CUSTOM SEARCH

WHETHER LAWYER ACT IN DUAL CAPACITY AS GPA HOLDER AND VAKALATH ATTORNEY

Justice D Dhanuka of Bombay High Court in the case of AIR 1993 Bom 217 It is well settled law that the constituted attorney of a suitor has no right of audience in Court or to cross-examine witnesses. The Constituted Attorney is merely entitled to 'act' and 'appear' for a party but has no right to 'plead' in a Court. The expressions 'act' and 'appear' do not mean 'right to plead' as such. It has been so held by our High Court in the case of A.S. Patel v. National Rayond Corporation Limited, . It is permissible for an Advocate to act as a 'recognised agent' or a Constituted Attorney by virtue of Power of Attorney executed in his favour by a suitor and sign vakalatnama pleadings and affidavits on behalf of the donor of Power of Attorney to the extent provided in the Code of Civil Procedure as aforesaid. In all such cases the signature of Constituted Attorney on pleadings, affidavits, vakalatnama and other documents is liable to be equated to signature of a party itself for all practical purposes. It follows that in all such cases the plaintiff or the defendant is deemed to have signed the pleading by the hand of his Constituted Attorney. The pleadings are required to be verified and declared by the signatory thereof with reference to personal knowledge of the averments made therein or on basis of information and belief. The question to be asked is as to whether an advocate who acts as Constituted Attorney of a suitor in pursuance of power of attorney from his client is entitled to combine his role of a constituted attorney with that of an advocate in the same cause simultaneously. Members of the Bar are governed by the provisions contained in the Advocates Act 1961, well known principles and doctrines recognised for generations and are rightly described as partner in Administration of justice. Advocates in their professional capacity are enjoined to act with complete impartiality and detachment and not entitled to identify themselves with the clients or the cause personally. The paramount duty of an Advocate is to assist the Court in its task of administering justice. In, the event of there being any conflict between interest and duty, the Advocate must yield in favour of his duty to assist the cause of fair and impartial justice. An Advocate is expected to be fair and reasonable towards his opponent. All these principles bind the Advocates in discharge of their professional duties. Advocates belong to noble profession of law. On the other hand, a constituted attorney is entitled to identify himself with the donor of Power of Attorney and act in the same manner as the suitor-litigant is entitled to act. An Advocate is governed not merely by written provisions of the Advocates Act 1961 but also by traditions of the Bar built up for generation during the course of administration of justice for centuries. It is provided by Order III Rule 4 of the Code of Civil Procedure that a vakalatmana should be signed by the party or by his recognised agent in favour of the pleader. The question to be asked illustratively is as to whether the pleader acting in his capacity as constituted attorney of a litigant can sign such vakalatnama as a client in his own favour as an Advocate or in favour of the firm in which such constituted attorney himself is one of the partners. The answer is in negative. The question to be asked is as to whether the two roles can be combined? The question to be asked is as to whether it is not inherent in the scheme and the provisions of Code of Civil Procedure and implicit in the provisions contained in Order III Rule 4 of the Code of Civil Procedure and other connected provisions that advocate who acts or appears or pleads before the Court in a professional capacity must have a client with separate and distinct identity. The answer to these questions is obvious. For all practical purposes, the recognised agent of a suitor is on par with the suitor or client himself; an Advocate is not, as an Advocate is an independent person with a specific role in administration of justice. In certain situations advocates are permitted to accept power of attorneys from a client for purpose of acting in a suit or matter, sign pleadings, vakalatnama and affidavits on behalf of plaintiff or defendant as case may be. An Advocate may be appointed as a Receiver in a suit or a cause. No one can object to the Advocate accepting these assignments permissible under the law. The question still remains as to whether the advocate who is holding a power of attorney from a client to act and appear in a suit or matter can also act in the professional capacity in the same proceedings at the same time. The answer to this question is of too obvious and has to be in negative. Detachment and impartiality expected of an Advocate is likely to be jeopardised when an Advocate acts in both the capacities. The risk in allowing combination of two roles is far too serious. I must therefore, construe the Code of Civil Procedures harmoniously and in a manner so as to prevent confusion, anamoly and misunder-standing. In my opinion, law does not permit the combination of two capacities in the same cause. Law prohibits such combination and rightly so.

CIVIL COURT JURISDICTION INFORMATION AS DISCUSSED IN A CASE LAW OF KARNATAKA HIGH COURT

KARNATAKA HIGH COURT
Amiya Vilas Swami And Ors. vs Shankha Brita Das And Ors. on 20 September, 2007

CITATION:- 2008 (3) KarLJ 16


JUDGMENT BY JUSTICE Subhash B. Adi, J.


1. Though this matter was listed for admission, since it involves the only question of jurisdiction of the Civil Court, as the appeal is against the rejection of plaint, under Order 7, Rule 11 of the Civil Procedure Code, 1908, the matter was taken up for final disposal with the consent of both the parties.

2. This is an appeal by the plaintiffs 1 and 6 questioning the order dated 1st March, 2007 passed in O.S. No. 1758 of 2003 in I. No. V.

