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2004 DIGILAW 538 (CAL)

WEST BENGAL RIFLE ASSOCIATION v. KALYAN BANERJEE

2004-08-11

SUBHRO KAMAL MUKHERJEE

body2004
SUBHRO KAMAL MUKHERJEE, J. ( 1 ) I am considering three applications filed in connection with C. S. No. 400 of 2001 together as similar questions are involved in all those applications. ( 2 ) THESE three applications are : (1) An application for withdrawal of the suit filed by the plaintiffs on July 28, 2003. The said application has been registered as G. A. No. 2653 of 2003. (2) The application filed by the defendant no. 9, namely, Dhirendra Nath Das, on August 14, 2003 for deletion of the name of the plaintiff No. 2 and for substitution of the defendant No. 9 instead and in place of the said plaintiff No. 2 in the suit upon his transposition from the category of the defendants to the category of the plaintiffs. The said application has been registered as G. A. No. 2896 of 2003. (3) The other application filed by the said defendant No. 9 is, in substance, for a direction on the erstwhile members of the committee of the West Bengal Rifle Association to handover the charge of management and administration to the newly elected committee of the said association and to restrain the plaintiff No. 2 and any other member of the erstwhile committee from in any way or manner holding themselves out and/or representing themselves as the office bearers of the said association. There is, also, a prayer, inter alia, for a direction on the defendant no. 25, that is, the National Rifle Association of India, to recognize the present committee of the West Bengal Rifle Association elected in the election conducted by the learned Special Officer appointed by this Court and to render all assistance and co-operation to the newly elected committee so that the newly elected committee may function smoothly and the shooters nominated by the west Bengal Rifle Association are permitted to participate in national championships. The said application has been registered as G. A. No. 2922 of 2003. ( 3 ) SOME facts are required to be stated in order to appreciate the points involved in these three applications: (A) The West Bengal Rifle Association and one Subesh Choudhury, claiming himself to be the Secretary General of the plaintiff No. 1, instituted the present suit being C. S. No. 400 of 2001 for the following reliefs : " (a) Perpetual injunction restraining the defendant Nos. 1 to 25 except Nos. 1 to 25 except Nos. 11, 17 and 23 from holding themselves out and/or acting as members of the Executive Committee/ad hoc executive Committee of the plaintiff No. 1; (b) Perpetual injunction restraining the defendant Nos. 1 to 25 except Nos. 11, 17 and 24 their agents, servants and/or assigns from interfering with the functioning of the plaintiff No. 1 and/ or holding themselves out as representatives of the plaintiff No. 1; (c) If necessary, a meeting be conducted of all the members of the plaintiff No. 1 for the purpose of ascertaining who are the duly authorized members of the executive Committee of the plaintiff No. 1; (d) Perpetual injunction restraining the defendant Nos. 1 to 25 except Nos. 11, 17 and 23 from holding themselves out as members of the plaintiff No. 1; (e) The notice purportedly issued by the defendant Nos. 1 to 25 except Nos. 11, 17 and 23 on behalf of the plaintiff No. 1 be adjudged void, delivered up and cancelled; (f) The defendant Nos. 1 to 25 except No. 23 should be restrained from using the stationery in the name of the plaintiff No. 1; (g) Declaration that the defendant Nos. 1 to 25 except Nos. 11, 17 and 23 are not the members of the Executive Committee of the plaintiff No. 1; (h) Declaration that the members of the Executive Committee of the plaintiff no. 1 are those whose names have been given in paragraph 6 above;" (B) The plaint of the said suit was presented on August 10, 2001 and bhaskar Bhattacharya, J. on the said August 10, 2001, inter alia, admitted the plaint and granted leave both under clause 12 of the Letters Patent and under Order 1 Rule 8 of the Code of Civil Procedure. (C) On December 14, 2001 Pinaki Chandra Ghosh, J. , at the suggestion of the parties appearing before His Lordship, appointed Mr. Deb Mukherjee, advocate as the learned Special Officer to hold the election of the West Bengal rifle Association on the basis of the member's list as on December 31, 1998. (d) The learned Special Officer conducted the election, in terms of the said order dated December 14, 2001, on March 1, 2002 and, subsequently, he submitted his report. (E) The report of the learned Special Officer