, 2023 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A. NO.4319/2023 (CPC) C/W. M.F.A. NO.4320/2023 (CPC) M.F.A. NO.4445/2023 (CPC) IN M.F.A. NO.4319/2023: BETWEEN:
1. . DR. RENUKAPRASAD K.V. S/O K.M. VENKATARAMANA GOWDA, AGED62YEARS VICE PRESIDENT, RAJYA VOKKALIGARA SANGHA, NO.6-226, AMARASHREE, KURUMJIMANE, KANTHAMANGALA, SULLYA HOBLI, SULYA TALUKA, D.K. DISTRICT – 574239. 2 . SHRI R. PRAKASH S/O T.M. RANGEGOWDA, AGED ABOUT53YEARS, TREASURER, RAJYA VOKKALIGARA SANGHA, R/AT NO.339, 1ST MAIN, 1ST CROSS, NEAR SAI BABA TEMPLE, RANGANATHAPURA, MAGADI MAIN ROAD, KAMAKSHI PALYA, BANGALORE – 560079. … APPELLANTS (BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR SRI H.N.BASAVARAJU, ADVOCATE) 2 AND:
1. . SRI M. PUTTASWAMY S/O LATE MOTAIAH AGED ABOUT56YEARS RESIDING AT NO.20/2, 10TH CROSS, 1ST MAIN ROAD, GOVINDRAJA NAGAR VIJAYANAGARA BENGALURU – 560040. ALSO AT: NO.100, 5TH MAIN ROAD ‘B’ BLOCK, HAMPINAGAR (RPC LAYOUT) VIJAYANAGAR BANGALORE- 560040 2 . SRI C.M.MAREGOWDA S/O MARIYAPPA AGED ABOUT46YEARS NO.948, 2ND MAIN, GOVINDRAJA NAGAR VIJAYANAGARA, BENGALURU - 560040 3 . DR. V.NARAYANASWAMY VENKATAPPA S/O MR.VENKATAPPA AGED ABOUT53YEARS, NO.50, 6TH MAIN, 18TH CROSS MALLESHWARAM BENGALURU - 560055 4 . SRI H.C. JAYAMUTHU S/O CHIKKANNEGOWDA AGED ABOUT41YEARS, R/AT NO.774, 22ND MAIN ROAD, 2ND SECTOR, NEAR HSR LAYOUT CLUB BENGALURU - 560102 3 5 . RAJYA VOKKALIGARA SANGHA (A SOCIETY REGISTERED UNDER THE PROVISIONS OF MYSORE SOCIETIES ACT, 1904 WITH REGISTRATION NO.S-1906-1907) NO.148, KRISHNARAJENDRA ROAD, VISHVESHWARAPURAM, BENGALURU -560004. REPRESENTED BY ITS PRESIDENT SRI C.N.BALAKRISHNA & GENERAL SECRETARY SRI T.KONKAPPA REDDY. 6 . THE PRESIDENT RAJYA VOKKALIGARA SANGHA SRI. C.N.BALAKRISHNA S/O NANJAPPA, AGED ABOUT54YEARS, NO.148, KRISHNARAJENDRA ROAD, VISHVESHWARAPURAM, BENGALURU -560004. 7 . THE GENERAL SECRETARY RAJYA VOKKALIGARA SANGHA SRI T. KONAPPA REDDY S/O THIPPI REDDY, AGED ABOUT65YEARS, NO.148, KRISHNARAJENDRA ROAD, VISHVESHWARAPURAM BENGALURU- 560004. (VIDE
ORDERDATED0407.2023 THE RESPONDENTS8TO10ARE IMPLEADED AND CAUSE TITLE IS AMENDED IN THE OPEN COURT WITH THE PERMISSION OF THIS HON’BLE COURT) 8 . SRI KENCHAPPA GOWDA S/O BYRAPPA AGED ABOUT70YEARS RESIDING AT NO.1/2, MOUNTAIN STREET1T BLOCK, JAYANAGARA BENGALURU-560041. 4 9 . SRI H.C.JAYAMUTHU S/O CHIKKANNA GOWDA AGED ABOUT43YEARS RESIDING AT NO.774 22ND MAIN, 2ND SECTOR HSR LAYOUT, NEAR HSR CLUB BENGALURU-560102. 10 . SRI L.SRINIVAS S/O LAKSHMAIAH AGED ABOUT61YEARS RESIDING AT NO.1636 30TH CROSS, 18TH MAIN BANASHANKARI II STAGE BENGALURU-560070. 11 . SRI C.DEVARAJ S/O CHANNEGOWDA AGED ABOUT65YEARS RESIDING AT NO.28 4TH MAIN, 7TH BLOCK BSK III STAGE BENGALURU-560085. 12 . SRI C.J.GANGADHAR S/O GUNDAIAH AGED ABOUT58YEARS RESIDING AT NO.50 HARSHA GAGANA KHB3D STAGE, KUVEMPU NAGARA, MYSURU-570023. 13 . SRI C.MAREGOWDA S/O MARIYAPPA AGED ABOUT47YEARS RESIDING AT NO.919 5TH MAIN, 2ND CROSS, M.C.LAYOUT, VIJAYANAGARA BENGALURU-560040. … RESPONDENTS5(BY SRI D.R.RAVISHANKAR, SENIOR COUNSEL FOR SRI S.SARAVANA, ADVOCATE FOR R1; SRI NISHANTH A.V., ADVOCATE FOR R2; SRI HARISH V.S., ADVOCATE FOR R3; SRI VIVEK S. REDDY, SENIOR COUNSEL FOR SRI MUNIMANJU H.M., ADVOCATE FOR R4 AND R9; SRI NARASIMHA RAJU, ADVOCATE FOR R5 TO R7; SRI RAVI VERMAKUMAR, SENIOR COUNSEL FOR SMT.R. BELLE, ADVOCATE FOR R8; R10, R12 AND R13 ARE SERVED; R11 SERVICE HELD SUFFICIENT) THIS M.F.A. IS FILED UNDER
ORDER43RULE1r) OF CPC, AGAINST THE
ORDERDATED1606.2023 PASSED ON I.A. NO.1 IN O.S.NO.3590/2023 ON THE FILE OF THE VI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCCH.11), REJECTING I.A. NO.1 FILED UNDER
ORDERXXXIX RULES1AND2READ WITH SECTION151OF CPC. IN M.F.A. NO.4320/2023: BETWEEN:
1. . RAJYA VOKKALIGARA SANGHA (A SOCIETY REGISTERED UNDER THE PROVISIONS OF MYSORE SOCIETIES ACT, 1904 WITH REGISTRATION No.S -1906 - 1907 ) NO.148, KRSIHNARAJENDRA ROAD, VISHVESHWARAPURAM, BENGALURU - 560004 REPRESENTED BY ITS PRESIDENT SRI C.N.BALAKRISHNA & GENERAL SECRETARY SRI T.KONKAPPA REDDY2. THE PRESIDENT RAJYA VOKKALIGARA SANGHA SRI C.N. BALAKRISHNA S/O NANJAPPA AGED ABOUT54YEARS, 6 NO.148, KRISHNARAJENDRA ROAD, VISHVESHWARAPURAM BENGALURU - 560004 3 . THE GENERAL SECRETARY RAJYA VOKKALIGARA SANGHA SRI T. KONAPPA REDDY, S/O THIPPI REDDY AGED ABOUT65YEARS, NO.148, KRISHNARAJENDRA ROAD, VISHVESHWARAPURAM BENGALURU – 560004. … APPELLANTS (BY SRI M.R. RAJAGOPAL, SENIOR COUNSEL A/W. SRI BASAVARAJ H.N., ADVOCATE) AND:
1. . SRI. M. PUTTASWAMY S/O LATE MOTAIAH AGED ABOUT56YEARS RESIDING AT NO.20/2, 10TH CROSS, 1ST MAIN ROAD, GOVINDRAJA NAGAR VIJAYANAGARA BENGALURU - 560040 ALSO AT: NO.100, 5TH MAIN ROAD, ‘B’ BLOCK, HAMPINAGAR (RPC LAYOUT), VIJAYANAGAR BANGALORE- 560040. 2 . SRI C.M. MAREGOWDA S/O MARIYAPPA AGED ABOUT46YEARS NO.948, 2ND MAIN, GOVINDARAJA NAGAR, VIJAYANAGARA, BENGALURU - 560040 7 3 . DR. V.NARAYANASWAMY VENKATAPPA S/O MR. VENKATAPPA AGED ABOUT53YEARS, NO.50, 6TH MAIN, 18TH CROSS MALLESHWARAM BENGALURU - 560055 4 . SRI H.C. JAYAMUTHU S/O CHIKKANNEGOWDA AGED ABOUT41YEARS, R/AT NO.774, 22ND MAIN ROAD, 2ND SECTOR, NEAR HSR LAYOUT CLUB BENGALURU – 560102. (VIDE
ORDERDATED0407.2023 THE RESPONDENTS5TO10ARE IMPLEADED AND CAUSE TITLE IS AMENDED IN THE OPEN COURT WITH THE PERMISSION OF THIS HON’BLE COURT) 5 . SRI KENCHAPPA GOWDA S/O BYRAPPA AGED ABOUT70YEARS RESIDING AT NO.1/2, MOUNTAIN STREET1T BLOCK, JAYANAGARA BENGALURU-560041. 6 . SRI H.C. JAYAMUTHU S/O CHIKKANNA GOWDA AGED ABOUT43YEARS RESIDING AT NO.774 22ND MAIN, 2ND SECTOR HSR LAYOUT, NEAR HSR CLUB BENGALURU-560102. 7 . SRI L. SRINIVAS S/O LAKSHMAIAH AGED ABOUT61YEARS RESIDING AT NO.1636 8 30TH CROSS, 18TH MAIN BANASHANKARI II STAGE BENGALURU-560070. 8 . SRI C. DEVARAJ S/O CHANNEGOWDA AGED ABOUT65YEARS RESIDING AT NO.28 4TH MAIN, 7TH BLOCK BSK III STAGE BENGALURU-560085. 9 . SRI C.J.
