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Judgment
N. Ananda
The petitioner is the first defendant in O.S. No. 25234/2012. The petitioner had filed an application under Order 7 Rule 11(a) & (c) CPC, interalia contending that the instant suit(O.S. No. 25234/2012) does not disclose cause of action and earlier suit filed by the plaintiff in O.S. No. 25378/2011 was withdrawn without seeking liberty to file a fresh suit and the instant suit is filed on the same cause of action. The learned trail judge has dismissed the application. Therefore, the first defendant is before this court. I have heard Sri. B.K. Sampathkumar, learned counsel for petitioner and Sri. Ravi B. Naik, learned Senior Counsel for first respondent. I have been taken through copies of plaints in O.S. No. 25378/2011 and O.S. No. 25234/2012 (instant suit).
The suit in O.S. No. 25378/2011 was filed by the first plaintiff along with plaintiffs No. 2 to 5 viz., Altaf Ahamed, V.N. Prasad, Satya Kumar G.A. Iyengar and Shankar H. Shetty on 23.02.2011 for the following reliefs:
a) Declaring the issuance of Show cause notice dated 09.11.2010 bearing No. BI/SEC/732 issued to plaintiff No. 1, Show cause notice dated 09/11/2010 bearing No. BI/SEC/734 issued to plaintiff No. 2, Show cause notice dated 09/11/2010 bearing No. BI/SEC/737 issued to plaintiff No. 3, Show cause notice dated 09/11/2010 bearing No. BI/SEC/733 issued to plaintiff No. 4 and Show cause notice dated 09/11/2010 bearing No. BI/SEC/73 issued to plaintiff No. 5 by the defendant No. 1 society and all action pursuant thereto is illegal, null and void, Void-ab-initio and non-est.
b) Declaring the constitution of the Disciplinary Committee consisting of Defendants 15-21 as opposed to Rule 26 (iii) of the Defendant No. 1 society and all action pursuant thereto as null and void, non-est, void-ab-initio.
c) To issue a Mandatory Injunction against defendants No. 1 to 21 directing them to provide the documents, deposition statements of defendant witnesses, articles of charge to the plaintiffs as so required by them and represented by them to the defendant through various representations on different dates which are also a part and parcel of the suit.
d) To issue a permanent injunction restraining defendant No. 1 society, their officials, their servants or anybody claiming through them from interfering in any manner with the plaintiffs and their family members of their right to use the facility of I-defendant Institute.
It is clear from averments of plaint that plaintiffs were members of the Bowring Institute (first defendant herein) and they were served with a notice to show-cause as to why disciplinary action should not be initiated against them for causing publication of certain defamatory statements against first defendant institute and other members. The aforestated defamatory statements were published in Vijaya Karnataka Kannada daily newspaper dated 28.08.2010 as also in Bangalore Mirror dated 24.08.2010 and Vijaya Karnataka newspaper dated 07.06.2010. Aggrieved by the show-cause notice and constitution of Disciplinary Committee, plaintiff herein along with aforestated persons had instituted O.S. No. 25378/2011 seeking aforestated reliefs.
During pendency of O.S. No. 25378/2011, a disciplinary enquiry was held against plaintiff and others for causing publication of defamatory statements, their membership was suspended for a period of six months.
The instant suit (O.S. No. 25234/2012) was instituted by the first respondent herein (lone plaintiff) against first defendant and others. In the instant suit, the plaintiff has sought for following reliefs:
a) Pass judgment and decree declaring the recommendations dated 01.05.2011 passed by the Disciplinary Committee terminating the membership of the plaintiff from the 1st Defendant Institute as null and void as the constitution of the Disciplinary Committee is contrary to Rules of Bowring Institute and the Disciplinary Committee has proceeded with the enquiry without affording an opportunity to the plaintiff to defend his case.
b) Pass judgment and decree declaring the resolution dated 02.05.2011 passed by the Managing Committee of the first defendant against the plaintiff as null and void and has no force in law since it is opposed to rules of principles of natural justice.
c) Pass judgment and decree declaring the ratification of the General body of the first defendant dated 20.05.2011 ratifying the resolution of the Managing Committee dated 02.05.2011 placing the plaintiff under termination of his membership and also keeping under suspension as null and void.
