JUDGMENT V.K. Shukla, J.
1. Gandhian Institute of Studies, Varanasi (herein after referred to as GIS), is a society registered under the Societies Registration Act, 1860. The said society was founded in the year 1960 by Jai Prakash Narain and other like minded people, and the same was got registered under the Societies Registration Act, 1860 in the year 1962. The aims and objects of the said society were to disseminate Gandhian thoughts and philosophy and engage in many fold academic activities including research, seminar, science on issues ranging from technology and the use of Gandhian thoughts in the modern world to study of weaker Sections and women etc. In the year 1977 Indian Council of Social Sciences and Research (ICSSR), a nodal body of the Ministry of Human Resources Development (MOHRD), Government of India started giving financial aid for the activities of Gandhian Institute of Studies (GIS). Large scale complaints were made and during the period starting with effect from 1994-97 Special Audit Team raised various objections, and based on the said objections, ICSSR as well as Government of U.P. stopped the grant in aid to GIS, which was on fifty - fifty per cent basis. Registration of the society was going to expire, as such an application for its renewal was moved on 17.07.2000 to renew the same with effect from 10.10.2000. The Assistant Registrar, Firms, Societies and Chits was not taking any action on the said renewal application, and in this background, Civil Misc. writ petition No. 44484 of 2000 was filed for issuing a writ in the nature of mandamus directing the Assistant Registrar/Registrar to renew the registration certificate of the petitioner society for five years with effect from 10.10.2000 to 10.10.2005. This court on 17.10.2000 directed the Assistant Registrar to dispose of the application for renewal filed by the petitioner within 45 days. Petitioner has contended that certified copy of the said order passed by this Court was supplied to Assistant Registrar on 25.10.2000, and thereafter, the Assistant Registrar, Firms Societies and Chits on 21.11.2000 demanded certain documents. The said documents were to be produced personally on or before 27.11.2000. It has been contended that Registrar of the petitioner institute on 28.11.2000 produced all relevant documents, but in spite of the same Renewal application was rejected on 05.12.2000. The said action of the Assistant Registrar dated 05.12.2000 refusing to renew the registration of society has been subject matter of challenge in Civil Misc. Writ petition No. 54416 of 2000. In the aforementioned writ petition this Court on 15.01.2001 passed following order, which is being quoted below:
As prayed put up on 23.1.2001. On that date learned Counsel for the petitioner will submit all the original documents required by letter of the Registrar of the Societies dated 21.11.2000, Annexure-16 to the writ petition as well as another set of photo copies of documents and the same set of photostate copies will be retained on the file and original documents will be handed over to the learned Standing Counsel for onward transmission to the Registrar of Societies so that it may be re-considered as required by him within the prescribed time.
2. While proceeding for renewal were going on, notice dated 22.01.20001 was sent asking the petitioner to show cause as to why society in question be not dissolved. No reply was submitted to the said show cause notice and then Misc. Case No. 56 of 2001 was filed on behalf of Registrar for dissolution of society under Section 13B of the Societies Registration Act, 1860. The said application was dismissed for want of prosecution on 13.08.2001. No attempt or endeavor was made for recall of the order dated 13.08.2001. Thereafter, another application was moved through D.G.C. (civil) on 22.09.2001, and this application was also got dismissed as not pressed, and endorsement was made on the margin of the said application. The order dated 13.09.2001 in Misc. Case No. 109 of 2001 is being quoted below:
This application was not pressed as endorsed on the margin of the application. Therefore, rejected.
