Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Judgment pronounced on: 10 April, 2015
+ I.A. Nos.1124/2009 & 6828/2009 in CS(OS) No.1970/2008
HAZRAT MAULANA ARSHAD MADANI AND ORS .....Plaintiffs
Through Mr.R.K.Dash, Sr.Adv. with
Mr.Md.Irshad Hanif, Adv. for
plaintiffs No.1,2,8,10,11,13,14 & 15.
Mr.J.C.Mahendru, Adv. with
Mr.Aarif Ali, Adv. for plaintiffs
No.3,4,5,6,7,9 & 12.
versus
MAULANA QARI MOHAMMAD USMAN AND ORS
.....Defendants
Through Mr.Anoop G.Choudhry, Sr.Adv. &
Mrs.June Choudhry, Sr.Adv. with
Mr.Sunil Malhotra, Mr.M.Taiyab
Khan & Mr.Niaz Farooqui, Advs.
for D-1.
Mr.Siddharth Yadav, Adv. with
Mr.Wasim Ashraf, Adv. for D-2.
Mr.S.A.Saud, Adv. for D-3 to 18.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. Eighteen plaintiffs have filed the present suit for declaration
and injunction. It is alleged in the plaint that plaintiff No.1 is the duly
elected President and plaintiffs No.2 to 18 are the Members of the
Working Committee of Jamiat Ulama-I-Hind (hereinafter referred to
CS(OS) No.1970/2008 Page 1 of 24
as the “JUH”) which is an unregistered society. The JUH is a socio-
religious organization and also a representative body of Muslims in
Indian Union having been founded in the year 1919.
In the plaint, it is averred that the JUH has its own Constitution
and having regard to the eminence, stature and scholarly character of
all its Presidents, there was no provision made in the Constitution for
bringing a Vote of “No-Confidence” against the President. Such a
move, it may be stated, was strongly opposed by Maulana Abul
Kalam Azad in his capacity as Member of the Working Committee so
that the President once elected continues to function uninterruptedly
for the whole duration of the period for which he was elected. The
Constitution of the JUH which was drawn up in 1919 continues to be
followed in toto by all Members of the JUH till date. The Constitution
has thus achieved its own sanctity and no one ever thought of
committing breach of the Constitution.
1.1 It is the claim of plaintiff No.1 that he was the elected
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President of the JUH vide circular dated 19 February, 2007 as per
Section 51(a) of the Constitution. Earlier, Late Maulana Syed Asad
Madani R.A. had been the elected President of the JUH for more
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than 32 years till 6 February, 2006 when he expired. As per Section
11(c) of the Constitution and the practice, the elections for the
President are held every two years. The elections are also held at
the level of local bodies including City, District and State level. On
the basis of the nomination of Presidential Candidate from each
State, the election to the post of the President is held.
CS(OS) No.1970/2008 Page 2 of 24
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1.2 After the death of Maulana Syed Asad Madani on 6
February, 2006, the plaintiff No.1 was duly elected as President of
JUH for the remaining term, i.e. up to December, 2006. Plaintiff No.1
is the youngest brother of late Maulana Syed Asad Madani. The
plaintiff No.3 has been a Member of the Central Working Committee
of the JUH for the last about 25 years. Fresh elections for the period
2007-08 became due which were finally completed in July, 2007 as
per Section 51(a) of the Constitution of JUH. During the period when
the election process was initiated and completed, defendant No.2
held the post of General Secretary of JUH. It is alleged that the
plaintiff No.1 was declared as the elected President of JUH for the
term 2007 and 2008 and his election as President of JUH was
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circulated vide circular dated 19 July, 2007 issued by defendant
No.2 himself who was the then General Secretary of JUH.
1.3 After the completion of the election of the President, defendant
No.2 as per the prescribed procedure announced the date for
election of the State Bodies as per Section 51(a) of the Constitution
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of JUH with the direction to complete the same up to 31 January,
2008. Accordingly, the State elections in all the States (except
Rajasthan, Madhya Pradesh, Karnataka and Bihar) were completed.
