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2011 DIGILAW 1025 (AP)

Prem Chand v. Secunderabad Club

2011-11-18

L.NARASIMHA REDDY

body2011
Judgment : 1. The unsuccessful plaintiff in O.S.No.1104 of 1995 on the file of the XI Junior Civil Judge, City Civil Court, Secunderabad, is the appellant. The suit was dismissed by the trial Court on 11.11.1998, A.S.No.8 of 1999 filed by him before the Special Judge for the Trial of Offences under SCs and STs (POA) Act-cum-Additional Metropolitan Sessions Judge-cum-XX Additional Chief Judge, City Civil Court, Hyderabad, was dismissed, on 04.11.2004. Hence, this Second Appeal. 2. Secunderabad Club, the 1st respondent (for short ‘the respondent’), is one of the reputed clubs in India. The father of the appellant is a permanent member thereof. The Rules framed by it confers certain rights upon the children of permanent members. Initially, up to the age of 16 years, such a person is conferred with the status of a junior dependant, and thereafter, up to 25 years, he is treated as senior dependant. On attaining the age of 25 years, he is entitled to seek admission as a permanent member. Special procedure is prescribed therefor. 3. The appellant was conferred with the status of junior dependant and senior dependant, at the respective ages. On 27.11.1994, he submitted application for admission as a permanent member. As required under the Rules of the Secunderabad Club (for short ‘the Rules’), his father signed the application as a proposer and one of his brothers, who too is a permanent member, seconded him. However, on noticing that the respondent was not taking positive steps on the application, the appellant and his father filed the suit with a prayer (a) to declare that the appellant is a permanent member of the respondent with effect from 29.01.1994, subject to payment of amount, if any, (b) for a perpetual injunction to restrain the respondent from interfering with the usage of the facilities by the appellant, and (c) for mandatory injunction requiring the respondent to allow the appellant to avail the facilities. He stated the relevant facts leading to the submission of application. 4. On behalf of the respondent, a written statement was filed. Their principal contention was that the appellant is the son of the second wife of his father and hailing from a Hindu family, the appellant does not hold the status of a legitimate son. He stated the relevant facts leading to the submission of application. 4. On behalf of the respondent, a written statement was filed. Their principal contention was that the appellant is the son of the second wife of his father and hailing from a Hindu family, the appellant does not hold the status of a legitimate son. It was also stated that, despite repeated efforts made by them, the father of the appellant did not furnish accurate information, which is essential for it, to take necessary steps. On dismissal of the suit, the appellant filed A.S.No.8 of 1999. That too was dismissed. 5. Ms. Anjana Taggarse, learned counsel for the appellant, submits that there was absolutely no basis for the respondent in not taking necessary steps on the application of the appellant for admission, as a permanent member, in spite of the fact that he has fulfilled the criteria prescribed by them. She contends that the very fact that the respondent conferred the status of a senior dependant upon the appellant would establish the entitlement of the appellant to seek permanent membership and refusal by the respondent to admit the appellant as a permanent member, is absolutely without any basis. She submits that once the appellant has answered the description of the “child of a permanent member” as provided under Rule 15 of the Rules and that the application was filed with all material particulars, the respondent has no alternative except to admit him as member. Learned counsel submits that the trial Court erred in treating the suit as premature, even after the respondent came forward with a plea that it would not admit the appellant as a member. She further contends that the lower Appellate Court was not sure as to the basis on which it refused the relief, particularly when it expressed the view that necessary factors exist in favour of the appellant. 6. Sri Adnan Mahmood, learned counsel for the respondents, on the other hand, submits that the appellant has no vested right to seek membership. He contends that it is in the discretion of the respondent to admit members, who, according to it, conform to its tenets and norms. He submits that the Managing Committee of the respondent was handicapped in taking decision on the application of the appellant, on account of several deficiencies in the application. He contends that it is in the discretion of the respondent to admit members, who, according to it, conform to its tenets and norms. He submits that the Managing Committee of the respondent was handicapped in taking decision on the application of the appellant, on account of several deficiencies in the application. He submits that the father of the appellant failed to furnish relevant information, and in fact, has withdrawn his sponsorship during the pendency of the second appeal. Learned counsel contends that apart from the Rules, the respondent follows certain conventions and norms and one such norm is that it would be reluctant to act upon the applications filed by or on behalf of the illegitimate children of its permanent members. 7. The appellant claimed three-fold relief of declaration, perpetual injunction and mandatory injunction, in relation to his admission as a permanent member of the respondent. 