GANGADHAR S/O GUNDAIAH AGED ABOUT58YEARS RESIDING AT NO.50 HARSHA GAGANA KHB3D STAGE, KUVEMPU NAGARA MYSURU-570023. 10 . SRI C. MAREGOWDA S/O MARIYAPPA AGED ABOUT47YEARS RESIDING AT NO.919 5TH MAIN, 2ND CROSS, M.C. LAYOUT, VIJAYANAGARA BENGALURU-560040. … RESPONDENTS (BY SRI D.R.RAVISHANKAR, SENIOR COUNSEL FOR SRI SARAVANA S., ADVOCATE FOR R1; SRI A.V.NISHANTH, ADVOCATE FOR R2; SRI HARISH V.S., ADVOCATE FOR R3; SRI VIVEK S. REDDY, SENIOR COUNSEL FOR SRI MUNIMANJU H.M., ADVOCATE FOR R4 AND R6; SRI NARASIMHA RAJU, ADVOCATE FOR R5 TO R7; SRI RAVIVERMA KUMAR, SENIOR COUNSEL A/W. SMT.R. BELLE, ADVOCATE FOR R5; R7, R9 AND R10 ARE SERVED AND UNREPRESENTED; R8 SERVICE HELD SUFFICIENT) 9 THIS M.F.A. IS FILED U/O.43 RULE1r) OF CPC, AGAINST THE
ORDERDT.16.06.2023 PASSED ON IA NO.1 IN O.S.NO.3590/2023 ON THE FILE OF THE VI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, (CCH-11), REJECTING THE I.A. NO.1 FILED U/O.39 RULES1AND2R/W SEC.151 OF CPC. IN M.F.A. NO.4445/2023: BETWEEN:
1. . SRI S.S. RAGHU GOWDA S/O SRINIVAS, AGED ABOUT40YEARS, RESIDING AT H.N.PURA ROAD, KASABA HOBLI, M.HOSAKOPPALU POST, SANKALAPURA, HASSAN - 573201. 2 . SRI LOKESH B.N., S/O D.NAGARAJAIAH AGED ABOUT53YEARS, RESIDING AT NO.20, KBH COLONY, KUNIGAL TALUK, TUMAKURU DISTRICT-572130 3 . SRI. D.K. RAMESH S/O. D. KRISHNAPPA, AGED ABOUT54YEARS, RESIDING AT BHAGYA NURSING HOME, NEAR KSRTC BUS STAND/ SANTHE M.B. ROAD KOLAR - 563101. 4 . SRI A. POORNESH S/O LATE .I.K SANTOSH (ANNEGOWDA), AGED ABOUT53YEARS, SRI. KALESHWARA PRINTERS, M.G. ROAD, 10 HANUMANTHAPPA CIRCLE, CHIKAMAGALURU- 577 101. … APPELLANTS (BY SRI UDAY HOLLA, SENIOR COUNSEL A/W. SRI MADHUKAR M. DESHPANDE, ADVOCATE) AND:
1. . SRI M. PUTTASWAMY S/O. LATE MOTAIAH AGED ABOUT56YEARS, RESIDING AT NO.20/2 10TH CROSS, 1ST MAIN ROAD, GOVINDRAJA NAGAR VIJAYANAGARA, BENGALURU-560040. ALSO AT: NO.100, 5TH MAIN ROAD 'B' BLOCK, HAMPINAGAR (RPC LAYOUT), VIJAYANAGAR, BENGALURU - 560 040. 2 . SRI C.M. MAREGOWDA S/O MARIYAPPA AGED ABOUT46YEARS, RESIDING AT NO.948, 2ND MAIN GOVINDRAJA NAGAR, VIJAYANAGAR BENGLURU-560 040. 3 . DR. V. NARAYANASWAMY VENKATAPPA S/O MR. VENKATAPPA, AGED ABOUT53YEARS, RESIDING NO.50, 6TH MAIN, 18TH CROSS, MALLESHWARAM, BENGALURU - 560 055. 4 . SRI H.C. JAYAMUTHU S/O CHIKKANNEGOWDA AGED ABOUT41YEARS, 11 RESIDING AT NO.774, 22ND MAIN ROAD, 2ND SECTOR, NEAR HSR LAYOUT CLUB BENGALURU - 560 102. 5 . RAJYA VOKKALIGARA SANGHA (A SOCIETY REGISTERED UNDER THE PROVISIONS OF MYSORE SOCITIES ACT, 1904 WITH REGISTRATION NO.5-1906-1907) NO.148, KRISHNARAJENDRA ROAD, VISHVESHWARAPURAM, BENGALURU - 560 004. REPRESENTED BY ITS PRESIDENT SRI. C.N.BALAKRISHNA & GENERAL SECRETARY SRI T.KONAPPA REDDY. 6 . THE PRESIDENT RAJYA VOKKALIGARA SANGHA SRI. C.N. BALAKRISHNA S/O. NANJAPPA, AGED ABOUT54YEARS, NO.148, KRISHNARAJENDRA ROAD, VISHVESHWARAPURAM, BENGALURU - 560 004. 7 . THE GENERAL SECRETARY RAJYA VOKKALIGARA SANGHA SRI T.KONAPPA REDDY, SON OF THIPPI REDDY, AGED ABOUT65YEARS, NO.148, KRISHNARAJENDRA ROAD, VISHVESHWARAPURAM, BENGALURU - 560 004. … RESPONDENTS (BY SRI D.R.RAVISHANKAR, SENIOR COUNSEL A/W. SRI SARAVAN S., ADVOCATE FOR R1; SRI A.V.NISHANTH, ADVOCATE FOR R2; SRI HARISH V.S., ADVOCATE FOR R3; SRI VIVEK S. REDDY, SENIOR COUNSEL A/W. SRI MUNIMANJU, ADVOCATE FOR R4; SRI NARASIMHARAJU, ADVOCATE FOR R5 TO R7) 12 THIS M.F.A. IS FILED U/O43RULE1r) R/W SECTION151OF CPC, AGAINST THE
ORDERDATED1606.2023 PASSED ON I.A.NO.1 IN O.S.NO.3590/2023 ON THE FILE OF THE VI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, CCH-11, REJECTING THE I.A.NO.1 FILED UNDER
ORDER39RULE1AND2R/W SECTION151OF CPC. THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTON0407.2023 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
These appeals are filed under Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, praying this Court to set aside the order dated 16.06.2023 passed by the VI Additional City Civil & Sessions Judge (CCH-11) at Bengaluru City, on I.A.No.1 in O.S.No.3590/2023. Consequently, allow the application and grant the relief as sought therein and pass such other order or directions as this Court deem fit and proper in the facts and circumstances of the case and allow the Miscellaneous First Appeals.
2. The appellants in MFA No.4320/2023 are the plaintiffs have filed a suit for the relief of declaration to declare that the alleged resolution dated 09.06.2023 referred to in a paper publication dated 10.06.2023 published in Vijayavani Kannada Daily Newspaper and notice dated 09.06.2023 issued 13 by the defendant as illegal, null and void and non-est and issue a consequential direction that the same shall not be given effect to or implemented; declare that the alleged Meeting dated 09.06.2023 referred to in the Paper Publication dated 10.06.2023 in Vijayavani Kannada Daily News Paper as well as notice dated 09.06.2023 as illegal, null and void and consequently, restrain defendant from acting upon, giving effect to or implementing any decisions taken thereat; declare that the defendant has acted illegally and without authority of law in calling a meeting of the executive committee of the Plaintiff - Sangha on 17.06.2023; restrain the defendant, his servants or agents or anyone claiming through or under him from interfering with the right of the Plaintiff No.3 in discharging his duty as General Secretary of Plaintiff No.1-Sangha; grant costs of these proceedings and pass such other order as this Court deems fit to grant in the interest of justice and equity. Inter alia sought for an order of temporary injunction restraining the defendant from giving effect to and implementing the alleged resolution dated 09.06.2023 referred to in a paper publication dated 10.06.2023 published in Vijayavani Kannada Daily Newspaper as well as notice dated 09.06.2023 issued by the defendant, pending 14 disposal of the suit in the interest of justice and equity. Being aggrieved by the rejection of I.A.No.1, the present appeal is filed.
3. The appellants in MFA No.4319/2023 are not the plaintiffs and also not parties to the suit, but they claims that the first appellant is a Vice-President and the second appellant is a Treasurer of Rajya Vokkaligara Sangha (‘the Sangha’ for short) and while filing the application, a leave is sought on the ground that they are the Vice-Presidents and Treasurer and their right is prejudiced in passing such resolution. Hence, this Court granted leave to file the appeal and they also sought a similar order to set aside the order passed by the Trial Court on I.A.No.1 and consequently allowed the same.
4. The appellants in MFA No.4445/2023 are also not the parties to the original suit and they claims that they are the Directors of the Sangha. In view of the resolution dated 09.06.2023 and their rights is prejudiced and they also sought to grant leave to file the present appeal.
5. This Court having considered the grounds urged in the application granted leave to file an appeal vide order dated 15 04.07.2023 and they also sought for a similar order to set aside the order passed by the Trial Court on I.A.No.1 and consequently allowed the appeals.
6. The appellants in MFA No.4320/2023 also filed an application to implead some of the directors of the Sangha to implead them that they are the necessary parties to this appeal and this Court ordered to serve the notice on the proposed respondents and only the proposed respondent, who claims that who has been elected as President of the Sangha, represented through the Counsel and other proposed respondents though have been served they did not choose to engage a Counsel or appeared in person. Hence, this Court held service of notice against them is sufficient and allowed the impleading application and they have been arrayed as respondent Nos.5 to 10.
7. The factual matrix of the case of the plaintiffs before the Trial Court in O.S.No.3590/2023 is that, on 09.09.1907, plaintiff No.1 viz., Rajya Vokkaligara Sangha (‘the Sangha’ for short) was registered as a Society under the provisions of Mysore Societies Act, 1904. Bye-law No.7 of the Sangha, provides for formation of executive committee. The Directors of 16 the Executive Committee are elected from 11 Districts of the State. There are totally 35 Directors, who are elected and they constitute an Executive Committee. As per the provisions of Bye-law 7(3), the Executive Committee shall elect a (a) The President; (b) Two Vice-Presidents; (c) General Secretary; (d) Assistant Secretary; and (e) Treasurer.
8. It is contended in the plaint that, on 05.01.2014, elections for the Executive Committee of the Sangha was held and in the said election, Directors were elected. Among the elected Directors, the office bearers were elected. The term of office was supposed to end on 27.01.2019. As the election could not be held, the State Government vide Government Order dated 20.08.2018 appointed an Administrator to the Sangha. The said Government Order was assailed before this Court in W.P.No.36772/2018 and connected cases and an order was passed with a direction to the State Government shall appoint a high ranking officer, forthwith to oversee the election to be conducted by the Administrator in fair manner in the interest of justice. Accordingly, the State Government has ordered for appointment of Administrator and continued the Administrator from time to time. 17
9. One of the members of the Sangha has approached this Court seeking for a writ of mandamus for conducting the election process and this Court vide order dated 05.03.2021 passed an order in W.P.No.50482/2019, gave direction to conduct the election. One more member also approached by filing W.P.No.15787/2021, seeking for a writ of mandamus for a direction to conduct the election to the Executive Committee of the Sangha. This Court vide order dated 08.09.2021 disposed of the writ petition considering the submissions of the learned High Court Government Pleader that all endeavours would be made to hold the elections before 31.12.2021. Thereafter, the election to the Sangha was held on 12.12.2021 to elect the Directors. Accordingly, 35 directors were elected by the members of the Sangha. In the meeting of the Executive Committee dated 05.01.2022, the Directors of the Sangha elected – (i) Shri. C.N. Balakrishna as President, (ii) Dr. Renukaprasad K.V. and Shri. D. Hanumanthaiah as Vice-Presidents, (iii) Shri. T. Konappa Reddy as the General Secretary, (iv) Shri. Raghavendra as Assistant/Joint Secretary, and (v) Shri. R. Prakash as Treasurer. All of them are performing their functions in accordance with law 18 and the bye-law of the Sangha and their tenure comes to an end on 04.07.2024.
10. That on 29.05.2023, a notice under Bye-law 7(3)(D)was sent by some of the Directors of the Sangha, including the defendant herein, regarding placing of ‘no- confidence motion’ against the office bearers. Vide letter dated 03.06.2023, plaintiff No.1-the Sangha has sent its reply dated 03.06.2023 to the notice dated 29.05.2023 that the said notice is defective since one of the office bearers is party to the said notice and the same is not in accordance with law. It is also their case that plaintiff No.1-the Sangha sent a letter dated 07.06.2023 to the Deputy Registrar, Registrar of Co-operative Society, Zone-II, Bengaluru Urban District, stating that four Directors of the Executive Committee, have withdrawn their request contained in the letter dated 29.05.2023 along with the copy of the letter given by four Directors.