As per the election procedure (per Section 45 of the Constitution of
JUH), the previous Working Committee continues to discharge its
duties till the members from at least three States are not elected in
new Working Committee of JUH. In view of the above, it is
incumbent on the elected President to nominate a new Working
CS(OS) No.1970/2008 Page 3 of 24
Committee comprising of up to 21 Members strictly in consonance
with Section 46 of the Constitution of JUH. Sections 45 and 46 of the
Constitution of JUH have been reproduced in the plaint as under:-
“45. So long as the members from at least three State
Jamiats are not elected in the new Governing Council of
the Jamiat-Ulama-i-Hind, the previous council shall
continue to discharge its duties as before.
46. (a) There shall be a Working Committee of Jamiat-
Ulama-i-Hind consisting of 21 members, which shall be
nominated by the President of Jamiat-Ulama-i-Hind.
(b) The Working Committee shall consist of the
President, Vice Presidents and General Secretary in their
respective capacities.”
1.4 Accordingly, plaintiff No.1 nominated its new Working
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Committee in the meeting held on 6 March, 2008 announcing the
names of 16 members of the Working Committee. Since the newly
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appointed Working Committee was appointed by plaintiff No.1 on 6
March, 2008 as aforesaid in consonance with Sections 45 and 46 of
the Constitution of the JUH, the previous Working Committee
automatically stood dissolved under law. It became infructuous and
non est in the eye of law.
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1.5 After the meeting of 6 March, 2008, defendants No.1 and 2
whose names had not appeared, the newly elected Working
Committee created unruly scenes at the place of meeting. They held
a second meeting on the same day after the conclusion of first
meeting without any prior notice to all concerned. Defendant No.2
who was divested of his position and post in the Working Committee
CS(OS) No.1970/2008 Page 4 of 24
got annoyed and vowed to throw away the duly elected body of the
JUH. Defendant No.1 joined hands with defendant No.2 who was
destroying the democratic functioning of the JUH. In the second
meeting, they prepared the minutes against the plaintiffs. Plaintiff
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No.1 after having some apprehension on 19 March, 2008 filed a suit
being CS (OS) No.519/2008 against defendants Nos.1 and 2 who
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had called some meeting of the JUH on 26 March, 2008. As some
subsequent events happened, the plaintiff No.1 filed a fresh suit and
also moved an application for withdrawal of the first suit. The
application for withdrawal of the suit of the plaintiff No.1 was allowed.
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It is alleged in the plaint that the defendants on 26 March, 2008
called some meeting at the premises of JUH to lend support. They
also suggested to resolve the issues through mediation on or about
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23 March, 2008. Therefore, the plaintiff No.1 filed the second suit
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on 24 March, 2008.
1.6 The proposed process of mediation was trapped, laid to
deprive the plaintiffs from their legal remedy through judicial process.
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During the process of mediation, plaintiff No.1 wrote a letter dated 1
April, 2008 to the Mediator expressing regret regarding the consent
given by him to defendant No.2 to convene a meeting of the so-called
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Working Committee on 5 April, 2008 for the same agenda as was
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earlier proposed in the meeting on 26 March, 2008 which meeting
was cancelled. However, the plaintiffs by way of advertisement in the
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newspaper published on 2 April, 2008 came to know about the
calling of a meeting of the Central Working Committee scheduled for
CS(OS) No.1970/2008 Page 5 of 24
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5 April, 2008 at Delhi. The said advertisement was issued by
defendant No.2 claiming himself to be the Secretary of the JUH, an
office from which he already stood demitted on the appointment of
the new General Secretary (plaintiff No.5). It was also reported that in
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the subsequent second meeting on 6 March, 2008 which was held
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after the conclusion of the lawful meeting earlier on 6 March, 2008,
the said defendant removed the plaintiff No.1 as President of the
JUH.
1.7 It is argued that nowhere in the Constitution of the JUH, there
is any provision for removal of the duly elected President. Defendant
No.2 is claiming himself to be the General Secretary of the JUH as he
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had addressed a letter dated 7 April, 2008 in this regard. In view of
the above, in the second suit filed by the plaintiff No.1 being CS(OS)
No.685/2008, the relief was sought to declare the alleged
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proceedings held in second meeting on 6 March, 2008 and 5 April,
2008 which were conducted by defendants Nos.1 and 2 to be
unlawful and nullity and an injunction was also sought.