3. The Trial Court has allowed the I.A. No. V filed under Order 7, Rule 11(d) of the CPC and rejected the plaint holding that, the matter can be inquired by the Registrar under Section 25 of the Karnataka Societies Registration Act, 1960 (hereinafter referred as 'Act') and not by the Civil Court.

4. The case of the plaintiffs is that, 6th plaintiff-Society was registered in the year 1978 in the name and style as, International Society of Krishna Consciousness (ISKCON). Plaintiffs 1 to 5 and defendants 1 to 10 are the members of the said Society. The said Society having its registered office at Hanuman Temple Compound, Bangalore. Notwithstanding, the registration of the 6th plaintiffs Society, the 1st defendant conducted activities of movement through the said group without involving the 6th plaintiff or the Governing body of the 6th plaintiff. That for rising donation the ISKCON, Mumbai permitted its angalore Branch to use the exemption granted to ISKCON, Mumbai under Section 80-G of the Income-tax Act, 1961. The Bangalore Branch had a Bank account and the 1st defendant was operating the same as a President and the 1st defendant was acting in his capacity as President of Bangalore Branch of ISKCON, Mumbai. After registration of the 6th plaintiff, it was not pursuing its objects or functioning according to its rules and regulations in any manner including conducting any meeting either of the governing body or the general body, some leaders in the movement advised the 1st and 2nd plaintiffs and other members of the governing body that the 6th plaintiff should not exist as an independent entity, as such existence would affect the growth and integrity of the movement in India. The 1st defendant and the 1st and 2nd plaintiffs had also by then realised that, Srila Prabhupada himself had not thought it fit to have more than one entity in India for propagation of movement and that they were wrong in establishing 6th plaintiff. They felt that the activity by 6th plaintiff would violate Srila Prabhupada's wishes and that was the last thing they being his disciples and humble servants, dared to do. Therefore, the governing body did not carry on any activity through or in respect of 6th plaintiff including holding of meeting of the governing body or general body. The members of the governing body individually also did not evince any interest in the working of the 6th plaintiff. The 6th plaintiff stopped functioning in all the respects. There was none to attend even the statutory obligations of the 6th plaintiff. The 1st to 5th plaintiffs did not resign their offices in the governing body of the 6th plaintiff, however did not function in their respective offices either, and there having been no general body other than the 22 members, who constituted the governing body and Sin Bhaktha Dasa Brahmachari, who had subscribed to the memorandum of association, the general body also did not elect a new Governing body. 6th plaintiff became non-functional and as good as closed.

5. It is also stated that, 1st to 5th plaintiffs had not resigned and gave up their membership of the 6th plaintiff, the governing body or the general body did not have any legal or factual impact or consequence, since the 6th plaintiff had ceased to function. The members of the governing body are the only members apart from Sri Bhaktha Dasa Brahmachari, constituting the general body of the 6th plaintiff, even to this day. He further stated that, 1st defendant did not convene any meeting either of the governing body or of the general body of the 6th plaintiff to the best of knowledge of 1st to 5th plaintiffs and there was no scope or opportunity for any other persons, other than the first 23 members to became members of the 6th plaintiff.

6. It is alleged that, to the shock of the plaintiffs they learnt that 11th defendant is claiming as President, 12th defendant claiming as Vice-President, 13th defendant claiming as Secretary, 14th defendant claiming as Treasurer, 15th defendant to 17th defendant claiming as members of the governing body of the 6th plaintiff and got filed a suit in the name of 6th plaintiff showing 13th defendant herein is representing he 6th plaintiff against ISKCON, Mumbai and sought for certain declaratory and injunctive reliefs in O.S. No. 7934 of 2001.

7. It is alleged that, because of the governing body that has been legally constituted, consists of the 1st to 10th defendants and 1st to 5th plaintiffs, and had not admitted the 11th to 17th defendants as members of the 6th plaintiff. Consequently, 11th to 17th defendants are neither part of 6th plaintiff nor they are in management and control of the 6th plaintiff and they are only imposters. They taking advantage of the 1st to 10th defendants and the 1st to 5th plaintiffs being inactive and other 7 members of the governing body having died and consequently the governing body having become non-functional, the 11th to 17th defendants and their henchmen have some time before the institution of O.S. No. 7934 of 2001 illegally laid their hands on the documents and records of the 6th plaintiff and fraudulently manipulated the same by alteration, falsification, forgery, fabrication, substitution and may even by destruction as well as other nefarious means to make it appear as if the 11th to 17th defendants have become the office-bearers and members of the governing body as if the 6th plaintiff, 6th plaintiff has vast income and expenditure and huge assets and capital fund and liabilities which in fact are not true. The plaintiffs 1 to 5 and defendants 1 to 10 did not admit defendants 11 to 17 to the 6th plaintiff-Society and they have no manner of right.

