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2023 Supreme(Raj) 2006
IN THE HIGH COURT OF RAJASTHAN
Rekha Borana, J.
Devkishan Sharma and Others – Petitioners
Versus
Udaipur Vishwakarma Jangid Vikas Sanstha – Respondent
S.B. Civil Revision Petition No. 156 of 2022
Decided On : 17-02-2023
Advocate Appeared:
For the Petitioner: Deelip Kawadia
For the Respondent: R.S. Mankad
Headnote:(A) Societies Registration Act, 1860 - Order VII Rule 11 of the Code of Civil Procedure - Revision petition against dismissal of application to dismiss suit for cancellation of elections - Court held that a suit under Societies Registration Act is maintainable despite arguments about the plaintiff's position; dismissal upheld as no cause of action was present at filing. (Paras 1, 3, 6, 11)
(B) Right to Sue - The court emphasized that determination of whether a plaintiff has the right to sue is dependent on the facts and must be adjudicated based on evidence rather than at the application stage. (Paras 9, 10)
Facts of the case:
Petitioners challenged the eligibility of the respondent to sue for election cancellation, arguing lack of right to sue and misjoinder of parties, but the court found sufficient grounds to maintain the suit based on existing bylaws.
Findings of Court:
The learned court upheld that the suit could lead to appropriate orders; the rejection of the application was justified since the plaint disclosed a valid cause of action and complied with the relevant procedural requirements.
Issues: The primary issues revolved around the plaintiff's capacity to sue and whether the suit could proceed without involving a newly formed committee.
Ratio Decidendi: The ruling established that the right to sue pertains to substantive facts and that even if a cause arose for dismissal, the court must evaluate the entire context rather than dismiss based on points raised at the threshold.
Result: Revision petition dismissed.
| Table of Content |
|---|
| 1. introduction of the case details. (Para 1) |
| 2. arguments regarding the maintainability of the suit. (Para 2 , 3 , 4) |
| 3. court's observations on the application under order vii rule 11. (Para 5 , 6) |
| 4. analysis of the right to sue and bylaws. (Para 7 , 8 , 9) |
| 5. discussion on cause of action. (Para 10) |
| 6. conclusion and dismissal of the petition. (Para 11 , 12) |
ORDER :
1. The present revision petition has been preferred against the order dated 22.08.2022 whereby the application under Order VII Rule 11 of the Code of Civil Procedure preferred by the petitioners-defendants has been rejected.
2. The case of the petitioners is that the suit for cancellation of the elections as preferred by the respondent-plaintiff deserves to be dismissed on four grounds: Firstly, that the suit as preferred by the plaintiff Rajendra Sharma alleging himself to be the President of the Society could not be maintained as on the date of institution of the suit, he was not the President of the Society. Therefore, he had no right to sue and hence, the suit deserves to be dismissed. Secondly, subsequently the fresh elections had been conducted and a new Committee had come into existence. The Committee so constituted ought to have been impleaded as party which has not been impleaded and as a consequence, the relief for cancellation of the election as prayed for, cannot be granted. Therefore, in terms of the settled proposition of law, if it is found prima facie that the relief as prayed for cannot be granted, the suit itself deserves to be dismissed at the threshold. Thirdly, a bare reading of the plaint makes it clear that no cause of action had arisen to the plaintiff who alleged himself to be the President of the Society. Fourthly, the suit is barred by law as in terms of the Cooperative Societies Act, 1912, the present suit is not maintainable before a Civil Court.
3. Learned counsel for the petitioners submitted that a bare reading of the plaint and the documents annexed with the plaint are sufficient to prove that Rajendra Sharma was not the President of the Society on the date of filing of the suit and therefore, he had no right to sue. Counsel submitted that the plaint itself specifies that the tenure of the earlier Committee was for a period of three years which commenced from 16.07.2017. Meaning thereby, it came to an end on 15.07.2020 whereas the suit has been instituted in the year 2022 when clearly, Rajendra Sharma was not the President. Counsel relied upon the Hon'ble Apex Court judgment in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali (D) thr. L.Rs. and Ors. (2020) 7 SCC 366, in support of his argument that if no right to sue survives in favour of the plaintiff, he cannot be said to have any cause of action to prefer the suit and therefore, the suit in absence of any cause of action deserves to be dismissed at the threshold.
4. Per contra, learned counsel for the respondent submitted that firstly, the ground of absence of any cause of action for filing of the present suit was never pleaded in the application under Order VII Rule 11, CPC and was not even argued out before the learned Court below. Secondly, a perusal of the bylaws makes it clear that the President of the Committee/Society was entitled to sign all the documents on behalf of the Society and therefore, he was very much the person entitled to prefer the suit. Counsel further submitted that it was clear on record that the Secretary of the Society had resigned due to his personal reasons and therefore also, the President was the only person who was entitled to prefer the suit. So far as the maintainability of the suit before the Civil Court is concerned, counsel submitted that section 6 of the Societies Registration Act, 1860 specifically entitles the President of the Society for the same and therefore, the said ground as raised by the petitioners cannot be held to be tenable.
5. Heard learned counsel for the parties and perused the material available on record.
6. A per