3. Thereafter misc. case No. 243 of 2002 was filed before the District Judge, Varanasi on behalf of Assistant Registrar again through D.G.C (civil), Varanasi, mentioning therein that in the past Misc. Case No. 109 of 2001 has been got rejected, and for the grounds mentioned society in question is liable to be dissolved. Dissolution application was moved on 08.11.2002. The Assistant Registrar, Firms, Societies and Chits in the meantime on 31.01.2003 granted renewal to the registration of the society for five years with effect from 10.10.2000 to 10.10.2005. When cognizance was taken of the proceeding under Section 13B of the Societies Registration Act in Misc. Case No. 243 of 2003 then issue was sought to be raised that entire proceedings were mala fide and were without jurisdiction, as renewal of society had already been done by the Assistant Registrar and proceedings for dissolution of society was thus not competent. Petitioner at this juncture filed writ petition No. 13628 of 2003 for quashing proceedings and for directing the respondent authorities not to interfere in the functioning of society. This court on 22.04.2003 directed that further proceedings may go on, but no final orders be passed. In the meantime, Assistant Registrar in exercise of its power under Section 12D(1) passed order canceling the order of renewal of registration dated 31.01.2003. This Court on being approached by petitioner through writ petition No. 23650 of 2003 stayed the operation of the aforementioned order. During the ongoing proceedings before the concerned court, application was moved for appointment of receiver. In the said proceedings objections had been filed and thereafter concerned Court which was seized of the matter on 24.12.2004 passed order directing appointment of receiver. The said order directing appointment of receiver has been subject matter of challenge in writ petition Nos. 56277 of 2004 and 56278 of 2004 filed by GIS as well as ICSSR, respectively. On the presentation of aforementioned writ petitions this Court stayed the operation of the order by means of which receiver had been appointed in the society in question.
4. Counter affidavit has been filed on behalf of State respondents and therein it has been sought to be contended that fifty - fifty per cent sharing basis, State Government had been funding the society in question and there has been large scale manipulation, manoeuvring and malfunctioning in the affairs of the society. The Assistant Registrar, Firms, Societies and Chits had made investigation into the affairs of the society and submitted report qua the malfunctioning of the society and further due notice for dissolution was given, to which vague and evasive reply was submitted, and as such in this background, rightly proceedings have been drawn for dissolution of the society and the grounds of dissolution of the society are in existence. Counter affidavit has also been filed on behalf of Jai Prakash Smarak Pratishthan, Ballia, and therein status of Dr. Muniza Rafiq Khan has been questioned for instituting petitions and further proceedings which have been undertaken have been justified. It has been contended that by no means proceedings can be withdrawn and the appointment of receiver was the only option. ICSSR, which was also one of the funding agencies, at the initial stage of litigation, have filed counter affidavit leveling serious allegations against the petitioner, but later on sides have been changed and it has been sought to be contended that objections which were raised in the Audit Objection had been duly removed by the petitioner society and thereafter full satisfaction has been recorded by ICSSR, and fund in question has been released, and at present moment ICSSR is standing side by side of the petitioner and the language and stand of the petitioner and that of ICSSR is one and the same.
5. Rejoinder affidavit has been filed, and therein statement of fact mentioned in various counter affidavits has been disputed and it has been sought to be suggested that on account of change of political climate petitioner has been harassed and victimized by all means.
6. After pleadings mentioned above have been exchanged, present writ petitions have been taken up for final hearing and disposal with the consent of the parties.
7. The first major issue, which has been raised by Sri W.H. Khan, learned Counsel for the petitioner society, is in respect of maintainability of the proceedings, inasmuch as it has been contended that on same set of facts, the first application was dismissed for want of prosecution and the second application was got dismissed as not pressed and in this background without taking liberty of the court concerned 3rd proceedings giving rise to Misc. Case No. 243 of 2002 was not liable to continue and the entire proceedings in the absence of there being any prior permission from the concerned Court is totally without jurisdiction.
8. Sri C.B. Yadav, learned Chief Standing Counsel, as well as Sri R.N. Singh, learned Senior Advocate appearing for Jai Prakash Smarak Pratishthan, on the other hand, countered the said submission by contending that provisions of res judicata, and Order 23 Rule 1 to 4 of the Code of Civil Procedure are not at all applicable and attracted in the present case, as this is not a case of adversary litigation, and as such in all eventuality, proceedings are liable to continue.
