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2013 DIGILAW 712 (KER)

K. Nanu v. C. H. Kunhikrishna Kurup

2013-08-19

N.K.BALAKRISHNAN

body2013
Judgment : 1. Defendants 1 to 9 and 11 in a suit for declaration and prohibitory injunction are the appellants. The trial court granted a decree that the first plaintiff is the lawful manager of Santhinikethan Secondary School belonging to the second plaintiff Society and that defendants 1 to 6 and 11 are not the members of the second plaintiff-Society. It was also declared that the first defendant has not been validly elected as the manager of that High School. Consequential prohibitory injunction was granted restraining the first defendant from functioning as the manager of the School. The appellants herein were also restrained by way of permanent prohibitory injunction obstructing the first plaintiff from functioning as the manager of the school. The appeal filed by them was dismissed by the lower appellate court. 2. The gist of the plaintiffs' case is stated thus:- The second plaintiff is the Society of which the first plaintiff is the Secretary. The second plaintiff-Society consists of nine members. Defendants 1 to 6 are members of the Society. The first plaintiff was elected as the Manager of Santhinikethan Secondary School and L.P.School and he is also the Secretary of the Society. He was so elected in the general body meeting of the Society held on 29-11-1998. His appointment was approved by the Education Department and as such he has been functioning as the Manager of the School. There was no election of the office bearers of the Society after 1998. The last general body meeting of the Society was held on 12-5-2008. But on that day a decision was taken to have the election conducted soon. Though the meeting was proposed to be held on 20-09-2008 with an agenda for election of the main office bearers, that meeting was postponed due to the sudden demise of the niece of the first plaintiff. But he came to know from the 9th defendant that defendants 1 to 6 were admitted as members of the Society and that defendants 1 to 8 elected the first defendant as manager of the School. Defendants 7 to 9 have fabricated records to make it appear that defendants 1 to 6 and 11 were admitted as members of the Society. The first defendant has no right to be elected as Manager and he was not validly elected also. Hence, the plaintiffs sought for a declaration and prohibitory injunction as stated earlier. 3. Defendants 7 to 9 have fabricated records to make it appear that defendants 1 to 6 and 11 were admitted as members of the Society. The first defendant has no right to be elected as Manager and he was not validly elected also. Hence, the plaintiffs sought for a declaration and prohibitory injunction as stated earlier. 3. The appellants resisted the suit contending as follows:- The first defendant was approved as the Manager of the School by the competent authority of the Education Department and as such the suit is barred under Sec. 41 (h) of the Specific Relief Act since the remedy of the first defendant is to file an appeal to the Director of Public Instruction. (“DPI” for short). The first plaintiff has no authority to represent the second plaintiff since the first plaintiff was removed from the post of Manager of the School in a meeting which was held on 12-5-2008. Defendants 1 to 6 and 11 were nominated as members of the Society and they were admitted as members. The members who attended the meeting on 12-5-2008 unanimously supported the nomination of defendants 1 to 6 and 11. Subsequently, in the general body meeting held on 22-9-2008 the first defendant was elected as the Manager of the School and his appointment as Manager of the School was approved by the D.E.O. Vatakara. It is not correct that the meeting proposed to be held on 28-9-2008 was postponed. The suit is bad for want of notice under Sec. 80 of C.P.C. 4. Before the trial Court relevant issues were framed. P.W.1 and PW2 were examined and Exts. A1 to A11 were marked on the side of the plaintiff. DW1 and DW2 were examined and Exts. B1 to B4 were marked on the side of the defendants. Exts.X1 to X3 were also marked. 5. The trial Court found that as on the relevant date there were altogether 9 members in the Society. Ext.A7 which is the notice of the said meeting and Ext. B3 the minutes of the General Body Meeting would show that in the said meeting there was no agenda as to the admission of new members to the Society. 5. The trial Court found that as on the relevant date there were altogether 9 members in the Society. Ext.A7 which is the notice of the said meeting and Ext. B3 the minutes of the General Body Meeting would show that in the said meeting there was no agenda as to the admission of new members to the Society. It was also found that on a perusal of the minutes of the meeting held on 24-4-2008, which was immediately prior to the meeting held on 12-5-2008, there was no such indication or intention to admit new members to the Society. The main agenda of the meeting proposed to be held on 12-5-2008 was a discussion as to the election of the new office bearers of the society in the light of the amended bye-law. The court below found that in the course of such a discussion, abruptly and without any prior notice to the members and without including such an item as a specific agenda, a proposal was made for admission of new members to the Society. P.W.1 and one Sasiskumar were the members absent in that meeting. Out of the existing nine members only 7 members were present. The plaintiffs also contended that no decision was taken in the meeting held on 12-5-2008 with the consensus of all members for admitting new members to the Society. Though affidavits were filed by some of the persons to the effect that no such decision was taken in the meeting held on 12-5-2008, during trial the members who had filed affidavits earlier (while the injunction application was taken up for hearing) did not enter the witness