After the institution of suit O.S. No. 25378/2011 dated 23.02.2011, plaintiff was issued with a notice to show-cause as to why he shall not be expelled from the membership as he had abused one Smt. Nawab Marzia Begum on 16.11.2010. Thereafter, disciplinary enquiry was held. The disciplinary committee submitted a report reading as hereunder:
Mrs. Nagina deposing as a witness before the disciplinary committee, in the third charge, pertaining to Mr. Govinda Thakural. When Mrs. Nagina''s attention was drawn towards the complaint of Mrs. Govinda Thakural, alleging Mr. Jayanna using the words what business you do in a vulgar manner, Mrs. Nagina deposed before the Disciplinary Committee and clarified that Mr. Jayanna was keeping his cool at her request and it was Mr. Govinda Thakural shouting at highest pitch, on a specific question whether Mr. Jayanna used vulgar language against Mr. Thakural, Mrs. Nagina replied that she knew Mr. Jayanna as person quite from sometime and he had not used any vulgar language as been portrayed. Mrs. Nagina had also stated that Mr. Jayanna was keeping his cool through out, at her request and Mr. Steward Claurke''s request.
The membership of plaintiff was terminated on the allegation that plaintiff had abused Smt. Nawab Marzia Begum on 16.11.2010 in the presence of dignitaries and violated Rule 26(a) (b) (c) & (d) of the Bo wring Institute Rules.
In the disciplinary enquiry held against plaintiff for his alleged misbehavior with Smt. Nawab Marzia Begum on 16.11.2010, the Disciplinary Committee recommended that plaintiff shall be removed from the membership. The recommendation made by the Disciplinary Committee on 01.05.2011 for removal of plaintiff from the membership was approved by the Managing Committee vide its resolution dated 02.05.2011.
It is the case of plaintiffs that O.S. No. 25378/2011, had been filed in relation to first show-cause notice issued to plaintiff and other four persons alleging that they had caused publication of defamatory statements and the plaintiffs had also challenged the constitution of Disciplinary Committee. In the said disciplinary enquiry, plaintiffs in O.S. No. 25378/2011 were held guilty of misconduct and punishment of suspension of membership for a period of six months was imposed.
In the enquiry held against plaintiff for the alleged misconduct that he had abused one Smt. Nawab Marzia Begum in the first defendant institute on 16.11.2010, the Disciplinary Committee recommended removal of plaintiff from the first defendant institute. The said recommendation was accepted by the Managing Committee on 02.05.2011.
Thus, it is clear that O.S. No. 25378/2011 was filed on 23.02.2011, when plaintiff had not been issued with a show-cause notice alleging that he had misbehaved with Smt. Nawab Marzia Begum on 16.11.2010. The Disciplinary Committee had not recommended removal of plaintiff from the membership for his alleged misbehavior of abusing Smt. Nawab Marzia Begum as also, the recommendations of Disciplinary Committee dated 01.05.2011 had not been approved by the Managing Committee.
From the reliefs sought for in the instant suit, it is clear that the plaintiff is aggrieved by recommendations of the Disciplinary Committee dated 01.05.2011 which was accepted by the Managing Committee on 02.05.2011. The plaintiffs could not have sought these reliefs in O.S. No. 25378/2011, which was filed on 23.02.2011.
