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2020 DIGILAW 163 (CAL)

Sukrit Saha v. Sadhanashram Seva Samsad

2020-02-07

SAUGATA BHATTACHARYYA, SOUMEN SEN

body2020
JUDGMENT Soumen Sen, J. - The appeal is arising out of a judgment passed in Title Suit No.40 of 2005 decided on 12th June, 2018 by the learned Judge, IVth Bench, City Civil Court, Calcutta, in a suit filed by the plaintiff for declaration and injunction. 2. The plaintiff filed a suit praying for a decree of declaration that the resolution dated 29th June, 2002 communicated by a letter dated 8th July, 2002 is illegal, without jurisdiction and not binding upon the plaintiff. The plaintiff has also prayed that he is the principal of the school pursuant to the letter of appointment by the Managing Committee dated 31st July, 1997 along with other reliefs. The suit was dismissed on the basis of an order passed by the Hon'ble Division Bench of the Patna High Court on 9th December, 2004 in LPA No.1135 of 2004. Although the learned Trial Judge has framed nine issues but it appears that he has only returned a finding of issue no.1 and in our view the learned Trial Court was justified in not considering the other issues since the learned Trial Court has come to finding that the suit is not maintainable in view of the order dated 9th December, 2004 passed in LPA No.1135 of 2004. This takes us to consider the order passed by the Division Bench of the Patna High Court on 9th December, 2004. In the Patna High Court, the present plaintiff is the appellant. 3. The dispute is with regard to the administration of management of Sadhanashram Seva Samsad (hereinafter referred to as 'Samsad'). The Samsad was established to impart and promote education and to establish, maintain, carry on education works and institutions, i.e., schools, colleges, universities. Rammohan Roy Seminary of Khazanchi Road, Patna is one of the educational institutions owned and affiliated by the said Samsad. Different factions of the said Samsad claiming to be entitled to carry on the aforesaid object. Several suits are pending in different courts. The respondent nos.1 and 2 filed a title suit, being Title Suit No.2016 of 2001 in the City Civil Court, Calcutta, inter alia, claiming a declaration that the resolution dated 15th November, 2001 made by Sadhanashram Seva Samsad is illegal, bad in law and is liable to be delivered up and/or cancelled. The plaintiffs in the said suit made a further declaration to run and administer the society. The plaintiffs in the said suit made a further declaration to run and administer the society. The plaintiffs in the said suit have also prayed for an injunction restraining the defendants from disturbing and/or causing any obstruction and/or interrupting the functioning with the defendant no.1 society and/or dealing with the affairs of the said society. In the said suit, the present plaintiff is the defendant no.11. In the suit of 2001, the plaintiff claims that the present Managing Committee of the Seminary was reconstituted on 24th March, 2001 which includes the name of Dr. Sukrit Saha, Ex-Officio Member, being the principal of Seminary. However, it is alleged that by a resolution dated 15th November, 2001, signed by all the defendants, which includes Dr. Sukrit Saha, the plaintiffs were removed from the said society and on that basis, a declaration is sought for. The relevant paragraphs are paragraphs 12 and 13 of the said plaint, which reads:- "12. Defendant Sri Saroj Coomar Saha and the other eight defendants signed a letter dated 15.11.2001 and sent the same to plaintiff no.2, the Chairman of the Samsad, together with enclosures, the fourth enclosure being a purported illegal and invalid resolution dated 15.11.2001 signed by the defendants, purported stating that plaintiff members (2) and (1) were ... "no more Chairman and Secretary of Sadhanasram Seva Samsad and its Governing Body, Kolkata with immediate effect". The said letter and its enclosures are collectively made Annexure "A" (total eight sheets) and sent the purported resolution to the Secretary of the Managing Committee of the Seminary and to Sri Sukrit Saha, Principal of the Seminary as stated therein. 13. Since the said letter and purported resolution are illegal, invalid, void ab-initio, without jurisdiction and bad in law, plaintiff no.1 sent a communication to the Secretary and the Principal to ignore the purported resolution under registered post with A/D on 20.11.2001." 4. It appears that in the said suit, an interim order was passed on 15th May, 2002 to the following effect:- "Both parties are directed to maintain status quo relating to management and functioning of the plaintiff No.1, i.e. Kolkata Samsad, as it was before 11.11.2001 till disposal of the suit." 5. It appears that in the said suit, an interim order was passed on 15th May, 2002 to the following effect:- "Both parties are directed to maintain status quo relating to management and functioning of the plaintiff No.1, i.e. Kolkata Samsad, as it was before 11.11.2001 till disposal of the suit." 5. In the meantime, several other controversies arose that had resulted into the order passed by the Director, Secondary Education Department, Government of Bihar, Patna, which was the subject matter of challenge in the writ petition and in view of which consequential orders appear to have been passed by the District Education Officer, Patna, removing the principal and some of the office bearers as contained in Annexure "15" to the writ application. The Division Bench of the Patna High Court felt that the City Civil Court, Calcutta is the competent body to take decision in the matter and in view of the fact that there is already an order of status quo in the said case and the settled law is that when the matter is pending before the civil court and some