IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.10199 OF 2011(CPC) C/W M.F.A.NO.10200 OF 2011(CPC) M.F.A. NO.10199 OF 2011 BETWEEN:
DALE PEREIRA, AGED ABOUT 56 YEARS, SON OF LATE L.A.J.PEREIRA, RESIDENT OF NO.1, TATE LANE, RICHMOND ROAD CROSS, BENGALURU – 560025. …APPELLANT (BY SMT.M.JYOTHI, ADVOCATE) AND:
1. M/S.BOWRING INSTITUTE NO.19, ST.MARK’S ROAD, BENGALURU – 560001, REPRESENTED BY ITS SECRETARY.
2. JASBIR SINGH DHODY, AGE ABOUT 50 YEARS, RESIDING AT 8TH RUCELA APARTMENTS, #43/2, PROMENADE ROAD, BENGALURU – 560005.
3. MONESH KUMAR K.B, AGE ABOUT 40 YEARS, RESIDING AT “AASHIRWAD’, 99/3, BULL TEMPLE ROAD, BENGALURU – 560019.
4. RAJESH RAMCHAND, AGE ABOUT 45 YEARS, RESIDING AT APARTMENT NO.202, EMBASSY HIGH STREET, NO.6, HIGH STREET, COOKE TOWN, BENGALURU – 560005.
5. SHODHAN KUMAR K, AGE ABOUT 45 YEARS, RESIDING AT NO.317, 3RD ‘D’ MAIN, 3RD BLOCK, HRBR LAYOUT, BENGALURU – 560043.
6. REDDY K.V. AGE RESIDING AT NO.21, 12TH, MAIN ROAD, 14TH CROSS, LAKKASANDRA EXTENTION, HOMBEGOWDA NAGAR, BENGALURU – 560030.
7. VASANTH KUMAR R, AGE ABOUT 50 YEARS, RESIDING AT NO.382, 1ST ‘N’ BLOCK, 19-G, MAIN ROAD, RAJAJINAGAR, BENGALURU – 560010.
8. SATISH RAO B.N, AGE ABOUT 40 YEARS, RESIDING AT NO.23/28, 58TH CROSS, 4TH BLOCK, RAJAJINAGAR, BENGALURU – 560010.
9. M/S.BODY DRENCY INDIA PVT. LTD., NO.17, COMMISSARIAT ROAD, BENGALURU-560025, REPRESENTED BY MR.MADHUSUDHAN S. ...RESPONDENTS (BY SRI.M.S.NARAYAN, ADVOCATE FOR R1,R2, R4, R5 AND R6 SERVED R7 TO R9 NOTICE DISPENSED, R3 DELETED ) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1 (r) OF THE CODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED 30.07.2011 PASSED ON IA NO.1 IN O.S.NO.26365/2009 ON THE FILE OF XXVIII ADDITIONAL CITY CIVIL JUDGE, BANGALORE, REJECTING IA NO.1 FILED UNDER ORDER 39 RULES 1 AND 2 CPC FOR T.I.
M.F.A.NO.10200 OF 2011 BETWEEN:
DALE PEREIRA, AGED ABOUT 56 YEARS, SON OF LATE L.A.J.PEREIRA, RESIDENT OF NO.1, TATE LANE, RICHMOND ROAD CROSS, BENGALURU – 560025. …APPELLANT (BY SMT.M.JYOTHI, ADVOCATE) AND:
1. M/S.BOWRING INSTITUTE NO.19, ST.MARK’S ROAD, BENGALURU – 560001, REPRESENTED BY ITS SECRETARY.
2. JASBIR SINGH DHODY, AGE ABOUT 50 YEARS, RESIDING AT 8TH RUCELA APARTMENTS, #43/2, PROMENADE ROAD, BENGALURU – 560005.
3. MONESH KUMAR K.B, AGE ABOUT 40 YEARS, RESIDING AT “AASHIRWAD’, 99/3, BULL TEMPLE ROAD, BENGALURU – 560019.
4. RAJESH RAMCHAND, AGE ABOUT 45 YEARS, RESIDING AT APARTMENT NO.202, EMBASSY HIGH STREET, NO.6, HIGH STREET, COOKE TOWN, BENGALURU – 560005.
5. SHODHAN KUMAR K, AGE ABOUT 45 YEARS, RESIDING AT NO.317, 3RD ‘D’ MAIN, 3RD BLOCK, HRBR LAYOUT, BENGALURU – 560043.
6. REDDY K.V. AGE RESIDING AT NO.21, 12TH, MAIN ROAD, 14TH CROSS, LAKKASANDRA EXTENTION, HOMBEGOWDA NAGAR, BENGALURU – 560030.
7. VASANTH KUMAR R, AGE ABOUT 50 YEARS, RESIDING AT NO.382, 1ST ‘N’ BLOCK, 19-G, MAIN ROAD, RAJAJINAGAR, BENGALURU – 560010.