11. It is contended that when things stood thus, the plaintiffs were shocked to see a paper publication in Vijayavani Kannada Daily Newspaper dated 10.06.2023, issued by the defendant claiming himself to be Temporary General Secretary. 19 The plaintiffs were surprised to note that the meeting of the Executive Committee has been called on 17.06.2023 for electing the office bearers. In this regard, on 10.06.2023, during evening hours, a notice of the meeting has been received by plaintiff No.3. It is mentioned in the paper publication dated 10.06.2023 that a meeting, regarding moving no-confidence motion against the present office bearers was convened on 09.06.2023 at 12 noon and as per the said meeting dated 09.06.2023, the meeting of the Executive Committee has been called on 17.06.2023 for electing the office bearers. It is contended that no such meeting has been convened by plaintiff No.1-the Sangha on 09.06.2023. Without prejudice to the contention that the plaintiff No.1-the Sangha is required to convene the meeting of the executive committee, it is submitted that no notice has been sent to plaintiff Nos.2 and 3, other office bearers and Directors of the plaintiff No.1 - the Sangha, informing that meeting is scheduled on 09.06.2023. It is contended that as such alleged meeting held on 09.06.2023 is illegal. All the actions pursuant to alleged meeting dated 09.06.2023 including publication dated 10.06.2023 appeared in the daily news paper ‘Vijayavani’ are also illegal. 20
12. In the plaint also, they extracted the bye-law No.16 of the Sangha. In terms of Bye-law No.16(3), 9 (nine) members/directors of the executive committee, addressing a letter to the Secretary of the plaintiff No.1 - the Sangha, informing agenda of the proposed meeting are required to request for convene the meeting of the executive committee and within ten days of the receipt of such request, the executive committee may convene the meeting. In the event, if the plaintiffs fail to convene the meeting within 10 days of such request, members who made the request of convening meeting, may convene the meeting of executive committee.
13. It is contended that in the instant case, request for convening the meeting of the executive committee, indicating agenda of the proposed meeting has not been received by the plaintiffs from the defendant or any other directors/members of the executive committee. As such meeting of the executive committee has not held on 09.06.2023. In the eye of law, alleged meeting held on 09.06.2023 is not a meeting of the executive committee at all and decision taken in the said meeting are void and illegal. 21
14. Without prejudice to the above contentions, if it is construed that the members of the executive committee are also entitled to convene the meeting in the event of failure on the part of the plaintiffs to convene the meeting, it is submitted that the plaintiffs and other office bearers of plaintiff No.1-the Sangha and members of the executive committee of plaintiff No.1 have not received notice of the meeting scheduled on 09.06.2023. Without issuing notice, meeting of the executive committee cannot be convened. Any such gathering of the few members/directors of the executive committee cannot be considered as meeting of the executive committee. It is contended that without issuing notice of the meeting and without indicating agenda of the meeting, meeting dated 09.06.2023 has been organized. Therefore, the same is void, illegal and contrary to the Bye-law.
15. It is also contended that as per Bye-law 7(1) of the Sangha, the Executive Committee consisting of 35 members shall elect the office bearers. As per the Bye-laws, for removal of any office bearer, an individual notice is required to be given to concerned office bearer, proposed to be removed from his office and a meeting has to be convened by giving 7 days clear notice 22 to consider the reasons provided by the Executive Committee. Bye-law No.7 of plaintiff No.1 – the Sangha is also extracted in the plaint and contended that as per the Bye-law in the said meeting, necessary resolution is required to be passed for removal of the said office bearer. Consequently, one more meeting of the Executive Committee is required to be called by giving 7 days clear notice to fill-up the vacant position of the office bearer.
16. It is contended that no notice has been issued by the Executive Committee of plaintiff No.1 - the Sangha either to remove any office bearer or appoint any new office bearer. Consequently, no meeting has been held to remove any office bearer of the plaintiff No.1 - the Sangha. As such, the question of appointing any office bearer to the Sangha does not arise at all. In view of the same calling of the meeting on 17.06.2023 by the defendant is illegal and without authority. It is contended that the defendant claiming himself to be Temporary General Secretary has issued a notice and also a paper-publication calling for a meeting on 17.06.2023, which is unlawful and without any authority. Hence, filed the suit. 23
17. This suit is resisted by filing written statement by defendant, wherein, contended that filing of the suit itself is by incompetent person in as much as the suit is filed by the Sangha, which is represented by its President C.N. Balakrishna and General Secretary T. Konappareddy. In the course of the pleadings itself, there is a specific reference to the meeting dated 09.06.2023 and the resolution passed on 09.06.2023, paper publication dated 10.06.2023 that the said C.N.Balakrishna as well as T. Konappareddy have been removed by moving a no-confidence motion by majority of the members. In that view of the matter, the suit itself is defective and the suit could not have been filed by the Sangha. The right to file a suit for and on behalf of the first plaintiff - the Sangha is only where it is against the society on the one hand and persons beyond the society on the other hand. The filing of a suit by a Society against its Executive Committee members is unknown to law. Hence, the suit itself is not maintainable.
18. It is contended that even in respect of plaintiff Nos.2 and 3, they are claiming themselves to be the President and the General Secretary is not withstanding the resolution passed on 09.06.2023, when there is a specific reference to the same in 24 the pleadings. There is no declaration sought to the effect that they continue as the president and the general secretary for any reason whatsoever and their only prayer is to declare that the resolution is illegal and non-est and to issue consequential direction into “not to give effect or to be implemented”. In other words, the resolution being in existence and the same being implemented is a matter of fact which they want the Court to intervene and prevent. Unless the said eventuality happens, the claim of the 2nd and 3rd plaintiffs to file the present suit as the president and the general secretary of the Sangha is a misnomer. Therefore, the array of the parties as plaintiffs is completely misplaced and the suit itself is not maintainable.
19. It is contended that only the in charge secretary who has been appointed as such in the meeting dated 09.06.2023 has been made as a party defendant. It is settled law that all requisitionists will have to be made party to challenge any no confidence motion and the mandate in the executive committee is by a simple majority as has been stated in the plaint itself and the members who have participated in the meeting dated 09.06.2023 and who have voted in favour of the resolution are necessary parties in as much as it is their collective decision is 25 what is challenged in the present proceedings. Hence, they are necessary parties. The suit itself is designed to keep out the persons whose presence is absolutely necessary for determining the questions in controversy out of the fray and as such the suit is bad for non-joinder of necessary parties. The suit as such cannot proceed without all the parties to the meeting dated 09.06.2023 being made as parties thereof.
20. It is also contended that when it comes to the question of the management constitution, etc., of the Society, there is an alternative remedy available under Section 25 of the Societies Registration Act, 1960 and the fact finding exercise could be undertaken and further steps could be undertaken under the provisions of the said act and the declaration and consequential injunctions therefore cannot be sought for. Therefore, the suit is not maintainable.
21. The defendant in the written statement denied the allegations made in the plaint by parawise remarks. It is also contended that requisitionists are 21 members out of 35 members of the executive committee has given a representation dated 29.05.2023 and the very contents thereof are explanatory. 26 It is also contended that the very reply given by the Secretary himself in his letter dated 03.06.2023 makes a reference to the notice and states that Raghavendra, Assistant Secretary himself is working and he could not have been included in the list submitted for the purpose of moving the no-confidence. There was a clear refusal to call for the meeting within a period of 7 days or at any rate 10 days from 29.05.2023. This was followed by another letter of the like date it was sent to the Assistant Secretary but fact remains that even before the Assistant Secretary and subscribed himself to the letter dated 26.05.2023, he had already submitted his resignation to the President and the Secretary which is well within their knowledge. Hence, it is clear that the letter dated 03.06.2023 is clear that they are unwilling to call a meeting. Hence, the meeting notice was put up on the Notice Board of the association and on 09.06.2023 when majority of the members of the executive committee intended to hold the proceedings in the meeting place, they found that the meeting place was locked at around 12’o clock. These entire proceedings have been videographed and the transcript is also produced. The majority of the executive committee members had requested that in view of the meeting 27 fixed on 09.06.2023 which was fully within their knowledge and also their failure to call for the meeting enabling them to conduct the meeting on 09.06.2023, requested that the meeting hall has to be opened. The President and the General Secretary, who are personally present, refused to participate in the meeting and instead opened the keys and they left the spot. Everything is videographed and videography evidence is available with the defendant and the same is being produced in a CD and can be displayed. Even the Treasurer who has been removed was also personally present till the meeting commenced but he also refused to participate in the meeting and walked away without participating in the meeting.
22. It is contended that two other directors namely Mr.Umapathi and Lokesh were also present, then, when this incident took place at 12’o clock, they also refused to participate in the meeting and they left the place after opening the keys. The conducting of the executive committee has been recorded in which the meeting was requested to be presided over by Dr.Anjanappa. From out of 35 members 19 members have participated which is in excess of the quorum required for conducting the executive committee meeting and the resolution 28 was passed unanimously expressing no confidence in the presence of office bearers. Taking into account that they are Secretary had already resigned from the said post. This proceedings was as such displayed again in the notice board of the association and the same was even published in the newspapers indicating the proceedings have been taken place and that the said office bearers no more enjoyed the mandate of the majority of the executive committee members and that upon the no confidence motion having been moved and accepted by the majority. Hence, it is contended that no confidence motion was conducted in accordance with bye-laws.
23. Inter alia, the plaintiffs have sought for a temporary injunction preventing them in holding the meeting on 17.06.2023 and the plaint averments are repeated in the affidavit and the objection statement is also similar to the written statement. The Trial Court having considered the arguments of both the Counsel and rejected the application filed by the plaintiffs i.e., I.A.Nos.1 to 3 and common order has been passed. Now, the appeals filed by the appellants have restricted the prayer in respect of questioning the order passed on I.A.No.1 in declining to pass an order of injunction restraining the 29 defendants from giving effect to or implementing the alleged resolution dated 09.06.2023 referred to in a paper publication dated 10.06.2023 published in Vijaya Vani, Kannada daily news paper as well as the notice dated 09.06.2023 issued by the defendant, pending disposal of the suit in the interest of justice and equity.
24. The Trial Court while passing an order comes to the conclusion that the notice was given on 29.05.2023. Thereafter, on 03.06.2023, a letter was addressed that the same is a defective notice and also considered the citations which have been placed before the Trial Court and also taken note of the fact that the conduct of the present plaintiff Nos.2 and 3 that may be seen in their letter dated 03.06.2023. One Mr. Raghavendra, Assistant Secretary, resigned his said post on 29.05.2023 and thereafter, he has signed in the requisition for no confidence on the very same date and also taken note of the timings of tendering resignation as well as giving the requisition i.e., discussed in paragraph No.13.4 and also taken note of Democratic Principle of Simple Majority, but not the reasons for no confidence motion which has to wait and also comes to the conclusion that Bye-law No.16 of the Sangha has to be read in 30 the light of the law laid down by the Apex Court in the case of K. Narasimhaiah v. H.C. Singri Gowda and others reported in 1966 SC330 wherein it was held that provision like Rule 16 is not mandatory but it is directory and also taken note of the judgment of this Court in the case of Venkateshappa v. State of Karnataka (2014) and comes to the conclusion that the plaintiffs have suppressed the fact regarding resignation of Shri. Raghavendra and also suppressed the fact that they were also present in the meeting and walked out of the hall the movement they noticed that the majority is against them. For this reason alone the relief to the plaintiffs should be declined and comes to the conclusion that the contention of the plaintiffs is not tenable and also comes to the conclusion that right from 29.05.2023 after giving of notice for holding a meeting for no confidence motion, so far, no board meetings are held in the Sangha. Under these circumstances, the General Secretary of the Sangha is not authorized to file a suit on behalf of the Sangha.