9. In order to appreciate the respective arguments advanced by the parties, provisions as contained under Section 13 of the Societies Registration Act as well as Section 141 and Order XXII Rules 1 to 4 of the Code of Civil Procedure are being quoted below:
Societies Registration Act
13. Provisions for dissolution of societies and adjustment of their affairs.- Any number not less than three-fifth of the members of any society may determine that it shall be dissolved, and thereupon it shall be dissolved forthwith, or at the time then agreed upon, and all necessary steps shall be taken for the disposal and settlement of the property of the society, its claims and liabilities according to the rules of the said society, provided that in the vent of any dispute arising among the said governing body or the members of the society, the adjustment of its affairs shall be referred to the Principal Court of original civil jurisdiction of the district in which the chief building of the society is situate; and the Court shall make such order in the matter as it shall deem requisite;
Assent required.- Provided that no society shall be dissolved unless three-fifth of the members shall have expressed a wish for such dissolution by their votes delivered in person of by proxy, at a general meeting convened for the purpose:
Government consent.- Provided that whenever any Government is a member of, or a contributor to, or otherwise interested in any society registered under this Act, such society shall not be dissolved without the consent of the government of the State of registration.
State Amendments - [Uttar Pradesh]- In its application to the State of Uttar Pradesh, in Section 13, for the words "chief building of the society" substitute "registered office of the society-Uttar Pradesh Act 52 of 1975, Section 7(w.e.f. 10.10.1975).
13-A. Power of Registrar to apply for dissolution.- (1) Where in the opinion of Registrar, there are reasonable grounds to believe in respect of a society registered under this Act that any of the grounds mentioned in Clauses (a) to (e) of Sub-section (1) of Section 13-B exists he shall send to the society, a notice calling upon it to show cause within such time as may be specified in the notice why the society be not dissolved.
(2) If on or before the date specified in the notice or within such extended period as the Registrar may allow, the society fails to show any cause or if the cause shown is considered by the Registrar to be unsatisfactory, the Registrar may move the Court referred to in Section 13 for making order for the dissolution of the society.
13-B. Dissolution by Court.- (1) On the application of the Registrar under Section 13-A or under Section 24 or on application made by by not less than one-tenth of the members of a society registered under this Act, the Court referred to in Section 13 may make an order for the dissolution of the society on any of the following grounds, namely-
(a) that the society has contravened any provision of this Act or of any other law for the time being in force and it is just and equitable that the society should be dissolved.
(b) that the number of the members of the society is reduced below seven:
(c) that the society has ceased to function for more than three years preceding the date of such application:
(d) that the society is unable to pay its debts or meet its liabilities; or
(e) that the registration of the society has been cancelled under Section 12D on the ground that its activities or proposed activities have been or are or will be opposed to public policy.
(2) Without prejudice to the provisions of Sub-section (1) or of Section 12-D,the Court may, on an application of the District Magistrate in this behalf, make an order for the dissolution of a society on the ground that the activities of the society constitute a public nuisance or are otherwise opposed to public policy.
(3) When an order for the dissolution of a society is made under Sub-section (1) or Sub-section (2), all necessary steps for the disposal and the settlement of the property of the society, its claims and liabilities and any other adjustment of its affairs shall take place in manner as the Court may direct" - Uttar Pradesh Act 52 of 1975, Section 7(w.e.f. 10.10.1975).
14. Upon a dissolution no member to receive profit.- If upon the dissolution of any society registered under this Act there shall remain after the satisfaction of all its debts and liabilities any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifth of the members present personally or by proxy at the time of dissolution, or, in default thereof, by such Court as aforesaid.
Clause not to apply to Joint Stock companies.- Provided, however, that this clause shall not apply to any society which shall have been founded or established by the contribution of share holders in the nature of a Joint Stock Company."