interim order has been passed, then the other authority should not enter into the controversy and in case of any controversy or dispute, the matter should be referred to the civil court for adjudication. The Patna High Court thereafter disposed of the appeal with the following observation:- "... In that view of the matter, if any parties to the proceedings belonging to the different factions or teaching or non-teaching staff with regard to any matter wants clarification, they may move before the City Civil Court, Kolkata in the pending suit who will pass order and that will bind the parties as well as the State authorities till disposal of the matter. One month's time is likely to be taken to any of the parties to approach the City Civil Court, Kolkata. So in the meantime it is directed that the payment of salary will be made to the teaching and non-teaching staff as it was paid earlier and any withdrawal for urgent running of the school will be made subject to verification and approval by the Deputy Director of Secondary Education, Govt. of Bihar, Patna. So in the meantime it is directed that the payment of salary will be made to the teaching and non-teaching staff as it was paid earlier and any withdrawal for urgent running of the school will be made subject to verification and approval by the Deputy Director of Secondary Education, Govt. of Bihar, Patna. It is made clear that this interim order has been passed only to facilitate the parties to approach the civil court and it has no relevancy with regard to merits of the case which as stated above has to be determined by the City Civil Court, Kolkata as the matter is pending before it. In view of the pendency of the suit, no other authority has power to pass order. However, if there is any confusion with regard to the same, any of the parties will get clarification from the City Civil Court, Kolkata in terms of the order. Any observation made by any authority or the learned Single Judge regarding any matter falling to institution should not be given effect to and the City Civil Court, Kolkata shall decide the matter on its own merit." 6. Dr. Sukrit Saha thereafter filed a suit, being Title Suit No.40 of 2005 for declaration and injunction. The learned Trial Judge held that in view of the order passed by the Division Bench of the Patna High Court, the suit is not maintainable. The learned Trial Judge was of the view that the plaintiff ought to have filed proper application in that pending suit, being Title Suit No.2016 of 2001 before the City Civil Court or in the alternative, the plaintiff could have taken leave/liberty/order from the Hon'ble Court for filing a fresh suit against the defendants. 7. We are unable to agree with the findings rendered by the learned Trial Judge on the issue as to the maintainability of the suit. The suit can be either barred under Order II Rule 2 or Order VII Rule 11 or under Order 23 Rule 1 of the Code of Civil Procedure. The judgment of the Patna High Court in no way had curtailed the right of the plaintiff to file a suit to agitate issues that are not covered by the suit, being Suit No.2016 of 2001. In the 2001 suit, the plaintiff recognised Dr. The judgment of the Patna High Court in no way had curtailed the right of the plaintiff to file a suit to agitate issues that are not covered by the suit, being Suit No.2016 of 2001. In the 2001 suit, the plaintiff recognised Dr. Sukrit Saha as the Ex-Officio Member of the Managing Committee since he was the Principal of the Seminary. Subsequently, it appears that the present appellant was removed from the post of Principal and is presently under suspension. This issue could not have been raised and hence decided in the said suit, being Title Suit No.2016 of 2001. 8. If the learned Trial Judge were of the view that the issues in both the suits were similar or substantially identical, then the learned Trial Judge could have in exercise of its power under Section 151 of the Code of Civil Procedure consolidated the suits and heard both the suits analogously, which, however, is not possible now because of the dismissal of the Title Suit No.2016 of 2001. 9. On such consideration, we feel that the order passed by the learned Trial Judge cannot be sustained in law. The decree is set aside. The suit is revived. 10. We request the learned Trial Judge to dispose of the suit as expeditiously as possible. 11. We have been informed by Mr. Ghosh that Title Suit No.2016 of 2001, as of date, does not survive as it was dismissed for default on 30th September, 2019. 12. Therefore, in view of the fact that Title Suit No.2016 of 2001 filed by Mr. Ghosh's clients was dismissed for default on 30th September, 2019 along with petition under Order VI Rule 17, it is all the more necessary that the appellant's suit should be heard expeditiously. The photostat copy of the order dated 30th September, 2019 be kept with the record. 13. Since no affidavit-in-opposition is called for, the allegations made in the application for injunction are deemed to be not admitted by the respondents. 14. The appeal and the application stand disposed of accordingly. 15. There shall, however, be no order as to costs. 16. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, upon compliance of necessary formalities. Later: After the judgment is delivered in open Court, Mr. 14. The appeal and the application stand disposed of accordingly. 15. There shall, however, be no order as to costs. 16. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, upon compliance of necessary formalities. Later: After the judgment is delivered in open Court, Mr. Ghosh, learned counsel appearing on behalf of the respondents, prays for stay of the operation of the order. Upon consideration of the above prayer, we find no reason to allow such prayer and the same is rejected.