25. The Trial Court taking into note of on perusal bye- law No.7(3)(D) come to the conclusion that it indicate that if any of the office bearers of the Sangha have to be removed, the 31 executive committee has to issue a notice to the said effect to the concerned office bearers and the same can be removed by simple majority and they have given notice of no confidence motion. Though come to the conclusion that no notice of meeting to be held on 09.06.2023 was given to the executive committee but come to the conclusion that in terms of the bye-law conducted a meeting. There is no infraction of any provision including bye-law No.7(3)(D) and 16(3) of the bye-laws of the Sangha and no irregularity is committed by the members of the executive committee, who have passed the resolution on 09.06.2023. Hence, the Trial Court has rejected all the Interlocutory Applications in a common order. Hence, these appeals are filed before this Court.
26. In the present appeals, the order is challenged before this Court is rejection of the application filed under Order XXXIX Rules 1 and 2 of CPC which is numbered as I.A.No.1. Having considered the grounds urged in all the appeals, the main contention in the appeals is that no notice of meeting dated 09.06.2023 was given and as per the bye-law 7 of the Sangha, individual notice is required to be given to the concerned office 32 bearer proposed to be removed from the office and a meeting has to be convened by giving seven days clear notice to consider reasons provided by the Executive Committee but no notice has been issued by the Executive Committee of the Sangha either to remove any office bearer or appoint the new office bearer. Consequently, no meeting has been held to remove any office bearers of the Sangha. As such, the question of appointing any office bearer to the Sangha does not arise at all since no meeting was convened as provided in the bye-law of the Sangha to convene the meeting for the purpose of considering the process of no confidence as proposed by the signatory to said motion. The impugned order passed by the Trial Court is having adverse effect on the interest of these appellants since they are also the Directors/Members of the Executive Committee of the Sangha and also the office bearers of the said Sangha who are duly elected under due process of law in terms of the bye-law. The Trial Court has failed to consider the fact that the alleged meeting of the Executive Committee dated 09.06.2023 is not a meeting in the eye of law and the resolution passed therein is illegal, null and void. It is also contended that the Trial Court ought to have consider the same in the light of bye-laws 33 7(3)(aa) and 16(3). The bye-law 7(3)(aa) provides for individual notice to the office bearers to whom the Sangha proposed to remove and the bye-law 16(3) provides for requisition by not less than 9 members for convening a meeting of Executive Committee and the appellants came to know about the passing of the resolution dated 09.06.2023 when the paper notification was found on 10.06.2023 and for electing the office bearers also the date was fixed on 17.06.2023 but no such notice was given. The very process which has been adopted is against the bye-law. The Trial Court erroneously departed from considering the main question raised in the suit as well as in the application which would ultimately decide the reliefs sought for and fails to take note of the fact that no notice was served on them and comes to the conclusion that no such notice was given in respect of the meeting dated 09.06.2023 and also subsequent meeting dated 17.06.2023 and the same is observed in the order but comes to the conclusion that there is no any infraction and the very approach of the Trial Court is erroneous.
27. The senior counsel Sri Uday Holla who appears for the appellants in MFA No.4445/2023, in his argument he vehemently contend that the Executive Committee consists of 35 34 members and no dispute to that effect and no confidence motion notice was given on 29.05.2023 and there was a defect in the notice. It is also not in dispute that they are the elected office bearers and though 21 Members have given the notice, out of 21 members, 4 Directors have withdrawn the same by giving a letter and the said letter was also addressed to the Registrar of Co-operative Society vide letter dated 07.06.2023. The very procedure adopted is not in consonance with the bye-law 7(3) (r) and also bye-law 16(3) and no notice was given and the issuance of notice is mandatory before moving the no confidence motion.
28. The counsel in support of his argument relied upon the judgment reported in 2017 SCC ONLINE BOM6609in the case of ADV. BABASAHEB WASADE AND OTHERS vs MANOHAR GANGADHAR MUDDESHWAR AND OTHERS and brought to notice of this Court paragraph 3 wherein discussed with regard to the brief facts of the appeal and also held that initially, the said Trust was registered as a society under the Societies Registration Act, 1860. The Trust is having its own bye-laws for running its day-to-day administration. The counsel referring this discussion, would contend that the Trust was also 35 registered as a society under the Societies Registration Act and present appellants’ society is also registered under the Societies Registration Act. The counsel also brought to notice of this Court paragraph 25 wherein the Bombay High Court discussed with regard to that when the members were not expelled or removed from the membership, then they were definitely entitled to get notice of the meeting and to remain present in the said meeting. Merely because they could not have voted or would not have been counted as a member, is not sufficient to not to issue notice to them at all, of the meeting which was convened. Their right as a member of the society, unless and until, they were expelled from the society comprises of right to know all the affairs of the society and one of the affair about the management of the society includes the election of the members to the Executive Committee. At the most after attending the meeting, they would not have been able to cast their vote, but that doesn’t mean that appellants should not issue notice of the meeting to them at all. As admittedly such notice was not issued to objectors, on this very ground itself, the holding of such meeting was illegal and the resolutions passed therein, 36 which resulted into filing of Change Report, also cannot be called as legal.
29. The counsel referring this judgment would vehemently contend that in the case on hand, there was no such circumstances, admittedly, the appellants are the Directors of the Sangha and they are having right to know the affairs of the society and even they are having right to vote in the no confidence motion which has been moved by the respondents but no such notice was given before conducting the meeting on 09.06.2023 and it is a fundamental breach, hence, the said judgment is aptly applicable to the case on hand.
30. The counsel also relied upon the judgment of the Apex Court reported in (1990) 3 SCC634in the case of GAJANAN NARAYAN PATIL AND OTHERS vs DATTATRAYA WAMAN PATIL AND OTHERS. This case also pertains to no confidence motion against the Chairman of a Co-operative Society and in this judgment, the Apex Court held that members of Committee of Management are entitled to sit and vote at any meeting of the Committee. The counsel also brought to notice of this Court paragraph 9 wherein the Apex Court discussed with 37 regard to the members of the Executive Committee are entitled to sit and vote at any meeting of the Committee may participate and vote in the said meeting. It has provided that as soon as vote of no-confidence is passed against the Chairman of the Managing Committee of the society by two-third majority of the total number of Committee members who are for the time being entitled to sit and vote the office of Chairman etc., shall be deemed to be vacant. Therefore, it has been submitted that the words at any meeting of “the Committee” shall be deemed to refer to all the meetings of the Managing Committee or the Board of Directors. The said Directors have been conferred the right to participate in any meeting including the special meeting of the board of the Director or Managing Committee of the society and the same is discussed in paragraph 14. In paragraph 12, the Apex Court discussed with regard to that in a case of any special meeting convened pursuant to the requisition notice, the impugned notice convening the special meeting is wholly illegal in the absence of any such notice and the same is unwarranted and each and everyone of Executive Committee are entitled to participate in the special meeting of the Committee and also to vote at the same meeting as regards the no confidence motion, 38 the non-service of the notice of the said meeting on the Directors renders the said special meeting illegal as there has been an infringement of the provisions of the Act and in majority decided holding the same. The counsel would submit that the principles laid down in the said judgment is aptly applicable to the case on hand.
31. The counsel for the respective appellants in other two appeals i.e., the plaintiffs who are the President and Secretary and also the other appellants though they are not parties to the suit, contend that they are the Vice-President and Treasurer would vehemently contend that when the notice was moved on 29.05.2023, the same was defective since the very Assistant Secretary cannot move for no confidence motion and hence, the same was communicated on 03.06.2023 itself and the resolution dated 09.06.2023 is without any notice even to the plaintiff or to the other office bearers and also to the Executive Members and only they came to know about the passing of such resolution on 10.06.2023 through a paper notification wherein mentioned with regard to the filling up of the vacancies by fixing of the date on 17.06.2023. The counsel also vehemently contend that when no confidence motion was given 39 and out of the 21 Directors, 4 have withdrawn their consent for no confidence motion and the same was sent to the Registrar along with the letters given by the particular Directors and the Registrar has not taken any action and hence, approached the Court by filing a suit to declare that the very proceedings dated 09.06.2023 is null and void and also sought the relief that meeting cannot be conducted on 17.06.2023. The counsel also would vehemently contend that bye-law 7 is very clear that notice has to be issued and in the case on hand, meeting notice was not given. There is a specific provision that ten days notice has to be given but same was not done and they claims that majority was found and without the Executive Committee members, they cannot hold any meeting of no confidence motion and the same is not in terms of the bye-law. The counsel would vehemently contend that the defendant who himself declared as In-charge Secretary, conducted the proceedings of electing the office bearers and immediately suit was filed on 12.06.2023 itself and defendant No.1 who assumed himself as In-charge Secretary and also assumed themselves as office bearers and not followed the procedures. 40
32. The counsel appearing for the appellants in MFA No.4320/2023 also categorically contend that no notice was given and not complied bye-laws 7 as well as 16 and the order passed by the Trial Court is perverse and the Trial Court fails to take note of the material on record and committed an error in coming to the conclusion that no prima facie case is made out and there is no any infraction in conducting the proceedings and the very approach of the Trial Court is erroneous and the Trial Court is not examined the compliance of notice and the order is also very silent with regard to no notice was issued and by-law 16(3) is not answered by the Trial Court hence, it requires interference.
33. The counsel in support of his argument relied upon the judgment of the Apex Court reported in AIR1966SC330in the case of K NARASIMHIAH vs H C SINGRI GOWDA AND OTHERS wherein the Apex Court held that notice ought to have been given and in the absence of any notice, there cannot be any proceedings and though the Apex Court held that considering the Mysore Town Municipality Act and Section 27(3) with regard to the giving of notice requirement is mandatory tendering of a notice is in law giving of a notice even though the 41 person to whom it is tendered refuses to accept it. Thus, as soon as the person with a legal duty to give the notice dispatches the notice to the address of the person to whom it has to be given, the giving is not complete. In the case on hand, no such notice was given and notice was also not irregular and very notice was not issued. The counsel would vehemently contend that the judgment of this Court in KALEGOWDA’S case, where the Court has observed with regard to irregularity of the notice but in the case on hand, no such notice was given and without the notice, they hold the meeting and passed the resolution and the same is illegal.
34. Learned Senior Counsel Sri Ravivarma Kumar for respondent No.8 in MFA No.4319/2023 and respondent No.5 in MFA No.4320/2023 would submit that the respondent Nos.5 and 8, who was added and not party to the proceedings had raised the preliminary objection that the suit against Puttaswamy, who has been arrayed as defendant is the only sole defendant when the suit was filed and subsequently, others have been added, the respondent Noa.5 and 8 in respective appeal are not added. When the suit is filed against only the said Puttaswamy, now by adding this respondent, they cannot seek any relief and the 42 counsel also would submit that the very suit has become infructuous. The counsel also would vehemently contend that the office bearers were already elected on 17.06.2023 and all are also not made as parties in the said suit and would submit that when the suit does not survives for consideration, even the appeal also not survives for consideration.
