R.G. Vaidyanatha, J.@mdashThese are two appeals filed by the respective parties against the judgment and decree dated 18-7-1996 in Suit No. 4457/95 on the file of City Civil Court, Bombay. First Appeal No. 1618/96 is filed by the original defendants against the decree passed by the trial Court. First Appeal No. 1625/96 is an appeal filed by the original plaintiffs against the dismissal of part of the suit claim on the ground of limitation. Common arguments were addressed by both the sides regarding both the appeals, hence, both appeals are being disposed of by this common judgment.
2. The parties will be referred to as per their rank and title in the Court below.
Nandlal D. Chhabria and three others-plaintiffs jointly filed a suit in the trial Court against the National Sports Club of India and its office bearers.
3. The plaintiffs'' case in brief is as follows :-
The plaintiffs are the life members of the first defendant Club National Sports Club of India since 1950. The Club is registered under the Societies Registration Act, 1860. Each of the plaintiffs have paid the required subscription of Rs. 1000/- for becoming Life Member of the first defendant Club as per the rules and regulations of the Club. The plaintiff are not liable to pay any other subscription being Life Members. Of course the plaintiffs are liable to pay charges for making use of facilities and amenities provided by the Club. It is alleged that in 1986, the Club issued a circular stating that the members are required to pay annual fee of Sports Development Fee of Rs. 60/- per year with effect from 1-1-1986 on the basis of resolution of the Executive Committee. Then the Club issued bills including this annual subscription of Rs. 60/- as sports development fee. The plaintiffs by writing a letter dated 18-6-1986 objected to levy of any such fee on Life Member. It is asserted that Life Members are not liable to pay any such fee or subscription. The plaintiffs also protested and refused to pay the said demand. Again in 1995, it is alleged that the Club issued a letter dated 31-5-1995 demanding the arrears of sports development fee from the plaintiffs. The plaintiffs sent a reply dated 7-6-1995 objecting to the said demand and asserted that being Life Member they are not liable to pay the same. Then the Club President issued a rejoinder dated 12-6-1995 asserting that the amount should be paid by the members, failing which he will be forced to take action as per Rules. It is alleged that the Club has no such right to demand sports development fee from the Life Members. The demand is illegal since, the Life Members are not liable to pay any subscription for life. It is further alleged that the defendants are also demanding Rs. 100/- per member for the victims of earthquake at Latur in 1993 and again a payment of Rs. 100/- per member for a Marathon Race for the slum dwellers children at New Delhi. It is alleged that both these payments are meant to be voluntary payments and the Members cannot be compelled to pay the same. It is alleged that in view of plaintiff''s denial to make the payments mentioned above, the defendants refused to issue the first plaintiff''s daughter a duplicate identity card since, she had lost her original identity card. As a result of this, she is now prevented from using the Club facilities. The first plaintiff has been orally told that identity card will not be issued to his daughter unless he clears and pays the arrears of sports development fees. The defendants are likely to take steps to terminate the membership of the plaintiffs. Hence, the suit is filed for a declaration that the levy of sports development fee, demand of contribution for the Latur earthquake victims and the demand for the Marathon Race for the slum children are illegal and ultra vires of the powers of the Club, for a declaration that the defendants are not entitled to terminate the Membership of the plaintiffs or curtail the enjoyment of the facility of the Club by the plaintiffs, for non payment of above contribution, for permanent injunction to restrain the defendants from declaring the plaintiffs as defaulters for non payment of the above three contributions, to restrain the defendants from terminating or taking any steps to terminate the Memberships of the plaintiffs, to restrain the defendants from denying the facilities and amenities provided by the Club to the plaintiffs and their family members and for cost.
4. The defendants filed a written statement contesting the suit on various grounds.
It is stated that the suit is misconceived and not maintainable. All the members of the Club including the Life Members are bound to pay the sports development fee, which has been levied to expand the activities of the Club. It is denied that the Club has no powers to levy such fee. The Club has ample powers to levy such fee for developing the activities. The plaintiffs have an alternative remedy of filing an appeal against the Executive Committee and having not exhausted that remedy they cannot approach a Civil Court. The plaintiffs are defaulters since 1986. The plaintiffs have been given sufficient and reasonable time to make payments. Then ultimately, the Club has decided to take action against the defaulting members and hence, the letter dated 31-5-1995 was issued to the plaintiffs. The plaintiffs had been given time to make payment till 12-6-1995, but without making payment, they have approached the Court with this suit. It is stated that since general subscription given by the members is inadequate and the Club was running under loss and in order to generate funds for the development of sports activities, the Executive Committee of the Club decided to levy this sports development fee of Rs. 60/- p.a. But the levy has been imposed as per Rules and Regulations of the Club. Even a Life Member is liable to pay that amount. The amount demanded by the Club is not a subscription towards membership. It is conceded that Life Members are liable to pay subscription, but they are liable to pay fee and charges that may be levied by the Executive Committee or Regional Committee. It is admitted that the demand of money towards Latur Earthquake victims and Marathon Race of slum children was voluntary demand. It is denied that the Club has refused identity card to the first plaintiff''s daughter. It is stated that the plaintiffs are bound by the decision of the Executive Committee and Regional Committee. Hence, it is prayed that the suit be dismissed with costs.