box to give evidence. It was also found that before taking a decision to admit new members the consent of those persons who were to be admitted as members should be obtained but no such consent was obtained prior to the taking of decision with regard to the same. It was also found that membership fee should have been collected from those members who were stated to have been admitted but the evidence would show that no membership fee was collected at the relevant time. In the subsequent meeting held on 28-9-2008 members who were illegally admitted as members participated in the meeting and elected the first defendant as the manager of the school. In the subsequent meeting held on 28-9-2008 members who were illegally admitted as members participated in the meeting and elected the first defendant as the manager of the school. If the members who were shown to have been admitted in the meeting held on 12-5-2008 are held to be not the legally admitted members then those persons cannot be treated as members and if that be so, there was no quorum for the meeting held on 28-9-2008 and as such the election of the first defendant as Manager of the School in that meeting held on 28-09-2008 should also be held illegal and non est. 6. The trial Court found that there was fabrication in the minutes book pertaining to the election held on 12-5-2008 . It was also found that the admission of new members of the society was not an item in the agenda in the meeting proposed to be held on 12-5-2008 and as such the decision taken in such a meeting is invalid and inconsequential. Since those wrongly admitted members had elected the first defendant as the Manager that election was held invalid by the trial Court. Consequential injunction was also granted restraining the first defendant, acting as the Manager of the School. Since the first plaintiff was the manager of the School and since he was not legally removed from that post he was held to be the Manager of the School. Consequential injunction was granted restraining the first defendant and others interfering with the functioning of the first plaintiff as the Manager of the School. The appellate Court confirmed the finding of the trail Court and the appeal was dismissed. 7. The learned counsel for the appellants would submit that the very frame of the suit is bad since the grievance of the first plaintiff is that he was illegally ousted from the post of Managership and if that be so it is an individual grievance which has to be raised by the first plaintiff as a member of the second plaintiff Society. If so, the first plaintiff has to sue the Society. As far as the 'fraud' alleged by the plaintiffs is concerned, if the plaint allegations are accepted it is a fraud on the Society and if so it is for the Society to file the suit. If so, the first plaintiff has to sue the Society. As far as the 'fraud' alleged by the plaintiffs is concerned, if the plaint allegations are accepted it is a fraud on the Society and if so it is for the Society to file the suit. Hence, according to the appellants the causes of action available to the first plaintiff and to the second plaintiff are distinct and separate and so both claims cannot go together as they are mutually destructive. The second plaintiff society is only a body of individuals and is not a statutory society and so the decisions are to be taken by the rule of majority. With regard to the internal management of the Society there cannot be interference by supplementing decisions of the Court to that of the decisions of the Society unless of course the decisions taken by the Society are opposed to public policy. Therefore, the learned counsel for the appellants would submit that since in the meeting held on 12-5-2008 seven members had participated and at that point of time, there were only nine members in the Society , it has to be found that the decision taken in the meeting held on 12-5-2008 should be held to be valid. Even if it is found that a specific agenda with respect to the admission of new members to the society was not there with regard to the meeting held on 12-5-2008, since with the permission of the President other matters can also be taken up for consideration and since the minutes of the meeting held on 12-5-2008 would show that the said suggestion was mooted by the first defendant and since other defendants agreed to the same, new members were admitted to the society and so there was no illegality in it. It is contended that it was during the discussion at the meeting held on 12-5-2008 some of the persons were admitted as members to the Society, that too, from different areas giving representation to the locality or the area where from those members were taken or co-opted as members of the Society. Therefore, according to the learned counsel for the appellants there was nothing wrong in taking a decision on 12-5-2008 with regard to the admission of new members even if that was not included as a specific agenda in the meeting proposed to be held on 12-5-2008. 8. Therefore, according to the learned counsel for the appellants there was nothing wrong in taking a decision on 12-5-2008 with regard to the admission of new members even if that was not included as a specific agenda in the meeting proposed to be held on 12-5-2008. 8. The following substantial questions of law have been framed for consideration in this Second Appeal:- i) In a collective body called society where the majority rules should prevail and the minority has to abide by the decision of the majority, is it not the first plaintiff bound to accept the decision taken by the majority members and if so, are not the courts below wrong in holding that the decision taken in the meeting held on 12-5-2008 is invalid ? ii) Only for the reason that it was not specifically shown in the agenda of the meeting to be held on 12-5-2008 with regard to the admission of new members, are the courts below right in holding that the decision taken in that meeting by the majority of the members of the Society is illegal ? iii) Is the frame of the suit bad in law ? iv) Are the courts below right in granting a declaratory relief and prohibitory injunction as prayed for by the plaintiffs ? 