8. SATISH RAO B.N, AGE ABOUT 40 YEARS, RESIDING AT NO.23/28, 58TH CROSS, 4TH BLOCK, RAJAJINAGAR, BENGALURU – 560010.
9. M/S.BODY DRENCY INDIA PVT. LTD., NO.17, COMMISSARIAT ROAD, BENGALURU-560025, REPRESENTED BY MR.MADHUSUDHAN S. ...RESPONDENTS (BY SRI.M.S.NARAYAN, ADVOCATE FOR R1,R2, R4, R5 AND R6 SERVED R7 TO R9 NOTICE DISPENSED, R3 DELETED) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1 (r) OF THE CODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED 30.07.2011 PASSED ON I.A.NO.3 IN O.S.NO.26365/2009 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE, MAYOHALL UNITE, BANGALORE REJECTING I.A.NO.3 FILED UNDER ORDER 39 RULES 1 AND 2 OF CPC FOR INTERIM INJUNCTION.
THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Sri. Monesh Kumar K.B., Respondent No.3 – party in person, submitted that he is not a necessary party to the proceedings.
2. Considering the submission of the counsel for appellant and respondents, the name of respondent No.3 is ordered to be deleted in the cause-title.
3. M.F.A. No.10199/2011 is filed for setting aside the order dated 30.07.2011 passed on I.A. No.1 in O.S. No.26365/2009 by the XXVIII Addl. City Civil & Sessions Judge, Mayo Hall Unit, Bangalore (CCH-29), rejecting the I.A.
4. M.F.A. No.10200/2011 is filed for setting aside the order dated 30.07.2011 passed on I.A. No.3 in O.S. No.26365/2009 by the XXVIII Addl. City Civil & Sessions Judge, Mayo Hall Unit, Bangalore (CCH-29), rejecting the I.A.
5. The facts leading to these appeals are that the appellant was a life member of respondent No.1 Institute and a member of the building and health club Sub-Committee during the year 2006-07 and he was incharge of swimming pool and guest quarters Sub- Committee. In the annual general body meeting held on 13.06.2008, it was resolved that the accounts be subjected to review by the Chartered Accountants – M/s. Kotresh & Kumar. In the special general body meeting held on 05.06.2009, a resolution was passed and the membership of the appellant was terminated on the allegations regarding irregularities said to have been committed by him. Being aggrieved by the resolution dated 05.06.2009 passed in the special general body meeting and the termination of the membership, the appellant had filed a suit in O.S. No.26365/2009 for declaration and injunction. In the said suit, I.A. Nos.1 and 3 were filed by the plaintiff. The said I.As. were rejected by a common order dated 30.07.2011.
6. The learned counsel for the appellant strenuously contended that this Hon’ble Court was pleased to hear the I.A. filed in the present M.F.A. and passed an order dated 16.12.2011 observing that the procedure contemplated under the proviso to Rule 26 or Rule 54 has not been followed in the said case. In the absence of such a procedure being followed, the resolution of respondent Institute dated 05.06.2009 followed by termination letter dated 09.06.2009 requires to be stayed and the plaintiff was also permitted to utilize the facilities of the Institute as an ordinary member. Being aggrieved by the said order, the respondent Institute had preferred SLP before the Hon’ble Supreme Court. On hearing the parties, the order dated 16.12.2011 passed by the learned Single Judge of this Court was confirmed and the SLP was dismissed. In view of the confirmation of the order dated 16.12.2011 by the Hon’ble Supreme Court, the stay may be continued till disposal of original suit before the trial court. In view of the observations of Hon’ble Supreme Court, the appeals may be disposed of.
7. Per contra, the learned counsel for the respondents submitted that in view of the order passed by the Hon’ble Supreme Court, the order dated 16.12.2011 may be continued till the disposal of the suit and the appeals may be disposed of with the said direction. The respondent Institute has never objected the appellant for using the facilities as an ordinary member. Since the Hon’ble Supreme Court ordered that the observations contained in the impugned order and the supreme court order shall not prejudice the cause of either party at the time of final adjudication of the suit, similar directions may also be issued while disposing of the Miscellaneous First Appeals.
8. It is submitted that, the case is posted for respondents’ evidence. Hence, as suggested by both counsels, the parties may approach the trial court for speedy disposal of suit on merits.
9. Under these circumstances, the Court is of the opinion that the order dated 16.12.2011 passed by the learned Single Judge in the present appeal, shall have to be continued till disposal of the original suit before the trial court.
For the aforesaid reasons, the miscellaneous first appeals are disposed of with a direction to the parties to appear before the trial court and cooperate for expeditious disposal of the suit. The observation made in the impugned order dated 16.12.2011shall not prejudice the cause of either party at the time of final adjudication of the suit.
Sd/- JUDGE SJ