Desh Bandhu Khurana vs National Sports Club of India

Manmohan Singh, J.—This order shall dispose of two applications being IA No. 3405/2009 u/s 151 of the Code of Civil Procedure, 1908 (for short ''Code'') for impleadment of five applicants who are members of the National Sports Club of India (in short ''the Club'') and Central Council of the Club. Another application being I.A. No. 4220/2009 was also filed under Order 1 Rule 10 of the Code for impleadment of three applicants who are also members of NSCI and Central Council of NSCI.

The plaintiff filed the suit inter alia seeking a declaration to the effect that the election by NSCI members for electing Central Council members of Bombay as well as Delhi be declared a nullity and further seeking an injunction for the election of the Club to the 1/5th post of the Central Council falling vacant in 2008.

It is submitted by the applicants that all of them are members of the Club and have been active in its affairs. Applicant No. 3 is also a member of the executive committee of the Club. The applicants submit that they also filed a civil suit in the High Court of Bombay being Suit No. 3017/2008 titled Ram Kishore Singhi and Ors. v. National Sports Club of India and Ors. which is pending adjudication wherein the applicants sought to bifurcate the election process of the club and to create separate electoral college for Delhi and Mumbai regions. In this case, Bombay High Court made an order on 8th December, 2008 whereby while issuing summons, it declined to grant a stay on the interim relief''s claimed by the plaintiffs seeking a stay on the amendment of the rules stating that no amendment can be made without the approval of 3/4th majority of the Central Council voting in favour of such amendment.

It is submitted that while the club has appeared before the Bombay High Court in the abovesaid matter involving identical issues, it has maliciously concealed the fact of the existence of the above said suit pending in Bombay, which amounts to suppressio veri. The applicants allege that being members of the club and on account of having filed the Civil Suit before the Bombay High Court concerning identical subject matter, they want to state certain pertinent facts to assist this Court in the present matter by way of impleadment and filing written statement. The applicants allege to be directly or indirectly interested in the bifurcation of the electoral College on a regional basis, therefore, they wish to be impleaded as parties to the suit.

Another suit being CS(OS) No. 1195/2008 has also been filed by the applicants before this Court challenging the election of Sh. Subhash Chopra who has been appointed and has been in the position for President of the Club over the last two decades. In yet another suit being CS(OS) No. 2632/2007 which has been filed by the applicants against the management of the club in light of the manipulations and financial irregularities, the Bombay High Court passed an order on 6th May, 2008 and appointed Justice (Retd.) B.P. Singh as a Special Administrator for the completion of the project of renovation of V.P. Indoor Stadium belonging to the club. Justice (Retd.) S.K. Aggarwal was also appointed by this Court on 25th April, 2007 in CS(OS) No. 1243/2006 to supervise and ensure the smooth conduct of elections as also to settle any issues that any party may have with regard to the conduct of the elections. It is submitted that the present suit and CS(OS) No. 1243/2006 are both concerned with the elections to the Central Council and are therefore connected. 6. The applicants aver that the club is one and united entity and the membership of the club is considered as one body under the rules and regulations of the club. The present suit affects all the members of the club and seeks to amend and important rule of the club [Rule 47(a)].

In reply to the application, the plaintiff has denied that the applicant No. 3 is active in the affairs of the club and stated that in fact he always opposed development work of the club by making and raising frivolous allegations of irregularity on part of the members of the club. It is stated that the substance of the present suit is directed against the passing of the requisition and its impleadment in extraordinary general meeting to be conducted on 20th October, 2008 with regard to the decision of the executive committee on 27th September, 2008 for consideration of item No. 5 on the agenda in the extraordinary general meeting which relates to the requisition received from over 250 club members for separate voting for Delhi and Mumbai Regions. Since no such meeting has concluded passing/approving the item No. 5 of the agenda, the suit has become meaningless. It is denied that Suit No. 3017/2008 filed in Bombay High Court and the present suit raise identical issues. In the present suit, the plaintiff has sought interpretation of Rule 47(a). The applicants are trying to enlarge the scope of the present suit by making false allegations with regard to financial irregularities in the affairs of the club. The applicants will not be prejudiced in any manner by the outcome of the present suit.

In IA No. 4220/2009, the applicants claimed to be impleaded in the suit alleging that the suit affects the entire body of the members. The main relief claimed by the plaintiff in the main suit is, inter alia, declaration that the election to the post of member of the club as a whole is nullity and that the voting should be confined to the particular region. It obviously involves the persons controlling the club who lost in toto in the last election held under the supervision of retired Justice S.K. Aggarwal appointed by this Court in a suit filed by the applicants No. 1 and 2 against the malafide practice adopted by the persons controlling the club to make the club their private property. It is stated that for more than 20 years, the same group by unfair means has had control of the club. It is for the first time that all the members contesting from the controlling group lost and even the President Sh. Subhash Chopra lost the election, who however, later on managed to get himself elected as President against the rules and regulations governing the Club. The said election to the knowledge of the applicants has been challenged in this Court and the matter is kept reserved. It is submitted that Bombay Club and Delhi Club are not separate and distinct entities and in fact the Club is a single body operating at two places with members at both the places.

In reply to I.A. No. 4220/2009 the plaintiff contended that the applicants have not disclosed any grievances against the defendant nor have claimed any representative capacity for those who are opposing the bifurcation of electoral process. The applicants did not claim to be representatives of other members of the club nor will they be affected by the outcome of the present suit.

I have heard learned Counsel for both the parties and perused the record. It is settled law that where a third party shows a fair semblance of title or interest, he can certainly file an application for impleadment. Also, explanation VI to Section 11 of the Code of Civil Procedure, 1908 provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. But it is subject to the essential condition that the interest of a person concerned has really been represented by the others; in other words, his interest has been looked after in a bona fide manner. If there be any clash of interests between the person concerned and his assumed representative or if the latter due to collusion or for any other reason mala fide neglects to defend the case, he cannot be considered to be a representative.

At the stage of hearing of the application under Order 1 Rule 10(2), the court is not required to adjudicate the claim of the party finally. While deciding an application for impleadment, the Court has to record only a prima facie finding to find out whether the application is bona fide. It cannot finally adjudicate the questions of fact which would be decided in the suit itself.

The principle underlying the rule under Order 1 Rule 10 of the Code is that the Court puts itself in the position of being able to effectually and completely adjudicate upon and settle the questions involved in the suit. The object of the rule is to enable the addition of parties for the sole purpose of completely and effectually adjudicating upon the dispute arising between the original parties in the presence of such of the newly impleaded parties without which there must be multiplicity of proceedings.

In the instant case, it cannot be denied that society is a public body and once a person becomes a member of a cooperative society, he loses his individuality qua the society and he has no independent rights except those given to him by statute and the by-laws. He must act and speak through the society or rather, the society alone can act and speak for him qua rights or duties of the society as a body but where the society is not interested to contest the suit diligently, its members can be impleaded as necessary and proper parties in order to avoid multiplicity of litigation.

Since in the case at hand, it is apparent that the club is not prosecuting the suit diligently and legally and the members of the Club would be effected directly by the outcome of the present suit, the present applications for impleadment deserve to be allowed. In the result, I.A. No. 3405/2009 and I.A. No. 4220/2009 are allowed.

Amended memo of parties alongwith written statement on behalf of the applicants be filed within four weeks. List on 14th December, 2009.