5. The learned trial Judge framed the following issues:-
1. Do the plaintiffs prove that the levy of Sports Development Fees, collections for Latur earthquake victims and collection for the Marathon Rally for the children of slum dwellers by the defendants are ultra-vires the powers of the defendants.
2. Do the plaintiffs prove that defendants are not entitled to terminate their membership or curtail the enjoyment by the plaintiffs or their dependents of the facilities, rights, privileges and amenities on the ground of refusal by the plaintiffs to pay the charges, levy and collections referred to in the first issue.
3. Are the plaintiffs entitled to the declaration and permanent injunction in terms of prayers (a) and (b).
3A. Whether the defendants prove that the suit claim is barred by the provisions of Indian Limitation Act, 1963.
3B. Whether the defendants prove that the suit will not be maintainable as regard prayer (a) for want of leave of the Court under Order 1 Rule 8 of C.P.C. prior, to institution of the suit.
4. What order.
6. Both parties did not adduce any evidence before the trial Court. Both of them filed their affidavits and also produced some documents in support of their rival contentions. After hearing both the sides the learned trial Judge came to the conclusion that the first defendant Club has no powers to levy any amount in the nature of subscription on Life Members. It was further held that the levy of Sports Development Fee is in the nature of annual subscription and hence, the Life Members are not liable to pay the same. It rejected the appellants'' contention that the suit is not maintainable under Order 1, Rule 8 C.P.C. As far as the prayer of declaratory relief is concerned, it held that the claim is barred by limitation. However, the learned trial Court held that there is no bar of limitation so far as the relief of injunction is concerned. Accordingly, the suit came to be decreed granting the relief of permanent injunction restraining the defendants from terminating the membership of the plaintiffs or interfering with their rights as Life Members of the Club. The suit was dismissed so far as declaratory relief was concerned.
7. Being aggrieved by the grant of decree for permanent injunction, the defendants have come up in appeal in First Appeal No. 1618/96. Being aggrieved by the dismissal of the suit so far as the relief of declaratory is concerned, the plaintiffs have come up in appeal in First Appeal No. 1625/96.
The learned Counsel for the Club contended that the trial Court was right in rejecting the claim of declaratory relief on the ground of limitation, that the trial Court erred in granting a decree for permanent injunction. Mr. K.R. Bulchandani, the learned Senior Counsel for the Club contended that the suit is barred by limitation even regarding the relief of permanent injunction. He also maintained that the Club has ample powers under the Rules and byelaws to levy any fee in furtherance of the object of the Club. It was, therefore, argued that all the Members including the Life Members are liable to comply with that levy. It was also argued that the suit brought by four individual members is not maintainable, unless they bring the suit in a representative capacity by taking leave of the Court under Order 1, Rule 8 of C.P.C. It was therefore submitted that the suit is not maintainable and it is barred by limitation and therefore, the appeal may be allowed and the suit may be dismissed.
On the other hand Mr. V.T. Walawalkar, the learned Counsel for the original plaintiffs while supplying the judgment of the trial Court generally contended that the trial Court''s finding that the declaratory relief is barred by limitation is erroneous and it is therefore submitted that the said finding may be set aside and his appeal may be allowed by decreeing the suit even regarding declaratory relief.
8. In the light of the arguments addressed before me, the points that fall for determination in these two appeals are:-
1. Whether the suit is not maintainable under Order 1, Rule 8 C.P.C. ?
2. Whether the first defendant Club has powers to levy fee and subscription for raising funds for its activities of the sports from all the members including the Life Members?
3. Whether the relief of declaration is barred by limitation?
4. Whether the relief of permanent injunction is barred by limitation
5. What order?
POINT NO. 1
9. The learned Counsel for the Appellant Club referred to many allegations in the plaint and pointed out that the plaintiffs are exposing the cause of all the Life Members and therefore, they should have filed a suit in a representative capacity under Order 1, Rule 8 of C.P.C., otherwise the suit is not maintainable.
In fact, the plaint had been filed in a representative capacity, but subsequently that prayer is given up and now the plaintiffs have claimed relief only for themselves. It may be the relief of declaration if granted may apply to other life members. But we are not concerned about it. The question is whether one single individual can file a suit to protect his right though he may be exposing a public cause. For example, if a public passage is affected, the person who has a right to pass through that passage may individually file a suit for declaration or injunction, regarding his right to use that passage. He is not bound to file a suit in a representative capacity to protect the interest of entire community.
Order 1, Rule 8 C.P.C. nowhere says that one individual cannot file a suit in respect of a right which may happen to be a public right or a right affecting many persons.
Order 1 Rule 8 C.P.C. simply says that one person may sue or defend on behalf of all in same interest, as rightly pointed by the learned trial Court, this is only an enabling right given to one individual that if he wants he can file a suit in a representative capacity with the leave of the Court. It does not say that no suit shall be maintainable in respect of a right of affecting many persons, if a suit is filed by one individual.