8. The defendants 11 to 17 appeared before the Trial Court and they filed an application in I.A. No. 5 under Order 7, Rule 11(d) inter alia alleging that, the suit is not maintainable as the same is barred by law. It is alleged that 6th plaintiff is a Society registered under the provisions of the Karnataka Societies Registration Act, 1960 and there is a separate mechanism provided for adjudication of all the disputes alleged in the plaint including the allegations made against defendants 11 to 17. It is further stated that, in view of the provisions of Section 25 of the Act, the suit is not maintainable as the same has to be inquired and decided only under the provisions of the Act more particularly under Section 25 of the Act.

9. The Trial Court after hearing both the sides found that Section 25 of the Registration Act provides a complete mechanism to enquire all the matters referred to in the plaint and also adjudicate the same and further held that, the dispute can be enquired by the Registrar under Section 25 of the Act and same cannot be inquired by the Civil Court. On this finding, the Trial Court rejected the plaint.

10. This order is assailed in this appeal. On behalf of the appellants Sri Jayakumar S. Patil, learned Senior Counsel, submitted that, Section 25 does not exclude the jurisdiction of the Civil Court to entertain the suit. There is no mechanism provided for adjudication of the disputes referred to in the suit nor the provisions of the Act, provide for adequate remedy to adjudicate the issues arisen in the suit. There is no provision provides for a mechanism for adjudication of the dispute one in the nature alleged in the suit nor it gives finality to the dispute. In the absence of the provisions under the Act, the Civil Court's jurisdiction is not ousted by implication.

11. As regards to the finding of the Trial Court that, by implication the jurisdiction of the Civil Court is excluded under Section 9 of the Code of Civil Procedure, he referred to the provisions of the Act namely, Section 5 of the Act and submitted that Section 5 relates to mode of forming a Society, a Society could be formed by any 7 or more persons above the age of 18 years associated by any persons specified in Section 3, subscribing their names to the Memorandum of Association. The forming of an Association is contractual matters between the parties who formed association. Forming of association is one of the fundamental rights guaranteed under Article 19 of the Constitution and it is not a statutory right, nor it is regulated under any statute nor it is controlled by any statute.

12. He referred to Section 9 of the Act and pointed out that Section 9 relates to alteration of Memorandum of Association. He also referred to Section 10 in respect of change of the name, rules and regulations. Referring to Section 10, he submitted that, amendment application shall be submitted before the Registrar within 30 days along with the necessary fees. The Registrar may grant or refuse to register the amendment, under Sub-section (2) an appeal is provided before the Karnataka Appellate Tribunal, to be filed within 60 days from the date of communication of the refusal. He submitted that, in the case of alteration or amendment of the name of the Society, provision is made for an appeal against the decision of the Registrar. Similarly, he referred to Section 13 and submitted that, Section 13 deals with filing of balance sheet and annual list of governing body before the Registrar and submitted that it does not provide for an adjudication by the Registrar.

13. He referred to Section 25 of the Act and submitted that, Section 25 of the Act conferred power on the Registrar to enquire on his own motion or on the application of the majority of the members of the governing body or not less than 1/3rd of the members of the Society in the matter of Constitution, working and financial condition of a registered Society. He further submitted that, the power conferred on the Registrar under said provision is for holding an enquiry and communicating the report of an enquiry in terms of Section 25, Sub-section (2), Clause (c), Sub-clause (iii) of the Act. By relying on the said provision, he further submitted that, the enquiry made under Section 25 is not in the nature of adjudication nor it gives finality nor adequate remedy is provided to redress the grievance of the aggrieved party nor the aggrieved party can take up the matter in appeal. All that Section 25 deals with, is an enquiry in the matter of Constitution, financial and working of the Society and the Registrar on enquiry to submit report to the Society, and does not decide the dispute.

14. He relied on Section 25(2), Clause (c) and submitted that, in case of holding of general body, if the Registrar finds that a general body meeting of the Society is required to be held, he can direct the Society to hold a general body meeting or on failure to convene the meeting he may convene the general body meeting. Referring to this provision, he submitted that except for directing the society to hold a general body meeting or holding a meeting by himself on failure of the society, the Registrar has no other power. He further submitted that, Section 26 of the Act provided for an enquiry by the Registrar and to pass orders. The order passed under this Section is appealable before the Kamataka Appellate Tribunal. He further submitted that, under the said section, power is conferred on the Registrar to adjudicate and decide and remedy is provided to the aggrieved party to file an appeal before the Karnataka Appellate Tribunal.

15. Similarly, he also referred to Section 27 of the Act and submitted that, in the matter of cancellation of registration, the power is conferred on the Registrar to hold an enquiry and to pass an order. The order passed by the Registrar under the said provision is again appealable under the provision of Section 27(3) before the Appellate Tribunal within 60 days from the date of communication of the order.

16. He further submitted that, insofar as Sections 10, 26 and 27 of the Act are concerned, the power is conferred on the Registrar to adjudicate and decide the dispute and subject to appeal the said orders reach finality, he further submitted that a clear remedy is provided under these provisions for the adjudication of dispute in relation to the subject-matters mentioned therein. However, in the matter of constitution of the Society only enquiry is provided under Section 25 with no power to decide the dispute, except submitting his report to the concerned society.