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1.8 On 25 August, 2008, this Court in CS (OS) No.685/2008
rejected the plaint by allowing the applications being I.A.
Nos.6047/2008 and 6348/2008 filed by defendants Nos.1 and 2. The
operative portion of the said order is reproduced as under:-
“28. In this case, the plaintiff’s application, IA 6338/2008,
under Order I Rule 8 generally mentions about the District
Committees having authorized him to file the suit on behalf
of Jamat. However, the membership of those committees
remains undisclosed; the membership of the Jamat, whose
interests are allegedly affected due to the impugned
CS(OS) No.1970/2008 Page 6 of 24
resolution, has not been shown. According to the suit, the
Jamat has a membership base of one crore. These
lacunae are, in the opinion of this court, incurable.
29. For the above reasons, it is held that the suit is not
maintainable. IA 6047/08 and IA 6348/2008 accordingly
deserve to succeed and are allowed. The plaint is
accordingly rejected; the interim orders are vacated. All
pending applications are disposed of accordingly. In the
circumstances of this case, parties shall bear their costs.”
1.9 It is alleged in the present suit that after passing the said
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order, on 26 August, 2008 defendants Nos.1 and 2 along with few
other persons came to the office of JUH and threatened the plaintiffs
No.1 to 5 to handover the charge of the working of the JUH as their
suit has been dismissed by the Court. They also issued the press
release raising their claims. It is specifically alleged in the plaint that
the plaintiffs are the members of the Working Committee of the JUH
and such representatives of the JUH in accordance with the
provisions of the Constitution of the JUH and plaintiff No.1 continues
to enjoy the support from all quarters, bodies, Committees and
Working Committee throughout the country. Therefore, the plaintiffs
have no option but to file the fresh suit.
2. By this order, I propose to decide the two pending
applications; one being I.A. No. 1124/2009 and other being I.A. No.
6828/2009 filed by the defendant Nos.1 and 2 respectively for
rejection of plaint under Order 7 Rule 11 CPC.
3. In both the applications, similar prayer is made for rejection of
plaint on the following grounds:-
CS(OS) No.1970/2008 Page 7 of 24
(i) The present suit is not maintainable in law by virtue of the
provisions of Order 23 Rule 1 Sub Rule 4 CPC because the
plaintiff filed CS(OS) No.519/08 seeking amongst others the
following relief :
“Declare that the alleged meeting dated 6.3.2008 said to
have been conducted by Defendant No. 1 allegedly
bringing no confidence motion against plaintiff No. 2 to
be void unlawful and nullity the same being without
authority of law and hence ab initio void "
(ii) The plaintiff No. 2 filed an application for withdrawal of suit
CS(OS) No.519/08 and sought liberty to file a fresh suit.
However before withdrawal of CS (OS) No. 519/08, CS(OS)
No. 685/08 was filed, an objection was raised by the present
defendant No. 1 in CS(OS) No.685/08 that CS(OS) No.
685/08 was not maintainable because no liberty had been
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granted by this Court in order dated 11 April, 2008 to file a
fresh suit, and therefore the said suit was not maintainable
under Order 23 Rule 1 Sub Rule 4 (b) CPC. This Court vide
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order dated 25 August, 2008 held that since C.S. (OS) No.
685/08 was filed prior to withdrawal of C.S. (OS) No. 519/08
provisions of Order 23 Rule 1 CPC would not be applicable.
However the plaint in C.S. (OS) No. 685/08 was rejected.
Thus the suit CS(OS) No. 685/08 ceased to exist.
(iii) The present suit would therefore be a fresh and subsequent
suit to which provisions of Order 23 Rule 1 CPC would be
squarely applicable and since CS(OS) No. 519/08 was
withdrawn without the liberty to institute a fresh suit in respect
CS(OS) No.1970/2008 Page 8 of 24
of the subject matter of that suit the plaintiffs are precluded
from instituting the present suit since it relates to the same
subject matter as that of CS(OS) No.519/08.