8. Though the suit and the first appeal were filed by the appellant and his father, it appears that his father has chosen to withdraw from the proceedings at the stage of first appeal. Therefore, the second appeal was filed by the 2nd plaintiff alone. 9. The trial Court framed the following issues: “Whether the plaintiff is entitled for declaration and mandatory injunction as prayed for? Whether the plaintiff is entitled for perpetual injunction as prayed for?” 10. Before the trial Court, the father of the appellant herein deposed as PW.1. No documentary evidence was adduced. On behalf of the respondents, DW.1 was examined and Exs.D.1 to D.8 were filed. Across the Bar, it is stated that several documents that were filed by the appellant along with the plaint, were not taken on record as exhibits, since the respondent did not dispute the correctness thereof. That, however, is a different aspect. On dismissal of the suit, the appellant filed A.S.No.8 of 1999 and the lower Appellate Court framed only one point for its consideration viz., “Whether the second plaintiff is entitled to relief of declaration and permanent injunction besides mandatory injunction as prayed for?” 11. The point is answered against the appellant. 12. That, however, is a different aspect. On dismissal of the suit, the appellant filed A.S.No.8 of 1999 and the lower Appellate Court framed only one point for its consideration viz., “Whether the second plaintiff is entitled to relief of declaration and permanent injunction besides mandatory injunction as prayed for?” 11. The point is answered against the appellant. 12. This Court is of the view that the following substantial questions of law arise for consideration in this second appeal, “Whether the respondent can refuse to admit an individual as its member, even if he fulfils the conditions stipulated under the Rules framed by it; Whether the respondent can invoke any grounds other than those mentioned in the rules framed by it, for rejecting the application; and Whether the status acquired by an individual in his capacity as the son of a permanent member can be whittled or water down through acts or omissions on the part of others, including the parents.” 13. It is not in dispute that the appellant is son of permanent member of the club. As a matter of fact, the father and the son were together, up to the stage of appeal. It is only when the second appeal was pending that they parted ways. The affairs of the respondent are governed by the Rules framed by it. Rule XV(2)(b) of the Rules, deals with the rights of a permanent member. It reads, “A son of a permanent member or a lady member who is a widow and continues to be a widow of a permanent member on his attaining the age of 25 years and on his application within 3 months may be elected a permanent member, without ballot, subject to the following conditions: (i) Such person has been a dependant member for 9 years as a son of a Permanent Member or a Lady Member who is a widow and continues to be a widow of a Permanent Member and has paid the Club subscription under sub-rule 2(b)(ii) continuously from the attainment of 16 years of age to the attainment of 25 years of age provided that during nine years of such Dependent Membership a maximum break of total of six months during which his subscription has not been paid because of sub-rule, 2(a) (iv) or due to delay in his mother being admitted as a Lady Member shall be allowed. (ii) that in case of a permanent member’s son his father proposes him and holds himself responsible for all his bills for a period of 5 years from the date of his election. (iii) in the case of a son of a lady member who is a widow of a permanent member any permanent member may propose him but such lady member shall hold herself responsible for all his bills for a period of 5 years from the date of his election. (iv) However, in the event of sudden and untimely death of both parents of a dependent member, which results in depriving the dependent member for the privilege of becoming a permanent member under Rule XV 2(b), the dependent member can continue to be such a dependent member till he attains the age of 25 years, provided a permanent member guarantees to pay all his Club bills during the period of his dependent membership, after which he may be proposed for permanent membership by any permanent member with 5 years’ standing, within three months thereof and be considered for permanent membership by the Club Committee without ballot subject to fulfilling all other conditions laid down in Rule XV.” 14. The appellant was conferred with the benefits of junior dependant, till he attained the age of 16 years and of senior dependant till he became 25 years old. After he crossed 25 years, an application duly signed by his father and another permanent member was submitted. For quite some time, there was no response from the respondent at all. Therefore, the appellant and his father filed the suit. In the written statement the plea of the respondent herein was that though the appellant enjoyed the status of a senior dependant and made an application in accordance with the Rules, it was not considered on account of the fact that he is the son of the second wife of the permanent member. They further pleaded that in spite of repeated reminders, the father of the appellant did not furnish the relevant particulars of the appellant, such as date of birth from the competent authority. The trial Court took the view that the application was still under consideration and the cause of action can be said to have accrued to the appellant, only if a negative decision was taken thereon, and in that view of the matter, the suit is premature. The trial Court took the view that the application was still under consideration and the cause of action can be said to have accrued to the appellant, only if a negative decision was taken thereon, and in that view of the matter, the suit is premature. The lower Appellate Court analysed the facts with the relevant provisions, but took the view that the appellant does not have any vested right. 