Mukul Gopal Mukherji, J.@mdashThe Calcutta Swimming club, its Secretary S. Dutta and its President D.S. Jain have preferred an appeal
against the order dated 18.9.92 passed by the learned Chief Judge-in-Charge, City Civil Court at Calcutta in Title Suit No. 1934 of 1992. The
said suit was brought by one Rabindra Nath Mukherjee, a member of the Calcutta Swimming Club praying for a declaration that the list of
candidates for election of the club prepared by the defendants in terms of Rule 35(c) is illegal, bad in law and is liable to be cancelled, praying
further for a degree of permanent injunction restraining the defendants from action and/or functioning and/or administering and/or taking any
decision whatsoever and/or giving effect to the decision taken by them or to take any step in furtherance therewith. There, was a further prayer for
a decree for permanent injunction restraining the defendants from giving effect and/or further effect to their notice for Annual General Meeting
dated 28.8.92 and taking further steps in aid of the said notice and also restraining the defendants from giving effect and/or further effect to the list
of the candidates for the Committee election 1992-93 issued by the defendant No. 3 under Rule 35(c) dated 28.8.92 and from giving effect or
further effect or to take steps in aid of alleged election of the Calcutta Swimming Club for the Committee members and the President which was
allegedly held on 12th September, 1992, there was also a prayer for appointment of a Receiver upon the Club to run and administer the said Club
and to conduct the election on the basis of valid permanent members as per the rules and regulations of the club. The learned Trial Judge issued
notice upon the defendants asking them to show cause as to why the petition for injunction should not be allowed and considering the urgency in
the matter he directed an order of status quo to be issued against both the parties as on that day till the disposal of the said petition.
2. Even though a leave under Order 1 Rule 6 the CPC was prayed for it does not appeal that the court was moved in this regard and no leave was
granted by the court prior to the granting of an interim order of maintenance of status quo on 18.9.92.
3. The appeal preferred by the Calcutta Swimming Club and its Secretary and President against the said Rabindra Nath Mukherjee is numbered as
F.A.M.T. 3363 of 1992. As and when the said appeal was admitted the court directed inter alia that further proceedings in Title Suit No. 1934 of
1992 pending in the court of learned Chief-Judge-in-Charge. City Civil Court, Calcutta would be stayed.
4. On 22.9.92 one Deoki Nandan Bubna filed another suit in the City Civil Court at Calcutta being Title Suit No. 2012 of 1992 against the
Calcutta Swimming club and its President, D.S. Jain praying for a declaration that the election of the club held on 12th September, 1992 in terms
of the notice dated 28th August, 1992 is illegal and is liable to be struck down, for a declaration that the resolution of the committee meeting dated
24th March, 1992 as well as the resolution of the committee meeting dated 27th May, 1992 which empowered the President to nominate two
regular members of his choice is illegal, and is liable to be set aside, for a further declaration that after the resolution in the General meeting held in
1984 all the new members admitted by the club except under rule 15A and 15C are illegal and are liable to be set aside and/or cancelled. He
prayed for a permanent injunction restraining the defendants from giving any effect and/or further effect to or to take steps regarding the election
held on 12th September, 1992 pursuant to the notice dated 28th August, 1992, a permanent injunction restraining the Club''s men, agents and
servants from allowing the enjoyments and privileges to any person who is allegedly an admitted member of the Club after the resolution was
passed in the Annual General meeting in 1984 excepting any member taken in terms of Rule 15A and 15C for a further injunction on similar terms
from giving any effect or further effect to and/or to take steps and/or further steps in aid therewith of the resolution passed by the Annual General
Meeting held on 27th May, 1992 Vide Minute 9A(1) dated 24th March, and 24th July, 1992. In this suit also there was a submission made in the
plaint that the plaintiff having filed the suit for his own self and on behalf of the other members claiming privileges and benefits of all the members of
Calcutta Swimming Club, he craved leave under order 1 Rule 8 of the CPC for filing the suit in a representative capacity. The plaintiff further
submitted that since the defendant No. 1 is an unregistered society, the plaintiff also craved leave under Order 1 Rule 8 of the Code of Civil
Procedure. Immediately after the filing of the suit which was numbered as Title Suit No. 2012 of 1992, the learned Registrar of the City Civil Court
passed an order on 22.9.92 directing the petition to be placed before the learned Judge, Bench VII on the same day for orders fixing 16.12.92 for
further orders. Later, on the same day, an application for temporary injunction filed by the plaintiff against the defendants was forwarded by him to
the learned Judge, Bench VII for hearing. The learned Judge-in Charge, Bench VII on hearing the learned advocate of the plaintiff passed an order
no. 4 dated 24.9.92 issuing a rule calling upon the defendants to show cause within a week of the receipt of the notice as to why the order of
temporary injunction should not be granted in terms of the plaintiffs prayer and till the hearing of the application, the defendants were restrained
from giving further effect or to take any steps regarding the election held on 12th September, 1992 until further orders. It is against this order that
the defendant appellants preferred an appeal before this Court which has been numbered as F.M.A.T. 3362 of 1992. At the time of admission of
appeal, this Court also passed an order to the effect that all further proceedings in Title Suit No. 2012 of 1992 before the learned Judge, 7th
Bench. City Civil Court, Calcutta would remain stayed.