17. By referring to Section 27-A of the Act he submitted that, the State Government may appoint an Administrator and there is no power of adjudication of any disputes, the appointment of Administrator may be based on the report of the Registrar. He submitted that the intention of the Legislature is clear from the scheme of the Act, inasmuch as it is only regulatory and does not provide for control of affairs or for adjudication of the dispute relating to the Constitution of the Society. He further submitted that, the matter for which power of adjudication is not conferred on the Registrar, same cannot be adjudicated by him. In the absence of mechanism for adjudication it cannot be impliedly inferred that the jurisdiction is conferred on the Registrar. He submitted that, the Act will not exclude the jurisdiction of Civil Court.

18. To infer the exclusion of the jurisdiction of the Civil Court by implication, there has to be a complete mechanism for adjudication of the dispute and there must be adequate remedy to the aggrieved party and must reach finality. He further submitted that, the provisions of the Act or the scheme of the Act, does not provide for adjudication of the dispute relating to the Constitution of the Society or to the dispute relating to the election of the members to the Governing Council or to inter se dispute between the members nor the provisions provide for adequate remedy. By referring to the provisions of the Act and the scheme of the Act, he further submitted that, the learned Trial Judge erred in holding that by implication the jurisdiction of the Civil Courts is ousted.

19. In this regard, he also referred to Section 9 of the CPC and submitted that Section 9 confers jurisdiction of the Civil Court on all the matters unless it is expressly or impliedly barred by law. In support of his contention, he referred to a decision in the matter of Dhulabhai v. State of Madhya Pradesh and Anr. and
submitted that, the Civil Court's jurisdiction get excluded only if there is an adequate remedy is provided under the special statutes, which the Civil Court normally has. What is required to be seen in the matter of ousting of the jurisdiction of the Civil Court by implication, is whether a remedy provided under the special statute gives a finality, and there is an adequate remedy provided to the aggrieved party on par with the Civil Court. He further submitted that, even in case if the provisions are made for adjudication before the Special Tribunals, by that itself will not exclude the jurisdiction of the Civil Court, if the Special Tribunal cannot act in conformity with the fundamental principles of judicial procedure. He also submitted that normally, the exclusion of jurisdiction of the Civil Court should not be readily inferred unless the conditions as formulated by the Apex Court in the matter of Dhulabhai's case are found in the special statute. By referring to paras 31 and 32 of the said judgment he submitted that none of the conditions stated by the Apex Court are provided under the provisions of the Act. There is no provision, which provides for adjudication and finality to the dispute nor there is any remedy for appeal. He further submitted that, even in case of remedies provided, such remedies must be adequate and must give finality. He further submitted that, jurisdiction conferred under the Special Statutes must be on par with the procedure prescribed to the Civil Court to ensure the adequate opportunity to the parties to adjudicate their dispute. Only in such circumstances it can be inferred that the jurisdiction of the Civil Court is ousted by an implication and not otherwise.

20. He further relied on another decision in Nagri Pracharini Sabha and Anr. v. V. Additional District and Sessions Judge, Varanasi and Ors. , arising out of the provisions of the Societies Registration Act, 1860 (Uttar Pradesh Amendment). Referring to the said decision, he submitted that, through Section 25 of the Uttar Pradesh Act provide for adjudication of election dispute, but in case, where a member who could not comply with the requirement to maintain the election dispute under Section 25 of the said Act, can challenge the election before the Civil Court.

21. By relying on the said decision, he further submitted that, there must be remedy provided under the special statute, if there is no remedy provided to aggrieved party, then it cannot be inferred that jurisdiction of Civil Court is ousted by implication.

22. He further relied in the matter of Dr. K.T. Shivaiah v. G. Puttaswamy Gowda and Anr. andsubmitted that the rules framed by the society are in the nature of contract between the member and the member and members and the society. In other words, rules and regulations of such society or association cannot be construed as statutory provisions. He also relied on another decision in Inderjit Barua and Ors. v. Election Commission of India and relied on para 7 of the said judgment and submitted that the power of suo motu is a discretion of the authority. He further relied on another decision in the matter of Sri Chandrasekhara Bharathi v. State of Karnataka and Ors. 1991 (2) Kar. L.J. 392 (DB) and submitted that, the Registrar can only make a recommendation and cannot pass an order. Relying on these decisions and also the provisions of the Act, he further submitted that, neither expressly nor by implication, the jurisdiction of the Civil Court is ousted. The exclusion of the jurisdiction by implication means that the provisions, which are not expressly made must be found by implication i.e., even though there is no express provision barring the jurisdiction of the Civil Court, but if the provision clearly provide for adequate . and clear mechanism for adjudication of the dispute, then the ouster of jurisdiction of Civil Court can be implied.