State Amendments [Uttar Pradesh].- In its application to the State of Uttar Pradesh, after Section 14, insert the following new section, namely.-
14-A. Disposal of property of a dissolved society.-Notwithstanding anything contained in Section 14, it shall be lawful for the members of any society dissolved under Section 13 to determine by a majority of the votes of the members present personally or by proxy at the time of dissolution of such society that any property whatsoever remaining after the satisfaction of all the debts and liabilities shall be given to the government to be utilized for any of the purposes referred to in Section 1 Code of Civil Procedure Section 141. Miscellaneous Proceedings.- The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation -In this Section, the expression "procedure" includes proceedings under Order IX but does not include any proceedings under Article 226 of the Constitution."
Order XXIII WITHDRAWAL, AND ADJUSTMENT OF SUITS
1. Withdrawal of suit or abandonment of part of claim- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 or order XXXII extend, neither the suit or any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to Sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied.-
(a) that the suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter or such suit or such part of the claim.
(4) Where the plaintiff-
(a) abandons any suit or part of claim under Sub-rule (1)or
(b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter of such part of the claim.
(5) Nothing in this rule shall be deemed to authoise the Court to permit one of the several plaintiffs to abandon a suit or part of claim under Sub-rule (1), or to withdraw, under Sub-rule (3) any suit or part of a claim, without the consent of the other plaintiff.
10. A bare perusal of the provisions as contained under Section 13 of the Societies Registration Act would go to show that three-fifth of the members of the society are vested with the authority to take decision for dissolution of the society, and further it has been provided that immediately after the said decision is taken, the said society shall be dissolved forthwith, or at the time then agreed upon, and all necessary steps shall be taken for the disposal and settlement of the property of the society, its claims and liabilities according to the rules of the said society, if any, and in case it is not feasible then Governing body has been enjoined to deal with the matter as it finds. However, it has also been provided that in the event of any dispute arising among the said governing body or the members of the society, then adjustment of its affairs shall be referred to the Principal Court of original civil jurisdiction of the district in which the registered office of the society is situate for disposal. Assent of three-fifth members is a must at a general meeting convened for the purpose. Further whenever any Government is a a contributor to, or otherwise interested in any society then consent of the Government of the State is also a must. In its application to the State of Uttar Pradesh, Section 13-A obligates the Registrar when in the opinion of the Registrar there are reasonable grounds to believe that any of the grounds mentioned in Clauses (a) to (e) of Sub-section (1) of Section 13-B exists then a notice has to be given to show cause as to why society be not dissolved, and in case cause shown is not sufficient or no cause has been shown then Registrar is free to move the Court referred to in Section 13 for making order for the dissolution of the society. Section 13-B deals with the power of dissolution by Court and also deals with the situation for disposal and settlement of property. Section 14-A deals with the disposal of property belonging to the society. Section 141 of the Code of Civil Procedure deals with the Miscellaneous Proceedings and provides for that the procedure provided for in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. By means of Act No. 104 of 1976 with effect from 01.02.1977 explanation has been added, and by means of the same qua Section 141, it has been mentioned that the expression "procedure" includes proceedings under Order IX but does not include any proceedings under Article 226 of the Constitution. Order XXIII Rules 1 to 4 of the C.P.C. deals with the withdrawal of suit or abandonment of part of claim, at any time after the institution of a suit by the plaintiff as against all or any of the defendants abandon his suit or abandon a part of his claim and the impact of such withdrawal.
