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Dr. S.C. Law Vs. Dr. K.S. Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. Nos. 2500-01 of 1973
Judge
Reported inAIR1974Cal274
ActsCode of Civil Procedure (CPC) , 1908 - Section 151- Order 1, Rule 10
AppellantDr. S.C. Law
RespondentDr. K.S. Roy and ors.
Appellant AdvocateBanamali Das, ;B.C. Law and ;B.K. Raj, Advs.;G.N. Roy, Adv.
Respondent AdvocateRuma Pal and ;Dipak Maitra, Advs. for Opposite Party No. 1
DispositionPetition allowed
Cases ReferredArjun Singh v. Mohindra Kumar
Excerpt:
- .....for analogous hearing and was renumbered as title suit no. 86 of 1971. the hearing of the said suit/suits commenced on 18th august, 1972 and it is stated that the plaintiff in t. s. no. 100 of 1970 closed his evidence on 5th february, 1973 and the evidence on behalf of defendant commenced thereafter. 3. at that stage the state of west bengal being the opposite party no. 9 in this application filed a petition under order 1, rule 10 of the code of civil procedure to be added as a party-defendant. the ground on which such prayer was made was the alleged mismanagement of the t. b. hospital and the responsibility to be shared by the stale government in such management. the learned munsif rejected the said prayer of the state government on the ground that the subject-matter of the two.....
Judgment:
ORDER

Debi Prosad Pal, J.

1. These two applications moved under Section 115 of the Code of Civil Procedure are taken up together and are disposed of by one common order as the facts and the point involved in both the applications are common. The facts which have given rise to the present dispute are as follows: The petitioner Dr. S. C. Law is a member of the Governing Body of the Calcutta Medical Aid and Research Society (hereinafter referred to as the Society) which runs K. S. Roy T. B. Hospital, Jadavpur. A meeting of the Governing Body of the said Society was convened to be held on the 8th April, 1970, at the residence of late Pashupati Nath Ghosh, the then President of the Society at 5-30 P. M. A General Meeting of the said Society was also stated to have been convened on the same day and at the same place for the purpose of electing the office-bearers of the Society. It is alleged that the meeting of the Governing Body was duly held at the appointed date but as the said meeting continued till about 7-40 P. M., the President decided not to hold the General Meeting on that date and adjourned it to a future date. The dispute has arisen because this version of the petitioner is not accepted by certain other members of the Society according to whom the Annual General Meeting was duly held on the 8th April, 1970 at 7-20 P. M. The dispute as to whether any General Meeting was held on 8th April, 1970 has led to the institution of two suits by the rival parties before the 4th Munsif, Alipore. The first suit was instituted on 16th April, 1970 by Sri S. C. Sen Gupta claiming himself to be a trustee elected at the Annual General Meeting purported to have been held on 8th April, 1970 at 7-20 P. M. for a declaration that the Annual General Meeting of the Society was held on 8th April, 1970 and a valid resolution was passed and also for a declaration that since 8-4-1970, Sri P. N. Ghosh (now deceased), defendant No. 1 and Dr. S. C. Law (petitioner-defendant No. 2) had ceased to be the President and Secretary of the Society. Permanent injunction restraining the defendants Nos. 1 and 2 from interfering with the management of the newly elected Governing Body and a mandatory injunction were also prayed for in the suit. The said suit is numbered as T. S. 100 of 70 in the Court of Fourth Munsiff, Alipore. The second suit was instituted on 18th April, 1970 by Dr. S. C. Law, the present petitioner representing the existing Governing Body of the Society in the first Court of Munsif at Alipore for a declaration that on 8-4-1970 the Annual General Meeting of the Society was adjourned as per resolution passed and for a declaration that the alleged proceedings of the purported General Meeting dated 8-4-1970 are invalid and that the newly elected Governing Body as constituted on 8-4-1970 had no legal, valid or constitutional existence. In the said suit, the defendants included Sri S. C. Sen Gupta and Shri Profulla Chandra Sen, who were plaintiffs in the other suit i. e. T. S. No. 100 of 1970 in the Court of Fourth Munsiff, Alipore.

2. The Title Suit No. 140 of 1970 at the Court of the First Munsif, Alipore was transferred to the Court of the Fourth Munsif, Alipore, for analogous hearing and was renumbered as Title Suit No. 86 of 1971. The hearing of the said suit/suits commenced on 18th August, 1972 and it is stated that the plaintiff in T. S. No. 100 of 1970 closed his evidence on 5th February, 1973 and the evidence on behalf of defendant commenced thereafter.

3. At that stage the State of West Bengal being the opposite party No. 9 in this application filed a petition under Order 1, Rule 10 of the Code of Civil Procedure to be added as a party-defendant. The ground on which such prayer was made was the alleged mismanagement of the T. B. Hospital and the responsibility to be shared by the Stale Government in such management. The learned Munsif rejected the said prayer of the State Government on the ground that the subject-matter of the two suits was whether there was a meeting on 8th April, 1970 or the meeting was adjourned and in such a suit the Court has nothing to say on the question as to whether there has been mismanagement or not and as such the Stale Government cannot have any say in the issue as to whether there was any meeting on 8th April, 1970. The said order of the learned Munsiff was passed on 30-4-1973 and the State Government has not moved higher Court against the said order. Thereafter a petition was filed under Section 151 of the Code of Civil Procedure before the same learned Munsif on the same ground praying for reconsideration of the order rejecting the petition under Order 1, Rule 10 of the Code of Civil Procedure and for allowing the State of West Bengal to be added as a party-defendant in the suit. The same learned Munsiff of the 4th Court, Alipore on a consideration of the said application allowed the petition under Section 151 of the Code of Civil Procedure and the order passed by him on 30th April, 1973 was modified and the State of West Bengal was allowed to be added as a party-defendant in both the suits.