It appears, after institution of O.S. No. 25234/2012 (instant suit), plaintiff got dismissed the suit O.S. No. 25378/2011 as not pressed. From the narration of plaint averments as stated supra, it is clear that, averments of plaint in O.S. No. 25234/2012 and O.S. No. 25378/2011 are entirely different. The institution of suit O.S. No. 25234/2012 was consequent upon the recommendations of Disciplinary Committee dated 01.05.2011 and acceptance of recommendations by the Managing Committee in terms of its resolution dated 02.05.2011. Therefore, dismissal of suit O.S. No. 25378/2011 as not pressed and institution of present suit (O.S. No. 25234/2012) do not attract the provisions of Order 23 Rule 1 CPC.
The learned counsel for petitioner relying on judgment of this court reported in Secretary, Bangalore Turf Club and others Vs. Kishan Srivastava and another, would submit that O.S. No. 25378/2011 is the genesis of cause of action stated in O.S. No. 25234/2012, therefore, institution of suit in O.S. No. 25234/2012 is hit by the principles contained under Order 23 Rule 1 and Rule 4(a) and (b).
In the aforestated decision, this court has held that, O.S. No. 415/1995 was filed on 18.01.1995 and subsequently O.S. No. 86/1995 was filed reiterating the averments made in O.S. No. 415/1995 and also averments led to events, which took place subsequent to 04.01.1995. In the circumstances, this court has held that, part of the claim abandoned in O.S. No. 86/1995 was the genesis of cause of action to file O.S. No. 415/1995. This court has held that, institution of O.S. No. 415/1995 was hit by the principles contained under Order 23 Rule 1 and Rule 4(a) & (b). This court had also noticed that the court was not appraised of the fact of filing O.S. No. 86/1995 when the subsequent suit was filed in O.S. No. 415/1995.
In the case on hand, I have narrated plaint averments of O.S. No. 25378/2011. The relief sought for in O.S. No. 25378/2011 was in relation to show-cause notice issued to plaintiff and aforestated persons alleging that they had caused certain defamatory statements against the Managing Committee.
The instant suit was instituted against recommendations made by the Disciplinary Committee dated 01.05.2011 for removal of plaintiff from the membership for his alleged misbehavior of abusing Smt. Nawab Marzia Begum on 16.11.2010 and also for declaration that acceptance of recommendations of Disciplinary Committee dated 01.05.2011 by the Managing Committee by its resolution dated 02.05.2011 is null and void.
Therefore, the submission of learned counsel for petitioner that plaint in O.S. No. 25378/2011 forms genesis of cause of action in O.S. No. 25234/2012 cannot be accepted. The plaint averments in both cases are distinct and reliefs sought for in both cases are distinct.
The events narrated in the instant suit had not happened when O.S. No. 25378/2011 was instituted. When O.S. No. 25378/2011 was filed, the plaintiff had not been removed from the membership. In other words, at the first instance, plaintiff had been issued with show-cause notice to face disciplinary enquiry for his making defamatory statements against first defendant and members of Institute. The second show-cause-notice was issued to plaintiff alleging that he had abused Smt. Nawab Marzia Begum on 16.11.2010. The charges leveled against plaintiff in both show-cause notices are different and distinct. Therefore, it is not possible to hold that cause of action for instant suit has genesis to cause of action stated in O.S. No. 25378/2011. Therefore, bar contained under Order 23 Rule 1 CPC is not attracted. In the circumstances, plaintiff was not required to obtain leave in terms of Order 23 Rule 3 CPC in O.S. No. 25378/2011 to institute the instant suit. The plaintiff has instituted the instant suit (O.S. No. 25234/2012) for certain reliefs, which are altogether different from reliefs sought for in O.S. No. 25378/2011. The plaintiff by getting the suit O.S. No. 25378/2011 dismissed has not abandoned any part of claim made in the instant suit. Therefore, I am of the considered opinion that instant suit (O.S. No. 25234/2012) is not hit by the principles contained in Order 23 Rule 1 and Rule 4(a) & (b) CPC. In view of the above discussion, I pass the following:
ORDER
The petition is dismissed.