5. In this suit also even though a prayer was made for a leave under Order 1 Rule 8 of the Code of Civil Procedure, the petition containing the
prayer does not appear to have been moved and no such leave was granted to the plaintiff.
6. Both the appeals have been heard together simultaneously one after the other for the sake of convenience since common questions of fact and
law are involved in them.
7. Before we go through this matter we have to keep in view the background of the case. Against the alleged misbehavior of Deoki Nandan Bubna
on 29th July, 1992, a complaint was lodged by another member, P.D. Lata on 30th July. 1992 before the Club Authorities with request to take
suitable action against Sri Deoki Nandan Bubna. On 4th August, 1992 there was a meeting of the Executive Committee which resolved that a
written explanation would be asked for from Sri Deoki Nandan Babna. On 6th August, 1992 a letter having been issued by the Calcutta
Swimming Club to Sri Deoki Nandan Bubna calling upon him to submit a written explanation for his conduct in club which took place on 29th July.
1992. Sri Deoki Nandan Bubna by his letter dated 17th August. 1992 to the club authorities asked for one month''s time to submit a written
explanation. In the mean time Sri Deoki Nandan Bubna, suppressing the fact that he asked for time for submission of a written explanation, filed a
suit in the City Civil Court at Calcutta being Title Suit No. 1670 of 1992 challenging the notice of the Calcutta Swimming Club dated 6th August,
1992 and made an application for interim injunction. On 17th August, 1992 the learned Judge, 10th Bench, City Civil Court, Calcutta passed an
ex parte order restraining the club from taking any action against Sri Deoki Nandan Bubna on the basis of the letter dated 6th August. 1992 the
Club preferred an appeal before this Court and by an order dated 28th August, 1992 this Court was pleased to dispose of the appeal by vacating
the order dated 17th August, 1992 and directing the learned Trial Judge to dispose of application for interim injunction by 8th September, 1992
positively. On 8th September, 1992 the learned Trial Judge having heard both the parties dismissed the application for interim injunction. On the
9th September, 1992 one Vikrant Matta filed Title Suit No. 1869 in the City Civil Court, Calcutta. An application under order 1 Rule 8 was also
filed. The learned Registrar directed the application to be placed before the 7th Bench. The other application for temporary injunction was also
directed by the learned Registrar to be placed before the learned Judge, 7th Bench.
8. It does not appear that the application under order 1 Rule 8 C.P.C. was moved and no leave to sue in a representative capacity was granted.
Yet the learned Trial judge passed on 11th September, 1992 an order of temporary injunction restraining the Club from holding its Annual General
Meeting on the 12th September, 1992. The Club filed an appeal to this court impugning the order dated 11th September, 1992. A Division Bench
while admitting the appeal passed an interim order to the effect that while the Club could hold the Annual General Meeting including the election,
results thereof should not be declared. The Annual General Meeting was accordingly held and the election to the office bearers also took place but
the results thereof were not published.
