HARISCHANDRA KHUNDERRAO KOTHARE Vs. A B CRAIG

JUDGEMENT

(1.) THIS suit is filed by the plaintiff, who is a solicitor, for damages for breach of an alleged contract of employment by the G. I. P. Railway Employees Mutual Benefit Fund Society. The plaintiff alleges that the society had agreed to employ him on the terms mentioned in para. 4 of the plaint. That society is not registered. Two persons are made party defendants and are sued on behalf of themselves and all other members of the said society. When the suit was filed leave was obtained under Order I, Rule 8, Civil Procedure Code, 1908. At that time the prayers were only for a decree against the defendants for a sum of Rs. 90,000 and for costs. The defendants thereafter took out a summons to revoke the leave granted ex parte. That summons came for argument before Chagla J. The judgment on that summons is reported in (1942) 44 Born. L. R. 251. The learned Judge considered that on the averments in the plaint the prayer was for a decree against all individuals of the society personally, and such relief was not permitted by law. The ex parte leave originally granted was therefore set aside. That judgment was delivered on November 11, 1941. On November 25, 1941, the plaintiff took out a summons for amendment of the plaint and for leave under Order I, Rule 8, to sue the defendants, their representative capacity, and for leave under Clause 12 of the Letters Patent. That summons was argued at length before Chagla J. , who by his order dated December 2, 1941, allowed the amendment and granted leave under Order I, Rule 8 . Pursuant to that order the plaint has been amended and in para. 2 of the plaint it is stated: the plaintiff craves leave to refer to the rules of the said society when produced. There are funds belonging to the said society in which all the members of the said society are interested as provided by the rules of the said society. The prayers were also amended. The prayers as amended are for a declaration that the members of the said society are liable to pay and the plaintiff is entitled to receive from them the amount claimed as damages ; that it may be declared that the amount mentioned in the above prayer is payable to the plaintiff out of the funds of the society and that the defendants or defendant No. 2 as the trustee of the society may be ordered to pay to the plaintiff the aforesaid sum out of the funds of the society. In the plaint even before the amendment it was stated that defendant No. 2 was a trustee of the society.

(2.) THE defendants have filed a written statement raising various defences. It is alleged that between June 1, 1941, and November 26, 1941, 303 newt members who were in no way concerned with the alleged wrongful dismissal of the plaintiff and with this suit became members and became entitled to the funds. It is further stated that during the same period 768 members ceased to be members of the society, and were paid the sums respectively payable to them out of the funds of the society. It was. therefore contended that the new members had No. common interest with the named defendants in the plaintiff's claim and they may have separate defences which were distinct in themselves. It was contended that the order made under Order I, Rule 8, should be revoked. In my opinion it is not open to the defendants to raise that plea. This is a contention about the validity of the order and should have been argued when Chagla J. made the order after hearing both parties. If they were dissatisfied with that order, which was not ex parte, their remedy was to appeal. In my opinion, it is not within the province of this Court at the hearing now to set aside the order on the ground that it was wrong in law.

(3.) THE argument advanced on behalf of the defendants must go to the length of contending that in respect of an unincorporated society, if a contract is made on behalf of the society and it is broken, no damages could be claimed by the plaintiff in a representative suit. THE narrower argument is that no such damages could be claimed unless there was a trustee in whom the property was vested and against whom only an order for payment can be made by the Court. As regards the larger argument it is sufficient to say that it is unsound as pointed out in Taff Vale Railway v. Amalgamated Society of Railway Servants [1901] A. C. 426 Halsbury L. C. in his peculiar way dealt with the argument very briefly but clearly. He observed (p. 436): If the Legislature has created a thing which1 can own property, which can employ servants, and which can inflict injury, it must be taken, I think, to have impliedly given the power to make it suitable in a Court of law for injuries purposely done by its authority and procurement. This was to refute the contention that a trade union cannot be sued in its name. Lord Macnaghten in delivering judgment observed (p. 438): How are these bodies to be sued? I have no doubt whatever that a trade union, whether registered or unregistered, may be sued in a representative action if the persons selected as defendants be persons who, from their position, may be taken clearly to represent the body.