10. The learned Counsel for the appellants-Club invited my attention to two authorities on the point.
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Then observation is made in para 1 of the judgment that when a general question arises involving large number of persons, the Court may, in appropriate cases permit few of them to be sued in a representative capacity. In that particular case the Supreme Court observed that no relief can be granted when the parties to be affected are not before the Court. This decision has no bearing on the point under consideration, whether the suit in an individual capacity is maintainable or not, when the question involved may affect others. In fact, this is not a case where the decision given in this suit will adversely affect other Life Members. The circulars were issued in 1986 and now we are in 1997 and all other Life Members have not taken any action so far. Therefore, there is no question of any decision in this suit being adversely affecting other Life Members. The plaintiffs are not questioning any privilege granted to other members, so that the affected party should be made a party. The plaintiffs'' case is that the first defendant Club has no power to levy subscription fee on a Life Member.
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For example, after the disposal of this suit, some other life members may file another suit against the Club, then the question will be whether the decision in this suit will be res-judicata in the subsequent suit. Then, the above judgment of the Apex Court comes to the rescue and it can be said that the finding in this suit will not be res-judicata in the subsequent suit, since the present suit is not filed as a representative suit under Order 1, Rule 8 C.P.C.
Hence, in my view there is no merit in the arguments that the present suit is not maintainable, unless it is filed as a representative suit under Order 1, Rule 8 C.P.C. Point No. 1 is answered accordingly.
POINT NO. 2
11. The Executive Committee of National Sports Club of India passed a resolution dated 28th July, 1995 authorising regional committees of Delhi and Bombay regions to collect from the members a sum not exceeding Rs. 60/- p.a. for development of sports and other activities of the Club. In pursuance of this resolution of the Executive Committee, the Bombay Regional Committee passed a resolution dated 25th January, 1986 to charge every member a sum of Rs. 60/- per year for the development of sports activities of the Club with effect from 1-1-1996.
As pointed out by the learned trial Judge as per the pleadings, the Club wanted to levy this charge to raise funds for the activities of the Club. It is interesting to notice that the resolution of the regional committee simply says that Rs. 60/- should be levied per annum for development of sports activities without mentioning the nature and extent of the sports activities to be carried out. For what particular purpose or project the amount was required is not mentioned. For example, the amount will required for constructing a swimming pool or for laying some tennis ground or to put up a compound or something like that. What particular object the regional committee had in mind in levying the fee is not disclosed in the resolution. No material was placed before the Court below as to what were the activities or projects that were contemplated when this amount was levied. Therefore, it is case of the committee levying some fee for the general activities of the Club. That is why the trial Court observed the amount demanded is more in the nature of asking each member to give some subscription for the welfare and activities of the Club. The question is whether such thing is permissible as per the Rules and Regulations of the Club.
12. In the Rules and Regulations of the Club, Rule 6, as amended in 1982, reads as:-
"A person paying entrance fee and subscription as may be fixed by the Executive Committee from time to time shall be eligible to become a Life Member subject to the Rules and Bye-Laws in force governing the admission of members. A Life Member shall be entitled to all rights of tending and voting at General Body meetings. A Life Member shall not be liable to pay any annual or local subscription except that those Life Members enrolled after 1-10-1997 will be liable to pay in terms of the resolution passed in the meeting of the Executive Committee held on 10-4-1997 as yearly subscription as may be fixed by the Executive Committee from time to time."
A perusal of the above Rule shows that a Life Member who was enrolled prior to 1-10-1997 is not liable to pay any annual or local subscription. But even Life Members enrolled after 1-10-1997 are liable to pay whatever subscription is levied by the Executive Committee from time to time.
When there is a blanket prohibition for enhancing the subscription for the Life Member under the rule enrolled prior to 1-10-1997, the regional committee cannot get over this prohibition by merely calling the subscription levied as developmental fee. By merely changing the label, the Club cannot do indirectly what it cannot do directly. The object of getting subscription from the member is for the activities of the Club. Merely by calling it as a development fee, the Life Member cannot be made to pay any amount by calling it as a fee or charges etc. as long as Rule 6 remains in the statute book. To get over this restriction placed in Rule 6, the learned Counsel for the Club relied on Rule 22 and Rule 27, where there is provision for levying amount on members.
As far as Rule 27 is concerned, it refers to levy of fees and charges other than subscription "for the amenities and services" of the Club.
Therefore, what the committee can increase is fees and charges for the services and amenities provided in the Club. The resolution in question does not tell the member as to what services are provided or what amenities are provided for demanding Rs. 60/- per year as development fee. It is only by providing proper amenities and services and by mentioning them in the resolution, the Club can demand fees and charges. Even then, the fees and charges can be levied on those members who avail the amenities and services.
The Club may open new tennis ground, new swimming pool, new restaurant etc. then prescribed fee can be charged on any member to pay certain amount per day or per month for making use of tennis ground, swimming pool, etc. Fees and charges can be levied only if a member makes use of those amenities and services provided by the Club.
In the Oxford Reference Dictionary. 1987 Edition, the word fee is defined as:-
"The sum payable to an official or professional person for services, the charge for joining a society, taking an examination etc.... regular payment for instruction at a school etc. "
It is therefore, clear that fee is something which is paid for service & or for receiving instructions in a school or for joining the society etc.