11. Now on the touch stone of the provisions quoted above, it has to be seen as to whether proceedings under Section 13-B of the Societies Registration Act, 1860 can be termed to be falling within the term "proceeding" as contained in Section 141 of the C.P.C. The provisions quoted above clearly shows that Registrar himself does not have the authority to take decision for dissolution of the society, however, on being satisfied that the grounds for dissolution as contained under Sub-clauses (a) to (e) of sub-Section (1) of Section 13-B of the Societies Registration Act are in existence, then he may move the Principal Court of civil jurisdiction for making an order for dissolution of society by means of application. In Section 13 as amended in the State of U.P. Principal Court of original civil jurisdiction has been described as Principal Court of original civil jurisdiction of the District in which registered office of the society is situate, and it is the said Court only, which has the authority to direct dissolution of society. The proceedings for dissolution of society has to be undertaken by the Principal Court of original civil jurisdiction. The Additional District Judge before whom Misc. proceedings had been filed by the Assistant Registrar is exercising powers of Principal Court of original civil jurisdiction and is Court for the purposes of Section 13B of the Societies Registration Act. Under Societies Registration Act, 1860 Special Court has not been constituted. The Principal Court of civil jurisdiction has not been created by special or local law. The jurisdiction of dissolution of society has been conferred upon existing Court. In fact, same has the effect of enlarging ordinary jurisdiction of the Principal Court of original civil jurisdiction. 'Civil Proceedings' are not necessarily confined to original proceedings, but also applies to proceedings, which are not original proceedings. The term 'proceeding' indicates something in which business is conducted according to prescribed mode. A comprehensive meaning assigned to it would be to bring within its fold all matters coming for adjudication and not to confine it to a 'civil proceeding' alone. In this background, seeing the nature of proceeding, that order of dissolution can be passed by Principal Court of civil Jurisdiction only after satisfaction is recorded that any one or more grounds as mentioned in Clause (a) to (e) of Section 13-B are in existence. Such grounds can be found out by record of society and evidence and further rule of fair play demands that before recording such finding or drawing such conclusions in this respect requisite exercise be undertaken by providing full opportunity to the petitioner, inasmuch as order of Civil Court will decide the fate of society as to whether society will continue or its existence will come to an end. Essentially, it is an enquiry qua existence of grounds for dissolution, on which adjudication is done. Consequently, application for dissolution of society will clearly fall within the ambit of "proceedings" as envisaged under Section 141 C.P.C.
12. The next question, in the light of the answer that proceedings initiated under Section 13-B falls within the ambit of "proceedings" as provided for under Section 141 C.P.C., is qua the applicability of provisions as contained under Order 23 Rule 1 to 4 of the C.P.C. Before proceeding to answer this question, the judgment of Hon'ble Apex Court in the case of Babubhai Mujibbhai Patel v. Nand Lal Khodidas Barol is being looked into, wherein it has been held that the words "as far as it can be made applicable" under Section 141 C.P.C. makes it clear that in applying the various provisions of the Code to proceedings other than those of suit, the Court must take into account the nature of the proceedings and the relief sought. Relevant extract is being quoted below:
...Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the Code to the proceedings other than those of suits, the court must take into account the nature of those proceedings and the relief sought....
13. Hon'ble Apex Court while interpreting words "as far as applicable" in the case of Trilok Singh v. Municipal Corporation took the view that provisions contained elsewhere when are made applicable the same should be applied with realism and flexibility, true to life rather than with abstract absolutism. Relevant extract of the aforesaid judgment is being quoted below:
6. Learned Counsel for the parties also drew our attention to various facts and the manner in which the shops were initially allotted and the grievance that the Municipal Corporation had about the allotment of these shops to the particular persons. But in our opinion those are matters not relevant for the purpose of decision of this case. The only question that arises is as to whether in an appeal filed under Section 269 Sub-clause (2) the procedure of a civil suit as provided in the Code of Civil Procedure will have to be followed in view of language of Section 384 of the Punjab Municipal Corporation Act, 1976. Section 384 reads as follows:
The procedure provided in the Code of Civil Procedure, 1908 in regard to suits shall be followed, as far as it can be made applicable, in the disposal of applications, appeals or references that may be made to the Court of the District Judge under this Act or any bye law made thereunder.
7. This provision talks of the procedure provided in the Code of Civil Procedure in regard to a suit shall (to?) be followed but it also refers to "as far as it can be made applicable" and the phrase that follows refers to an application, appeal or reference.