23. Sri S.K.V. Chalapathy, learned Senior Counsel appearing for some of the defendants 11 to 17 submitted that, the jurisdiction of the Civil Court is ousted by implication and not by express provision, what is required to be seen is, whether there is an adequate measure is provided under the Act, which confers the jurisdiction on the statutory authority to adjudicate the matter. He submitted that, reading of the provisions of the Act clearly shows that, once the society is registered, it comes within the fold of the provisions of the Act and the jurisdiction is vested in the statutory authority to decide all the matters including the constitutional working and financial condition of the society. He further submitted that, the provisions of Sections 6, 11, 13, 14, 25, 26, 27 and 27-A read with Rules 5, 6 and 8 provide for a complete mechanism for adjudication of all the disputes including the disputes touching the Constitution of the Society. He mainly referred to Section 25 of the Act and submitted that, Section 25 of the Act and submitted that, Section 25 provides an enquiry by the Registrar of the Society, who can hold an enquiry either suo motu or on the application made by the majority members of the governing body or 1/3rd of the members of the Society. An enquiry, which is contemplated under the provisions of Section 25 of the Act, also provides for submitting a report, and based on the said report, the Registrar, if he feels that a election is required to be held for the society, he can direct holding of a meeting under Section 25, Sub-section (2), Clause (c) of the Act and he can also submit a report to the Government. If the society is not functioning in the manner it is required to function under the provisions of the Act, the Government based on the report, can take a decision to appoint the Administrator and the Administrator can hold an election for the governing body.

24. He submitted that, a reading of the averments in the plaint clearly shows that the dispute relates to Constitution of the Society and the Constitution of the society is one of the matters, which could be enquired under Section 25 of the Act. The enquiry contemplated under Section 25 is not a hollow formality, the enquiry result is submitted by way of report. The Registrar has power to convene the General Body Meeting for holding the election to the governing body. Relying on Section 25, he submitted that, the dispute alleged in the suit relates to Constitution of the society and this matter can be adjudicated only by the Registrar of the Society. In this regard, he also relied on paragraphs 5, 11, 12, 13 and 16 of the plaint and submitted that, the allegation of the plaintiffs is that, the defendants 11 to 17 are not members of the society, they do not constitute the general body and plaintiffs claim that, they formed the society and they constituted the society. If these allegations are looked into, it only shows that, the dispute relates to the Constitution of society and the enquiry of the Constitution of the society is expressly provided under Section 25 of the Act. In this regard, he relied on a decision in the matter of Kodava Samaja, Bangalore v. District Registrar of Registration of Societies, Bangalore and Anr. And referred to para 5 and submitted that, an enquiry into the Constitution and working of the registered society would include the enquiry into the propriety of continuation by a working committee and the need to elect a new committee by existing working committee and further Section 25, Sub-section (2), Clause (c) should be read so as to include a power in the Registrar to direct the holding of the election to the General Body if the occasion demands. Relying on said judgment, he further submitted that the power is conferred on the Registrar to take such a decision in the matter, which warrants in the circumstances of the case and if a complaint is made to the Registrar under Section 25, he can, not only hold an enquiry, but also take an appropriate decision. He further, submitted that certain rights, which are to be exercised under special statute, cannot be exercised or worked out, otherwise than under the provisions of the special statutes.

25. He relied on another decision in the matter of Advocates' Association, Bangalore v. The District Registrar and Registrar of Societies, Bangalore Urban District and Ors. 2006 (4) Kar. L.J. 526 : AIR 2006 (NOC) 1166 (Kant.), and submitted that this Court has observed that, the Registrar has power to grant an interim order in aid of final relief. It also provides an enquiry regarding the Constitution and working of the registered society, which would include, an enquiry into the propriety of Constitution. He further, submitted that, this Court has held that, Section 25 confers power on the Registrar not only to hold an enquiry, but also to pass final orders. He submitted that, a mechanism, is provided under the provisions of the Act, which impliedly oust the jurisdiction of the Civil Court. He also relied on another decision in the matter of Addanki Tiruvenkata Thata Desika Charyulu (since deceased) and, after him his L.Rs. v. State of Andhra Pradesh and Anr. , and referred to para 23 and submitted that, when the Legislature establishes a special Tribunal or body with limited jurisdiction, whatever jurisdiction is conferred on the Tribunal, the said jurisdiction has to be exercised only by the Tribunal and anything remaining has to be worked out in the Civil Court. He submitted that, the enquiry in relation to the working of the society, as well as Constitution, these two matters could be enquired by the Registrar and to this extent, the plaintiffs cannot agitate their grievance before the Civil Court, which is impliedly excluded from the purview of the Civil Court.

26. He also relied on another decision in the matter of Raja, Ram Kumar Bhargava (dead) by L.Rs v. Union of India , referring to para 9, and submitted that, exclusion of Civil Court's jurisdiction can be inferred by statutory remedy provided under the special statute. If the machinery is provided for enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision, the Civil Courts' jurisdiction is impliedly excluded. He further, submitted that, the Trial Court considering the provisions of Section 25 and a mechanism provided therein has found that the enquiry into the Constitution of the Society can be made only by the Registrar of Society and not by the Civil Court.