Similarly, in the same dictionary, the word "Charge" is defined as :-
"The price for goods or services."
In the present case, there is nothing in the resolution to indicate that this is being charged for any particular services or amenities provided to the member. Even then, the amount is leviable, if particular member uses a particular service or amenity. They may say one has to pay Rs. 20/- per day for using the swimming pool; if a particular member does not go and use the swimming pool, he does not pay. Therefore, the charges and fees for services and amenities provided in Rule 27 always refer to services and amenities provided by the Club and consequently utilised by the member and not otherwise. In the present case, the resolution in question is vague and bald and does not mention any particular service or amenity provided for which additional amount of Rs. 60/- per year is levied. Further everybody who does not use the services cannot be made liable to make such payment under Rule 27.
13. In this connection I may refer to the law Lexicon, Vol. No. 1 1989 Edition, by T.P. Mukherjee, where referring to number of decisions at page 663 it is mentioned that fee is generally defined to be a charge for a special service rendered to individual. It is a sort of return or consideration for services rendered.
Now let us come to Rule 22 on which the learned Counsel for the Club laid much emphasis. Rule 22 reads as follows:-
"Notwithstanding anything contained in Rules 6 and 7 Executive Committee at any time and from time to time may determine, increase, reduce, alter, modify or vary the fees and subscriptions for membership. The Executive Committee shall have powers to determine from time to time by Bye-laws the terms and conditions upon which the fees and subscriptions specified in these Rules or Bye-Laws or any of them shall be payable including, without prejudice to the generality of the foregoing provisions, the period or periods at which the same shall be payable."
Here also we get the words fee and subscription. I have already referred to the meaning of word fee mentioned in Rule 27, which means it is a charge levied for some services or amenities. The same definition holds good here also. I have already pointed out that the development fee levied in this case is vague and the resolution does not give any detail of the amenities and services provided to levy that fee and further that fee cannot be levied unless the member utilises a particular service or amenity.
Subscription is defined in the Oxford Reference Dictionary, 1987 Edition, as "Money subscribed for membership of an organisation etc."
Therefore, subscription has a definite and specific meaning namely the amount paid for becoming a member or towards the membership of an organisation.
We have already seen that Rule 6 provides that the Life Members enrolled prior to 1-10-1977 are not liable to pay any amount by way of subscription. But the learned Counsel for the Club contended that Rule 22 applies not withstanding anything contained in Rules 6 and 7 and therefore, the Executive Committee can levy fees and subscription for all members including Life Members.
It is true that Rule 22 starts with the words "Not withstanding anything contained in Rules 6 and 7." It may be noted here that Rule 22 was in the Statute Book from the beginning. There is no change in that Rule. But Rule 6 was amended in 1982, where specific mention is made that members enrolled prior to 1-10-1977 are not liable to pay any annual or local subscription. Therefore, when the law is amended subsequently, the non-obstante clause in Rule 22 which was in force from the beginning cannot be applied to amended Rule 6, which was amended in 1982. Rule 6 mentioned in Rule 22 is an unamended old Rule 6 and cannot apply to the amended Rule of 1982.
The other way of looking to Rule 22 is that the Executive Committee may determine, increase, reduce.... fees and subscription "for membership". That means for becoming member i.e. "for Membership", the Executive Committee may change, vary or modify the fees and subscription. As rightly pointed out by the trial Court and which was pressed into service by the learned Counsel for the plaintiffs, this power given to the Executive Committee is to change the fees and subscription for "membership", which is necessarily meant for becoming member of the Club, which necessarily applies to the new members, who want to joint the Club.
One of the fundamental rule of Interpretation of Statutes is that the Court must try to harmonise all the provisions. One provision in the statute cannot be interpreted in such a way to take away the effect of another provision. If we apply the rule of harmonious construction, then, Rules 6 and 22 must be held to operate in different fields. The provision in Rule 6 applies to old life members and the provisions in Rule 22 will apply to new members. Otherwise, the entire Rule 6 will have to be deleted and will have to be ignored and Rule 22 must alone hold the field. That cannot be the intention of the Authors of the Rules and Regulations. They wanted to provide certain safety to the old members and they also wanted to give powers to the Executive Committee to increase the rates from time to time regarding new members. Hence, we can safely, hold that the prohibition in Rule 6 that Life Members prior to 1-10-1977 are not liable to pay any fees or subscription will still hold the field and Rule 22 gives powers to the Executive Committee to change the fees and subscription of new members. The learned trial Court has correctly interpreted Rules 6 and 22 and I do not find any error or illegality committed by the trial Court.
14. It may the Executive Committee is given vast powers to raise funds for the activities of the Club. It can do so, without violating the provisions of Rule 6. It cannot simply say that all members must pay Rs. 10,000/- per year or Rs. 5000/- per year, as an annual fees for life in the name of development activities, when levying subscription on life members is prohibited in Rule 6. By giving new name or new label the Club cannot do something indirectly, which it cannot do directly.
