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2012 Supreme(Ori) 399
IN THE HIGH COURT OF ORISSA: CUTTACK
V. GOPALA GOWDA, C.J. AND B.N. MAHAPATRA, J.
W.A. No.260 of 2011
(Date of Judgment : 30.3.2012)
From judgment dated 17.03.2011 passed by the learned Single Judge of this Court in W.P.(C) No.19826 of 2010.
Sanjay Kumar Neura ... Appellant
Versus
Ed. Futa, General Secretary,
TRF of Rotary International
and others ... Respondents
For Appellants:M/s. R.C. Sarangi, M. K. Pattnaik, S. Jena, A. K. Mohanty
For Respondents:Mr. B. H. Mohanty,
M/s. R. R. Sahoo, S. M. Patnaik, D. Mohanty and S. Nanda
Headnote:WRIT APPEAL - Whether the learned Single Judge is justified in dismissing the writ petition on the ground that the Trial Court as well as the First Appellate Court are justified to hold that in view of the termination of membership of the Rotary Club of Bhubaneswar Cosmopolitan by the Rotary International on the ground of non-payment of dues ? - The specific case of the appellant is that its membership has been terminated by the respondents without adhering to procedure contained in Bye-laws - No material was brought to our notice to show that before terminating the membership of the appellant-Club, opportunity of hearing was provided to the appellant-Club - Termination of the membership of the appellant-Club has a civil consequence - Nothing brought out to High Court notice as to whether the procedure provided in the Bye-laws for termination of membership of constituent Club has been followed before terminating the membership of the appellant-Club - Basic issues have not been adjudicated by any of the lower courts or the learned Single Judge of High Court - At interlocutory stage, a Court cannot decide the disputed questions of fact - Matter remanded back to the Trial Court with direction.
In the instance case, the claim of the appellant-Club that its membership has been terminated with oblique motive on the ground of filing of suit and in spite of interim order of injunction flouting the judicial order taking advantage of the modified order without following the procedure contained in the Bye-laws in compliance with the principles of natural justice. The plea of the respondents is that they have done it according to the Bye-laws of the institution and not based on the impugned letter, but based on another legitimate cause. This rival contention is purely a disputed question of fact, which cannot be adjudicated while deciding interlocutory application without recording evidence. Admittedly, on the date of filing of the suit, the membership of the appellant-Club had not been terminated. On the date of passing of preliminary interim modified order also the membership of the appellant-Club was not terminated. It was only just after passing the order of modification, the membership of the Club was terminated on the ground of non-payment of dues. Neither the trial Court nor the First Appellate Court nor the High Court has considered as to whether on the date of institution of the suit, the appellant-Club was entitled for an order of an injunction which should be continued till disposal of the suit. In absence of adjudication of this basic question, in the interlocutory application which goes to the route of the case, the orders passed by the trial Court, First Appellate Court and learned Single Judge are not sustainable in law.
The matter is remanded back to the trial Court for consideration of the appellant’s interim application afresh for restoration of status quo in respect of the membership of the appellant-Club as well as its prayer temporary injunction keeping in mind the three ingredients like prima facie case, balance of convenience and irreparable injury. The trial Court while deciding the interim application must take a prima facie view as to whether the membership of the appellant-Club has been terminated after strictly adhering to the provision of Bye-law governing the appellant-Club and respondent-Club and as to whether reasonable opportunity of being heard has been afforded to the appellant-Club before termination of its membership.
JUDGMENT
B.N. MAHAPATRA, J. : In this Writ Appeal, the appellant challenges correctness/legality of the judgment dated 17.03.2011 passed by a learned Single Judge of this Court in W.P.(C) No.19826 of 2010 wherein the order dated 11.10.2010 passed in F.A.O. No.105 of 2009 by the learned Additional Special Judge (Vigilance)-cum-Additional District Judge, Bhubaneswar, maintaining the order dated 19.12.2009 passed in I.A. No.558 of 2008 by the learned Civil Judge (Junior Division), Bhubaneswar was confirmed.
2.The facts and circumstances giving rise to filing of the present Writ Appeal in a nutshell are as follows :-
One Sanjay Kumar Neura describing himself as Secretary for and on behalf of Board of Directors of Rotary Club Bhubaneswar Cosmopolitan has filed the present Writ Appeal. The respondents are the Office bearers of the Rotary International under which the Rotary Club of Bhubaneswar Cosmopolitan is a chartered Club. The Rotary International is an Association of Rotary Clubs throughout the World (R.I.C.-2). The Rotary International is an organization of business and professional leaders united world wide to provide service to the humanity to encourage high ethical standards in all vocations and help to build goodwill and peace across the World. The Rotary Club of Bhubaneswar Cosmopolitan is connected with the Rotary International having certain control and guidance which is of course to be guided as per the Manual of Procedure (MoP) published by Rotary International. Such Manual provides various provisions covering various guidelines including constitution of Rotary International, Bye-law of Rotary International, recommended Rotary Club bye-law with other guidelines. On 06.12.2008, the plaintiff-Club received an e-mail allegedly issued on 01.11.2008 by defendant No.1 through which the plaintiff was instructed to discontinue the membership of previous President Sri P.K. Swain, an active member of the plaintiff’s Club on or before 31.12.2008, on account of some allegations indicating his involvement in mismanagement of matching grant projects during the course of his tenure as President. There was an indication in the said letter that if Sri P.K. Swain is not expelled from membership of the Club of the plaintiff, the membership of Club itself would be terminated. In response to such letter, the Rotary Club of Bhubaneswar Cosmopolitan submitted reply on 10th December, 2008 indicating that such a course of action is not permissible as it would amount to offending the statutory right as well as legal right of a member, who can only be terminated from the membership of the Club within the four corners of provisions of the Bye-law and principles of natural justice. In spite of such letter, defendant No.1 issued another letter dated 15.12.2008, in which it was specifically stated that if the plaintiff’s Club continues to honour the membership of the previous President Sri P.K. Swain, the membership of the said Club would be terminated from Rotary International.
3.According to the plaintiff-appellant, the direction with regard to the discontinuation of membership of Sri Swain being not in accordance with Bye-laws, the plaintiff-appellant did not carry out the said direction. However, apprehending termination of membership of the Club, the plaintiff-appellant instituted C.S. No.452 of 2008 and filed I.A. No.558 of 2008 for interim relief under Order 39 Rules 1 and 2 read with Section 151, CPC. The learned Civil Judge (Junior Division) on 27.12.2008 under Order 39 Rule 3, CPC granted interim protection and issued notice to opposite parties to show cause. Some of the opposite parties entered appearance and after hearing both parties interim order granted on 27.12.2008 was modified to the extent that the above protection was to be availed concerning the threat of termination as embodied in the letter dated 01.12.2008. However, the membership of the petitioner’s Club has been terminated by the Rotary International during pendency of the su