(iv) The plaintiff No. 1 had previously on the same/ identical
cause of action brought two suits against the defendants. The
prayers made in all these suits are similar. The plaintiffs are
agitating the same claim by raising identical/ similar prayers
even though the previous two suits have been dismissed by
this Court on the same cause of action.
(v) The defendant No. 1 in CS (OS) No. 685 of 2008 amongst
other objections preferred l.A. No. 6342/2008 under Order VII
Rule 11 CPC wherein it was pleaded that CS (OS) No. 519 of
2008 had been withdrawn after the filing of CS (OS) No. 685
of 2008, hence the second suit was not maintainable. It was
pleaded that plaintiff No. 2 therein does not and cannot
represent JUH as he is neither its elected President nor
authorised by the present Working Committee to institute the
said suit. It was further pleaded that JUH is not a juristic
entity, not being a registered body. Hence, the plaintiff No. 1
in the present suit could not have instituted that suit on the
basis of his claim to represent the entire organisation.
(vi) All the issues raised in the present suit were mainly covered
and considered by the Single Judge of this Court, vide order
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dated 25 August, 2008. The present suit has been instituted
through several plaintiffs, all of whom claim themselves to be
office bearers of the Committee appointed by plaintiff No. 1,
CS(OS) No.1970/2008 Page 9 of 24
as President of JUH. Once the appointment and claim of
plaintiff no. 1 as President of JUH is itself under challenge,
then his right to appoint any office bearer/ Committee does
not arise and such individuals cannot claim themselves to
represent the interest of all the registered members of JUH
as the plaintiff No.2 to 18 have not claimed any independent
relief. The President and members of its Working Committee
are elected by the General Body. The relief claimed by
plaintiff No.1 cannot be granted since defendants by
themselves are not the General Body of JUH. They are only
the nominated members of Executive Committee having
been nominated by the defendant No.1 who was elected as
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president of JUH on 5 April, 2008 by the General Body of
JUH with 1857 members voting in his favour out of the 1858
present in the said General Body.
(vii) In order to overcome the lacuna in the previous suit and the
decision of the Single Judge in CS (OS) No. 685 of 2008, the
plaintiff no. 1 this time has differently worded paragraph 1 of
the plaint. The plaintiffs have not preferred an appeal against
the order of Single Judge, hence the findings have attained
finality and hence remain binding upon the parties. The
present suit being hit by the principle of resjudicata and
estoppels.
There was no surviving cause of action on the day the
present suit was filed. In paragraph 16 of the plaint it is
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alleged that cause of action arose on 19 July, 2007 when
CS(OS) No.1970/2008 Page 10 of 24
the plaintiff No. 1 was elected as president of JUH for 2007-
2008. In clause (a) of the prayer clause it is prayed that the
plaintiff No. 1 be declared as president of JUH for the period
2007-2008. Thus on the day the present suit was filed, the
term of President for which the declaration was sought stood
expired.
(viii) The dispute between the plaintiff No. 1 and defendant No. 2
was referred for arbitration before the arbitrator. Both the
plaintiff No. 1 and defendant No. 1 had given their written
consent to the arbitration and interim directions were also
issued by the Arbitrator from time to time.
4. In reply filed by the plaintiffs to the above said applications the
plaintiffs mainly have reiterated the statement and averment made in
the plaint and have denied the objections raised by the defendant
Nos.1 and 2. It is submitted that the defendant No.2 at one point of
time had in fact tried to assume the office of the President when the
question of filling the post for interregnum period arose. Consequent
upon the death of Late Maulana Asad Madani he withdrew his name
since he could not muster support thereafter he prompted defendant
No.1 to claim himself to be the President though the fact remains that
the defendant No.1 also in the regular elections did file his
nomination for the post of the President. The names from all over the
State were forwarded, all the states forwarded the name of the
plaintiff except one state i.e. the State of West Bengal forwarded the
name of defendant No.1, knowingly fully well that if the defendant
CS(OS) No.1970/2008 Page 11 of 24
No.1 remains in the contest he was surely and certainly likely to
suffer the defeat accordingly the defendant No.1 withdrew his name
consequently the plaintiff was duly elected. The defendant No.2
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declared the result of the plaintiff by circular dated 19 July, 2007
interalia declaring him as the President of JUH therefore it does not
lie in the mouth of either the defendant No.2 or defendant No.1 to say
and suggest that the plaintiff is claiming himself to be the President
for two years as per Article-II.