9. Sri. B.G. Bhaskar, the learned counsel for the respondents would submit that if the decision to induct defendants 1 to 6 and 11 as members of the Society is bad in law then the meeting held on 28-9-2008 should be held to be bad for want of quorum and if that be so, the decision taken in that meeting should also be invalid and inconsequential, since apart from those wrongly inducted members, there were only two other members who attended that meeting. According to the learned counsel, to come to a conclusion that the first defendant was duly elected as the Manger of the School, it must be proved that defendants 1 to 6 and 11 were validly inducted as members of the Society in a meeting validly convened for that purpose. According to the learned counsel, to come to a conclusion that the first defendant was duly elected as the Manger of the School, it must be proved that defendants 1 to 6 and 11 were validly inducted as members of the Society in a meeting validly convened for that purpose. It is further submitted that it may appear that seven persons had attended the meeting which was held on 12-5-2008 and that the affidavits filed by six persons before the trial Court while the injunction petition was heard would clearly show that no such decision was taken in the meeting held on 12-5-2008. But the affidavits filed by those persons cannot be pressed into service during the time of trial. The plaintiffs could have examined those persons who had filed affidavits to state regarding the correct state of affairs as to whether they had participated in the meeting held on 12-5-2008 and whether any decision was taken in that meeting for inducting defendants 1 to 6 and 11 as members of the Society. 10. Since the induction of new members was a very important issue which had a fundamental impact on the constitution of the Society it could not have been simply taken up during the meeting, under the caption “other matters with the permission of the President” since the President of the meeting cannot approve or accept such a suggestion, made by one of the members for admitting new members to the Society. The total number of members of the Society was 16 but at the relevant time there were only nine members. Therefore, it may be correct that seven more members could be admitted to the Society. But for that purpose a specific agenda should have been shown in the notice sent to the members of the Society, for the meeting to be convened for that purpose. Admittedly in the notice pertaining to the meeting held on 12-5-2008 there was no agenda with regard to the admission of new members to the Society. But the defendants would contend that in the course of the meeting a suggestion was made by the first defendant as to the requirement of admitting new members to the Society and it was because of the suggestions so mooted other members also agreed to admit new members. But the defendants would contend that in the course of the meeting a suggestion was made by the first defendant as to the requirement of admitting new members to the Society and it was because of the suggestions so mooted other members also agreed to admit new members. It is further argued that the decision taken in the meeting would make it clear that the persons so admitted as members of the society are from different localities and different areas and as such it cannot be said that all those persons are simply inducted as members according to the whim and fancy of the first defendant. 11. Ext.A7 is the copy of the notice issued to one Radhakrishnan and K.Balakrishna Kurup. It was sent by Narayanan Nambiar, the President of the society with regard to the meeting proposed to be conducted on 12/5/2008. This has been produced to show that in the Agenda there was no mention as to the requirement of inducting new members to the second plaintiff, society. The fourth item in the Agenda is only “other matters, as may be allowed by the President”. Ext.B3, the minutes book also shows that the Agenda noted therein is exactly the same as mentioned in Ext.A7 notice. 12. It is pointed out by Sri.B.G.Bhasker, the learned counsel for the respondents that first part of the minutes of the meeting held on 12/5/2008 was recorded in one handwriting. It is in that handwriting the particulars of the Agenda were also noted down. But the decisions of the meeting seen written in the pages 10 (last portion), 11, 12, 13, 16 and 17 were written up in the handwriting of the Head Mistress P.K.Santha, who was examined as DW2. (Pages 14 and 15 are blank). It is submitted by the learned counsel for the respondents that DW2 had allegiance and close association with the first defendant the then president of the society, since admittedly she had contested the Panchayath election as a member of a leading political party and she was elected as the President of the Panchayath. The second defendant in the suit was the Vice President of that Panchayath. On going through the evidence of DW2, there can be no doubt that she was acting at the behest of or as required by defendants 1, 7 and 8, the learned counsel for the respondents submit. The second defendant in the suit was the Vice President of that Panchayath. On going through the evidence of DW2, there can be no doubt that she was acting at the behest of or as required by defendants 1, 7 and 8, the learned counsel for the respondents submit. According to the respondents, the usual practice is that the minutes are to be written by the Secretary of the Society and if somebody else is allowed to write the minutes then his or her name should be mentioned. Whatever that be, the evidence given by DW2 that in the meeting held on 12/5/2008 a decision was taken to induct seven members of the society cannot be accepted at all. 13. Ext.A9 is the notice sent to