35. The counsel also would vehemently contend that when the plaintiffs were thrown out by passing no confidence motion, they cannot maintain these appeals also. The counsel also would vehemently contend that the plaintiffs have relied upon the letter dated 06.06.2023 allegedly issued by the first defendant supporting them but, they claim the relief against the very same defendant even though claims that he has given letter withdrawing the consent for no-confidence motion. Hence, it is clear that it is a collusive suit and only in order to prevent the new office bearers, who have been elected in terms of the bye- law, they cannot maintain this appeal and they cannot get any relief at the hands of this Court. The relief sought in the plaint is only with regard to the resolution dated 09.06.2023 and no other relief is sought. Hence, the very suit becomes infructuous. 43
36. The counsel also would vehemently contend that, Section 25 of the Karnataka Societies Registration Act, 1960 is very clear that the plaintiffs can seek the relief before the Registrar and Section 25 is also very clear that the Registrar may on his own motion and shall on the application of the majority of the members of the governing body or of not less than one-third of the members of the society, hold an enquiry or direct some person authorised by him by order in writing in accordance with the rules made in this behalf to hold an enquiry into the constitution, working and financial condition of a registered society. The counsel also would vehemently contend that under Section 27-A also, a provision is made for appointment of administrator, wherein grounds are set out in 27-A(1) (a) to (c) and also (4) and (5) with regard to the appointment of administrator and functioning of the administrator and they cannot file a suit that too, in a collusive nature by making only the first defendant as party to the proceedings.
37. The counsel also would vehemently contend that the appellants are seeking relief not to hold any meeting but, no such application is filed before this Court and when there is no 44 such prayer before the Court, granting of any relief in favour of the appellants does not arise. The counsel also would vehemently contend that, in terms of Bye-law No.7(4), it is very clear that they should conduct the meeting once in a month and no such meeting is conducted. Hence, the very suit itself is not maintainable and consequently, these appeals are not maintainable and the relief cannot be granted in favour of the appellants.
38. Sri Vivek S. Reddy, learned Senior counsel for Sri Munimanju H.M., who appear on behalf of respondent No.4 in his argument would vehemently contend that the very authors of letter dated 29.05.2023 calling the meeting notice have not been made as parties to the suit. Hence, the suit suffers from non- joinder of necessary parties. It is also contended that an application was filed before the Trial Court to implead respondent No.4 and he was impleaded and no relief is sought against the respondent No.4. The plaintiff Nos.2 and 3 have been ousted and they are not the President and Secretary of the Sangha as on the date of filing of the suit i.e., on 12.06.2023 and no confidence motion was passed on 09.06.2023 by passing 45 a resolution. Hence, the relief sought in the suit as well as in the appeal cannot be granted.
39. The counsel also would vehemently contend that plaintiff Nos.2 and 3 have no locus as President and Secretary to file the suit and they have not denied participation of 19 directors in the meeting held on 09.06.2023. The counsel also would vehemently contend that the said meeting was held after ten days and the plaintiffs have not made any prima facie case and the very contention that the respondents cannot conduct the meeting cannot be accepted and valid meeting was held on 09.06.2023 and discussion was made in the said meeting and no confidence motion was passed by passing the resolution. The counsel would vehemently contend that, immediately after passing the resolution, In-charge Secretary was appointed in the very same meeting, who also called a meeting on 17.06.2023 for selection of new office bearers and they were elected. Hence, they cannot be injuncted by passing any order.
40. Sri Harish V.S., counsel for respondent No.3, who appear on behalf of respondent No.4, in support of his argument, relied upon the judgment of the Delhi High Court in DELHI46CLOTH AND GENERAL MILLS CO. LTD., DELHI AND ANOTHER VS. DHARAM SINGH reported in AIR1981DELHI157 wherein the Delhi High Court has held that the Court should be slow in denying elected representative from discharging his function and the counsel also brought to notice of this Court Para No.2, wherein it is observed that interference in the democratic process of elections, particularly at the interim stages, should be sparing. It is also well established that where the election is challenged, the elected representative should be allowed to perform his duties. If he is restrained in between the General Body of Electorate, would be deprived of their elected representative to look after the general interest of the Electorate. The counsel also brought to notice of this Court Para Nos.5 and 7, wherein also it is observed that the Court should be very slow in denying the elected representative (and also the electorate), from discharging the functions in a democratic manner. Further, if an injunction order is passed, an elected representative would be unreasonably denied an opportunity to work on the Trust, if the suit takes a long time for disposal.
41. Sri D.R.Ravishankar, the learned Senior Counsel appearing for respondent No.1 in M.F.A.No.4320/2023 would 47 vehemently contend that the plaintiffs have no cause of action to file the suit and they were aware of all the proceedings which have been taken place after issuance of no confidence motion notice dated 29.05.2023 and all of them were aware of all the events. The counsel also would vehemently contend that the other Fractional Directors are minorities and 21 members have given no confidence motion notice under Bye-law No.7(3)(D) and no question of majority arises while giving such notice. The counsel also would further contend that the Assistant Secretary has tendered resignation on 29.05.2023 itself before giving no confidence motion and the same is also taken note of by the Trial Court and once the resignation is given in terms of Bye-law No.8 and there is no provision with regard to acceptance of resignation in the Bye-law and the document is also very clear that resignation was tendered at 4.40 p.m. and requisition was given at 4.56 p.m., the plaintiffs have not stated the said fact and suppressed the same.
42. The counsel also would vehemently contend that the very plaintiffs have given representation on 07.06.2023 to the Registrar intimating that, out of 21 members, 4 members have 48 withdrawn their consent and hence, it is clear that all of them were having the knowledge about the same. The counsel would submit that on 09.06.2023, 19 Directors were present and they have passed the no confidence motion passing a resolution and date was also fixed for selection of office bearers on 17.06.2023 by giving notice in the paper. The counsel also would contend that, even though they were aware of the same, they have not preferred to appear on 17.06.2023 and 23 members have participated on the said day and elected the new office bearers. The counsel also would contend that, on the date of conducting the meeting on 09.06.2023, the premises was locked and the very plaintiff Nos.2 and 3 came and opened the lock and the same was also videographed. Apart from that, treasurer and other two Directors were present and all of them were aware of the same.
43. The counsel would vehemently contend that the judgment of the Bombay High Court relied upon by the learned counsel for the appellants in M.F.A.No.4445/2023 is not applicable to the facts of the case on hand, wherein only an issue with regard to the Trust is involved and not in respect of the co-operative societies registered under the Karnataka 49 Societies Registration Act, 1960. The counsel would contend that Bye-laws are very clear and majority prevails. The counsel would vehemently contend that the law not evolves on the technicalities and hence, they cannot question the very process on the ground of technicalities. The counsel also would contend that there was no existing defect and only in order to avoid the no confidence motion, they have given the reply on 03.06.3023 that the very no confidence motion is defective. The counsel would contend that the sole ground urged before the Court is that no notice is served and the same cannot be a ground to nullify the election conducted.
44. The counsel in his argument would vehemently contend that the judgment of the Orissa High Court in HARAPARBATI THAKURANI BIJE VS. RAMAKANTA GUPTA reported in AIR2002ORISSA89in Para No.12 is very clear that the appeal is only confined to the question of alienation and it cannot be expanded and when the application was filed before the Trial Court only for grant of injunction restraining the defendant-respondent from alienating the suit property, they cannot seek the other relief in the appeal and in this appeal the Court cannot pass any order moulding the relief. 50
45. The counsel also relied upon the judgment of the Apex Court in SUPREME COURT BAR ASSOCIATION AND OTHERS VS. B.D. KAUSHIK reported in (2011) 13 SCC774and brought to notice of this Court Para No.43, wherein it is observed that, it hardly needs to be emphasised that in any body governed by democratic principles, no member has a right to claim an injunction so as to stall the formation of the governing body of the Association. The counsel also brought to notice of this Court Para No.49, wherein it is observed that having regard to the aims and objects as set out in the memorandum of association, it is evident that one of the primary objectives of formation of the Association was to have a body of advocates who are attached to and practicing in Supreme Court of India. The counsel also brought to notice of this Court Para No.50 of the judgment, wherein the Court has observed that the right to form an association necessarily implies that persons forming the association have also the right to continue to be associated with only those whom they voluntarily admit in the association.
46. The counsel also brought to notice of this Court Para No.18 of the plaint, wherein cause of action mentioned discloses 51 that they were aware of all the affairs. The cause of action is also mentioned that when the Directors elected President, Vice- Presidents, General Secretary, Assistant Secretary and the Treasurer on 10.06.2023, when the paper publication is published in the Kannada news daily ‘Vijayavani’ by the defendant, stated that a meeting was convened on 09.06.2023 and election of the office bearers of Sangha will be held on 17.06.2023. Hence, it is clear that they were having notice of the resolution as well as date fixed for selection of the office bearers.
47. The counsel also would vehemently contend that the plaintiffs and other Fractional Directors were not interested to participate in the proceedings initiated, but their Directorship is continued and they can participate in all the Executive Committee meeting. The fact that 21 members have signed and given notice on no confidence motion is not in dispute and those members have not been made as parties to the suit and the prayer made in the suit is also with regard to the resolution dated 09.06.2023. The persons, who have participated in the said meeting and passed the resolution have not been made as parties and they ought to have made all the 23 members as 52 parties but, only made one of the defendant as party to the proceedings and later, added 3 members. Hence, the very conduct of the parties has to be taken note, while passing an order.
48. The counsel also, in support of his argument relied upon the judgment of the Apex Court in DHARAMPAL SATYAPAL LIMITED VS. DEPUTY COMMISSIONEER OF CENTRAL EXCISE, GAUHATI AND OTHERS reported in (2015) 8 SCC519 wherein it is held that there is no straitjacket formula with regard to nature, scope and applicability of flexible nature of principles of natural justice. There may be situations where it is felt that a fair hearing would make no difference, meaning that a hearing would not change the ultimate conclusion reached by the decision-maker: then no legal duty to supply a hearing arise. In such situations, fair procedures appear to serve no purpose since the right result can be secured without according such treatment to the individual. It is also further held that the validity of the order to be decided on the touchstone of prejudice and the ultimate test is always the same viz., the test of prejudice or the test of fair hearing. 53
49. The counsel also relied upon the order of this Court passed in W.P.NO.1411/2017 C/W. W.P.NOS.1475- 1476/2017 AND W.P.NOS.1672-1673/2017 dated 17.01.2017 and brought to notice of this Court Para No.42, wherein this Court relied upon the judgment reported in 2005 (1) KAR.L.J230and held that this Court has expressed the considered view that Adhyaksha has no locus standi to challenge the validity of the notice on grounds of procedural irregularities and its improper service. What removes him from office is not notice but motion against him passed with requisite majority. Any irregularity in the notice is not required to be enquired into at the instance of the Adhyaksha. The counsel also brought to notice of this Court Para No.43 referring the judgment reported in 2010 (3) KAR.L.J.
278, wherein it is held that the person presently holding the office of the Adhyaksha has no locus stanti to challenge the notice of no-confidence motion. Right to remove the Adhyaksha from the office by passing the no-confidence motion against him with requisite majority is the right conferred on the members and that the notice issued by the Assistant Commissioner in that connection is only a part of the procedure 54 prescribed for effectuating the members’ right of removing Adhyaksha.