4.1 The plaintiffs No.2 to 18 have filed the instant suit against the
defendants for the first time. It is further submitted that the plaintiffs
No.2 to 18 neither filed CS(OS) No.519/2008 nor CS(OS) No.
685/2008 against any of the defendants. The first suit was withdrawn
with liberty to file the subsequent suit, the liberty was afforded by this
Court. The second suit CS (OS) No.685/2008 was filed by the plaintiff
No.1 though the liberty was later on granted by this Court, the said
plaint was rejected on technical grounds by allowing the application
of the defendant under Order 7 Rule 11 CPC and the application of
the plaintiff under Order 1 Rule 8 CPC was dismissed. The merit of
the earlier two suits was not considered. The plaintiff No.1 was
constrained to prefer an application under Order 1 Rule 8 CPC which
application was simply dismissed without touching the merits of the
suit.
4.2. On merit it is submitted that even for the interregnum period
the plaintiff No.1 was an elected president consequent upon the
expiry of his term as an interim president. Regular elections were
CS(OS) No.1970/2008 Page 12 of 24
conducted in accordance with the provisions of JUH in which
elections his name was duly forwarded by all states unanimously
except the State of West Bengal who had forwarded the name of
defendant No.1 also along with the plaintiff No.1. It is also an
accepted fact that the defendant no.1 seeing his imminent defeat
withdrew his name consequentially the defendant no.2 by circular
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dated 19 July, 2007 declared the plaintiff No.1 as a duly elected
president. Therefore there is all legitimacy for the plaintiff No.1 to
continue and claim himself to be a duly elected President in
consonance with the constitutional provisions of Section 39 and 40 of
the Constitution of JUH. It is submitted that once all the electorates
having exercised their franchise and a regular elections having been
held the present plaintiff having duly been elected in the proper and
regular election in consonance with the provisions of the Constitution
of JUH and the defendant No.2 himself declared him as the President
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by virtue of his circular dated 19 July, 2007, nothing further survives
and the fact remains that the merits of the lis in between the parties
was never gone into by the Single Judge as is evident from the
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operative portion of the order dated 25 August, 2008.
4.3. The question of preference of an appeal could have only
arisen if the case in hand would have been decided on merits. The
merits having been not touched, the law of the land clearly permits
and stipulate to prefer the instant suit therefore there was no
necessity to prefer an appeal. There is no reason or cause for the
present suit being barred by the principles of resjudicata or being hit
CS(OS) No.1970/2008 Page 13 of 24
by the principles of estoppel. The defendant No.1 and 2 therefore
cannot be allowed to short circuit the present proceedings.
4.4. The plaintiffs have common interest in the suit and they have
been nominated by plaintiff No. 1 under the powers conferred and
duty cast on him in terms of Section 46 of the Constitution of JUH.
The relief claimed in regard to the resolution of the alleged
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general body dated 5 April, 2008 is consequential to the relief in
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regard of the resolution dated 6 March, 2008 is wrong and contrary
to the stand taken by defendant No.1 and 2.
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4.5. The General Body meeting alleged to have taken place on 5
April, 2008 has acted unconstitutionally, illegally as there is no
provision in the constitution for bringing no confidence motion against
the duly elected President, thus any business transacted in the said
alleged meeting is unconstitutional, illegal and void ab-initio.
4.6. It is alleged by the plaintiff that in earlier two suits namely CS
(OS) 519/2008 and CS (OS) 685/2008 there were two plaintiffs out of
whom plaintiff No.1 of the present suit was one of them. The other
plaintiffs i.e. 2 to 18 in the present suit are allegedly the members of
the working committee of JUH and they were not parties to the two
earlier suits in any capacity.
