The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Apr-2024 19:59:21 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.350 OF 2024 Niranjan Rath …. Petitioner Mr. Surya Prasad Mishra, Senior Advocate being assisted by Mr. Bibekananda Bhuyan, Advocate -versus- The Servants of the People Society, New Delhi and others …. Opp. Parties Mr. Rama Nath Jha, Advocate (For Opp. Party Nos.1 & 2) Order No. 01. 1. 2. CORAM: JUSTICE K.R. MOHAPATRA ORDER 10.04.2024 This matter is taken up through hybrid mode. This matter was not listed in today’s cause list. In view of
Legal Reasoning
urgency and on being moved by learned counsel for the Petitioner, the same is taken up on Special Notice. 3. Order dated 8th April, 2024 (Annexure-7) passed by learned Senior Civil Judge, 1st Court, Cuttack in IA No.01 of 2024 (arising out of CS No.310 of 2024) is under challenge in this CMP, whereby an application filed by the Plaintiff-Petitioner under Order XXXIX Rule 3 CPC, has been rejected. 4. The suit has been filed for declaration of the letter of suspension dated 29th March, 2024 issued by the Defendant No.2- Opposite Party No.2, namely, the President of the Servants of the People Society, New Delhi suspending the Petitioner from his life membership of the Defendant No.1-Society to be illegal and without jurisdiction along with other reliefs. Together with the plaint, an application under Order XXXIX Rules 1 and 2 CPC in IA No.01 of Page 1 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Apr-2024 19:59:21 2024 was filed with a prayer to restrain the Opposite Party from implementing the letter of suspension dated 29th March, 2024 and preventing the Petitioner from discharging his rights as the life member of the Society. Claiming urgency in the matter, the Plaintiff-Petitioner also filed an application under Order XXXIX Rule 3 CPC to dispense with service of notice on the Defendants and to entertain the application under Order XXXIX Rules 1 and 2 CPC for an ex parte ad interim order of injunction. Learned trial Court, relying upon the ratio in the case of Ramarameshweri Devi vrs. Nirmala Devi and others, reported in 2011(8) SCC 249, rejected the application. Hence, this CMP has been filed. 5. Mr. Mishra, learned Senior Advocate appearing for the Petitioner submits that the President does not have any power to suspend a life member of the Society. Admittedly, the Plaintiff- Petitioner is a life member of the Society. In exercise of power under Article 16 of the Constitution of the Society, the President, in case of emergency, may exercise any of the powers vested in the Executive Council in very exceptional cases in the interest of the Society after obtaining formal written approval of the Standing Committee subject to its confirmation in the next meeting of the Executive Council. Article 29 of the Constitution of the Society confers the power on the Executive Committee to remove a life member of the Society. He, therefore, submits that the President of the Society has the power to remove a life member of the Society in terms of Article 16 of the constitution of the Society if his continuance is not in the interest of the Society. But there is no provision in the Constitution to suspend a life member and to prevent him to exercise his rights. Page 2 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Apr-2024 19:59:21 6. In the instant case, there is an allegation of misappropriation of funds and mismanagement of the Institution, namely, Gopabandhu Institute of Medical Science and Research (GIMSAR) at Athagarh by the Petitioner. The allegation against the Petitioner has not yet been established. Hence, the order of suspension is not sustainable being without jurisdiction. Unless the impugned order of suspension is stayed and the Petitioner is permitted to exercise his rights as a life member of the Society, he will be seriously prejudiced and will suffer irreparable loss as he will be deprived from exercising his right to participate in the General Body Meeting as well as Executive Council Meeting. 7. He further submits that learned trial Court, while adjudicating the petition under Order XXXIX Rule 3 CPC, only took note of the observation of Hon’ble Supreme Court at para-52 (E) of Ramarameshwari Devi (supra). into consideration the observation at sub-para (i) of para-52 of the said case it has not But, taken law. He, therefore, submits that learned trial Court has committed an error in dismissing the petition under Order XXXIX Rule 3 CPC in refusing to entertain the petition filed under Order XXXIX Rules 1 and 2 CPC. 8. It is further submitted that the Executive Council Meeting and General Body Meeting respectively are going to be held on 11th and 12th April, 2024. Unless the Petitioner is allowed to participate in the said Executive Council and General Body Meeting, he will be highly prejudiced and will suffer irreparable loss. Thus, an ex parte ad interim order should be passed in the instant case before taking up the petition under Order XXXIX Rules 1 and 2 CPC on merit. 