27. Sri Shantaraj, learned Senior Counsel appearing for defendant 11 submitted that admittedly the matter relates to the Constitution of the Society and these matters are governed by the statutory provisions. In such circumstances, the common law right is impermissible, as it is purely a statutory right flowing from the provisions of the Act. If a mechanism is provided under the special statute, the Civil Court cannot exercise its jurisdiction and further submitted that, Section 25 read with Rule 8 of the Rules framed under the provisions of the Act provides for complete mechanism and a remedy for adjudication of the dispute alleged in the suit and further submitted that, in case of statutory rights, a remedy has to be worked out, only under the provisions of the special statute and not before the Civil Court.

28. In the light of the contentions raised by both the sides, the only point that arises for consideration in this appeal is: Whether the provisions of Karnataka Societies Registration Act impliedly oust the jurisdiction of the Civil Court?

29. To understand the case of the plaintiffs, it is useful to extract the prayers sought for by the plaintiffs at para 31 of the plaint:
(a) declaring that the first to the fifth plaintiffs and the first to the tenth defendants constitute the governing body of the sixth plaintiff, which is a society registered under the name and style International Society for Krishna Consciousness under the Karnataka Societies Registration Act, 1960, under Registration No. 49/1978-79;
(b) declaring that the eleventh to the seventeenth defendants have no right to manage or control the sixth plaintiff, which is a society registered under the name and style International Society for Krishna Consciousness under the Karnataka Societies Registration Act, 1960, under Registration No. 49/1978-79;
(c) as a consequence of relief (a) and (b) directing, by way of mandatory injunction, the eleventh to the seventeenth defendants to make over to the governing body of the sixth plaintiff comprising the first to the fifth plaintiffs and the first to the tenth defendants or such of the latter as might be willing to be on the governing body all the assets, effects, affairs, books of account, records and the like of the sixth plaintiff, which is a society registered under the name and style International Society for Krishna Consciousness under the Karnataka Societies Registration Act, 1960, under Registration No. 49/1978-79;
(d) restraining, by way of perpetual injunction, the eleventh to the seventeenth defendants from interfering with the management and control of the sixth plaintiff, which is a society registered under the name and style International Society for Krishna Consciousness under the Karnataka Societies Registration Act, 1960, under Registration No. 49/1978-79, by the governing body comprising the first to the fifth plaintiffs and the first to the tenth defendants or such of the latter as might be willing to be on the governing body;
(e) awarding costs; and
(f) granting such other relief or reliefs as this Hon'ble Court may deem fit in the circumstances of the case.
From the prayer, it is clear that, the plaintiffs have sought for a declaration that plaintiffs 1 to 5 and defendants 1 to 10 constitute a governing body of the 6th plaintiff and that the defendants 11 to 17 have no right to manage or control sixth plaintiff and for direction to defendants 11 to 17 to make over the governing body of the sixth plaintiff comprising the first to the fifth plaintiffs and the first to the tenth defendants and for perpetual injunction.

30. The dispute is between two groups namely, plaintiffs 1 to 5 and defendants 1 to 10 on one side and defendants 11 to 17 on the other side.

31. Plaintiffs allege that, defendants 11 to 17 are imposters, they are not the members, do not constitute the governing body of the sixth plaintiff-Society and further they claim that they are the members, they are the governing body and they constitute the society. Whether these disputes could be decided by the Registrar under Section 25 and whether Section 25 provides for a complete mechanism for adjudication of such right?
Section 25 of the Act reads as under:
25. Enquiry by the Registrar, etc.-(1) The Registrar may on his own motion and shall on the application of the majority of the members of the governing body or of not less than one-third of the members of the society, hold an enquiry or direct some person authorised by him by order in writing in accordance with the rules made in this behalf to hold an enquiry into the Constitution, working and financial condition of a registered society.
(2) The Registrar or the person authorised by him under Sub-section (1) shall have the following powers, namely.-
(a) he shall, at all reasonable times, have free access to the books, accounts, documents, securities, cash and other properties belonging to or in the custody of the society and may summon any person in possession or responsible for the custody of any such books, accounts, documents, securities, cash or other properties to produce the same at any place at the headquarters of the society or any branch thereof;
(b) he may summon any person who, he has reason to believe, has knowledge of any of the affairs of the society to appear before him at any place at the headquarters of the society or any branch thereof and may examine such person on oath;
(c) (i) he may, notwithstanding anything contained in this Act or in any rule or regulation prescribing the period of notice for a general meeting of the society, require the governing body of the society to call a general meeting at such time and place at the headquarters of the society or any branch thereof and to determine such matters as may be directed by him. If the governing body of the society refuses or fails to call a meeting, he shall have power to call it himself;
(ii) any meeting called under Sub-clause (i) shall have all the powers of a general meeting called under the rules or regulations of the society and its proceedings shall be regulated by such rules or regulations;
(iii) when an enquiry is made under this section, the Registrar shall communicate the result of the enquiry to the society concerned.