50. The counsel referring these judgments would vehemently contend that, when the President and Secretary failed to convene a meeting, the requisites can move the same and accordingly, the meeting was held on 09.06.2023 and subsequently, the office bearers are elected as per the Bye-law and they cannot find fault with the order of the Trial Court and the Trial Court comes to the conclusion that Bye-laws are followed.
51. Sri A.V.Nishanth, the learned counsel for respondent No.2, in his argument would vehemently contend that the Court has to take note of the conduct of the plaintiffs and the fact that they were aware of all the proceedings and the respondent No.2 is treasurer. The counsel also would contend that, in terms of cause of action mentioned in Para No.18 of the plaint, it is clear that they were having notice which is also pleaded in the plaint and the aggrieved parties are not made as parties to the suit and they cannot array the Sangha also as a party to the proceedings and they cannot be injuncted. It is further contended that the 55 requisites are not made as parties to the proceedings and the prayer is also only with regard to the resolution dated 09.06.2023 and the parties to the said resolution were not made as parties and only with an intention to get an order, made the defendant No.1 as party to the proceedings. Hence, the Court has to take note of the conduct of the parties while granting an order of injunction and the Trial Court rightly comes to the conclusion that the plaintiffs have not made out any prima facie case to grant the relief.
52. In reply to the arguments of the learned counsel for the respondents, Sri M.R. Rajagopal, learned Senior counsel for Sri Basavaraj H.N, learned counsel in his argument would vehemently contend that the very contention of the learned counsel for the respondent No.5 that in the appeal, they cannot mould the relief cannot be accepted.
53. The counsel also relied upon the judgment of the Apex Court in SHIPPING CORPORATION OF INDIA LTD. MACHADO BROTHERS AND OTHERS reported in (2004) 11 SCC168and brought to notice of this Court the fact that the Apex Court raised the questions with regard to whether Court 56 can take cognizance of subsequent event to decide whether a pending suit should be disposed of or kept alive. The counsel relying upon this judgment would contend that the very original proceedings has become infructuous and the Court can mould the relief in these appeals.
54. The counsel also brought to notice of this Court Para No.4, wherein it is discussed with regard to the prayer made in the said suit and also brought to notice of this Court Para Nos.21, 22 and 23, wherein it is held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such deposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. The counsel also brought to notice of this Court Para No.24, wherein the Apex Court has observed that, in the circumstances, continuing this litigation will be like flogging a dead horse. Such litigation, irrespective of the result, will neither benefit the parties in the litigation nor will serve the interest of the union. The counsel referring this judgment would vehemently contend that the Apex Court has held that 57 continuation of a suit which has become infructuous by disappearance of the cause of action would amount to an abuse of the process of the Court, and interest of justice requires that such suit should be disposed of as having become infructuous.
55. The counsel also relied upon the judgment in J.M. BISWAS VS. N.K. BHATTACHARJEE AND OTHERS reported in (2002) 4 SCC68and brought to notice of this Court Para Nos.9 and 10, wherein the Apex Court has made an observation that litigation, irrespective of the result, will neither benefit the parties in the litigation nor will serve the interest of the Union. Accepting the contentions raised on behalf of Respondent 1 that the successive elections held in the meantime were invalid because he was not permitted to participate in them and to quash all such elections and direct holding of fresh elections under the supervision of the Court, will be contrary to democratic functioning of the employees’ Union.
56. The counsel also brought to notice of this Court the judgment of the Apex Court in PASUPULETI VENKATESWARLU VS. THE MOTOR & GENERAL TRADERS reported in (1975) 1 SCC770and vehemently contend that, it 58 is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institute the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice. The counsel also brought to notice of this Court Para No.5, wherein it is discussed with regard to the powers of the appellate Court.
57. The counsel also relied upon the judgment of the Apex Court in KAVITA TREHAN (MRS) AND ANOTHER VS. BALSARA HYGIENE PRODUCTS LTD. reported in (1994) 5 SCC380 wherein also the Apex Court has discussed with regard to the restitution and observed that High Court was, therefore, justified in directing restoration of status quo ante, as nearly as possible in exercise of its inherent jurisdiction. The counsel referring this judgment would contend that the very 59 contention of the learned counsel for respondent No.5 that suit itself has become infructuous and in the appeal, the Court cannot pass any order and appeal also renders itself infructuous cannot be accepted and the appellate Court has ample power to mould the relief, if the Trial Court has not passed an appropriate order. The counsel would vehemently contend that the order of the Trial Court is perverse and the Trial Court has not exercised its discretion judiciously. The counsel also would vehemently contend that while initiating the no confidence motion, they have not followed the law particularly, the Bye-laws and unceremoniously removed the members and not satisfied the law.
58. Sri Udaya Holla, learned Senior counsel for Sri Madhukar M. Deshpande, learned counsel for the appellants in M.F.A.No.4445/2023 would vehemently contend that the suit is filed within the frame work of Section 15 of the Karnataka Societies Registration Act, 1960 and no notice was issued and there is no deficiency in the notice and while passing the no confidence motion, notice is mandatory and no notice is given and the very document of 09.06.2023 is not sustainable in the eye of law and there is fundamental breach in not issuing the 60 notice and the judgment of the Bombay High Court is not in respect of the Trust as contended by the learned counsel for respondent No.1, which is also registered under the Karnataka Societies Registration Act, 1960. In the judgment of the High Court in KALEGOWDA’s case, it is observed with regard to the irregularity in notice. But, in the case on hand, there is no notice and even the respondents have not produced any document to evidence the fact that they have served the notice on the plaintiffs and also the other office bearers i.e., Executive Committee/Directors. Hence, the appeals required to be allowed and the order of the Trial Court has to be set aside.
59. Having heard the respective counsels for the appellants and respective learned counsels for the respondents and also grounds urged in the appeal and on perusal of the material available on record, the points that would arise for consideration of this Court are: (1) Whether notice is mandatory before passing the no confidence motion to all the executive members of the Sangha as per the bye-law 7(3)(D) as contended in all the appeals?. 61 (2) Whether the Trial Court has committed any error in not granting the relief as sought in I.A.No.1 filed under Order 39, Rule 1 and 2 of C.P.C.?. (3) Whether the Appellate Court can mould the relief exercising the appellate jurisdiction?. (4) What order?. Point Nos.(1) and (2):
60. Having considered the grounds urged in the appeals, the submissions of the respective counsel of the appellants and so also the counsel for the respondents and also the principles laid down in the judgments referred (supra) by the respective learned counsel, this Court has to analyze the material available on record.
61. It is not in dispute that the Sangha was registered as a Society under the provisions of the Mysore Societies Act, 1904. The Sangha also framed the Bye-laws. Bye-law No.7 of the Sangha provides for formation of the Executive Committee. The Directors for the Executive Committee are elected from 11 Districts of the State and total number of Directors are 35, who 62 are elected by the members of the Sangha and they constitute the Executive Committee. It is also not in dispute that Bye-law No.7(3) of the Executive Committee shall elect the President, two Vice Presidents, General Secretary, Assistant Secretary and Treasurer. The election was held in terms of the order passed by this Court in writ petitions and there is no dispute that the elections were held and the Executive Committee of the Sangha elected the office-bearers and the term was remaining. It is also not in dispute that a notice of no-confidence motion was issued in terms of the notice dated 29.05.2023, signed by the Executive Committee members and the same is addressed to the President and General Secretary, wherein the Executive Committee members have expressed no-confidence against all the office- bearers. It is also not in dispute that the General Secretary gave reply to the said requisitionist that no-confidence motion notice issued was defective and thereafter a meeting was called on 09.06.2023 and resolution was passed removing the office- bearers and also date is fixed for selection of new office-bearers as 17.06.2023. A suit is also filed before the Trial Court seeking the relief of declaration to declare that the resolution dated 09.06.2023 is illegal and the said suit was filed on 12.06.2023. 63
62. The main contention urged before the Trial Court is that no notice of meeting dated 09.06.2023 was served on the Executive Committee members and also to the office-bearers and the principles of natural justice is not followed and without giving such notice, a resolution was passed on 09.06.2023. It is also not in dispute that interalia in the said suit, I.A.No.1 is filed before the Trial Court praying the Court to grant an order of temporary injunction restraining the defendant from giving effect to or implementing the alleged resolution dated 09.06.2023 referred to in paper publication dated 10.06.2023 published in Vijayavani, Kannada Daily Newspaper, as well as notice dated 09.06.2023 issued by the defendant, pending disposal of the suit. The Trial Court has rejected the said application. Consequently, meeting was held on 17.06.2023 and office- bearers are elected in terms of the resolution dated 17.06.2023. Hence, the plaintiffs have filed M.F.A.No.4320/2023. M.F.A.No.4319/2023 is filed by the Vice President and the Treasurer and the appellants in M.F.A.No.4445/2023 are not parties to the original suit, but they claim that they are the Directors and it is not in dispute that they are the Directors. 64
63. The fundamental question raised before this Appellate Court is that when the notice was issued in terms of the notice dated 29.05.2023 against all the office-bearers, a reply was given on 03.06.2023 by the General Secretary that the very notice is defective. It is the contention that immediately a letter was addressed to the Registrar, wherein it is stated that out of 21 members, 4 of them have given letter that they are not supporting the no-confidence motion letter dated 29.05.2023. The Registrar has not taken any action, but they conducted the meeting on 09.06.2023 and the said meeting notice was not given to the Executive Committee/Directors.
64. Having considered the material available on record and also the respective contentions, there is no dispute with regard to the fact that the notice was given in terms of the notice dated 29.05.2023. This Court would like to extract Bye- law Nos.7(3)(D) and 16, which reads as follows: . 7 ¸¸¸¸ÀÀÀÀAAAAWWWWÀÀÀÀzzzzÀÀÀÀ PPPPÁÁÁÁAAAAiiiiÀÀÀÀÄÄÄÄððððPPPPÁÁÁÁjjjj ¸¸¸¸ÀÀÀÀ««««ÄÄÄÄwwww,,,, EEEEzzzzÀÀÀÀggggÀÀÀÀ ggggÀÀÀÀZZZZÀÀÀÀ££££ÉÉÉÉ :::: . 1 (C). xxxx xxxx xxxx xxxx 2. xxxx xxxx xxxx xxxx 3. (C). xxxx xxxx xxxx xxxx 65 3 (D) ªÉÄð£ÀAvÉ DAiÉÄÌAiÀiÁVgÀĪÀ AiÀiÁªÉÇç⠥ÀzÁ¢üPÁjAiÀÄ£ÀÄß AiÀiÁªÀÅzÉà PÁgÀtPÁÌV PÁAiÀÄðPÁj ¸À«ÄwAiÀÄÄ §zÀ¯Á¬Ä¸À®Ä EaѹzÀÝ°è PÁAiÀÄðPÁj ¸À«ÄwAiÀÄÄ D ¥ÀzÁ¢üPÁjUÉ D §UÉÎ ¸ÀÆZÀ£ÉAiÀÄ£ÀÄß PÉÆqÀvÀPÀÌzÀÄÝ ºÁUÀÆ D ¥ÀzÁ¢üPÁjAiÀÄ£ÀÄß §zÀ¯Á¬Ä¸À®Ä PÁAiÀÄðPÁj ¸À«ÄwAiÀÄÄ ¤ÃrgÀĪÀ PÁgÀtUÀ¼À£ÀÄÓ ZÀað¸À®Ä MAzÀÄ ¢£ÁAPÀªÀ£ÀÄß (CAvÀºÀ ¸ÀÆZÀ£É ¤ÃrzÀ ¢£ÁAPÀÀ¢AzÀ 7 ¢ªÀ¸ÀUÀ½AzÀ PÀrªÉÄ CªÀ¢ E®èzÉ) ¤UÀ¢ü¥Àr¸ÀvÀPÀÌzÀÄÝ. ZÀað¹zÀ £ÀAvÀgÀ, PÁAiÀÄðPÁj ¸À«ÄwAiÀÄÄ D ¥ÀzÁ¢üPÁjUÀ¼À£ÀÄß §zÀ¯Á¬Ä¸ÀĪÀÅzÀÄ ¸ÀÆPÀÛªÉAzÀÄ §ºÀĪÀÄvÀ¢AzÀ wêÀiÁð¤¹zÀ°è, DvÀ£À£ÀÄß §zÀ¯Á¬Ä¸§ºÀÄzÀÄ ªÀÄvÀÄÛ vÀvÀà¥ÀjuÁªÀĪÁV GAmÁzÀ SÁ° ¸ÁÜ£ÀPÉÌ ¨ÉÃgÉÆçâ PÁAiÀÄðPÁj ¸À«ÄwAiÀÄ ¸ÀzÀ¸Àå£À£ÀÄß ¥ÀzÁ¢üPÁjAiÀiÁV Dj¸À®Ä 7 ¢£ÀUÀ¼À £ÉÆÃnÃ¸ï ¤Ãr ¸À¨sÉ PÀgÉzÀÄ Dj¸ÀvÀPÀÌzÀÄÝ.