9. At this stage, Mr. Jha, learned counsel appears through video conferencing and submits that he has authorization to make submission Page 3 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Apr-2024 19:59:21 on behalf of the Opposite Party Nos.1 and 2. But no copies of the pleadings are served on him. Thus, he is handicapped to respond the contentions raised in this CMP. 10. It is his submission that the Civil Suit as well as the CMP should not be entertained as the Courts in the State of Odisha lack territorial jurisdiction to entertain any proceeding in the subject matter of dispute. He further submits that during Covid-19, crores of rupees from Society’s fund were misappropriated by the Petitioner. Hence, basing upon the audit report, he was asked to respond, but he did not pay any heed to the same. Ample opportunities were given to the Petitioner to respond to the allegations made against him. But, he was adamant in maintaining an indifferent attitude by not replying to the same. Since his continuance is detrimental for interest and reputation of the Society founded by Lala Lajpat Ray in the year 1921, he was suspended from the life membership contemplating proceeding for his removal. The President has all the powers of the Executive Council to take a decision in the case of emergency in terms of provision under Article 16 of the Constitution of the Society. The Executive Council as per Article 29 of the Constitution of Society has a power to remove a life member of the Society. A Body which has the power to remove a member has also competence to suspend him. Suspension is not a punishment. It is only to facilitate the Society to conduct the enquiry smoothly and without any interference of the delinquent member such a step is being taken. It is also submitted that in the past, life members were also suspended in case of exigencies. The Petitioner, being the life member, had never raised any objection to the same. As serious allegations have been made against the Petitioner, no error has been committed by the President-Opposite Party No.2 in suspending the Page 4 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Apr-2024 19:59:21 Petitioner. It is his submission that the prayer made in the interim application before learned trial Court does not come within the scope of Order XXXIX Rules 1 and 2 CPC. Further, the Petitioner could not show any urgency in entertaining the application under Order XXXIX Rules 1 and 2 CPC by dispensing with service of notice on Defendants- Opposite Parties. Thus, learned trial Court has committed no error in rejecting the petition under Order XXXIX Rule 3 CPC. 11. In course of argument, he submits that the Opposite Party Nos.1 and 2 should be given opportunity before learned trial Court at the time of adjudication of petition under Order XXXIX Rules 1 and 2 CPC. He, therefore, prays for dismissal of this CMP. 12. Taking note of the submission made by learned counsel for the parties and on perusal of the record, this Court prima facie finds that under the Constitution of the Society, there is no power conferred either on the President or on Executive Council to suspend any life member. Mr. Jha, learned counsel for Opposite Party Nos.1 and 2 also raised objection with regard to the territorial jurisdiction of learned trial Court to entertain the suit. The same are matters of consideration by learned trial Court if raised by the parties. 13. It, however, appears that there being no expressed power under the Constitution of the Society to suspend any life member, this Court is of the considered opinion that till removal of the name of the Petitioner from life membership of the Society, he should be permitted to exercise his right as a life member. This opinion is, of course, prima facie in nature and is subject to the submission of learned counsel for the parties before learned trial Court. 14. It is submitted by learned counsel for the parties that meetings of the Executive Council and General Body are going to be held on 11th Page 5 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Apr-2024 19:59:21 and 12th of April, 2024 respectively. In course of hearing, Mr. Jha, learned counsel for the Opposite Party Nos.1 and 2, however, submits that no policy decision will be taken in the meetings to be held on 11th and 12th of April, 2024 of the Society. Thus, the Petitioner will not be prejudiced if does not participate in the said meetings. But, it appears that the right of the Petitioner to participate in the meetings is being taken away by order/letter of suspension issued by the Opposite Party No.2 before he is proved guilty of the allegations made. Opposite Party No.1 and 2 have already appeared through 15. their counsel in the CMP. They may, if so advised, appear before learned trial Court to contest the petition under Order XXXIX Rules 1 and 2 CPC in IA No.01 of 2024. 16.
Decision
Accordingly, the CMP is disposed of with a direction that in the event the Opposite Party Nos.1 and 2 appear on 8th May, 2024, to which date the IA is stated to have been posted and file their objection, learned trial Court should make all endeavour to see that it is disposed of at the earliest giving opportunity of hearing to the parties concerned. Rest of the Defendant may appear by that date also. 17. Till a decision is taken in IA No.01 of 2024, the Society shall not take any policy decision in its Executive Council and General Body Meetings including the meetings to be held on 11th and 12th of April, 2024. It is, however, made clear that the Society may take decision in routine financial and administrative matters of the Society without affecting the rights of the Petitioner in the suit. 18. This arrangement is made only to facilitate the Opposite Parties to contest the IA. Page 6 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Apr-2024 19:59:21 19. It is also made clear that this Court has not expressed any opinion on the merits of case of either of the parties. 20. Parties shall cooperate with learned trial Court for early disposal of the interim application. If any of the parties does not cooperate, learned trial Court may take coercive measure in accordance with law. It is also expected that the Petitioner will cooperate in the proceedings against him initiated by the Society. 21. 22. The CMP is disposed of accordingly. Downloaded copy of this order may be utilized by the parties. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Rojalin Page 7 of 7