9. On 16th September, 1992 an application was filed by the plaintiff Vikrant Matta to withdraw Title Suit No. 1869 of 1992. On the same day
Rabindra Nath Mukherjee filed an application in the said suit to be added as a party. On 17th September, 1992 the learned Judge, 7th Bench
passed an order adding Rabindra Nath Mukherjee as a co-plaintiff in the suit while allowing Vikrant Matta to withdraw from the suit and
accordingly the name of Vikrant matta was deleted from the cause title. It is against this background that Rabindra Nath Mukherjee filed a
separate suit in his individual name being Title Suit No. 1934 of 1992. Though in paragraph 22 of his plaintiff averred that he had some interest and
some grievance as that of Vikrant Matta who failed the suit in the representative capacity and he had also claimed to be added as a party in the
said suit but he came to know from one Mr. S.K. Matta, father of the said Vikrant Matta that Vikrant matta was not keen to continue the suit and
as such he had in the said suit no scope to be added and sought necessary leave against the club authority. It will, however, not be out of place in
this context to note that the appeal preferred by the Calcutta Swimming Club against the order of ad interim injunction granted on the 11th
September, 1992 has already been disposed of and the interim order stands vacated, but while the said appeal was disposed of by a Division
Bench of this Court, the said Court made it clear that the interim orders as obtained by Rabindra Nath Mukherjee and Sri Deoki Nandan Bubna in
their respective suits were in no manner affected.
10. The main contention raised by the appellants in both these two appeals is to the effect that while no leave was granted under Order 1 Rule 8 of
the CPC for both these two suits since the Calcutta Swimming Club is an unregistered society the suits were not maintainable at all without such
leave. In such state of affairs, no interim order could at all be passed even though so prayed for.
11. Before we enter into the merits of the respective cases it would be relevant to take into account the different provisions as set out in the Rules
of the Calcutta Swimming Club. There are several classes of membership and they are i) Permanent ii) Associate iii) Missionary and iv) Expatriate.
12. Rule 14(b) provides that subscriptions shall be payable in advance, and every member shall pay the subscription quarterly or annually at his or
her option. The due dates for quarterly subscriptions shall be the first days of January. April, July and October and shall be paid on or before
January 31, April 30 July 31 and October 31 respectively and the due date for the annual subscription shall be on the first day of the month
following the expiry of the period for which the subscription shall have been paid and shall be paid on or before the last day of the month.
13. Rule 19 deals with non-payment of subscription. It reads as follows :-
a) Should any member fail to pay his or her subscription within one month of its due date notice of such default shall be served on the member, and
should the subscription still remain unpaid after 10 days from service of such notice, the Member shall be advised by registered post to the
Member''s registered address that his or her name will be posted on the Club Notice Board one week later unless payment is received. No
Member shall be entitled after his or her name has been so posted, during such default, to exercise any privileges of membership until the amount
due, in respect of which his or her name has been posted shall have been paid.
b) If within one month from the date of such posting, all sums due to of the club be unpaid, the committee shall remove the name of the member
from the Membership Records and such removal shall be notified to the Member who shall cease to be a Member but shall nevertheless remain
liable for the payment of all arrears of subscriptions unpaid up to the date of so ceasing to be a member.
c) The Committee shall have power to readmit any such member at any subsequent time upon receiving from the Member a satisfactory
explanation of the delay in payment.
14. There is also a provision for loss of membership under Rule 20(c) by reason of non-payment of subscription as provided in Rule 19.
15. Rule 35 deals with the election procedure of the Committee. Rule 35(c) reads as follows :-
Not less they 14 days before the date of the Annual General meeting, a printed circular shall be issued to those members entitled to vote at general
meeting giving the names of Members willing to serve on the committee of the ensuing year.
The procedure of election is further delineated in Rule 35(d) which reads as follows :-
Election papers giving names of members willing to serve on the committee for the ensuing year will be issued only at the General meeting to those
attending members entitled to vote. Such Members will be requested to return the papers at a proper time during the General meeting duly marked
(X) against the names of those members, not exceeding eleven in all, for whom they wish to vote.