Mr.K.Balakrishna Kurup, another member of the society pertaining to the meeting proposed to be held on 28/9/2008. That notice is dated 17/9/2008. It was admittedly signed by Mr.P.Narayanan Nambiar, the President of the society. It is pointed out by the learned counsel for the respondents that if as a matter of fact a decision was taken in the meeting held on 12/5/2008 regarding induction of seven members to the society, in the Agenda of the meeting proposed to be held on 28/9/2008 it would have been mentioned that the decision taken with regard to the same on 12/5/2008 is to be approved. In the meeting held on 28/9/2008, apart from the seven members, who were stated to have been inducted as per the alleged decision taken on 12/5/2008, DW2, the Head Mistress who is the Exofficio member, the first defendant and the seventh defendant, no other member did participate. Therefore, if the seven members who were wrongly inducted are excluded there would be only two other members excluding the Ex-officio member which will not constitute the quorum. Therefore, the contention that in the meeting held on 28/9/2008, the decision taken in the meeting on 12/5/2008 was approved or ratified cannot be accepted. 14. As per Exts.A8 letter dated 14/5/2008, the seventh defendant informed the first respondent herein as to the decision taken in the meeting held on 12/5/2008. Therefore, the contention that in the meeting held on 28/9/2008, the decision taken in the meeting on 12/5/2008 was approved or ratified cannot be accepted. 14. As per Exts.A8 letter dated 14/5/2008, the seventh defendant informed the first respondent herein as to the decision taken in the meeting held on 12/5/2008. It was stated that though the accounts which were forwarded to the seventh defendant, who was the then President of the society, was placed in the meeting, since the accounts for the period subsequent to March 2008 and the accounts prior to 1999 were not available, the accounts submitted by the first respondent could not be approved because a member- Mr.Balakrishna Kurup raised objection with regard to the same. The first respondent was also informed as per Ext.A8 letter that a decision was taken for the conduct of the election as per the new bye-law and also to effect urgent repairs to the school building for which the Manager of the School was directed accordingly. It is clear from Ext.A8 letter that, since no other matter came up for discussion, no other decision was taken in the meeting held on 12/5/2008. Though admissibility of Ext.A8 was objected to by the appellant, there is no merit in that objection. There can be no doubt that this letter was written and signed by the seventh defendant since the handwriting and signature occurring therein are exactly identical to his admitted handwriting and signature found in Ext.B3 and other documents produced in Court, it is argued on behalf of the respondents. 15. Ext.A10 is another letter, which also was sent to the first respondent herein on 27/9/2008. In that letter, the seventh defendant had expressed his condolence on the sudden demise of the niece of the first respondent herein. In that letter, the first respondent was informed that the meeting scheduled to be had on 28th will not be held on that day. Therefore, this letter would, according to the respondents, prove positively that the meeting which was scheduled to be held on 28/9/2008 was decided to be cancelled or postponed. 16. In that letter, the first respondent was informed that the meeting scheduled to be had on 28th will not be held on that day. Therefore, this letter would, according to the respondents, prove positively that the meeting which was scheduled to be held on 28/9/2008 was decided to be cancelled or postponed. 16. It is vehemently argued by the learned counsel for the appellants that there was no difficulty for the respondents, to put Exts.A8 and A10 letters when the seventh defendant was examined in court as DW1 and so it is not open to the respondents to contend that Exts.A8 and A10 letters were in fact sent by DW1 (the seventh defendant). But the learned counsel for the respondents would submit that when a specific question was put to DW1 it was answered by him that he did not see any of the documents produced by the plaintiff in the suit and so any denial made by DW1 earlier, without seeing the document produced by the plaintiff cannot in the eye of law be treated as specific denial of the document. It is also argued that if the defendants wanted to contend that Exts.A8 and A10 letters which had already been produced by the plaintiffs were not the letters sent by DW1 (D7), those letters should have been shown to DW1 and asked as to whether those letters were signed and sent by him. It is in that line, the learned counsel for the respondents submitted that it was not necessary for the respondents to put Exts.A8 and A10 letters to DW1 to elicit answers as to the correctness or otherwise of those two letters. There was no difficulty for the plaintiff (first respondent herein) to confront Exts.A8 and A10 letters to DW1. A party is entitled to either admit or deny those documents. Though the defendants' counsel also could have put questions with respect to Exts.A8 and A10 that may not absolve the duty of the plaintiff to put Exts.A8 and A10 to DW1. It is true that if a party had no occasion to see the two documents (letters) it may be difficult to conceive as to how he could deny the validity or genuineness of those letters/documents. However, the courts below after analysing the evidence found that Exts.A8 and A10 letters were the letters sent by the seventh defendant (DW1). It is true that if a party had no occasion to see the two documents (letters) it may be difficult to conceive as to how he could deny the validity or genuineness of those letters/documents. However, the courts below after analysing the evidence found that Exts.A8 and A10 letters were the letters sent by the seventh defendant (DW1). If those two letters are accepted as true, it would clinch the issue that no decision with regard to the induction of seven members to the society was taken in the meeting held on 12/5/2008 nor was such a decision placed in the meeting allegedly held on 28/9/2008 for approval and acceptance. 