was challenged by the plaintiffs by filing an application being G. A. No. 1680 of 2002. (d) The learned Special Officer conducted the election, in terms of the said order dated December 14, 2001, on March 1, 2002 and, subsequently, he submitted his report. (E) The report of the learned Special Officer was challenged by the plaintiffs by filing an application being G. A. No. 1680 of 2002. In the said application an injunction was, also, prayed for to restrain the learned Special Officer from declaring and/or publishing the result of the election held on March 1, 2002. (F) Pinaki Chandra Ghosh, J. by order dated April 8, 2003 rejected the said application, inter alia, with the observations that no ground had been made out for setting aside of the report of the learned Special Officer and, consequently, his Lordship directed the learned Special Officer to declare the results. (G) In compliance of the said order dated April 8, 2003, the learned Special officer convened a meeting on May 16, 2003 for the purpose of declaration and/ or publication of the result of the election held on March 1, 2002. The learned special Officer in the said meeting declared the result of the election of the members of the committee of the West Bengal Rifle Association. The newly elected members took over the charge of the Association. (H) On July 28, 2003 the plaintiffs filed an application for withdrawal of the suit supported by an affidavit affirmed by the said Subesh Choudhury, the plaintiff No. 2. The said application has been registered as G. A. No. 2653 of 2003. (I) In the meantime, the plaintiffs preferred an appeal against the said order dated April 8, 2003 before the Division Bench. The Division Bench on July 25, 2003 dismissed the appeal, inter alia, with the observations that the appellants and their associates would be well advised to handover all the keys and the papers to the respondents and stop writing any unwarranted letters unless they wished to take the risk of facing proceedings for going against the purport of the orders of the Court. (J) On August 14, 2003 the defendant No. 9 in this suit filed the said application for his transposition as the plaintiff instead and in place of the said plaintiff No. 2. (K) On August 18, 2003 the said defendant No. 9 filed yet another application being G. A. No. 2922 of 2003. ( 4 ) MR. (J) On August 14, 2003 the defendant No. 9 in this suit filed the said application for his transposition as the plaintiff instead and in place of the said plaintiff No. 2. (K) On August 18, 2003 the said defendant No. 9 filed yet another application being G. A. No. 2922 of 2003. ( 4 ) MR. Hirak Mitra, learned Senior Advocate, appearing for the said defendant No. 9, submits that the erstwhile members of the managing committee of the Association are bound to handover the keys and the papers to the present members of the committee and the present members of the committee must be permitted to function freely. Mr. Mitra, further, submits that the suit was instituted with leave under Order 1 Rule 8 of the Code of Civil Procedure and the present suit cannot be withdrawn at the whims of the plaintiff No. 2 and his associates. The present office bearers of the West Bengal Rifle Association are entitled and are representing the West Bengal Rifle Association and Subesh choudhury, the plaintiff No. 2, who is not even a member of the committee of the said Association, cannot maintain the application for withdrawal of the suit. Mr. Mitra submits that the present members of the committee of the West bengal Rifle Association must be permitted to function for the period mentioned in the regulation of the said Association from the date when the said members assumed charge, ( 5 ) MR. Kalyan Bandyopadhyay, learned advocate, appears for the National rifle Association of India, the defendant No. 25. Mr. Bandyopadhyay submits that for all practical purpose the suit has become infructuous and the said applications by the defendant No. 9 are not maintainable in this infructuous suit, more particularly, when the prayers made in G. A. No. 2922 of 2003 filed by the defendant No. 9 are beyond the scope of the prayers made in the suit. Mr. Bandyopadhyay submits, with reference to the rules and regulations of the association, that as the original election was held on July 13, 1999, which gave rise to the disputes, the members selected pursuant to the orders passed by this court may, at the best, function only for the residue period. Mr. Bandyopadhyay submits that four years term is over and by making an application the present committee cannot get any extension of