The argument of the learned Counsel for the Club that the Club cannot run unless, it raises funds etc. has no merit. In fact, it was submitted at the time of arguments that now for enrolling new Life Members they are charging Rs. 3 to Rs. 4 lakhs per member. The Club can increase the charges for using swimming pool or other facilities provided by the Club. In fact, one of the Souvenirs of the Club of July, 1995 is placed before me at the time of argument. There I find the Club has been charging different rates and different services and amenities provided to members and the public. For example giving stadium on hire per day, the Club charges Rs. 40,000/- per day. Then for tennis Court, Swimming Pool, Table Tennis and other facilities provided the charges are different. These charges can certainly be increased or altered from time to time as per Rule 27 to raise funds for running Club.
15. It is true having regard to the status of the Club, the amount of Rs. 60/- per year may be negligible. We can take judicial notice, that the National Sports Club of India, the first defendant in this suit, is a prestigious institution. To become its member itself is a prestigious issue. It is a premier institution of India, which has been running many sports events and indulging in developing sports activities amongst the citizens. The Souvenir of July, 1995 shows number of activities taken by the Club and the work done by its Chairman and members of the managing committee. They are doing no doubt great service. In that way the plaintiffs should not have grudged to pay Rs. 60/- per year which is a nominal amount. The plaintiffs should not have dragged such a premier institution to Court for facing this litigation. However, when the parties come to Court, the Court will have to decide the case, on the basis of Rules & Regulations. If once, it is shown that the Club cannot increase subscription of Life Members, who were enrolled prior to 1-10-1977, the Court is helpless and will have to declare that the said levy by the Club is untenable in law, however, laudable it may be.
In fact, the Club has also demanded some contribution by the members for Earthquake victims of Latur and Marathon race for slum children at Delhi. The plaintiffs have even challenged those two payments. Whatever legal rights the plaintiffs may agitate, they should not have made an issue to pay Rs. 100/- for earthquake victims at Latur. The learned Counsel for the Club fairly conceded in the trial Court that the Club will not terminate the membership of the plaintiff for non payment of these two voluntary contributions. (Vide para 34 of the impugned judgment).
16. For the above reasons, my finding on point No. 2 is that the first defendant Club has no powers to increase fees or subscription of the plaintiffs, who has been inducted as Life Members prior to 1-10-1977 in view of Rule 6. Point No. 2 is answered accordingly.
POINTS NOS. 3 & 4
17. Since both these points relate to the question of limitation, I will consider them together. The trial Court has come to the conclusion that even though declaratory relief is barred by limitation there is no such bar of limitation so far as the relief of injunction is concerned.
The learned Counsel for the Club Mr. Bulchandani contended that the cause of action is one and the same for both the reliefs and therefore, the trial Court should have dismissed the entire suit as barred by limitation. On the other hand the learned Counsel for the plaintiffs submitted that the two reliefs of declaration and injunction are independent of each other and they are distinct and different reliefs and therefore, the decree for injunction is perfectly valid, even if it is held that the declaratory relief is barred by limitation. He further argued that even the declaratory relief is not barred by limitation, and the trial Court''s finding on this point is erroneous.
18. The learned Counsel for the Club contended that the resolution was intimated to all the members including the plaintiffs in 1986 about the levying the development fees and this was again reminded in 1989 and subsequently again reminded in 1995. It was submitted that Article 58 of the Limitation Act applies and the period of limitation is three years and time begins to run "when the cause of action first accrued". He therefore submitted that when the plaintiffs were informed about the resolution in 1986 itself, they got the cause of action to file a suit challenging the same, and having kept quiet for 10 years, they cannot file a suit in 1996 and therefore, the suit is barred by limitation. For declaratory relief Article 58 of the Limitation Act is rightly applied by the trial Court. He further maintained that the relief of injunction is consequential relief to the relief of declaration and the cause of action for both the reliefs is one and and the same and if the declaratory relief is barred by time, then automatically the relief of injunction is also barred by time.
The argument of Mr. Bulchandani, the learned Counsel for the Club, is no doubt attractive and in the first flush of thought I found it to be acceptable. But on deeper scrutiny, I find that the argument cannot be accepted. Whenever, some right is denied or asserted, a party need not rush to the Court and file a suit, a party has to rush to Court only when his rights are interfered or when there is unequivocal and effective threat to one''s right. Here though the Club issued a circular in 1986 nothing was done by the Club to take steps to levy the demand till 1995 or 1996. On its own showing the Club issued a circular in 1986 and there was protest reply by the plaintiffs and the Club kept quiet without taking any further action for demanding the amount or taking any action by treating the plaintiffs as defaulters. Then the Club issued one more reminder in 1989, and again the plaintiffs sent a reply denying the liability to pay such an illegal demand and again the matter rested there and the Club took no action to treat the plaintiffs as defaulters or deprive them of their rights as Members. If a mere letter is sent and no follow up action is taken, there was no necessity for the plaintiffs to rush to Court and to file a suit as long as their right as Members was not affected by the circular of 1986 and 1989. They can come to Court only when their right as member was threatened to be interfered with by the Club.
