HARISCHANDRA KHUNDERRAO KOTHARE Vs. ABCRAIG

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, a 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 first contention urged on behalf of the defendants is contained in issue No. 1, viz. whether the suit as framed is maintainable. The basis of this argument must be the assumption, as true, of the facts mentioned in the plaint. The contention is that a suit cannot lie against the defendants in their representative capacity when the relief asked is the payment of a sum of money. It was argued that the procedure pertaining to representative suits is inapplicable to actions on debts, or money claims, or to-liability under contracts or in tort. In support of this contention Mr. Manecksha relied on several authorities which I shall presently consider. In order to appreciate the effect of the various decisions cited on behalf of the defendants it is necessary to bear In mind the material facts alleged by the plaintiff in his plaint. They are (1) that the society is unregistered ; (2) that defendant No. 2 is a trustee of the-society; (3) that there are funds belonging to the society in which all the members of the society are interested as provided in the rules of the society ; (4) that in addition to the declaration, the prayer is for an order of payment against the defendants in their representative capacity out of the funds of the society. A copy of the rules-has been produced and it can be seen that the society is of non-official character and is not subject to any control by the G.I.P. Railway administration as regards the disposal of its funds except to the extent provided under the rules. Rule 22 states that there shall be a trustee of the society, who shall be a member of the society stationed in Bombay. Then follow the provision for his election, his-temporary absence, and appointment of someone else under certain circumstances. There is no provision throughout the rules for vesting any property of the society in the trustee. Rule 22(b) provided that the bankers of the society shall be the National Bank of India and or the Imperial Bank of India. It then runs as follows: All money belonging to or due to the society shall be paid into one of such banks and the account of the society with such bank or banks shall be operated upon by the manager and the trustee for the time being appointed under sub-clause (a) hereof.