17. The learned counsel for the respondents has also referred to the conduct of the seventh defendant. It is stated that the dispute regarding the conduct of election was taken up several times before court including the Hon'ble Supreme Court. It is also argued by the learned counsel for the respondents that Ext.A1 bye-law provides that the new members should pay a membership fee of Rs.2,500/-and so after taking the decision to admit those members, membership fee should have been collected from them and their names should be entered in the Register of Members. 18. Ext.A2 is stated to be the register of members. It is only a note book which contains only entries in two or three pages. Those entries do not show the date when it was written. It is true that that note book which is described as a register was produced in the previous suits O.S.145/1995, O.S.90/1995 and O.S. 54/2006 also. However, the entries in that note book are not of any help to the plaintiff or to the defendants. It can only be said that the names and addresses of the persons newly inducted were not written in Ext.A2. With regard to the payment of the membership fee, except the entry in Ext.B1, no other document has been produced. There should be a receipt book which would show the payment made by each of the seven members at the rate of Rs.2,500/-. There is an entry dated 26/5/2008 in Page 9 of Ext.B1, which is to the effect that a sum of Rs.17,500/- was received from the seven newly inducted members being the membership fee. There should be a receipt book which would show the payment made by each of the seven members at the rate of Rs.2,500/-. There is an entry dated 26/5/2008 in Page 9 of Ext.B1, which is to the effect that a sum of Rs.17,500/- was received from the seven newly inducted members being the membership fee. But it is submitted by the learned counsel for the plaintiff (R1) that the entries subsequent to 31/3/208 were subsequently introduced by the first defendant. In this connection, the learned counsel for the first respondent would submit that immediately after the entry dated 31/3/2008, the first respondent herein had written his name and put his signature showing the date as 8/5/2008. It is pointed out that as per Ext.A8 letter the seventh defendant has informed the plaintiff that the accounts which were submitted by the first respondent herein were not accepted because of the objection raised by another member. Therefore, it is clear that this account book was with the seventh defendant since there is no evidence to show that after it was submitted or handed over to the seventh defendant, for placing the account in the meeting held on 12/5/2008, it was returned to the plaintiff. 19. The learned counsel submits that the date 8/5/2008 put beneath the signature of the plaintiff would show that it was given to the seventh defendant on that day for the meeting to be held on 12/5/2008. Therefore, simply because an entry dated 26/5/2008 is seen made to the effect that a sum of Rs.17,500/-was collected as the membership fee from the seven persons, it cannot be said that the membership fee was collected immediately after the induction of those members or that proper receipts were issued to the seven persons. The non-production of the receipt book would also in such circumstances, assume relevance. 20. Sri.B.G.Bhaskar would emphasise the requirement of a specific agenda in the meeting with regard to the admission of new members to the Society since it was the core of the issue as to the requirement of induction of new members. The non-production of the receipt book would also in such circumstances, assume relevance. 20. Sri.B.G.Bhaskar would emphasise the requirement of a specific agenda in the meeting with regard to the admission of new members to the Society since it was the core of the issue as to the requirement of induction of new members. It is further submitted that if the agenda shown in the notice it was specifically noted as one of the items, then certainly the other two members who did not participate in the meeting would have certainly participated in the meeting and they could have tried to persuade other members to take a different decision with regard to the induction or non induction of new members. It is in that way the non inclusion of this item in the notice/agenda pertaining to the meeting held on 12-5-2008 assumes much relevance. 21. It is vehemently argued by Sri. G. Sreekumar, Chelur, the learned counsel for the appellants that the position of a society registered under the Societies Registration Act is like that of a Club or a Joint Stock Company where the majority of the members is entitled to exercise its powers and control its operations generally. It is further submitted that the rule of the majority should prevail is the basic principle of any such association. It is further argued that if the Court intervenes holding that a particular decision is invalid for the reason that there was irregularity in the meeting convened, and if the Court decides in favour of the plaintiff holding that the decision was incorrect, that can be undone by the society since the society can call a meeting of its members on the next day and confirm the acts of the defendants and confirm their position and decision taken earlier, in which case, the decision already rendered by the Court would become nugatory. It is for that purpose, so far as the clubs or associations governed by the provisions of the Societies Registration Act are concerned, the law says that the court should not interfere in the internal management of the Society since the internal management is to be done based on the majority decision of the members. 