The Club issued a further reminder dated 31-5-1995 demanding the plaintiffs again to pay the arrears of sports development fees. To which one of the plaintiffs Mr. N.D. Chhabria, sent a reply as per letter dated 7th June, 1995 asserting that he is not in arrears of any money due to the Club and as being life member he is not liable to pay any such amount and he even told the Club that if any action is taken by showing his name as defaulter on the notice board, then he will have to approach the Court for necessary action.
We find that the plaintiffs wrote similar letters in 1986 and 1989 and Club did not take any action. But in 1995 when Mr. Chhabria sent a reply dated 7-6-1995, the Chairman of the Club Mr. P.C. Chawala sent a reply or rejoinder dated 12-6-1995 asserting that every member has to pay the sports development fee and if the plaintiff will not pay the dues within 30 days, from the date of receipt of this letter, he will be constrained to take necessary action as per rules. Then to the threat given by Mr. Chhabria, in his letter about filing a suit for defamation etc., the Chairman replied that he can take whatever action he thinks fit.
It is for the first time in 1995, the Club has sent a rejoinder to the plaintiff asserting that they are liable to pay the sports development fee within 30 days, failing which necessary action will be taken as per rules.
In addition to this letter dated 12-6-1995, there is also allegation in the plaint, about the immediate cause of action for filing the suit, in para 11 of the plaint as follows :-
"The harassment of the 1st plaintiff has increased to the extent that the defendants officers are resorting to pity obstructions against him and his family members using the Club. The 1st plaintiffs daughter, who is using the facility of Club has misplaced her identity card and applied for duplicate in May, 1995. Normally a duplicate would be issued in two or three days from the request being made however, the defendants have refused to issue the plaintiff''s daughter with a duplicate identity card as result of which she is liable to be prevented from using the Club facilities. The first plaintiff has been orally informed that the identity card will not be issued to his daughter unless he clears and pays the arrears of sports development fee. It is therefore obvious that the defendant are acting in furtherance to their illegal resolutions. The plaintiffs say and submit that after the defendant will take step, to terminate the first plaintiff and/or the plaintiffs membership of the Club thereby causing grave and irreparable harm, loss and injury to plaintiffs reputation. The plaintiffs, therefore submit that it is in the interest of justice the defendants be restrained by permanent order and injunction of this Hon''ble Court from taking any steps to declare the plaintiffs as defaulters or to terminate their membership of the Club on the ground of non payment of contribution to the sports development fund, the funds for the victim of Later earthquake or the fund for conducting of Marathon race for slum dwellers children. The plaintiffs say and submit that the balance of convenience is in their favour and that grave and irreparable harm, loss injury will be caused to them if the reliefs prayed for herein, are not granted."
From the perusal of the above allegations, the plaintiffs have clearly pleaded that the first plaintiff''s daughter was denied right to get duplicate identity card which has deprived her right to enjoy the facilities and further the allegation is that the first plaintiff has been orally informed that identity card will not be issued unless he clears all the arrears of sports development fees.
19. Now let us see as to what is the reply in the Written Statement to these allegations in the plaint. The only allegation we find in para 12 of the Written Statement as follows:-
"That defendants deny that the plaintiff''s daughter has been refused duplicate identity card."
This is the only sentence in reply to about 15 sentences of para 11 of the plaint, which I have extracted above. The allegations in the plaint that first plaintiff has been orally informed that the identity card will not be issued unless, he clears arrears of sports development fee has not been denied in the Written Statement. Therefore, many of the allegations in para 11 of the plaint are not denied in the Written Statement on this point except one sentence mentioned above. It is well settled when allegation of fact is not specifically denied in Written Statement, it amounts to an admission of fact.
The learned Counsel for the Club contended that the plaintiff have not adduced any evidence to prove the allegations in para 11. As already stated both the parties have not adduced any oral evidence in the Court below. Further the allegations in the plaint, when not denied in the Written Statement, it must be deemed to have been admitted. Hence, there was no necessity for the plaintiffs to prove a fact which is not denied in the Written Statement.
20. Further the argument that the plaintiffs did not lead any evidence has also no merit for the simple reason that no plea of limitation was taken in the Written Statement at all. No issue was framed on the question of limitation. Originally the learned trial Court framed only issues Nos. 1 to 4, which did not cover the question of limitation. Since there was no plea of limitation at all in the Written Statement. Arguments were heard addressed by both the parties without adducing oral evidence and case was reserved for order. At that stage, the Club filed an application under Order 14, Rule 5 of C.P.C. to frame additional issues on the question of limitation. Then the learned trial Judge framed two issues, one regarding limitation as issue No. 3-A, and one regarding plea under Order 1, Rule 8 C.P.C. as issue No. 3B. Then again further arguments were heard and judgment was passed. Nothing is recorded in the judgment of the trial Court that after framing these two additional issues, the parties were called upon to lead oral evidence. Strictly speaking, the learned trial Court could not have framed any issue regarding limitation since no such plea was in the Written Statement. The learned trial Court should have rejected that application filed under Order 14, Rule 5 of C.P.C. stating that no issue regarding limitation could be framed when no such plea is taken in the Written Statement regarding limitation. It is too late in the day for the Club to contend before this Court that plaintiffs have not adduced any evidence regarding limitation. Even otherwise, since, many of the allegations in para 11 of the plaint are not denied in the Written Statement, it must be taken that the allegations are deemed to have been admitted. Hence, we can safely hold that there is sufficient allegation in the plaint, which is not controverted in the Written Statement to make out immediate cause of action for filing a suit. Now let me refer to some of the decisions cited at the bar on this point.