8. This, therefore, clearly indicates that in the appeal, application or reference the same procedure need not be followed although it talks of the procedure of a civil suit but it is also mentioned that as far as it can be made applicable this goes to show that the procedure of a civil suit will have to be followed if it is consistent with the proceedings pending before the District Judge.
9. The suit has not been specifically defined in the Code and from the scheme of the Code of Civil, Procedure it appears that an appeal also is a continuation of the suit. The language used in Section 384 therefore only indicates that the procedure as contemplated in the Code of Civil Procedure will have to be followed in these proceedings under this Act when the matter goes to the District Judge either by way of an application, reference or appeal. The procedure of this suit will include even the procedure of an appeal and it is because of this that the phrase as far as it can be made applicable has been used in this section. It, therefore, could not be contended that in an appeal under Section 269 Sub-clause (2) before a District Judge the procedure of a suit as provided in the Code of Civil Procedure (filing of plaint, written statements, issues, recording of evidence) will be necessary. The three proceedings contemplated in Section 384 are application, reference and appeal and therefore out of the scheme of the Code of Civil Procedure pertaining to the procedure of a civil suit or an appeal the relevant provisions will have to be applied for purposes of guidance of procedure and therefore the use of the phrase as far as it can be made applicable clearly indicates that it is not expected in any one of these proceedings to follow the procedure of a suit technically and strictly in accordance with the provisions contained in the Code of Civil Procedure. It is only for purposes of guidance that the procedure of a suit as provided in the Code of Civil Procedure can be considered and it will be the discretion of the authority (the District Judge) to apply as far as it could be applied in the appropriate proceedings.
14. Order XXIII Rule 1 of the C.P.C. deals with withdrawal of claim of abandonment of part of claim. Claim in context of order XXIII Rule 1 is to be understood in the context of ordinary traditional litigation, which is essentially of adversary character, where there is dispute between two litigating parties, one making claim of seeking relief against the other and the other opposing such claim or resisting such relief. In this nature of litigation, if one party gives up its claim in full or part, then on the second instance such claim is clearly barred, unless and until leave is not obtained in this respect, and leave to it is not to be granted in routine and mechanical manner, rather satisfaction will have to be recorded by the Court on the following scores (a) the claim must fail by reason of some formal defect (b) there are sufficient grounds for allowing the plaintiff to institute fresh claim or part of the claim. The nature of proceedings under Section 13-B of Societies Registration Act would go to show that a society can be dissolved under the orders of the Court. The first ground on which society can be dissolved is in the contingency when it has contravened the provisions of Societies Registration Act or any other law and it is found by the Court that it is just and equitable that the society be dissolved. The fifth ground on which society could be dissolved is in the contingency when recognition of society has been cancelled under Section 12-D on the ground that its activities or proposed activities have been or are or will be opposed to public policy. Both these grounds are clearly relatable to promoting the public interest. The other three grounds warranting order for dissolution of society are when number of members of society is reduced below seven; when society has ceased to function for more than three years preceding the date of application; when the society is unable to pay its debts or meet its liabilities. These three grounds disqualify the society to function, inasmuch as for formation of the society minimum requirement of person in terms of Section 1 of the Act is seven or more persons, and once number of members is less than seven, then it looses the very concept of of formation of society by seven or more persons. Non-functioning of the society for three years is clear cut indication of the fact that society in question is non-functional and has virtually ceased for all practical purposes. Society is unable to pay its debts or meet liabilities is clear cut indication of the fact that its further continuance would make position worse, and steps be undertaken to stop it. All the five grounds starting from Clause (a) to (e) under Section 13-B in effect are for promoting public good/public interest. Seeing the nature of proceeding, which in effect is essentially enquiry proceeding, and reliefs claimed under Section 13-B of the Societies Registration Act, and use of phrase "as far as it can be made applicable" under Section 141 C.P.C., which is flexible in nature inevitable conclusion is that provisions of Order XXIII Rule 1 are not at all attracted, as claim or part of claim which involves public interest/public good can never be permitted to be abandoned. Consequently, even if in the past on same set of facts, if first application was dismissed for default; second was dismissed as not pressed, the third application is not barred as provisions of Order XXIII Rule 1 are not at all applicable and attracted in proceedings under Section 13-B of the societies Registration Act.