life. Mr. Mr. Bandyopadhyay submits that four years term is over and by making an application the present committee cannot get any extension of life. Mr. Bandyopadhyay, further, submits that the defendant No. 25 did not consent to the order of this Court appointing the learned Special Officer and it is suggested that the appearing parties obtained a collusive order. Mr. Bandyopadhyay in support of his contentions cites the decisions in Sree Jain Swetambar Terapanthi Vid (s) vs. Phundan Singh and Ors. , reported in 1999 (2) SCC 377 and Ritona Consultancy Private Limited and Ors. vs. Lohia Jute Press and Ors. , reported in 2001 (3) SCC 68 and contents, on the strength of the aforesaid decisions, that the relief in the interlocutory proceedings cannot be granted beyond the scope of the suit. ( 6 ) MR. Samrat Sen, learned Advocate, appearing for the respondent Nos. 6 and 8, submits that the national body is acting mala fide at the behest of the vested interest group to exclude the representatives of the state body elected by the newly elected committee of the state body from participating in the election of the national body. Mr. Sen, also, supports the contentions of Mr. Mitra that the Court can take note of subsequent events for ends of justice and the present members of the committee must function for the period mentioned in the rules of Association from the date they assumed charge. ( 7 ) THE application for withdrawal of the suit being G. A. No. 2653 of 2003 must be dismissed for reasons more than one. Firstly, it is a suit instituted with the leave under Order 1 Rule 8 of the Code of Civil Procedure and the plaintiffs are not entitled to abandon or withdrew the suit according to their whims. Moneover, the application for withdrawal is supported by an affidavit affirmed by Subesh Choudhury, who is presently not an office bearer of the west Bengal Rifle Association. The defendant No. 9, Dhirendra Nath Das, is treasurer of the newly elected body and he has been authorised by the present members to represent the plaintiff No. 1 in all Court proceedings. Moneover, the application for withdrawal is supported by an affidavit affirmed by Subesh Choudhury, who is presently not an office bearer of the west Bengal Rifle Association. The defendant No. 9, Dhirendra Nath Das, is treasurer of the newly elected body and he has been authorised by the present members to represent the plaintiff No. 1 in all Court proceedings. Under sub-rule (5) of Rule 8 of Order 1 of the Code of Civil Procedure where any person suing does not proceed with due diligence in the suit, the Court may substitute in his place any other person having the same interest in the suit. The said dhirendra Nath Das, the defendant No. 9, applies for his transposition instead and in place of the plaintiff No. 2 in the suit. I am satisfied that the plaintiff no. 2 is not acting in the interest of the plaintiff No. 1 and the defendant No. 9, who is the present treasurer, must be substituted instead and in place of the plaintiff No. 2 as he has definitely an interest in this litigation. ( 8 ) I, therefore reject the application for withdrawal of the suit being G. A. No. 2653 of 2003 and allow the application for transposition being G. A. No. 2896 of 2001 and substitute the defendant No. 9, Dhirendra Nath Das, as the plaintiff No. 2 instead and in place of the said Subesh Choudhury. The prayer for transposition is, thus, allowed. ( 9 ) THE office is directed to take steps immediately for amendment of the cause title of the plaint as also the suit register. ( 10 ) I am unable to accept the contentions of Mr. Kalyan Bandyopadhyay, learned advocate, appearing for the defendant No. 25, that the application filed by the defendant No. 9 being G. A. No. 2922 of 2003 is not maintainable inasmuch as the prayers made in the said application are beyond the prayers made in the suit. ( 10 ) I am unable to accept the contentions of Mr. Kalyan Bandyopadhyay, learned advocate, appearing for the defendant No. 25, that the application filed by the defendant No. 9 being G. A. No. 2922 of 2003 is not maintainable inasmuch as the prayers made in the said application are beyond the prayers made in the suit. ( 11 ) THE law is well-settled that though the rights of the parties are normally to be decided on the date of the presentation of the plaint, the Court can, in the interest of justice, take note of the subsequent events and grant appropriate reliefs to the parties aggrieved, particularly when the Court finds, after taking notice of the changed circumstances, that the original reliefs claimed in the suit have become inappropriate