In
"There can be" no right to sue" unless, there is accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted."
On facts the Privy Council held that there was no actual infringement or unequivocal threat to plaintiff''s right till 1922 and hence, the suit was not barred by limitation.
In
In AIR 1938 Mad 193, Pothukutchi Appa Rao and others v. Secretary of State, there was an order of Collector regarding rights of parties. It is pointed out as follows:-
"There is nothing in law which says that the moment a person''s right is denied, he is bound at his peril to bring a suit for declaration. It would be most unreasonable to hold that a bare repudiation of a person''s title, without even as overt act, would make it incumbent on him to bring a declaratory suit."
Applying the above principles to the present case, mere resolution or a mere circular of the Club did not affect the rights of plaintiffs to enjoy their rights as members until, there was actual interference in 1996. The plaintiffs were therefore well advised to file a suit in 1996, in view of the President''s letter dated 12-6-1995 and subsequent denial of identity card to the first plaintiff''s daughter.
21. Then we may make reference to AIR 1958 A.P. 654 Kamat Reddy Narayan Reddy s/o Venkat Reddy v. Kamat Reddy Narayan Reddy s/o Kishta Reddy and another. The same principle of the above Privy Council decision was followed in this case. It was a suit filed by a Patel regarding his office and Watan lands. Though there was an order of Collector against him, it was held that the suit was within time under Article 120 of the Limitation Act, when it was filed within 6 years from the date when the plaintiff was deprived of emoluments of his office.
In
"Every threat by a party to such a right, however, ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right." (Para 33 of the reported judgment. The underling is mine)
In the present case, admittedly, the Club did not take any action against the plaintiff for the last 10 years, though the resolution was passed in 1986. Even the learned Counsel for the Club admitted that the Club might have not taken any action to enforce the resolution of 1986. As already pointed out, unless there is actual threat to the plaintiff''s right as member, they need not rush to Court and seek the relief of declaration and injunction. They can come to Court as and when their rights are effectively and unequivocally interfered with or threatened with. A similar question arose for consideration before the Apex Court in
In
Similarly, even in the present case the Club issued the circulars of 1986 and 1989 demanding levy of sports development fee and consequences for non-payment, still no action was taken by the Club admittedly for 10 years from 1986 to 1996 and the plaintiff''s rights as members were not interfered with, there was no necessity for the plaintiff to rush to the Court for filing the suit. The test is as to when exactly the plaintiffs rights to continue as members or their enjoyment of the privilege of rights as members was interfered with. I have already pointed out that the rejoinder letter of the Chairman dated 12-6-1995 and the subsequent denial of duplicate identity card to the first plaintiff''s daughter and the oral assertion by the management to the first plaintiff that identity card will not be issued unless he pays the arrears, make out a cause of action for filing a suit. Even if 12-6-1995 is taken as first cause of action for filing the suit, under Article 58 of the Limitation Act, the suit is within time being filed within 3 years from 12-6-1995. I am not impressed by the argument of learned Counsel for the Club that the cause of action first accrued in 1986, when the resolution was circulated to the members. As already stated the right to sue accrues only when the plaintiff''s rights were actually threatened to continue as members. It is an admitted case that for the last 10 years the Club took no action to terminate the membership of the plaintiff or to debar them or to deprive their rights as members till 1995-96. Hence, the right to sue mentioned in Article 58 of the Limitation Act did not accrue till the first plaintiff''s daughter was denied the identity card or at least till 12-6-1995 when the Chairman issued a rejoinder asserting that action will be taken as per rules which according to the plaintiffs, compelled them to file a suit.
22. I have also come across some more decisions which have direct bearing on the point under consideration.
In State of Punjab and others v. Gurdev Singh and Ashok Kumar, question was about period of limitation for filing a suit for declaration that the order of dismissal from service was bad. The Supreme Court held that Article 113 of the Limitation Act applied. Whether it is Article 113 or Article 58, time begins to run when "the right to sue" accrues to the plaintiff. The Apex Court explained the words "right to sue" in para 4 of the reported judgment at page 113, which reads as follows:-
"The words "rights to sue" ordinarily means the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit in infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted See: (i)
In
"From, the aforesaid facts, it is manifest that the plaintiff''s right to the property was not effectively threatened by the appellant till the Commissioner came to divide the property. It was only then there was an effectual threat to his right to the suit property and the suit was filed within six years thereafter. We, therefore, hold that the suit was within time."
Then it was held that the plaintiff got the cause of action only when he was compelled to make the payment and not before.
An identical question arose for consideration in the case of
Strictly speaking Article 58 of the Limitation Act is not applicable here since, it is not a suit for mere declaration, but it is a suit for declaration and partition.