15. Once the respondent is governed by the Rules, which, are framed to ensure its objectivity, it cannot act in violation there of. It would have been altogether a different matter, had it been a case, where they found any defect in the application of the appellant with reference to any provision of law. It is by no means an easy task for an individual to get a membership into a club of good reputation, like the respondent. Almost a rare privilege is conferred upon the children of permanent members, to become members, on account of that fact. The Rule XV was framed with an avowed objective of conferring certain status and rights upon the permanent member of his children. Immediate beneficiary of the Rule is the child of permanent member. 16. Once the status of the appellant is not in dispute, the exercise of rights by him should not depend upon the whims of individuals. The denial of the same, that too pressing into service, the grounds that do not find place in the Rules would in a way cause mental agony, and social disadvantage to the concerned individuals. No where in the written statement or in their evidence, the respondents have pleaded that the application submitted by the appellant was in complete, in any manner. 17. In case the respondent wanted to retain to it, the absolute power and discretion in the matter of admission of members, it would not have felt the necessity of framing Rules. The Rules were framed to ensure objectivity and transparency in its affairs. Having framed the Rules, the respondents cannot choose to act contrary to the same. Though the activity of the respondent may not be in the realm of public life, the Rules to a large extent, serve as a contract, between the respondents and its members. Therefore, the first question framed by the Court is answered in favour of the appellant. 18. Though the activity of the respondent may not be in the realm of public life, the Rules to a large extent, serve as a contract, between the respondents and its members. Therefore, the first question framed by the Court is answered in favour of the appellant. 18. Questions 2 and 3 framed by this Court need to be dealt with together. The principal contention advanced by the respondent throughout was about the legitimacy of the appellant. It has already been observed that the Rule is silent on this aspect. Here itself, it needs to be added that two brothers of the appellant, who too are the children through second wife of their father, were admitted as permanent members. It is only in the case of the appellant, that the respondent has taken a different stand. Once the Rules stipulated the conditions, subject to which, a person can be admitted as member, the respondent cannot be permitted to add a new ground. If such a course is permitted, the very purpose of framing the Rules would be defeated. 19. Had the management of the respondent felt that legitimate children of permanent member alone can be conferred with any rights, a provision to that effect could have been incorporated. Obviously taking into account, the complexity of the issue, the respondent has chosen not to delve into it. The management of the respondent cannot raise that plea, that too, selectively. 20. If one looks at the provisions of the Hindu Marriage Act, particularly after its amendment in the year 1976, it emerges that even where the marriage between Hindu spouses is declared as null and void, the children borne out of such marriage are conferred with rights, which the children born out of legal and valid marriage are entitled to. The principle underlying it is that the social stigma cannot be attached to children, for the illegality, if at all, committed by their parents or any one of them. 21. This Court does not feel the necessity to deal with the said aspect in further detail, on account of the fact that the respondent was not clear or firm in its stand. It has already been mentioned that two brothers of the appellant have been admitted as permanent members and an untenable objection is raised only in respect of the appellant. Therefore, questions also are answered in favour of the appellant. 22. It has already been mentioned that two brothers of the appellant have been admitted as permanent members and an untenable objection is raised only in respect of the appellant. Therefore, questions also are answered in favour of the appellant. 22. The Second Appeal is accordingly allowed and it is declared that the appellant is entitled to be considered for being admitted as a member of the club under Rule 15(2)(b) of the Rules, without reference to the fact that he happens to be the child of the second wife of a permanent member and his application filed on 27.11.1994 shall be treated as complete in all respects. The respondent is directed to process the application and complete the formalities within a period of two months from the date of receipt of a copy of the judgment. The reliefs of perpetual injunction and mandatory injunctions, are rejected. 23. There shall be no order as to costs.