32. Section 25 as extracted above clearly shows that, the Registrar can hold an enquiry in the matter of Constitution, working and the finance. This power the Registrar can exercise either suo motu or on application, whether such enquiry gives finality to the dispute, whether it provides for adequate remedy to the parties to agitate their grievances.

33. Reading of provisions of Section 25 shows that, the Registrar can hold an enquiry and under Section 25, Sub-section (2), Clause (c), Sub-clause (iii), he can communicate the result of the enquiry to the society concerned. Section is silent as to what happens to the report, or whether the Registrar can take further decision on the basis of enquiry. If a society is to be communicated with the result of the enquiry, whether such a society is bound by the report or whether the society in pursuance of the said report could take action, all that is provided is only enquiry and submitting of report. Under Section 27-A of the Act, the Government can appoint an Administrator, if the society fails to hold an election even after expiry of the term of the governing body and if there is long pendency of litigation or is not able to hold the annual general meeting, in such circumstances, the power is conferred on the State Government to appoint Administrator. This is again the discretion of the State Government. It is not mandatory for the State Government to appoint Administrator based on report or based on information. The appointment of an Administrator will not resolve the inter se dispute between two groups claiming to constitute valid governing body or valid general body. In this case, both the groups are claiming that they are in the management or they are in the governing body. Provisions of Section 25 or 27-A do not provide for power to adjudicate, as to whether A' group is in governing body or 13' group is in governing body.

34. Section 9 of the CPC confers power on the Civil Court to try all the suits of civil nature, except which are expressly or impliedly barred. It is nobody's case that, the jurisdiction of the Civil Court is expressly barred under the provisions of the Act. It is only by implication, the jurisdiction of the Civil Court is sought to be ousted. Implication is an indirect method of ousting the jurisdiction of the Civil Court. In such a case, the provisions which oust the jurisdiction of the Civil Court, must provide for a mechanism to adjudicate such dispute. The cumulative effect of the statutory provision should provide for adequate remedy on par with the jurisdiction of the Civil Court. In such circumstances, it can be inferred that the jurisdiction of the Civil Court is impliedly excluded.

35. In this regard, a decision is relied by the learned Senior Counsel for the appellant in Dhulabhai's case, the Apex Court has considered as to, what constitutes the ouster of jurisdiction of the Civil Court by implication, and has observed that, the Civil Courts' jurisdiction must be held to be excluded, if there is an adequate remedy to do, what the Civil Court would normally do in a suit. This observation clearly indicates that the special statute, which provides for adjudication of the dispute, must give finality and must provide a jurisdiction that is vested in the Civil Court vis-a-vis, the enquiry that is contemplated under the special statute to be on par with the jurisdiction of the Civil Court. Such provisions would impliedly exclude the jurisdiction of the Civil Court. The Apex Court while interpreting Section 9 of the CPC has further observed that, sufficiency of the remedies is one of the criteria. Further observed that, even the sufficiency of the remedies provided for by statute may be relevant but a decisive, what is required to be seen is, that the remedies normally associated with the actions in Civil Courts are prescribed by the said statute to infer the implied bar. The exclusion of the jurisdiction of the Civil Court should not be normally inferred unless the statute by implication provide for adequate remedies and complete mechanism for adjudication of the dispute, this can be gathered from the intention of the legislation and scheme of the Act. If the entire scheme provides for complete adjudication of the matter and gives finality and gives adequate or sufficient remedies to the aggrieved party, it can be held that, by implication the jurisdiction of the Civil Court is barred. It is useful to extract the conditions specified in para 32 of the Dhulabhai's case. The Apex Court has laid down as many as seven conditions:
(1) Where the statute gives a finality to the orders of the special Tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the later case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.
It is clear from the above observation that, an examination of the scheme of the particular Act is necessary to find out the adequacy or the sufficiency of the remedies provided.

36. The jurisdiction of the Civil Court is excluded without there is an express bar under law, where there is adequate remedy available to the party to adjudicate their grievance under the special statute. If the procedure of enquiry provided under the Civil Procedure is fulfilled otherwise under the provisions of special statute, it is sufficient to infer the implied bar. The affording an opportunity and holding an enquiry must be found under the special statute. In such circumstances, whether expressly barred or not by implication, the jurisdiction of the Civil Court is ousted.

37. In identical circumstances, the Apex Court in a decision in the case of Nagri Pracharini Sabha, while interpreting Section 25 of the Societies Registration Act as amended in Uttar Pradesh has held that, though Section 25 of the said Act provides for a remedy to challenge the election of the members of the governing body, but it is subject to compliance with certain statutory requirement and in case if a member who cannot comply with the requirement, he can still file a suit for adjudication of the election dispute, even though the remedy is provided for adjudication of election dispute, if the aggrieved party cannot invoke the said provision for want of compliance of the statutory requirement, still he is not barred to challenge the same in common law Court, it is clear that there must be remedy to the aggrieved party.