or inadequate because of the reasons of the subsequent developments. It is necessary for the purpose of shortening the litigation and for complete justice to the parties. The circumstances prevailing at the time of presentation of the plaint have certainly been changed during the pendency of the suit. This is a suit, in substance, for administration of the plaintiff No. 1. This Court appointed Special Officer for holding the election of the office bearers of the Association. The learned Special Officer held the election and declared the result. The report of the learned Special Officer was challenged up to the Appeal Court, but such challenge proved to be abortive. If at this stage the reliefs claimed in the application are refused, this will cause irreparable loss and injury to the bona fide members of the Association. Justice requires that the subsequent developments or events developed or occurred subsequent to the institution of the suit must be taken into consideration to promote substantial justice. ( 12 ) SHOULD any citation is necessary for this well-known proposition reference may be made to the observations of Supreme Court of India in Shikharchand jain vs. Digambar Jain Praband Karini Sabha and Ors. , reported in AIR 1974 sc 1178 and Vineet Kumar vs. Mangal Sain Wadhera, reported in 1984 (3)scc 352 as, also, the observations of this Court in Rai Charan Mandal and Am: vs. Biswanath Mandal and Ors. , reported in 20 CLJ 107. ( 13 ) I refuse to accept the contentions of Mr. , reported in AIR 1974 sc 1178 and Vineet Kumar vs. Mangal Sain Wadhera, reported in 1984 (3)scc 352 as, also, the observations of this Court in Rai Charan Mandal and Am: vs. Biswanath Mandal and Ors. , reported in 20 CLJ 107. ( 13 ) I refuse to accept the contentions of Mr. Bandyopadhyay that as the original election was held on July 13, 1999, the office bearers elected under the guidance of the learned Special Officer on March 1, 2002 can only function for the residue period, that is, four years from the said July 13, 1999. The result was formally declared on May 16, 2003 by the learned Special Officer and the office bearers elected in the election held on March 1, 2002 are entitled to function four years from the date when they assumed their charges. ( 14 ) MR. Bandyopadhyay submits that the order of appointment of the learned special Officer was made in the absence of the national body. It is not the case of the national body that they had no notice of the suit. The national body was impleaded as a proforma defendant and as such they chose not to appear in the suit is no answer. Proforma defendants are as much defendants as the contesting defendants are in the suit. The national body was impleaded in the suit so that the orders passed in the suit bind them. The national body cannot come at their own choice of time to frustrate the orders passed by this Court from time to time. ( 15 ) THIS Court appointed Special Officer. The report submitted by learned special Officer is accepted up to the Appeal Court. The result of the election held pursuant to the orders of this Court must be implemented for achieving the ends of justice and to prevent abuse of the process. ( 16 ) THE Civil Courts have inherent powers under section 151 of the Code of civil Procedure to render all assistance to the aggrieved parties to see that the order of the Courts are implemented. Section 151 of the Code of Civil Procedure envisages, also grant of relief on the basis of subsequent events. ( 17 ) I, therefore, allow the application being G. A. No 2922 of 2003 and grant prayers (a) to (d) of this application. Section 151 of the Code of Civil Procedure envisages, also grant of relief on the basis of subsequent events. ( 17 ) I, therefore, allow the application being G. A. No 2922 of 2003 and grant prayers (a) to (d) of this application. I, also, direct the defendant No. 25 to recognise the representatives sent by the present committee of the State body to represent the State body in the national body. The national body, also, will permit shooters sent by newly elected committee to participate in all the shooting competitions. ( 18 ) I make no order as to costs. ( 19 ) DEPARTMENTS and all parties are to act on a xerox signed copy of this judgement on usual undertaking. Later : ( 20 ) MR. Sinha, learned Advocate, appearing on behalf of the defendant No. 25 and Mr. Pradip Kumar Roy, learned Advocate on behalf of the applicants in g. A. No. 2653 of 2003, pray for stay of the operation of this order. ( 21 ) THE prayers are considered and rejected. Application allowed. Prayer for stay of operation rejected.