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2016 Supreme(Ker) 295

IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B.SURESH KUMAR, J.
MANUEL VIVERA- Appellant
versus
THE UNION OF ANGLO INDIAN ASSOCIATIONS, KERALA STATE –Respondent
RSA.No. 1121 of 2014
Decided On : 1-02-2016

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

Headnote:

Limitation Act 1963 - Art. 58 - Limitation Act 1908 - Art.120 - Whether suit is based on multiple causes of action - Whether period of limitation will begin to run from the date when the right to sue first accrues - Held, Article 58 of the Limitation Act, 1963, the Legislature has made a departure from the language used in Article 120 of the Limitation Act, 1908. The word 'first' has been used in Article 58 in between the words 'sue' and 'accrued'. The effect of this legislative change is only that if the suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues.

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 remove him from the office of the President-in-Chief of the Union as also from the primary membership of the Union is without authority and as such, he continued to function as the President-in-Chief of the Union. Later, as directed by the plaintiff, the acting General Secretary of the Union appointed by him convened the annual general meeting of the Union on 29.10.2006. The second defendant then instituted a suit as O.S.No.1206 of 2006 on behalf of the Union against the plaintiff and the acting General Secretary of the Union appointed by the plaintiff seeking a decree declaring that the meeting proposed by the plaintiff on 29.10.2006 is illegal and improper. It was alleged by the second defendant in the said suit that the plaintiff has already been removed from the office of the President-in-Chief of the Union as also from the primary membership of the Union and that he has, therefore, no authority to convene the annual general meeting of the Union. A decree of permanent prohibitory injunction restraining the plaintiff from convening the meeting scheduled by him on 29.10.2006 was also sought. In the said suit, the second defendant has also filed I.A.No.9924 of 2006 seeking an order of temporary injunction restraining the plaintiff from convening the meeting. In the order passed by the court in the said interlocutory application, it was held that the removal of the plaintiff from the office of the President-in-Chief of the Union as also from the primary membership of the Union is invalid and that he is entitled to continue as the President-in-Chief of the Union. It was, however, held by the court in the order passed in the above interlocutory application that the acting General Secretary of the Union appointed by the plaintiff has no authority to convene the meeting of the Union. Though the second defendant challenged the order in I.A.No.9924 of 2006 in appeal, during the pendency of the said appeal, a fresh election to the offices of the Union took place on 28.1.2007 and consequently, the second defendant did not pursue the said appeal. It is stated by the plaintiff that in the light of the order passed in I.A.No.9924 of 2006 in O.S.No.1206 of 2006, he was also permitted to participate in the election held on 28.1.2007. It is also stated by the plaintiff that thereafter, an extra-ordinary general body meeting of the Union was convened by the then General Secretary of the Union on 27.8.2008 and the plaintiff was given notice of the said meeting also by the President-in-Chief of the Union in his capacity as a life member of the Union. Later, when the term of the office bearers of the Union elected on 28.1.2007 was due to expire, as per the interim order passed in O.S.No.118 of 2008 dated 24.3.2009, the Munsiff Court, Ernakulam appointed an Advocate C














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