4.7. The present suit has been filed by the plaintiffs in their
individual capacity and not for or on behalf of JUH. It is further
submitted that president is elected as per Section 51 of the
Constitution of JUH and plaintiff No. 1 has been duly elected as
President strictly as per the provisions of Constitution of JUH. No
CS(OS) No.1970/2008 Page 14 of 24
application under Order 1 Rule 8 CPC was required to be filed for
filing the present suit.
5. Both the parties have made their submissions on many
accusations. I have also gone through the record of earlier two suits
which were earlier ordered to be tagged with the present suit. It is the
admitted position that the plaintiff No. 2 to 18 were not the parties in
earlier two suits. In the present suit JUH is also not a party. The relief
sought in the present suit is substantially similar. Therefore, it is to
examine as to whether the present suit is maintainable or the plaint is
liable to be rejected.
6. Order VII Rule 11 CPC under caption 'Rejection of the plaint'
reads as under:
" The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the court to correct the
valuation within a time to be fixed by the court, fails to do
so;
(c) where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped, and the
plaintiff, on being required by the court to supply the
requisite stamp paper within a time to be fixed by the
Court, fails to do so;
(d) where the suit appears from the statement in the plaint
to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provision of
Rule 9."
7. While considering the application under Order VII Rule 11
CPC, the court is not required to take into consideration the defence
CS(OS) No.1970/2008 Page 15 of 24
set up by the defendant in his written statement. The question
whether the plaint discloses any cause of action is to be decided by
looking at the averments contained in the plaint itself. While
considering the application, the strength and weakness of the
plaintiffs’ case is, not to be judged.
8. CS(OS) No. 519/2008 was dismissed as withdrawn with leave
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of the Court by order dated 11 April, 2008. When the said order was
passed, CS (OS) No. 685/2008 had already been filed.
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9. From the order dated 25 August, 2008 passed by this Court
in CS (OS) No.685/2008 the defendant No.1 in the said suit raised
two submissions namely:
(a) That the suit is not maintainable on the same cause of action
and for the same-self relief claimed in the earlier suit without
leave of the court.
b) That JUH being an unregistered association the plaintiff No.2
in the said suit unless could show his competence, in any
manner to represent JUH, cannot legally maintain suit without
taking resort to the provisions of Order I Rule 8 CPC.
10. The Court rejected the contention of the defendant No.1 as to
the maintainability of suit on ground (a) relying upon the decision of
Supreme Court in Vimlesh Kumari Kulshreshta vs. Sambhajirao
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(Appeal (Civil) 2976/2004 decided on 5 February, 2008). In para 19
of the said order it was held that the previous suit which was pending,
cannot be defeated. In rejoinder filed by the defendant No.2 in para 9,
it was observed by the Court that it has now been admitted that the
CS(OS) No.1970/2008 Page 16 of 24
liberty was granted to institute fresh proceedings upon the same
cause of action. It was held that Order XXIII Rule 1 CPC cannot be
read so as to bar a suit which is, already instituted before the other
suit has been abandoned or dismissed. The said findings were not
challenged by defendant No.1 and 2 in appeal. However, they are
again trying to re-agitate the same in the applications filed by them
under Order 7 Rule 11 CPC.
11. Thus, the objection of the defendant No.1 and 2 that no
leave/liberty was granted to file fresh suit is rejected.
12. The main reasons for rejection of plaint was given in the
ultimate paragraph of the order, this Court in second suit being
CS(OS) No. 685/2008 observed as under:
“In this case, the plaintiff's application, I.A. No. 6338/2008,
under Order 1 Rule 8 generally mentions about the
District Committees having authorized him to file the suit
on behalf of Jamat. However, the membership of those
committees remains undisclosed the membership of the
Jamat, whose interest are allegedly affected due to the
impugned resolution has not been shown. According to
the suit, the jamat has a membership base of one crore.