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3. PÁAiÀÄðzÀ²ðAiÀĪÀjUÉ §gÀºÀzÀ ªÀÄÆ®PÀ PÀ¤µÀ× ¥ÀPÀë 9 d£À ¸ÀzÀ¸ÀågÀÄ «µÀAiÀÄ ¸ÀÆa¹ «±ÉõÀ ¸À¨sÉ ¸ÉÃj¸À®Ä w½¹zÀgÉ CAxÀ PÁUÀzÀ ¸ÉÃjzÀ 10 ¢£ÀUÀ¼ÉƼÀUÁV PÁAiÀÄðPÁj 66 ¸À«ÄwAiÀÄ£ÀÄß PÀgÉzÀÄ D «µÀAiÀĪÀ£ÀÄß ZÀað¹ wêÀiÁð¤¸À®Ä ªÀiÁvÀæ ¸ÉÃgÀvÀPÀÌzÀÄÝ. D CªÀ¢üAiÀÄ°è PÁAiÀÄðPÁj ¸À«ÄwAiÀÄ ¸À¨sÉAiÀÄ£ÀÄß PÀgÉAiÀÄ®Ä G¥ÉÃQë¹zÁÝzÀgÉ w¼ÀĪÀ½PÉ PÉÆlÖ ¸ÀzÀ¸ÀågÀÄ vÁªÉà PÁAiÀÄðPÁj ¸À¨sÉAiÀÄ£ÀÄß ¸ÀAWÀzÀ DªÀgÀtzÀ°è PÀgÉzÀÄ wêÀiÁð£ÀªÀ£ÀÄß PÉÊUÉƼÀÄîªÀÅzÀÄ. D wêÀiÁð£ÀUÀ¼ÀÄ ¸ÀAWÀzÀ ¤§AzsÀ£ÉUÀ½UÉ «gÉÆÃzsÀªÁVgÀPÀÆqÀzÀÄ.
65. Bye-law No.7(3)(D) would indicate that if any of the office-bearers of the Sangha have to be removed, the Executive Committee has to issue a notice to the said effect to the concerned office-bearers. Thereafter, the Executive Committee has to convene a meeting fixing the date which shall not be later than seven days after service of such notice. Having perused the notice dated 29.05.2023, the said notice is given to the President and General Secretary. But that notice indicates some of the Executive Committee members expressed no-confidence motion not only against the President and General Secretary,but also against all the office-bearers. Hence, the very notice itself is defective since the same was given only to the President and General Secretary. On perusal of the said notice, no-confidence motion is expressed against all the office-bearers. Bye-law No.7(3)(D) would indicate that if any of the office-bearers of the 67 Sangha have to be removed, the Executive Committee has to issue a notice to the said effect to the concerned office-bearers. But no such compliance is made and no notice was given to the other office-bearers since they were expressing no-confidence motion against all the office-bearers. The Executive Committee includes all 35 members, who have been elected from 11 Districts in terms of Bye-law No.7(1). It is also clear that thereafter, the Executive Committee has to convene a meeting fixing the date which shall not be later than 7 days after service of such notice.
66. In the case on hand, no doubt, the General Secretary did not convene the meeting within 7 days after service of such notice. But the General Secretary gave the reply that the very notice is defective. The defect pointed out is that the Assistant Secretary has also signed the notice and he being the office-bearer cannot issue such notice. The learned counsel for the appellants would contend that when the notice is defective, the question of convening the meeting does not arise. The said submission cannot be accepted. The records reveals that the no-confidence motion notice dated 29.05.2023 was given at 4.56 p.m. and on the very same day, the Assistant 68 Secretary tendered his resignation prior to submitting the notice i.e., at 4.45 p.m. and the same is also evident on record and the same is also taken note of by the Trial Court and the timings also mentioned that it was given at 4.45 p.m. and the same was numbered as 1173 dated 29.05.2023 and notice of no- confidence motion is also dated 29.05.2023 and the same is numbered as 1174 i.e., at 4.56 p.m. Hence, it is clear that the General Secretary was not having any intention to convene the meeting to discuss the notice dated 29.05.2023 and the same is refusal.
67. The learned counsel for the appellants would contend that out of notice given to 21 Directors, 4 have given the letter that they are not having consent and the same is also intimated to the Registrar along with the said letters and no dispute with regard to the said fact that they have given the said letter and the same will not make any consequence because once the no-confidence motion was moved, the Registrar cannot entertain the same and hence it cannot be contended that it is an inaction of the Registrar as contended by the counsel. However, it is very clear that a meeting was held on 09.06.2023, 69 by some of the Directors and passed the resolution of removal of office-bearers. The fundamental question raised by the appellants before this Court that in order to conduct the said meeting, no notice was given and admittedly no such notice was given. The defendant in the written statement in paragraph No.8 has categorically admitted that the said notice was published in the notice board of the Sangha and not given any such notice to the individual Directors. On perusal of Bye-law No.7(3)(D) it is clear that while removing any of the office- bearers, the Executive Committee should give notice against whom the no-confidence motion was moved and the date has to be fixed not later than 7 days after service of such notice. When the General Secretary did not convene such meeting, the requisitionist who have given the requisition can call for special meeting as contemplated by Bye-law No.16 of plaintiff No.1 Sangha, wherein it is clearly mentioned that if the Secretary fails to convene the meeting within 10 days and fails to convene such meeting of Executive Committee, the requisitionist who gave the said notice themselves can call the executive meeting in the premises of the Sangha and they can take a decision. Both Bye- law Nos.7(3)(D) and 16(3) have to be conjointly read and having 70 read them conjointly, when the notice was given and the same was not convened and the requisitionist themselves can call the meeting and pass the resolution and the same subject has to be discussed. When the requisition was given to the Secretary, minimum by 9 persons, and when the meeting is not called within ten days, they are having the power to call the meeting. But it is clear on reading of Bye-law No.7(3) that when the subject is taken up for no-confidence motion, a notice has to be given to each and every office-bearers as contemplated under Bye-law No.7(3)(D) since no-confidence motion is moved against all the office-bearers. I have already pointed out that the word used in Bye-Law No.7(3)(D) is any of the office-bearers and it is clear that the Executive Committee has to give a notice to particular office-bearers and date has to be fixed not later than seven days and the same has not been complied with when requisitionists themselves have convened the meeting on 09.06.2023 and hence there is a force in the contention of the learned counsel for the appellants that no notice was served in terms of Bye-law No.7(3)(D) and also not complied with Bye-law No.16(3). 71
68. Admittedly, the very defendant in the written statement specifically pleaded in paragraph No.8 that the meeting notice dated 09.06.2023 was published in the notice board and not served on each Directors, who constitute the Executive Committee and the matter also to be discussed in the Executive Committee, whether they represent or participate in no-confidence motion is immaterial, but notice ought to have been given against the persons whom the no-confidence motion is moved and also notice to be given to the Executive Committee i.e., all the Directors and the discussion should be taken place in the said meeting. But no material is placed for having given the notice to each of the Executive Committee Directors and resolution was passed on 09.06.2023. The Trial Court committed an error in coming to the conclusion that there is no infraction of any Bye-law Nos.7(3)(D) and 16(3) of the Sangha. The very finding is erroneous and the same is nothing but virtually dismissing the suit and while considering an interim application, the Court has to take note of the cardinal principles of temporary injunction i.e., prima facie case, balance of convenience and hardship and nothing is discussed in the order with regard to the prima facie case, balance of convenience and hardship except 72 the word “no prima facie case”, the cardinal principle of temporary injunction has not been discussed in the order. Though comes to the conclusion that there was no intention to convene any meeting in view of the letter dated 03.06.2023, rightly comes to the conclusion that resignation was tendered prior to submitting the no-confidence motion letter, but fails to take note of the fact that no notice was served on each of the office-bearers against whom the no-confidence motion is moved and fails to understand the very Bye-law No.7(3)(D). The Trial Court though discussed in paragraph No.17 that on perusal of Bye-law No.7(3)(D) would indicate that if any of the office- bearers of the Sangha have to be removed, the Executive Committee has to issue a notice to the said effect to the concerned office-bearers, but fails to take note of this fact and the very fundamental question raised in the suit as well as in the appeal is that no such notice was given. Admittedly, the said notice was published in the notice board of the Sangha and not complied with Bye-law No.7(3)(D), which indicate that if any no- confidence motion is moved against any of the office-bearers of the Sangha, the Executive Committee has to issue a notice to 73 the said effect to the concerned office-bearers, but the same is not complied and passed the resolution on 09.06.2023.
69. The Bombay High Court in its judgment in the case of Adv. Babasaheb Wasade (supra), relied upon by the learned counsel for the appellants in M.F.A.No.4445/2023, held that the Trust was registered as a Society under the Societies Registration Act, 1860. In paragraph No.25 it is held that their right as a member of the society, unless and until, they were expelled from the society comprises of right to know all the affairs of the society and one of the affair about the management of the society includes the election of the members of the Executive Committee. The said judgment is applicable to the case on hand.
70. The Apex Court’s judgment in the case of Gajanan Narayan Patil (supra), relied upon by the learned counsel for the appellants in M.F.A.No.4445/2023, is with regard to giving an opportunity to the members of Committee of Management when no-confidence motion was moved entitled to sit and vote at any meeting of the committee and the same is discussed in paragraph No.12. It is also discussed that impugned notice 74 convening the special meeting is wholly illegal and unwarranted. Furthermore, as we have found hereinbefore that the two Directors representing the financial institutions as well as the expert nominee (co-opted) are entitled to participate in the special meeting of the committee and also to vote at the same meeting as regards the no-confidence motion, the non-service of the notice of the said meeting on the aforesaid Directors renders the said special meeting illegal as there has been an infringement of the provisions of the said Act, Rule 57-A of the Maharashtra Cooperative Societies Rules, 1961 and bye-laws 29- D(i) and (ii) and 29-E of the bye laws of the Society.