Counting takes place as per report made by two scrutineers as delineated in Rule 35(e) which reads as follows :-
At the Annual General meeting the Chairman shall appoint from the Members present two scrutineers who shall examine the voting papers and
who shall report to the Meeting the names of the eleven members who have the greatest number of votes, and such persons shall be declared
members of the Committee, the contents of the voting papers shall not in any other respects be disclosed.
16. The provision with regard to members entitled to vote at the General Meeting as contained in Rule 47 reads as follows :-
Only permanent members (other than those on the absentee List) whose subscriptions have been duly paid up to the date of the Notice calling any
General meeting shall be entitled to receive notice of such General meetings and to attend and vote thereat.
17. The rule with regard to holding of the Annual General Meeting as set out in Rule 48 gives out :-
A general Meeting of the Club shall be held on a day to be fixed by the Committee as soon after the close of the Club''s financial year as may be
practicable. Such general Meetings shall be called Annual General Meeting and all other General meetings shall be called Special General
Meetings.
Business of the Annual General meeting is conducted as per Rule 49 which reads as follows :-
The business of the Annual general Meeting shall be to consider and adopt the annual Report; to receive and pass the audited Accounts for the
preceding financial year which shall dose on the 31st December, in each year; to elect the president Committee and Auditors; and to consider or
transact any business which under these rules ought to be transacted at an Annual General Meeting. All other business shall be deemed special, but
no such special business shall be brought forward unless notice thereof shall have been given to the Secretary and or Managing Member at least
seven days before the date of such Meeting.
18. The case as brought out in the plaint inter alia is to the effect that according to rule 14(b) if subscriptions are not paid in respect of the quarterly
subscription (becoming due on 1st of January, 1st of July and 1st of October) on or before January 31, April 30, July 31 and October 31
respectively and in respect of such members who paid their subscriptions annually (which falls due on the first day of the month following the expiry
of the period for which the subscription shall have been paid) on or before the last day of the month, notice of such default shall be served on the
members and should the subscriptions still remain unpaid after 10 days from service of such notice, the members shall be advised by registered
post that his or her name will be posted on the Club. Notice Board one week later, unless payment was received in the mean time. No Member
shall be entitled after his or her name has been so posted, during such default to exercise any privileges of membership until the amount due, in
respect of which his or her name has been posted shall have been paid. If within one month from the date of such posting, all sums due to the club
be unpaid, the Committee shall remove the name of the member from the membership records and such removal shall be notified to the member
who shall cease to be a member but shall nevertheless remain liable for the payment of all arrears of subscriptions unpaid upto the date of so
ceasing to be a Member. What the club Authorities in the instant case, did prior to the holding of the Annual General Meeting was to accept the
membership subscriptions from the defaulting members so that all such defaulting members were allowed to be a present and to cast their votes in
the annual General Meeting. It has been contended by the plaintiff in both the cases that only permanent members whose subscriptions have been
duly paid upto the date of notice were entitled to receive the notice for such Annual General meeting so as to attend the same and to cast their vote
thereat. But this Rule was transgressed in accepting the membership subscription beyond the stipulated date. A list of some such members whose
subscriptions were accepted beyond the stipulated date was given out in the Annexure to the injunction application.
19. In order to satisfy the magnitude of difference of votes in between the candidates who stood elected and the candidates who lost the election
marginally, we called for the entire records of the election that took place in the annual General Meeting held on 12th September, 1992 and on a
proper scrutiny we found the margin to be wide enough to exclude the possibility of the balance being tilted in favour of those candidates who won
the election by inclusion of at best 5 or 6 members who are mentioned as persons who have been illegally allowed to join the Annual General
Meeting with due clearance of their outstanding dues beyond the stipulated day of July 31, 1992. The plaintiff in each case has not yet been
successful to give out an entire list of all such candidates do as to impress upon the point that a significant number of ineligible voters were allowed
to come in and join the Annual General Meeting and cast their votes. Despite the fact that they were not so eligible, just because their outstanding
dues were accepted beyond the stipulated date beyond the last day of the clearance of the dues, obviously a controversy does arise whether all
these rules regarding non-enjoyment of the privileges and the rights of membership on account of the default in payment of subscription, are merely
directory or mandatory. It is contended on behalf of the respondent that in each case such rules were mandatory whereas on behalf of the
appellants it was urged that the rules were merely directory in as much as provisions are contained in the Rules that with the clearance of the dues
their rights and privileges could be restored. But that as it may, it is significant enough that the plaintiff, Rabindra Nath Mukherjee proposed in the
election in the Annual General Meeting some candidates who were themselves defaulters, thus given a go by to the contention that defaulting
members despite the clearance of their dues were ineligible to vote.