These lacunas are in the opinion of this Court, incurable"
The C.S. (O.S.) No. 519/2008 was dismissed by the
Single Judge upon filing of I.A. No. 4545/2008 under
order XXIII Rule 1, CPC. The order passed on the said
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application on 11 April, 2008 is as follows: ''learned
counsel for the plaintiff seeks liberty to withdraw this suit
in view of the subsequent suit no. CS (OS) No. 685/2008.
It is submitted that this suit sought injunctive relief in
respect of the meeting dated 26.03.2001 and the fresh
CS(OS) No.1970/2008 Page 17 of 24
suit has questioned the legality of the subsequent
meeting.
Leave Granted.
The Suit CS (OS) 519/2008 and all the pending
applications are, therefore, dismissed as withdrawn."
13. Order 7 Rule 13 CPC provides as under:-
"Where rejection of plaint does not preclude
presentation of fresh plaint .— The rejection of the plaint
on any of the grounds hereinbefore mentioned shall not of
its own force preclude the plaintiff from presenting a fresh
plaint in respect of the same cause of action."
14. The dispute centres around between the plaintiffs on one hand
and the defendants on the other as to who are the actual President,
office bearers and members of the working committee of JUH. It has
been stated earlier that after rejection of the plaint in CS(OS) No.
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685/2008 vide order dated 25 August, 2008, defendant No. 1 and 2
on next day threatened the plaintiffs to hand over the charge of the
JUH and have been threatening to illegally possess the office of the
JUH.
15. The plaintiffs in their individual capacity have filed the present
suit as President, office bearers and members of the working
committee of JUH and this has been refuted by the defendants in
their written statement. Defendant No.1 in his separate written
statement has pleaded inter alia that it is defendant No.1 who was
elected as President and he himself nominated new working
committee of the JUH.
CS(OS) No.1970/2008 Page 18 of 24
16. The present suit is not for and on behalf of the members of the
district and state committees. It is appropriate to refer to relevant part
of Order 1 Rule 8 CPC which reads as under:
"8. One person may sue or defend on behalf of all in
same interest.-
(1) Where there are numerous persons having the same
interest in one suit,—
(a) one or more of such persons may, with the permission
of the court, sue or be sued, or may defend such suit, on
behalf of, or for the benefit of, all persons so interested;
(b) the court may direct that one or more of such persons
may sue or be sued, or may defend such suit, on behalf
of, or for the benefit of, all persons so interested.
xxxxxxxxxx xxxx xxxxxxx”
The present suit has also not been filed against JUH which is
an unregistered body and if any proceedings are initiated against it,
the permission of the Court under Order 1 Rule 8 CPC is mandatory.
No doubt, the plaintiffs sought time to file the application under Order
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1 Rule 8 CPC which was granted by order dated 14 May, 2012 but
the same was not filed. Counsel for the plaintiffs submits that it is not
necessary as JUH is not a party and plaintiff Nos.2 to 14 are claiming
their independent rights and even otherwise, the plaint can be thrown
out at this stage as merit of the case has to be considered atleast by
the Court. It is settled law that no suit shall be defeated by reason of
misjoinder and non-joinder of parties. In case necessary parties are
CS(OS) No.1970/2008 Page 19 of 24
joined, the said issues/objections of the defendant Nos.1 and 2 no
doubt would be considered at the appropriate stage of the suit.
17. It is argued on behalf of plaintiffs that the sine-qua-non for
applying Order 1 Rule 8 CPC, is the existence of the same interest.
The expression 'same interest' implies a joint and inseparable
interest. The test would be whether a judgment which a party might
obtain in its favour in respect of its rights arising out of or invaded by
act or transaction would ipso facto restore the rights of those who are
not parties on the record. In the present suit as stated earlier, the
plaintiffs have claimed rights in individual capacity as the office
bearers of the JUH and the interests of the members of district and
state committees and the members in general body are in no way
concerned and no relief has been claimed in the suit in the
representative capacity for and on behalf of them. In such view of the
matter Order I Rule 8 CPC is not attracted. The issue with regard to
applicability of Order I Rule 8 CPC to the present suit cannot be gone
into and decided while dealing with the application (s) filed under
Order VII Rule 11 CPC. It requires to be decided in a full fledged trial
after issues are settled.