15. Much capital has been sought to be made by the petitioners to the judgment of the Hon'ble Apex Court in the case of Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and Ors. , wherein the Hon'ble Apex Court has taken the view that in order to prevent a litigant from abusing the process of the Court by instituting suits again and again for the same cause of action without any good reason the Civil Procedure Code insists that one should obtain permission of the Court to file fresh suit.
Paragraphs 7 and 9 of the judgment being relevant are being quoted below:
7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit, It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission referred to in Sub-rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating- under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in Sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in Sub-rule (3) in order to prevent the abuse of the process of the Court.
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether, We, however, leave this question open.
16. Said principle had been made applicable in order to prevent litigant from abusing the process of Court by instituting suits again and again for the same cause of action, and said principle is based on public policy. Here Registrar is not to be equated to an ordinary litigant pursuing his personal private claim rather role of Registrar is that of informant, furnishing information to the Court that his satisfaction is there qua existence of ground for dissolution of society, and thereafter it is for the Court to ascertain as to whether aforementioned ground is in existence or not warranting dissolution of the society. Nature and scope of of proceeding are all together different, and further here there is no occasion for any Bench hunting or giving up of personal rights, as in the case of Hon'ble Apex Court.
17. Much stress has also been laid on the fact, by Sri W.H. Khan, advocate, counsel for the petitioner, that there is complete non-compliance of Section 13-A of the Act, as no notice mentioning the ground for dissolution and fixing period of show cause has been sent by Assistant Registrar, as such action for dissolution is unsustainable, as before applying to Civil Court such exercise is sine-qua-non. In the present case record reflects that inquiry/investigation in terms of Section 24 was undertaken. In this inquiry report dated 02.05.2000 also Assistant Registrar formed opinion that membership is less than three. Assistant Registrar in his wisdom did not choose to issue directives in terms of Section 24(5) of the Act, rather he issued notice on 22.01.2001, which was clearly referable to notice under Section 13(1) of the Act, inasmuch as, in the said notice date was specified by which reply was to be submitted and clearly it was mentioned that it was qua proceeding for dissolution of society. After receiving such notice, on 08.02.2001 adjournment was prayed for, and thereafter on 23/28.03.2001, two months' time was prayed for. The fact of the matter is that no reply was submitted and as such Assistant Registrar acted well within his right by moving the Court, requesting for dissolution. Thus, there is no infirmity whatsoever, in initiation of proceeding for dissolution of society.
18. Various arguments have been advanced qua the merits of the proceedings. This Court will not convert itself into Principal Court of civil jurisdiction, as it is for the Principal Court of civil jurisdiction to see as to whether pre-requisite terms and conditions for dissolution is made out or not. Consequently, there is no occasion to quash proceedings of Misc. Case No. 243 of 2002, undertaken for dissolution of the society.