38. In this case, reading of Section 25 does not provide for raising any such dispute nor provide for adjudication, hence it cannot be inferred or understood to mean that the dispute touching the Constitution or a dispute between the members and the members and members and the society could be adjudicated. What is not provided in law cannot be inferred.

39. The decision relied by Sri S.K.V. Chalapathy in Dhulabhai's case, at para 20 which also shows that there has to be adequate, statutery remedy to infer or imply the ousting of the jurisdiction of the Civil Court.

40. The discretionary power vested in the State to appoint an Administrator though it is stated that it has to be exercised reasonably and not arbitrarily, however, conferring a discretionary power on the State cannot be understood to mean that a remedy is available for the party to adjudicate his grievances and that cannot be termed as effective, sufficient or adequate remedy for adjudicating their grievances nor it is a remedy. The decision in the matter of Jitendra Nath Biswas v. Empire of India and Ceylone Tea, Co. and Anr. , wherein the Apex Court while interpreting the
provisions of Industrial Disputes Act has held, that the Civil Court's jurisdiction is ousted as the provisions of Industrial Disputes Act, 1947 provide for complete mechanism and adequate remedy to decide and give finality to the dispute. It is in the said context, the Apex Court has held that, if a complete mechanism is provided for the parties for adjudication of the dispute by special statute, then by necessary implication, the Civil Court's jurisdiction is excluded. It is also observed that the discretionary power has to be exercised reasonably and not arbitrarily, but the said observation is made in the light of remedy available and it cannot be understood to mean that itself is adequate remedy. The discretionary power is not related to adjudication of the dispute nor there are any other provisions which provide for adjudication, as such, the comparison of the provisions of the Societies Registration Act cannot be made with the provisions of the Industrial Disputes Act, to rely on the decision in the matter of Jitendra Nath Biswas.

41. Reading of provisions of Sections 10, 26 and 27 of the Act, it is clear that the intention of the Legislature is to provide adjudication only in respect of the matters mentioned therein, wherein the Registrar can hold an enquiry and pass an order and that order becomes final subject to appeal provided to the Appellate Tribunal. In these matters, adequate remedy is provided, but, as far as the enquiry contemplated under Section 25 is concerned, there is no such provision, which provides adjudication and give finality to dispute. The Apex Court in Dhulabhai's case has observed that the remedy, which must be adequate and must give finality. Adequacy of the remedy is one of the requirements to exclude the jurisdiction of the Civil Court. As such, unless there is an adequate, effective and sufficient remedy provided by special statute, the jurisdiction of the Civil Court cannot be impliedly ousted.

42. By reading of the provisions of Section 25 or Section 27-A read with Rule 8, they only provide for enquiry by the Registrar and to make a report to the Society, and at the best to the State Government and nothing more than that. If recommendation is to be accepted by the State, whether the State has to take action is also not mandatory. Even if action is taken, that action is not adjudication of dispute, but it is taking over of the management by appointment of an Administrator, which cannot be construed as remedy to the aggrieved party.

43. The reliefs sought for by the plaintiffs are two fold, one is declaring the plaintiffs 1 to 5 and defendants 1 to 10 are the members of the governing body and they constitute the sixth plaintiff-Society and the second one is, a declaration that the defendants 11 to 17 do not form the governing body nor they constitute sixth plaintiff-society. In my opinion, Section 25 is not a provision to adjudicate this dispute particularly when the plaintiffs allege that, defendants 11 to 17 are imposters, which matter is not within the domain of the Registrar to enquire, whether the defendants 11 to 17 are imposters and the power that is provided under Section 25 of the Act is not a mechanism much less a mechanism for adjudication by a Registrar. Even assuming for the argument sake that there is some mechanism for an enquiry, that by itself is not sufficient to oust the jurisdiction of the Civil Court or to confer jurisdiction on the Registrar to adjudicate the matter.

44. No jurisdiction can be conferred on the Registrar which the legislation has not provided. The Trial Court without looking into the provisions and without even considering the scope of Section 25 of the Act, in one sentence has held that, the Registrar can hold an enquiry under Section 25 of the Act and not the Civil Court. In my opinion, this finding of the Trial Court is most erroneous and is absolutely contrary to the scope of Section 25 of the Act, the Trial Court has not even considered what is the remedy available under Section 25 of the Act, what is to be decided by the Registrar. As stated above, bar of jurisdiction of the Civil Court by implication means, what is not expressly stated is by implication provided, i.e., adequate mechanism to oust the jurisdiction of the Civil Court. Exclusion of jurisdiction of the Civil Court cannot even be normally inferred, unless adequate provision is made to resolve the dispute. I am of the opinion that neither Section 25 of the Act nor any other provisions of the Act provide for remedy to adjudicate the dispute one raised in the suit and the Trial Court is not justified in rejecting the plaint. The appeal deserves to be allowed.

45. Accordingly, the appeal is allowed. The order dated 1st March, 2007 passed in O.S. No. 1758 of 2003 on I.A. No. V is set aside. The Trial Court is directed to proceed in the matter in accordance with law.

KARNATAKA LAND LAWS

CASE LAW ON LAND LAWS