20. It was contended on behalf of the respondent in both the appeals that only permanent members whose subscriptions have been duly paid up till
the date of the notice were entitled to notice and were conferred with the rights to attend the General Meeting and vote thereat. If upto the date of
the notice any member''s subscriptions were due he could not later on pay off his dues and accept notice and attend the General Meeting and vote
thereat. A detailed argument was made as regards the different privileges of joining the swimming pool or enter restaurant but then as regards the
rights of such members to be treated as a member as such so as to be entitled to notice and to attend the General meeting and to vote thereat, it
was considered by the members that there was indeed no provision for reinstatement of the privileges on clearance of the dues. It was contended
on behalf of the respondent in each case that infraction of the rules conferring privileges and violation of the rules given rights, are not to be treated
alike. The temporary suspension of a member on account of the non-clearance of dues by the stipulated date could be removed immediately with
the clearance of the subscription but one isolated error on the part of a member in not clearing his or her dues by the stipulated date had the
cumulative effect of multiple disqualifications regarding the enjoyment of rights with regard to entitlement of notice for attendance in the General
Meeting and to vote in the said General Meeting. We have taken into account the election procedure clearly delineated in Rule 35 and we cannot
really persuade ourselves to agree that there has been any serious infraction of the Rules by acceptance of the subscription from some of the
defaulting members so as to restore the privilege and/or rights in participation at the Annual General Meeting.
21. The finding we make on this account, however, is a prima facie finding and we leave the matter to be finally adjudicated upon at the stage by
final disposal of the temporary injunction application. At the stage of hearing the injunction application in all finally, the present appellants as
defendants not only will have an effective opportunity to deal with the question of such isolated cases of members who were allowed to clear off
their dues beyond the stipulated date in a full-throated manner but the Trial Court would also be satisfied on production of proper documents on
this regard as to whether the balance may at all tilt in favour of the plaintiff in each case so as to make the plaintiff entitled to an order of injunction
rendering the entire election procedure in the Annual General Meeting to be rendered mandatory at the present stage. As indicated above, we are
not prima facie satisfied that the plaintiff in each case has been able to bring out a case of the election being held illegally in flagrant violation of rules
regarding the procedure of election.
22. It was urged on behalf of the respondents, however, in this context relying upon a Privy Council decision in T.S. Murugesam Pillai vs.
Manickavasaka Desika Gnan Sambanda Pangara Sanndhi reported in AIR 1917 P.C. 6= 21 CWN 761 that with regard to the parties to the suit,
those desiring to rely upon a certain state of facts are not justified in withholding documentary evidence in their possession which would throw light
upon the proposition, merely because the onus of proof may be on the other party. When it is so withheld, the Court is free to conclude that if they
had been produced, they would have supported the case of their opponent.
23. The respondents also cited the decision in Hiralal and Others Vs. Badkulal and Others, at Page 227 which was a case of adjustment of running
accounts and as to whether an acknowledgement operates as a fresh cause of action. The other redeeming feature of the case was that the case
was not merely based on acknowledgement but on the mutual dealings and the accounts stated between them where the question arose about the
production of the proper documents. The Supreme Court chose to rely on the previous decision of T.S. Murugesam Pillai vs. Manickavasaka
Desika Cana Sambanda, AIR 1917 Privy Council page 6-21 CWN 761 in finding that there was an adjustment, of accounts actually done by the
clerks of the respective parties which were accepted by the principals where it was ultimately found that after adjusting the amounts Rs. 34,000/-
was found correctly payable. The acknowledgement was made in the ledger of the plaintiff in which earlier account was stated. The suit based on
mutual dealings and the accounts stated between them was found to be clearly maintainable. The said case has practically no other relevance to the
present case.