19. One more incidental question which has cropped up, as raised by Sri V.B. Singh, Senior Advocate, and Sri W.H. Khan, Advocate, is, can in proceedings under Section 13-B of the Act, Principal Court of original civil jurisdiction appoint Receiver, by invoking the provisions of Order 40 Rule 1 of the C.P.C.? Sri R.N. Singh, Senior Advocate, and Sri C.B. Yadav, Chief Standing Counsel, contended that such recourse can be taken. To consider this question, it would be relevant to mention here, as noted in the earlier part of the judgment in the event of ground as envisaged under Clause (a) to Clause (e) of Section 13-B being in existence, order for dissolution can be passed. Civil Court on application being moved is entitled to examine the application qua the grounds mentioned in the same, and not beyond that, and in case grounds mentioned are not at all in existence, then application for dissolution has to be necessarily dismissed. Grounds for dissolution are essentially question of fact, and can be ascertained after careful examination of records and by-laws of the society and evidence, if any. Nowhere proceedings under Section 13-B implicits in itself to empower Principal Court of original civil jurisdiction to appoint Receiver. Only for limited purpose application is moved, and merely because jurisdiction has been conferred qua dissolution, it does not authorize concerned court to exceed and transgress its jurisdiction by proceeding to appoint Receiver. Society Registration Act in its scheme does not conceive of total oblivion of society and divesting Management of the society to run and manage its affairs. Even in cases where after investigation, any defect or irregularity is found, then opportunity is to be provided for removal of such defect or irregularity, and in case said opportunity is not availed of, then action under Section 12-D or 13-B can be taken, but supersession of Management Committee is not at all envisaged under the scheme of the Act. Merely because Section 141 C.P.C. provides for following procedure qua suits, "as far as it can be made applicable", does not mean that substantive provisions qua suits are to be followed and adhered to, such as Order 23 Rule 1, Order 40 Rule 1 C.P.C. and others. Only such provisions are applicable which facilitate the Court in arriving at rightful conclusion such as filing of written statement; appearance of parties; examination of parties by the court; discovery and inspection; admissions; production and return of documents; settlement of issues and determination of suits on issues of law or on issues agreed upon; disposal of proceeding at first hearing; summoning and attendance of witnesses; adjournments; hearing of suit and examination of witnesses; commissions; judgment; cost. Procedural provisions are meant to advance cause of justice and not to subserve the cause of justice. Here by invoking provisions of Section 151 C.P.C. and mentioning background which was totally irrelevant to the context. Society in question was sought to be handed over to another society. Judgment in the case of Prabhat Mishra v. Jai Shanker 1978 A.L.J. 672, was in reference to the question as to whether insertion of Section 25 of the Societies Registration Act would bar the jurisdiction of Civil Court. Nowhere in the said judgment there was any issue as to whether Receiver could be appointed in proceeding under Section 13-B of the Act. Said judgment is of no consequence, in the facts of present case. Reliance has also been placed on the judgment of Hon'ble Apex Court in the case of State Maharashtra v. Admane Anita Moti that Courts have inherent power to protect the interest, till rights are adjudicated. Hon'ble Apex Court at no place has subscribed the view that by means of interim order, even final relief can be overreached. This was wholly unjustifiable and had no sanction of law, from any quarter, and is clearly overstepping of jurisdiction. This Court in the case of Committee of Management v. State of U.P. 2001 (1) ESC 870 has taken note that no provision has been pointed out under Societies Registration Act, 1860, warranting appointment of authorised Controller for society. Consequently, order appointing Receiver is totally without jurisdiction, as such it is hereby quashed and set aside.
20. In writ petition No. 23650 of 2003, it would be relevant to note that renewal was accorded for the period with effect from 10.10.2000 to 10.10.2005. The said period has already come to an end, and as such this Court is refraining itself from making any comment either on the grant of renewal or on the order of canceling registration. As the period has already passed and it has been informed that fresh application for renewal has been moved, the Assistant Registrar, Firms, Societies and Chits shall consider the aforementioned application strictly in accordance with the law without being influenced by either order of renewal or by order canceling renewal. Such exercise be carried out in free and fair manner, and it would be open to the Registrar to take appropriate decision on the same as per provisions provided for under the Societies Registration Act.
21. Consequently, Civil Misc. Writ Petition No. 13628 of 2003 is dismissed. Civil Misc. Writ Petition No. 56277 of 2004 and Civil Misc. Writ Petition No. 56278 of 2004, are hereby allowed. Civil Misc. Writ Petition No. 54416 of 2000 and Civil Misc. Writ Petition No. 23650 of 2003 are disposed of. Civil Misc. Writ Petition No. 45639 of 2003, as stated by petitioner is dismissed as infructuous.
22. No order as to costs.