4. Aggrieved by the said order the petitioner has moved this Court in revision under Section 115 of the Code of Civil Procedure. The learned Counsel appearing for the petitioner contended that the State Government is neither a necessary nor a proper party in the proceedings and the learned Munsiff in allowing the State Government to be added as a party-defendant has acted with material irregularity in the exercise of his jurisdiction. It is next contended that when an application under Order 1, Rule 10 has been rejected on 30-4-1973 the State Government did not move against the said order before any higher forum. In these circumstances the learned Munsiff acted with material irregularity in the exercise of his jurisdiction under Section 151 of the Code of Civil Procedure invoking his inherent jurisdiction.

5. The learned Counsel for the respondent State Government mainly contended that as a result of the dispute between the two rival parties the management of the K. S. Roy, T. B. Hospital is being sadly neglected and the State Government is vitally interested in the management and survival of this institution particularly when the Government pays a sum of Rs. 116.28 lacs annually for the care and treatment of the patients. It is therefore submitted that unless the State Government is made a party it cannot have any say in the suits which are pending for such a long time.

6. To appreciate the rival contentions of the parties it is necessary to bear in mind the scope and subject-matter of the two suits which are being heard analogously. The principal issues which have been framed in Title Suit No. 100 of 1973 are as follows: (1) Was any meeting of the General Members of the said Society held on 8th April, 1970? or was the said General Meeting adjourned on 8-4-1970 without doing any business? (2) If any General Meeting was held on 8-4-1970 as claimed by the plaintiff, was it validly and lawfully held? If so, did the General Meeting elect the Governing Body members on 8-4-1970, as claimed by the plaintiff?

7. It will appear from the two issues which are the principal ones that the scope and subject-matter of the' suit is whether the meeting on 8-4-1970 was validly held as alleged or the said meeting was adjourned as contended for by the other party. In the proper determination and adjudication of the said two suits the State Government cannot have any say in the matter. It is therefore not a necessary party. It is now well settled that in order that a party may be considered a, necessary party-defendant, two conditions must be satisfied, first, that there must be a right to same relief against him in respect of the matter involved in the suit; and. second that his presence should be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit (Jivandas Khimji v. Narbada Bai, : AIR1959Cal519 ). Even before the learned Munsiff, the learned Government pleader appearing for the State conceded that the State of West Bengal has nothing to do in order to dispose of the issue whether the meeting was held on 8-4-1970 or not. In these circumstances I am of the view that the State of West Bengal is neither a necessary party nor even a proper party whose presence is necessary for the determination or adjudication of the issues framed in the two suits. In that view of the matter, in my view, the learned Munsif acted with material irregularity in the exercise of his jurisdiction in allowing the State Government to be added as a party-defendant in the two suits.

8. The second contention raised on behalf of the learned Counsel for the petitioner also deserves consideration. In the application made under Order 1, Rule 10 the grounds which have been advanced for adding State of West Bengal as a party-defendant are almost the same which have been canvassed in the application made under Section 151 of the Code of Civil Procedure. The learned Munsiff had rejected the application under Order 1, Rule 10. The State of West Bengal did not move either in revision against the said order or apply for any review of the said order. In fact no steps were taken for moving against the said order before the appropriate forum. In these circumstances on the very same grounds the learned Munsiff invoked his inherent power under Section 151 of the Code. The power given under Section 151 of the Code of Civil Procedure can be invoked ordinarily only in cases where there is no specific provision made regarding any matter. The inherent power of the Court cannot override the express provisions of the law. If there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates: Arjun Singh v. Mohindra Kumar, : [1964]5SCR946 . In the present case the learned Munsiff has disposed of the application made under Order 1, Rule 10 rejecting the prayer of the State Government to be added as a party-defendant. When there is a specific provision under the Code for allowing a person to be added as a plaintiff or a defendant and, when such power has been exercised by the Court under The aforesaid provision, the order made by the Court cannot ordinarily be by-passed by invoking the inherent power of the Court. There may be exceptional circumstances where such power may be exercised for the ends of justice. In the present case however no such circumstance has been pleaded to my satisfaction. There is no explanation given either in the affidavit or before the Court below or before me as to why the State Government has not taken any step for moving against the order made under Order 1, Rule 10 of the Code. In the absence of any such explanation to the satisfaction of the Court, the learned Munsifif acted with material irregularity in the exercise of his jurisdiction in allowing the prayer of the State Government on the identical grounds on which the application under Order 1, Rule 10 was rejected by him.

9. For the reasons stated above this rule is made absolute. The order made by the learned Munsiff on 15-5-1973 being order No. 131 in Title Suit No. 100 of 1973 and Title Suit 86 of 1971 is set aside and quashed.

10. In view of the allegation of gross mismanagement of the administration of K. S. Roy, T. B. Hospital in which the public are so vitally interested, the learned Munsiff is directed to hear and dispose of both the suits expeditiously. Let the records be sent to the Court below immediately.

11. The learned Counsel appearing for Dr. K. S. Roy, opposite party No. 1 states that in view of the fact that no affidavit has been filed by her client the allegations made in the petition are not admitted by her client. The submission made by her may be recorded. There will be no order as to costs.


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