CHEMBUR TROMBAY EDUCATION SOCIETY Vs. D K MARATHE

JUDGEMENT

(1.) BOTH the aforesaid appeals from order can be disposed of together by a common order, for they are between the same parties and are directed against the common order passed by the trial Court dated October 17, 1995. Appeal from Order No. 1260 of 1995 is directed against the order passed below Notice of No. 4762 of 1995 (hereinafter referred to as the former notice of motion for the sake of brevity) in Short Cause Suit No. 5470 of 1995, whereas appeals from Order No. 1256 of 1995 is directed against the order in Notice of Motion No. 4572 of 1995 (hereinafter referred to as the latter notice of motion for the sake of brevity) in Short Cause Suit No. 5935 of 1992. Both the abovesaid notice of motions were filed by the respondent (Shri D. K. Marathe) before the trial Court. By Notice of Motion No. 4762 of 1995 in Short Cause Suit No. 5470 of 1995, the said respondent (Shri D. K. Marathe) prayed for relief of injunction, whereas by Notice of Motion No. 4572 in Suit No. 5935 of 1992 he prayed for initiating appropriate action against the appellants in exercise of power under Order 39, Rule 2-A of the C. P. C. for having violated the decree passed by the trial Court in S. C. Suit No. 5935 of 1992.

(2.) BRIEFLY stated, the appellants before this Court are the elected members of the Trust known as Chembur Trombay Education Society, which is engaged in various educational activities. The said society was formed by about 110 founder members to cater to the educational requirements of the area. The said Shri D. K. Marathe was one of the founder member of the said society alongwith the appellants. Some time in or around March 24, 1985 General Body of the Society by majority amended the constitution of the society and appointed Mr. Marathe as the life President of the Society. After the said decision, Shri Marathe undisputedly took over the charge as life President of the Society and discharged his functions and obligations in that behalf. It appears that a group of members were opposed to the manner of working of Shri Marathe. However, the said group of seven members were removed at the instance of Shri Marathe from their ordinary membership and also from governing body membership of the society, without consulting the elected Managing Committee or without giving any notice to them. The said seven members, challenged the said action by way of suit before the City Civil Court, Bombay being Short Cause Suit No. 5935 of 1992. It is relevant to note that the said suit was filed challenging their removal from the society, after obtaining prior consent of the Charity Commissioner under section 50 of the Bombay Public Trusts Act. By the said suit, the said seven members, who are appellants before this Court, not only challenged their expulsion but also questioned the authority of Shri Marathe to act as a life President of the Society. However, undisputedly, that suit was eventually disposed of by the City Civil Court on April 6, 1994, on the basis of compromise arrived at between the plaintiffs therein (appellants herein) and Shri Marathe. The compromise arrived at between the parties before the Civil Court reads thus:

(3.) AFTER the said compromise, the said seven members (appellants herein) were readmitted as members of the society. Once again, certain differences cropped up between the members of the Committee and Shri Marathe. One of the readmitted members Shri Mahapankar was once again removed from the Governing Council Membership by Shri Marathe. It is not in dispute that some of the members therefore convened meeting by requisition. According, General Body meeting was conveyed on January 7, 1995, wherein various matters were discussed including the restoration of the original constitution of the society. In this meeting a sub-committee was appointed to suggest amendments to the Constitution of the Society. The said sub-committee seems to have deliberated and pondered over the matter and advised amendment of the constitution, inter alia, deleting the provision relating to life Presidentship of Mr. Marathe and instead introducing elections to the Governing Council and to the post of President. The general body was accordingly convened on March 19, 1995 to consider the proposals submitted by the amendment sub-committee. The general body adopted most of the recommendations of the sub-committee with minor modifications wherever required and resolved to amend the constitution by deleting the provisions relating to life Presidentship of Mr. Marathe and instead introduced election to the Governing Council and to the post of President of the Society. In other words, the general body of the Society by majority adopted new constitution which provided for new and different dispensation. Soon thereafter, another general body was convened after giving due notice on June 18, 1995 in which, it was resolved that Shri B. M. Pant, a senior members be elected as President and New Governing Council was also elected in the said meeting in accord with the constitution. It is stated that this newly elected committee immediately took over the reigns of the management of the affairs of the society and are till date managing the affairs of the Society. It is the appellants case that inspite of notice Mr. Marathe did not attend either of the abovesaid general body meetings. In other words, the general body elected a new President in place of Shri Marathe. It is the case of Shri Marathe that the general body meetings were not convened in accordance with law and, therefore, any decision taken at such meetings was void ab initio. That after the aforesaid amendment to the constitution was carried out pursuant to the general body decision; and after the election of the new President as well as members of the Governing Council, change reports in this regard were submitted to the Charity Commissioner as required under section 22 of the Bombay Public Trusts Act, 1950. Suffice it to point out that Shri Marathe on the other hand filed a substantive suit before the City Civil Court being Short Cause Suit No. 5470 of 1995, praying for the following reliefs: