2016 Supreme(Ker) 295
P.B.SURESH KUMAR
MANUEL VIVERA – Appellant
Versus
UNION OF ANGLO INDIAN ASSOCIATIONS – Respondent
Advocates Appeared:
For the Appellant: ADVS.SRI.K.V.SADANANDA PRABHU
SRI.S.K.BALACHANDRAN
For the Respondent: ADVS. SRI.G.RAJAGOPAL SMT.S.LEELALAKSHMI SMT.N.RENJINEE DEVI
Judgement Key Points
- The plaintiff, Manuel Vivera, was elected as President-in-Chief of the Union of Anglo-Indian Associations, Kerala State on 31.10.2004. (!) [15000369830007]
- On 22.11.2005, the governing committee removed the plaintiff from the office of President-in-Chief and primary membership, communicated via letter dated 26.11.2005. [15000369830007]
- Plaintiff continued functioning as President-in-Chief; convened annual general meeting on 29.10.2006. [15000369830007]
- Second defendant filed O.S.No.1206/2006 seeking declaration that the meeting was illegal and injunction; in I.A.9924/2006, court held removal invalid, plaintiff entitled to continue as President-in-Chief, but acting Secretary lacked authority to convene. [15000369830007]
- Appeal against IA order not pursued after fresh election on 28.1.2007; plaintiff participated. [15000369830007]
- Plaintiff received notice as life member for extra-ordinary general body meeting on 27.8.2008 (noted as 27.1.2008 in some refs). [15000369830007] (!)
- In O.S.118/2008, court appointed Advocate Commissioner (third defendant) for election using 28.1.2007 voters list; plaintiff's name omitted from draft and final list published 25.3.2010, based on 2005 removal. [15000369830007]
- Suit filed seeking declaration that 22.11.2005 removal illegal, plaintiff is life member, and mandatory injunction to include name in voters list. (!) [15000369830007]
- Defendants contended suit barred by O.23 R.1(4)(b) CPC due to prior withdrawn O.S.149/2006 without leave, and by limitation. [15000369830002]
- Trial court dismissed on both grounds; first appellate court reversed O.23 finding but upheld limitation bar. [15000369830002]
- Article 58 Limitation Act, 1963 governs: suit within 3 years from when right to sue first accrues. [15000369830005] (!)
- Legislative change from Art.120 (1908 Act): "first accrues" means if multiple causes, limitation from first invasion/jeopardy/threat. (!)
- Right to sue accrues when defendant clearly threatens to infringe plaintiff's right. (!) (!)
- In IA order (Ext.A17) in O.S.1206/2006, removal held invalid; plaintiff treated as life member thereafter (participated in 2007 election Ext.A18, notice Ext.A20). (!)
- No compulsion to sue immediately post-2005; right jeopardized first when excluded from draft voters list and objection overruled in 2010. (!) (!)
- Suit within 3 years of 2010 events, not time-barred. (!)
- Second appeal allowed; suit remanded for fresh disposal within 3 months. (!)
JUDGMENT :
The defeated plaintiff in a suit for declaration and injunction is the appellant.
2. The short facts relevant for decision of this second appeal are the following:
The first defendant namely, the Union of Anglo-Indian Association, hereinafter referred to as 'the Union' for short, is an association of Anglo-Indian organizations in the State.
As per the Articles of Association of the Union, election to the various offices of the Union is to be conducted once in two years in the annual general meeting of the Union. The plaintiff and the second defendant were elected as the President-in-Chief and the General Secretary of the Union respectively in its annual meeting held on 31.10.2004. After the election, there arose difference of opinion between the plaintiff and the second defendant. While so, on 26.11.2005, the plaintiff received a letter dated 22.11.2005 from the second defendant stating that he has been removed from the office of the President-in-Chief of the Union as also from the primary membership of the Union by the governing committee of the Union in its meeting held on 22.11.2005. According to the plaintiff, the decision taken by the governing committee of the Union to
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