22. The learned counsel for the appellant has relied upon the Division Bench decision of the Bombay High Court in A.S. Krishnan v. M.Sundaram - AIR 1941 Bombay 312. 22. The learned counsel for the appellant has relied upon the Division Bench decision of the Bombay High Court in A.S. Krishnan v. M.Sundaram - AIR 1941 Bombay 312. In my opinion as the position of the members of this society is similar to that of the shareholders of the company and as the acts of the defendants which are challenged are in respect of the society, it is necessary that the society should be a party to this litigation. I do not think it is competent to the plaintiff either alone or representing himself and the other members of the society other than the defendants to bring a suit. The only grievance in respect of the disputed acts can be of the society. It is not open to the plaintiff, without ascertaining the wishes of the society, to file a suit on behalf of himself and all others except the defendants. The reason for that conclusion is obvious. Even if the court decides in favour of the plaintiff, the society can call a meeting of its members tomorrow, confirm the acts of the defendants and confirm their position as members of the managing committee, thus rendering the decision of the Court a nullity. 23. In that case it was pointed out that there was no suggestion of any infringement of the individual right of the plaintiff therein but the suggestion was only in respect of the alleged wrong done to the Society as a body. In that context it was held that in the absence of the society as a party to the litigation, the suit as framed was not maintainable and the Court has no jurisdiction to try the suit in the absence of the Society. So far as the case on hand is concerned, the Society is impleaded as the second plaintiff. Not only that, the first plaintiff complains of wrong done to him. It is not a case where there was no infringement of the individual right of the plaintiffs. But the position as regards the internal management of the society is concerned, the decision of the majority will prevail is the settled position of law, the learned counsel for the appellant submits. Another decision of the Bombay High Court in SatyavartSidhantalankar and Others v. Arya Samaj, Bombay - AIR 1946 Bombay 516 has also been relied upon in this connection. Another decision of the Bombay High Court in SatyavartSidhantalankar and Others v. Arya Samaj, Bombay - AIR 1946 Bombay 516 has also been relied upon in this connection. There it was held in Page 524: Every member of a corporation or an incorporated company joins the same on the basis that prima facie the majority of the members is entitled to exercise its powers and control its operations generally. The same would be the position in the case of unincorporated associations of individuals whether the same be registered under the Societies Registration Act or not. The rule of the majority is the normal basis of these associations. The members of these associations do join these associations whether incorporated or unincorporated, whether registered or unregistered, knowing full well that the affairs of these associations would be conducted normally by the vote of the majority of the members thereof. In the absence of any specific rules and regulations governing the conduct of these affairs, this would be the normal presumption, and no member who joins any association would be heard to contend to the contrary. 24. It is argued on behalf of the appellants that since all the members including the ex officio members who had attended the meeting took a unanimous decision regarding the induction of members it cannot be said that the decision is bad. The learned counsel for the respondents has pointed out that some of the members had filed affidavits before the trial court challenging the said contention. It was already found by this Court that since those persons did not mount the witness box to give evidence regarding the same the affidavits filed by them cannot be acted upon. It is further submitted by the learned counsel for the appellants that, viewed in that factual backdrop, even if it is assumed that the decision taken in that meeting is invalid, there may not be any difficulty for the appellants to get a meeting convened again and take decisions in accordance with the decisions taken on 12-5-2008. Since it is axiomatic that the majority decision should prevail even if the court holds otherwise, it can be got undone by the majority members of the Society, it is further submitted by the learned counsel. 25. Since it is axiomatic that the majority decision should prevail even if the court holds otherwise, it can be got undone by the majority members of the Society, it is further submitted by the learned counsel. 25. It is argued by the learned counsel for the respondents that if that was the position there was no difficulty for the appellants to convene a meeting again with the nine members who were enlisted as on 12-5-2008 and then decide afresh showing in the agenda of the meeting that one of the items to be decided is with regard to the induction of new members to the Society so as to fill up the vacant seats. It is not disputed that the total number of members of that Society can be up to 16 and as on 12-5-2008 there were 7 vacancies in that Society. But the non-inclusion of that item in the agenda of the meeting on 12-5-2008 has created the whole problem. That illegality cannot be undone or ratified by the members of the Society, the learned counsel for the respondents submits. The argument advanced on behalf of the appellants that the suit as framed is not maintainable cannot be sustained in view of the fact that the first plaintiff has complained of infringement of his individual right. The Society has also been impleaded as the second plaintiff. Since the Society was to be represented by the Secretary and since it was properly represented, the contention that the suit as framed is unsustainable is found untenable. When a specific contention has been raised by the first plaintiff that the decision taken in the meeting is illegal and that has affected his individual right to continue as the Manager of the School and that he was attempted to be unseated by a decision illegally taken in a meeting then certainly, the 1st plaintiff gets cause of action to file the suit since there is no express exclusion of the jurisdiction of the Civil Court to try such a suit. 26. 