Dr. Shyam Narain Prasad v. Dr. Ashok Kumar Sinha

Judgment

1. Dr. Ashok Kumar Sinha, S/o Binoy Kumar Sinha Past President Indian Medical Association, Bihar Sharif Branch, resident of Mohalla Bhaisasur, Near Telephone Exchange, P.O. Bihar Sharif, P.S. Bihar District Nalanda.

3. ………Plaintiff-Opposite party. Shardaul Vikram Gupta, Editor Dainik Aaj, 2. resident of Mohalla Mazharul Haque Path, P.O. – G.P.O. Patna. Kaushlendra Kumar Barua, Chief Dainik Aaj, resident of Mohalla Mahatma Gandhi Road, Near Naz Cinema, P.O.- Bihar Sharif, District Nalanda. Indian Medical Association, State Branch through President Dr. G.K. Thakur, IMA Building, Dr. A.K.N. Sinha Path, South East of Gandhi Maidan, Patna 800004.

4. ….Defendant nos.2 to 4-Proforma Opposite parties. For the petitioner : M/s R.K. P. Singh and Bal Bhushan Choudhary, Advocates. For the opposite parties : Mr. Rajendra Prasad, Senior Advocate with Mr. Pramod Kumar and Mr. Ritesh Kumar, Advocates. ----------- 09/

12.10.2009 Heard learned counsel for the petitioner and learned counsel for the opposite parties.

2. This civil revision has been filed by defendant no.1-petitioner challenging order dated 12.02.2007 by which the learned Subordinate Judge-III, Nalanda, rejected his application filed under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’ for the sake of brevity) in 2 Title Suit No.96 of 2006.

3. The aforesaid suit was filed by the sole plaintiff- opposite party no.1 for the following reliefs:- (i) (ii) (iii) (iv) letter That it will be declared by the court issued by Dr. Shyam Narayan alleged president I.M.A. Bihar Sharif on 15.7.2006 is without jurisdiction against the rules and bye- laws of I.M. Association Bihar State. That a decree of damage of Rs.199900/- may be awarded against defendant no.1, 2, 3 jointly and severally. That defendant be restrained from further steps from the formation of find of facts committee and its further proceeding by in permanent injunction against the defendant no.1, 2, 3. That any other relief or reliefs to which the plaintiff is entitled may also be granted total cost of the suit and may be also awarded to the defendants.

4. It transpires that defendant no.1 appeared in the suit and filed an application dated 05.12.2006 raising objection under Clauses (a), (d) and (e ) of Order VII Rule 11 of the Code claiming that under the various Acts and Statutes the jurisdiction of the Civil Courts was barred for entertaining any suit concerning the election disputes, as the exclusive jurisdiction to decide the election dispute was vested in the Election Tribunal alone. It was also claimed that under the Election Laws whenever election process is started and the final result of the election is awaited no including High Court and Supreme Court has any 3 jurisdiction to interfere in the election process or with the election dispute sought to be raised before them. Hence it was claimed that on that score alone the Election Tribunal which may be constituted under the Rules shall have exclusive jurisdiction to go into the question raised in the plaint and to decide the alleged dispute. It was also claimed that the cause of action was not disclosed in the plaint and the plaint was not filed in duplicate.

5. The said claim of the defendant-petitioner was contested by the plaintiff-opposite party who filed a rejoinder thereto on 08.12.2006. However, the matter was considered by the learned court below and the said application filed by the defendant-petitioner was rejected vide order dated 12.02.2007, which is under challenge in the instant civil revision.

6. Learned counsel for the defendant-petitioner raised serious objections claiming that the pleadings in the plaint were vexatious and meritless and were barred by the provisions of Rules 39 and 40 of the Indian Medical Association, Bihar State Branch ( a registered society under the provisions of Societies Act XXI of 1860), which was proved by a meaningful reading of the plaint. It was also claimed that although no question of fraud was present in the facts and circumstances of the case, but was wrongly claimed by the plaintiff for creating a cause of action only to save the plaint from the bar of law. In this regard, learned counsel for the petitioner relies upon the decisions of the Hon’ble Apex Court in case of T. Arivandandam vs. T.V. Satyapal and another, reported 4 in AIR 1977 SC 2421; in case of Samar Singh vs. Kedar Nath @ K.N. Singh and others, reported in AIR 1987 SC 1926; in case of National Textile Corpn. Ltd. and others vs. M/s. Haribox Swalram and others, reported in AIR 2004 SC 1998; in case of I.T.C. Limited vs. Debts Recovery Appellate Tribunal and others, reported in AIR 1998 SC 634; in case of T.P. Daver vs. Lodge Victoria No.363, S.C. Belgaum and others, reported in AIR 1963 SC 1144 and in case of Smt. Patasibai & Ors. vs. Ratan Lal, reported in (1991) 1 BLJR 16 (SC) as well as the decision in case of Umesh Chandra Saxena and others etc. vs. Administrator General, U.P. Allahabad and others, reported in AIR 1999 All.

7. However from a bare reading of the plaint, specially the reliefs claimed therein, it is quite apparent that the suit has been filed merely challenging letter dated 15.07.2006 issued by Dr. Shyam Narayan claiming to be the President of I.M.A., Biharsharif, as it was without jurisdiction and against the aforesaid rules and bye-laws. In the said circumstances, the provisions of the aforesaid bye-laws or the specific provision of Order VII Rule 11 of the Code of Civil Procedure are not attracted in this case nor the aforesaid decisions cited by learned counsel for the petitioner can be made applicable the facts and circumstances of this case.

8. Furthermore, from a plain reading of the plaint it also transpires that cause of action has been specifically and 5 clearly stated in detail in paragraph- 18 to 21 of the plaint whereas the defendant-petitioner had already claimed in his rejoinder filed in the learned court below that the plaint had been filed in duplicate, this fact has not been challenged by the defendant- petitioner in any statement of facts made in the civil revision. It is also quite apparent that fraud has been specifically pleaded in the plaint and any dispute with regard to an alleged fraud can be decided by a Civil Court of proper jurisdiction.

9. In the aforesaid facts and circumstances, it transpires that the learned court below after considering the entire facts and circumstances of the case rightly came to the conclusion that the plaintiff had filed the suit against the letter issued after the alleged election of the association and had also sought relief for damages besides other reliefs. It was also held memorandum of rules and bye-laws of I.M.A. specially Rule 39 thereof excluded or omitted the jurisdiction of the Civil Courts relating to dispute of election of the office bearers of the Association, but the plaint filed by the plaintiff showed that no dispute of election had been challenged in the relief portion and the plaintiff had also disclosed the cause of action. Hence the plaintiff had the cause of action and right to sue and the suit was maintainable.

10. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned order of the learned court below nor does it find any jurisdictional error 6 therein. Accordingly, this civil revision is dismissed. harish/ ( S. N. Hussain, J. )