23. From the above discussion, we find that the plaintiffs can come to Court only when there is an effective infringement to their rights as members. Admittedly, after issuing 1986 resolution, nothing was done by the Club except issuing a reminder in 1989. Again nothing was done to interfere with the plaintiff''s rights as members of the Club. Therefore for 10 years the Club took no action against the plaintiffs on the basis of resolution and the circulars of 1986 and 1989. It is only in 1995 they issued one more circular which was replied by the plaintiff and for which the Chairman sent a reply asserting that he would be constrained to take action if amount is not paid within 30 days. This, the plaintiffs thought was an effective threat to their rights. Then, I found that the first plaintiff''s daughter was denied the identity card and this is an immediate cause of action for the plaintiffs to rush to the Court. Hence, in my view, the cause of action arose to the plaintiffs either in 1996 or latest by 1995 and not in 1986 or 1989 as contended on behalf of the Club. Even though the letters or circulars were issued in 1986 or 1989, they did not affect the plaintiff''s right as members of the Club. As long as the plaintiff''s can continue as members, without any infringement of their rights, they could ignore the 1986 letter or 1989 letter. They could come to Court only as and when, their right as member was interfered with or there was an effective threat to their rights. I therefore, hold that both for the purpose of declaration and for injunction, the suit is within time. The trial Court erred in holding that the suit for declaration was barred by limitation.
24. The learned trial Court has also considered the question of law namely whether the relief of injunction can be granted even though the relief of declaration is barred by time. He has referred to two authorities on this point. In my view, the finding of the trial Court that it can grant a relief of injunction even though the relief of declaration is barred by time is fully justified. Strictly speaking, the plaintiff need not have asked the relief of declaration. As soon as their rights are interfering with they could have simply filed a suit for injunction restraining the defendants from interfered with their rights. The relief of declaration is superfluous or unnecessary, however, now I have held that both the reliefs are within time, we need not go to the academic question whether Court can grant only the relief of injunction without declaration.
25. The learned Counsel for the Club contended that the suit is governed by Article 58 of the Limitation Act. It may be noted that Article 58 applies to suit to obtain declaratory relief. But it may not be applied to a suit, where in addition to the declaratory relief, there are other reliefs like injunction or partition or possession etc. To such a suit proper Article is residuary Article namely Article 113 of the Limitation Act. But in my view this question is also purely academic since, the period of limitation is three years, whether we apply Article 58 or Article 113. In both the cases, the period of limitation starts when the right to sue accrues. It may be in Article 58, there is an additional word to say that the limitation begins to run when the right to sue ''first'' accrues. In my view even if we apply Article 113 of the Limitation Act, if it is shown that the cause of action has commenced, then, the suit must be filed within 3 years from that date. In my view, whether we apply Article 58 or Article 113, the suit is within time, since according to my view, the cause of action arose either in 1996 or latest by 1995 and not earlier. The suit was filed in 1996 itself.
One more argument advanced on behalf of the plaintiff may be noticed. It was argued that this is a case of continuing wrong and therefore, the plaintiff can come to Court at any time. The learned Counsel for the Club contended that this is not a case of continuing wrong. In my view, this is a moot point and the discussion is purely academic, since, I have come to the conclusion that the cause of action for the plaintiffs arose in 1995 or 1996 and suit was filed in 1996 is well within time and therefore, the theory of continuing wrong for the purpose of limitation need not be examined.
For the above reasons, points Nos. 3 and 4 are answered in the negative.
26. In view of my findings on points Nos. 1 to 4, the plaintiff''s appeal has to succeed and the Club''s appeal has to fail. I have already pointed out the conducts of plaintiffs in challenging even the payment of Rs. 100/- for the earthquake victims, the plaintiffs should not have made it a legal right when we are concerned with the human problems. Even if the Club has no right to demand such amount, the plaintiffs should have been graceful in paying that amount instead of making an issue in a Court of law. As already stated the National Sports Club is a prestigious Institution of India and doing lot of good work in the field of sports. There is nothing to doubt the bona fides of the management in levying the sports development fee. They might have levied that fee with a larger interest to collect the funds for the Club to expand its activities. It may be on a legal ground. I have come to the conclusion that the Life Members enrolled prior to 1-10-1977 are not liable to pay that amount. But the levy holds good as far as the other members of the Club are concerned, and hence in these circumstances, I feel that it is a fit case in which there should be no orders as to costs both in the appeal and in the suit.
27. In the result, it is ordered as follows:---
(i) First Appeal No. 1618/96 is hereby dismissed.
(ii) First Appeal No. 1625/96 is hereby allowed. The finding of the trial Court regarding limitation and denial of the relief of declaration is hereby set aside. It is hereby declared that the first defendant Club has no right to levy sports development fees against the plaintiffs, who were enrolled as Life Members prior to 1-10-1977. Consequently, the first defendant Club cannot terminate the memberships of the plaintiffs or interfere with their rights as members for non payment of sports development fees.
(iii) In the circumstances of the case and the conducts of parties, I direct the parties to bear their respective costs, both in the appeal and in the suit.