26. It was held by the Hon'ble Supreme Court in the decision in State of Andhra Pradesh v. Manjeri Laxmi Kantha Rao - AIR 2000 SC 2220: “The normal rule of law is that Civil Courts have jurisdiction to try all suits of civil courts hae jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or implidly excluded as provided under Section 9 of the Cod of Civil Procedure but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the Civil Courts to try civil suit. The test adopted in examining such a question is (i) whether the legislature intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it”. 27. The argument that the suit as framed is not maintainable was advanced on behalf of the appellants on the premise that the suit is virtually against the appointment of the first defendant as the Manager of the School and the appointment was so made by the educational authorities and so the suit should have been filed only after issuing notice under Sec. 80 C.P.C. The further argument is that there are provisions in the Education Act and Rules to file appeal against the decisions taken regarding the appointment of the Manager in an School. But here the suit is against the decision taken by the Committee on 12-5-2008 and 28-9-2008. It was only based on the decisions taken in those meetings the appointment was made. Therefore, the contention that the suit is not maintainable is bereft of any merit. It was also held by the Hon'ble Supreme Court in DwarkaPrasad Agarwal v. Ramesh Chandra Agarwala - AIR 2003 SC 2696: “The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the Civil Courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a Civil Court is not to be readily inferred. A provision seeking to bar jurisdiction of Civil Court requires strict interpretation. Section 9 of the Code of Civil Procedure confers jurisdiction upon the Civil Courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a Civil Court is not to be readily inferred. A provision seeking to bar jurisdiction of Civil Court requires strict interpretation. The Court, it is well-settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the Civil Court. The burden of proof in this behalf shall be on the party who asserts that the Civil Court's jurisdiction is ousted”. In the decision of the Supreme Court in Maharaja Exports and another v. ApparelsExports Promotional Council -1986 (60) CC 353 it was held : “Under Section 9 of the Code of Civil Procedure, 1908, Civil Courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is expressly or impliedly barred. Unlike some statutes, the Companies Act does not contain any express provision barring the jurisdiction of the ordinary Civil Courts in matters covered by the provisions of the Act”. 28. There is no doubt regarding the proposition that an exclusion of jurisdiction of Civil Court cannot be readily inferred. Where there is no express exclusion, the examination of the remedies and the Scheme or the Act to find out the intendment becomes necessary and in such cases the result of the enquiry may be decisive. The legality or correctness of the meeting held and the decisions taken by the Society are not matters to be adjudicated upon by the appellate authorities constituted under the Educational Act and the Rules. The learned counsel for the respondents has also relied upon the decision of MadrasHigh Court in N.V.R. Nagappa Chettiar and Another v. The Madras Race Club by its Secretary and Others - AIR (38) 1951 Madras 831, where it was held: “This rule is subject to the following exceptions, namely, that a share-holder or shareholders are entitled to bring an action (1) in respect of matters which are 'ultra vires' the Co. and which the majority of share-holders were incapable of sanctioning; (2) where the act complained of constitutes a fraud on the majority; and (3) where the action of the majority is illegal and (4) where a special resolution is required by the Articles of the Co. and the Co. and which the majority of share-holders were incapable of sanctioning; (2) where the act complained of constitutes a fraud on the majority; and (3) where the action of the majority is illegal and (4) where a special resolution is required by the Articles of the Co. and the Co. obtains the assent of the majority to such special resolution by a trick, or even where a co. authorised to do a particular thing only by a special resolution does it without a special resolution duly passed”. 29. Relying on the decision of the Hon'ble Supreme Court in Vice Chancellor, Utkal University and others v. S.K. Ghosh and Others -AIR 1954 SC 217 it is further argued by the learned counsel for the respondents that if the Rules require such resolutions to be moved and passed in a meeting called for the purpose, then every member of the body entitled to take part in the meeting must be given notice so that he can attend and express his views. Individual assents given separately cannot be regarded as equivalent to the assent of a meeting because the incorporated body is different from the persons of which it is composed. Therefore, it was held by the Apex Court in the said decision that an omission to give proper notice even to a single member in such circumstances would invalidate the meeting and that it would invalidate resolutions which purport to have been passed at it. 30. Each case must be governed by its own facts and no universal rule can be laid down; also it may well be that in the same body certain things, such as routine matters can be disposed of more easily and with less formality than others. It all depends on the nature of the body and its rules. The substance is more important than the form and if there is substantial compliance with the spirit and substance of the law, an unessential defect in form will not be allowed to defeat what is otherwise a proper and valid resolution. 