71. In the case on hand also there is an infringement of the right of the Directors of the Sangha i.e., Executive Committee and no such notice was given.
72. The learned counsel for respondent No.1 relied upon the judgment of this Court in the case of D.C.K. Kale Gowda (supra), wherein this Court comes to the conclusion that Adhyaksha of the Sangha cannot question the no-confidence motion on the ground of irregularities in the notice. It is rightly pointed out by the learned counsel for the appellants that the 75 suit is filed not on the ground of irregularity of notice and ground urged is no notice was issued. In the case on hand, no such notice was issued and not the question of irregularity in the notice. Hence, the judgment is not applicable to the case on hand.
73. The learned counsel for respondent No.1 also relied upon the judgment of the Supreme Court in the case of Supreme Court Bar Association (supra), wherein it is observed with regard to, it hardly needs to be emphasised that in any body governed by democratic principles and democratic principle to be complied in accordance with law and not in accordance with whims and fancies of the members of the fraction and the same is not applicable to the case on hand since by law is clear that notice shall be given before convening no- confidence motion.
74. The learned counsel also relied upon the judgment of the Apex Court in the case of Dharampal Satyapal Limited (supra), wherein also discussed with regard to the every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The 76 validity of the order has to be decided on the touchstone of prejudice. The ultimate test is always the same viz. the test of prejudice or the test of fair hearing. But in the case of hand, the very fundamental issue raised before the Court is no notice was issued and passed the resolution and hence the said judgment is also not applicable to the facts of the case on hand. Since no notice was issued and passed resolution, it amounts to touchstone of prejudice.
75. Sri Harish V.S., the learned counsel for respondent No.3 relied upon the judgment of the Apex Court in the case of Delhi Cloth and General Mills Co. Ltd. (supra), with regard to the injunction against the election and no dispute that the Court should be slow in denying elected representative from discharging his function. In the case on hand also, already elections are over and only no-confidence motion is moved by some of the Executive Committee members and the same is not applicable to the facts of the case on hand since after the elections of Executive Committee, elected office-bearers and thereafter no-confidence motion without notice of meeting. 77
76. The learned counsel for respondent No.5 contend that the remedy to the parties is only under Section 25 of the Karnataka Societies Registration Act, 1960 and this Court would like to extract Section 25 of the Act, which reads as follows: “25. Enquiry by the Registrar, etc.- (1) The Registrar may on his own motion and shall on the application of the majority of the members of the governing body or of not less than one-third of the members of the society, hold an enquiry or direct some person authorised by him by order in writing in accordance with the rules made in this behalf to hold an enquiry into the constitution, working and financial condition of a registered society. (2) The Registrar or the person authorised by him under sub-section (1) shall have the following powers, namely,— (a) he shall, at all reasonable times, have free access to the books, accounts, documents, securities, cash and other properties belonging to or in the custody of the society and may summon any person in possession or responsible for the custody of any such books, accounts, documents securities, cash or other properties to produce the same at any place at the headquarters of the society or any branch thereof; (b) he may summon any person who, he has reason to believe, has knowledge of any of 78 the affairs of the society to appear before him at any place at the headquarters of the society or any branch thereof and may examine such person on oath; (c) (i) he may, notwithstanding anything contained in this Act or in any rule or regulation prescribing the period of notice for a general meeting of the society, require the governing body of the society to call a general meeting at such time and place at the headquarters of the society or any branch thereof and to determine such matters as may be directed by him. If the governing body of the society refuses or fails to call a meeting, he shall have power to call it himself; (ii) any meeting called under sub-clause (i) shall have all the powers of a general meeting called under the rules or regulations of the society and its proceedings shall be regulated by such rules or regulations; (iii) when an enquiry is made under this section, the Registrar shall communicate the result of the enquiry to the society concerned.
77. Section 25 of the Act is clear that the Registrar may on his own motion and shall on the application of the majority of the members of the governing body or of not less than one-third of the members of the society, hold an enquiry or direct some person authorised by him by order in 79 writing in accordance with the rules made in this behalf to hold an enquiry into the constitution, working and financial condition of a registered society. The learned counsel also brought to the notice of this Court Section 27A of the Act with regard to appointment of administrator. The question involved before this Court is for moving of no-confidence motion and also specific ground is urged that no notice was issued moving no-confidence motion. When such being the case, the very contention of the learned counsel that the remedy is under Section 25 of the Act, cannot be accepted and the issue is not with regard to affairs of mismanagement or of any complaint or representation received by the Registrar and issue is moving of no-confidence motion.
78. Having considered the material available on record, when there is a clear violation of principles of natural justice and no notice was given to the office-bearers as per Bye-law Nos.7(3)(D) and they have been removed from the post of office-bearers, there is a clear violation of Bye-law Nos.7(3)(D) and 16(3) and the same is not considered by the Trial Court while rejecting the application wherein an interim relief is sought. Hence, I answer point Nos.1 and 2 in the affirmative. 80 Point No.(3):
79. The learned counsel for respondent No.1 by relying upon the judgment of the Orissa High Court in the case of Haraparbati Thakurani Bije (supra) brought to the notice of this Court paragraph No.12 of the judgment and contend that the scope of the appeal is only confined to the question of alienation and it cannot be expanded and the Appellate Court cannot expand the scope of the appeal.
80. The learned counsel for the appellants in M.F.A.No.4320/2023 would contend that the Court can mould the relief and he relied upon the judgment of the Apex Court in the case of Shipping Corporation of India Ltd. (supra) and brought to the notice of this Court the question that arose before the Supreme Court and also brought to the notice of this Court the relief sought in paragraph No.4 of the judgment and the Court comes to the conclusion that in exercise of their appellate jurisdiction it has the power not only to correct error in the judgment under review but to make such deposition of the case as justice requires. The Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. In paragraph No.22 also discussed with 81 regard to if the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. It is discussed in paragraph No.24 that the dispute raised in the case has lost its relevance due to passage of time and subsequent events which have taken place during the pendency of the litigation. In the circumstances, continuing this litigation will be like flogging a dead horse. Such litigation, irrespective of the result, will neither benefit the parties in the litigation nor will serve the interests of the Union. It is further observed in paragraph No.25 that it is the duty of the Court to take such action as is necessary in the interest of justice which includes disposing of infructuous litigation.
81. The main contention of the learned counsel for respondent No.5 is that the very suit becomes infructuous and consequently the appeal is also infructuous. It is his further contention that the suit was filed only against one defendant and according to the plaintiffs, the very same defendant supported by giving a letter and the said letter also addressed to the Registrar, but they filed the suit only making him as a defendant 82 and the same is a collusive suit. The said contention cannot be accepted for the reason that the suit is filed on 12.06.2023 and as on the date of filing of the suit, only there was a resolution of 09.06.2023 and hence the relief as sought in respect of resolution of 09.06.2023 is illegal. The material discloses that when paper notification was given on 10.06.2023, the defendant has signed as Incharge Secretary and called the meeting through paper notification and not given any notice for even second meeting to be held on 17.06.2023 and hence he was made as party. The records discloses that afterwards some of the other Directors have been impleaded as defendants and there was no any second meeting of 17.06.2023 as on the date of filing suit, since the suit was filed on 12.06.2023 and only taking note of notice in the paper, based as the said cause of action, the said suit was filed and hence the very contention that the suit is infructuous cannot be accepted. The Trial Court fails to take note of the interim relief sought and only considered the interim relief as sought when an application is filed and I have already pointed out that cardinal principles of temporary injunction has not been complied. The Trial Court proceeded in an erroneous approach and formed an opinion that there is no 83 any infraction and failed to read the very Bye-law Nos.7(3)(D) and 16(3) and even did not discuss anything about giving the notice of moving of no-confidence motion against each of the office-bearers who are entitled for notice in view of Bye-law No.7(3)(D) and hence it cannot be contended that the Appellate Court is not having power to mould the relief and the Trial Court failed to exercise its desertion in a proper perspective in keeping the relief as sought in the interim application.
82. The principles laid down in the judgments of the Apex Court in the case of Shipping Corporation of India Ltd. (supra) as well as in the case of J.M. Viswas (supra) are similar. The Apex Court in its judgment in the case of Pasupuleti Venkateswarlu (supra), in paragraph Nos.4 and 5 discussed in detail with regard to the scope of Appellate Court, wherein it is held that it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the 84 manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decrotal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice.
83. Having considered the principles laid down in the judgments referred supra, the contention of the learned counsel for respondent No.1 that the Appellate Court is having narrow power cannot be accepted and the Appellate Court can mould the relief having taking note of the relief sought in the Trial Court as on the date of suit. As on the date of suit, there was no second meeting i.e., selecting of office-bearers and the very question raised in the suit and in the appeal is that no notice was served to the office-bearers as well as other Executive Committee members in respect of meeting of 09.06.2023. Hence, I answer point No.(3) in the affirmative that the Court can mould the relief in an appeal also.
84. The learned counsel for respondent No.5 would contend that the Sangha was founded in the year 1904 and the first Sangha was founded in Karnataka. There is no dispute to 85 that effect, but at the same time, it has to be noted that the purpose for which Sangha was founded and also to see the vision of the founders in forming such Sangha and the same is also very clear in Bye-law No.2 of the Society. The question is whether that object in founding the Society is achieved or not. On perusal of the history and material, it is clear that the Sangha is involved in series of litigations and no elections are conducted periodically and also material discloses that administrator was also appointed earlier as pleaded in the plaint. Subsequently, only on the direction of this Court in two writ petitions, the election was conducted and the Executive Committee members were fighting for the power and not to achieve the object for which Sangha was founded. It is nothing but fighting for self-enrichment and not to achieve the very object of Sangha and hence it is high time for the Executive Committee of the Sangha to make self-introspection for what purpose the Sangha was founded more than a century ago and the object has to be achieved and then only they can salute the founders of the Sangha which was founded more than a century ago, otherwise there is no meaning in establishment of Sangha in 1904. 86
85. In view of the discussions made above, I pass the following:
ORDER(i) The appeals are allowed. (ii) The impugned order dated 16.06.2023, passed on I.A.No.1 in O.S.No.3590/2023, on the file of the VI Additional City Civil and Sessions Judge, Bengaluru City (CCCH-11), dismissing I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC, is set aside and consequently the application is allowed in part. (iii) The requisitionists are directed to give notice to the Executive Committee including the office-bearers and convene the meeting and discuss the notice dated 29.05.2023 and take a decision in accordance with law by following the bye-laws in respect of no-confidence motion . (iv) The requisitionists are directed to take steps to serve the notice to convene the meeting, forthwith. (v) The appellants and the respondents are before the Court. Some of them are unrepresented, but they have been served with notice of these 87 appeals. Hence, the proceedings before the Court itself is notice for all of them. However, those who are not the parties in the appeals i.e., Executive Committee/Directors, the notice have to be served on them in all modes, within three days and the date is fixed for discussing no-confidence motion on 17.07.2023 at 11.00 a.m. in the Sangha. Either of the fraction/Directors are directed not to hold any meeting and take any decision in the meanwhile till 17.07.2023. Sd/- JUDGE CP/SN/ST/MD