24. In Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, it was held that a party in possession of best evidence which would throw light
on the issue in controversy should not be withholding the same and the court can obviously draw an adverse inference against him for such
withholding, notwithstanding that the onus of proof does not lie on him and the party not producing such documents in its possession cannot rely on
the abstract doctrine of onus of proof that he was not called upon to produce it.
25. Relying on the ratio propounded by all these decisions, the respondent in both the appeals urged that even if the initial onus of proof was on the
plaintiff in each case to prove to the satisfaction of the Trial Court the magnitude of the members in whose case despite the default, their
subscriptions were accepted beyond the stipulated date and they were illegally allowed to receive the notice of the Annual General meeting and to
attend the said meeting and to cast votes thereat, the best evidence on the point being with the club authorities, the defendants, the latter ought to
have produced the counterparts of the receipt books and account books on this score. We can not however, lose sight of the fact that the
observation of the Privy Council is application in respect of trials as and when they take place, and not applicable at the present stage of issuance
of an order of ad interim injunction or refusal of the said prayer on this account. As and when the Trial Court would adjudicate on the question of a
temporary injunction being clamped down on the club authorities while disposing of the said application for temporary injunction in all finality, the
court may really call upon the defendants to bring such records into court. The stage has obviously not reached at the present moment to dilate on
the same. Nor can we hold the club authorities guilty for withdrawing the documentry evidence in their possession at the present stage which would
have otherwise thrown light upon the exact stage of affairs merely because the onus to prove initially is on the plaintiff. We cannot also conclude
that had such evidence been produced they would have supported the case of the plaintiffs.
26. A Division Bench judgment of our Court was cited by the learned advocate for the respondents in State Bank of India Staff Association &
Ors. vs. Monindra Bhattacharyya & Ors. reported in 96 CWN 350 for the proposition that only eligible voters will vote in an election to a society
and club rules have to be strictly adhered to. The case, however, took into account the law relating to limited interference by a court of law in rule-
contract cases coming from a domestic forum. A suit could be filed if the domestic forum vested with authority exercised it illegally or failed to
exercise it altogether, thus abandoning its authority improperly. Exhaustion of prior remedies would be sufficiently complied with if the domestic
body refuses to take up and properly decide the matter. The ratio decided in the case, however, does not call into play in the present case in view
of the fact that the pleadings in the present two cases are somewhat different from the reported decision and not really alike.
27. The learned advocate for the respondent cited before us the decision in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, for the
proposition that it is well-settled that the provisions of the CPC are not exhaustive for the simple reason that the Legislature is incapable of
contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. Even
though it is more or less settled that ordinarily the court does not use its inherent powers to make the necessary orders in the interest of justice but
is merely to see whether the circumstances of the case bring it within the prescribed rule, temporary injunctions even though not otherwise
permissible could be so passed in the exercise of its inherent jurisdiction. Thus if there be no expression in Section 94 of the Code prohibiting the
issue of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code, the courts have inherent
jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order 39 of the Code of Civil Procedure, if
the court is of opinion that the interests of justice requires the issue of much interim injunction. The Supreme Court in this case chose to follow the
decision of Padam Sen and Another Vs. The State of Uttar Pradesh, Following the observation of the Supreme Court in Manohar Lal Chopra Vs.
Rai Bahadur Rao Raja Seth Hiralal, (ibid) Mr. Sudhis Dasgupta the learned advocate for the respondent argued that even if order 1 Rule 8 of the
CPC was a clear bar to the maintainability of the present suit without a proper leave being granted in this context, the Court had still a jurisdiction
to pass appropriate order of temporary injunction.
28. Mr. Dasgupta appearing for the respondents further contended with reference to a Division Bench judgment of the Bombay High Court in
Totaram wani and ors. vs. Dattu Mangu Wani & Ors., reported in AIR 1943 Bombay 143 that in a cause of action where the plaintiff sought to
sue in forma pauperism, the suit when the application for leave in sum in forma pauperis is presented. Even if such a prayer to allow him to sue as a
pauper is not disposed of at that stage, the court has still the power even in that stage to appoint a receiver or to grant a temporary injunction ex
parte in such cases.