31. It all depends on the nature of the body and its rules. The substance is more important than the form and if there is substantial compliance with the spirit and substance of the law, an unessential defect in form will not be allowed to defeat what is otherwise a proper and valid resolution. 31. It is further submitted by the learned counsel for the respondents that the position may be different when, either by custom or by the nature of the body or by its constitution and rules, greater latitude and flexibility are permissible and that it may also be correct that certain things such as routine matters can be disposed of more easily and with less formality than others but it all depends on the nature of the body. But so far as the case on hand is concerned for the meeting proposed to be held on 12/5/2008 there was no agenda with respect to the induction of new 7 members to the society and as such it is not something which would fall within the category of routine matters but was a matter which was of paramount importance regarding the very constitution of the Committee. That cannot be simply wished away by saying that that can be brought within the last item shown in the agenda “other matters as allowed by the President”. The absentee member was not told about the same nor was it possible for the absentee member to know that such a decision was going to be taken in the meeting. Had such a notice been there, certainly, the other members also would have participated in the meeting and they could have persuaded to change the view of other members, it is argued. But it is argued by the learned counsel for the appellant that, here the first respondent alone is the absentee member and so he could not have prevailed upon other members since all the other 7 members decided in favour of the appellants and therefore, the decision taken in the meeting cannot be illegal. But that contention cannot be accepted in view of the fact that the non inclusion of this particular item in the agenda goes to the root of the matter. The decision of the Supreme court in M.I. Builders Pvt. Ltd. v.Radhey Shyam Sahu & Ors. But that contention cannot be accepted in view of the fact that the non inclusion of this particular item in the agenda goes to the root of the matter. The decision of the Supreme court in M.I. Builders Pvt. Ltd. v.Radhey Shyam Sahu & Ors. - AIR 1999 SCC 2468 has also been relied upon by the learned counsel for the respondents in support of his submission that the decision taken in the meeting regarding the induction of 7 members is invalid as there was no agenda with regard to the same in the notices sent to the members of the Society. Admittedly no such item was included in the agenda in the notice sent to the members. It was held therein that law mandates that not only the notice of the date and time of the meeting but the notice of the business materials should be given .before the date of the meeting. 32. The decision of the Division Bench of this Court in KodiyathurPanchayath v. District Panchayath Officer, Calicut reported in 1977 KLT 80 has also been referred to by the learned counsel for the respondents where it was held: “The argument is that since the President admitted the resolution in spite of the fact that prior notice was not given it is not open to the members to challenge the validity of the resolution. there is not much weight in the contention. R.2 and 4 referred to above, deal only with the moving of resolutions and the discretion of the President to include in the list of business a resolution for which ten clear days' notice as required byt eh first paragraph of R. 2 had not been given. Even the proviso only permits the President to allow a resolution to be included in the list of business with shorter notice than ten days. The power of the President under the proviso does not affect the right of the members to get advance information about a resolution and that resolution, it is clear from the rule, has to be included in the list of business to be dealt with at the meeting. In other words, a resolution could be validly moved only if the subject thereof has been included in the business of the meeting. As we see it,R.4 has no application to the issues that we have to decide”. 33. In other words, a resolution could be validly moved only if the subject thereof has been included in the business of the meeting. As we see it,R.4 has no application to the issues that we have to decide”. 33. In that case it was held that every member has the right to challenge the decision taken in a meeting without the requisite notice as contemplated in the Rules since the purpose of giving such notice is to enable the members to have advance information about the subjects to be discussed. It was also observed that it is quite possible that a member may not attend the meeting under the impression that no subject in which he is interested is likely to be taken in that meeting. By giving advance information about the subjects to be taken the members would be able to decide one way or the other. It is argued by the learned counsel that in the instant case also the notice sent to the members did not contain the item as to the induction of members in the agenda. Hence the decision of the Division Bench as quoted above would squarely apply to the facts of this case. 34. For the reasons stated above the decision taken in the meeting held n 12/5/2008 inducting 7 persons as members of the plaintiff society is to be held invalid and non est. There is no reason to upset the concurrent finding of fact entered by the courts below. All the questions of law raised by the appellants are answered against them. In the result, this RSA is dismissed. No costs.