29. Mr. Dasgupta also cited before us the decision of Manorama Dasi Vs. Sabita Dasi, for the proposition that the court could exercise its inherent
power u/s 151 of the CPC where an application to sue in forma pauperis is filed and before any suit has commenced and even if the re is a specific
provision in the Code for making a certain orders, the court in exercise of its inherent jurisdiction can pass orders for the ends of justice, but the
court should be extremely careful in passing orders in this context and should pass such orders only when no other relief is possible and when the
relief is urgently called for and in doing so should limit the scope of such exercise to as narrow a compass as possible.
30. Mr. Jayanta Mitra appearing on behalf of the appellants, contended before us that unless leave under Order 1 Rule 8 of the CPC is actually
obtained, the plaintiff in each case has really no cause of action.
31. We are quite conscious of the position that the provisions of order 1 Rule 8 applied only if (i) the parties are numerous, (ii) have the same
interest and (iii) the necessary permission of the court is obtained or a direction under Clause B of sub-rule 1 is given and notice under sub-rule (2)
is given. The notice is given by the court though at the plaintiff''s expense but the provision as to notice is mandatory. The provisions of Order 1
Rule 8 have to be strictly complied with. More so. if it is a case of an unregistered society, no one member can sue alone if he has not filed the suit
on his own behalf but on behalf of other members. The proper course is to obtain permission before the suit is instituted, but if that is not done, the
rule does not forbid leave being granted afterwards. Permission under this rule may be granted even after the institution of the suit and even at the
appellate stage by allowing an amendment, if such amendment does not materially change the nature of the suit. It has been consistently held in
various decisions that the rule is mandatory and that failure to comply with its requirements cannot be condoned u/s 99 nevertheless if the suit is laid
in the representative character, leave could be granted under this rule even at a later stage, but still then all the formalities prescribed in the rule
should be observed.
32. In Rajendranath vs. Royal Calcutta Turf Club reported in 67 CWN 903, however, our High Court held that an amendment by which a suit
instituted against an incorporated and un-registered club is converted into one under Order 1 Rule 8 of the CPC cannot be permitted as that would
change the character of the suit. However, that decision is not really called into play in the facts and circumstances of the present two cases.
33. We must, therefore, distinguish the present cases from cases instituted in forma pauperis or the suit filed by an indigent person where the suit
commenced with the filing of the application in this regard and Court is vested with the jurisdiction to pass appropriate interim orders for securing
the ends of justice. There not having been a proper leave taken under Order 1 Rule 8 of the CPC at the time of passing of the ex parte order of
interim order or status quo as the case may be no suit commenced and we should vacate those orders under appeal and/or set aside the impugned
orders and direct the Trial court in each case to proceed in accordance with law after consideration of the prayer under Order 1 Rule 8 of the
CPC made in each case and then take up the hearing of the injunction matter in all finality where according to our observations made hereinbefore,
the Trial Court can minutely scrutinize the contention of the plaintiff in each case about the participation of the defaulting members in the annual
General meeting and the connected consequent election held thereat and decide the matter in accordance with law.
34. In the result both the appeals stand allowed, impugned orders stand set aside, the Trial Court being directed to take up the application under
order 1 Rule 8 of the CPC immediately and thereafter decide the question of temporary injunction in all finality after following the observations as
set out hereinbefore within the period of one month from this date. The Calcutta Swimming Club is not fettered to publish the results of the
impugned election but whatever is done pursuant to the election impugned, shall abide by the decision of the Trial Court in respect of the
temporary injunction matter and final decision of the suits. This judgment covers both the appeals viz. KMAT 3362 of 1992 and FMAT 3363 of
1992.
35. There will be no order as to costs in both the appeals.
Let a xerox copy of this order be given to the learned Advocates for the respective parties on their usual undertaking.
Nikhil Nath Bhattacharjee, J.
I agree.