The reliefs claimed against the defendants are declaration and
injunction. A reading of the plaint would reveal that plaintiffs' specific
case is that defendant Nos. 1 and 2 are imposters and illegally
claiming to be President and General Secretary of JUH, are
threatening to interfere with the plaintiffs' possession of the office of
JUH. Therefore, prayer has been made to restrain them in the
CS(OS) No.1970/2008 Page 20 of 24
plaintiffs' possession of the office of JUH and also to direct defendant
No. 2 to hand over the entire records of JUH since those were in his
possession when he held the office of General Secretary.
18. Defendants No.2 in paragraph 3 of the application has urged
that previously suit was filed on same cause of action. The defendant
No.2 does not say that plaint does not disclose cause of action to file
the present suit. The expressions 'no cause of action' is different from
the plea that the plaint 'does not disclose any cause of action'. In the
event, plaint does not disclose any cause of action, the court may
reject the plaint, but not in case where the plea is taken that there is
no cause of action or lack of cause of action.
19. To ascertain whether the plaint discloses any 'cause of action'
the averments made therein should be read as a whole. In paragraph
11 of the plaint it is stated thus:
th
"That on 26 August 2008 the defendants Nos. 1 and 2
along with few other persons came to the office of JUH
and threatened the plaintiff Nos. 1 and 6 to hand over the
charge of the working of the JUH as their suit has been
dismissed by this Hon'ble Court. As a matter of fact the
plaintiffs are in occupation and possession of the offices
of JUH and the defendants are threatening to get the
same vacated by hook or by crook".
th
One relief was sought to declare the meetings held on 6
th
March, 2008 and 5 April, 2008 by defendants Nos.1 and 2 bringing
No Confidence motion against plaintiff No.1 as void ab intio, unlawful
and nullity in the eyes of law. Thus the said relief sought in the
present suit was not in the earlier suits being CS(OS) No. 685/2008.
CS(OS) No.1970/2008 Page 21 of 24
20. The phrase "does not disclose cause of action" has to be very
narrowly construed. The rejection of the plaint at the threshold entaills
very serious consequences. This power therefore, has to be used in
exceptional circumstances and ought to be exercised only when the
court is absolutely sure that the plaintiff does not have an arguable
case at all.
21. Even there are certain averments in the plaint that there being
the subsequent cause of action, the plaintiffs in one of the reliefs of
the present suit have prayed to restrain the defendants from
interfering with the plaintiffs’ possession of JUH's Office as well as
other offices connected with the central organization. It is also settled
law that at the time of deciding of application for rejection of plaint,
merely the averment in the plaint and documents annexed with the
plaint are to be considered.
22. With regard to the another objection about the maintainability
of suit in terms of relevant provisions of Arbitration and Conciliation
Act, 1996 as urged by defendant Nos. 1 and 2, suffice it to say that
the question was raised and agitated in the present suit and the same
nd
was turned down by this Court by order dated 22 January, 2010 in
I.A. No.1123 of 2009. Therefore, the said objection cannot be
agitated afresh in the present applications and the same is rejected.
23. The objection is also that filing of the present suit amount to
resjudicata, the plaintiffs No.2 to 18 were not parties to the earlier two
suits and therefore, the present suit cannot be said to be not
maintainable so far as they are concerned. The averments made in
CS(OS) No.1970/2008 Page 22 of 24
the plaint would show that he has filed the suit in his individual
capacity as a President of JUH. Similarly the other plaintiffs in their
individual Capacity as members of the working committee of JUH
have brought the suit seeking several reliefs. Nothing on merits has
th
been considered in the order dated 25 August, 2008. Parties in the
present suit are also not same. Prima facie, I am of the view that
there is a force in the submission of the plaintiffs that there is now no
impediment to proceed the suit on merit as the fresh suit for the same
cause of action is maintainable under Order 7 Rule 13 CPC. In case,
the objections in subsequent suit are cured, the suit is maintainable,
however at the same time, the other party is entitled to raise the
objection. It is for the court to decide as to whether fresh plaint is
rejected or not.
24. The last objection raised by the Senior counsel appearing on
behalf of defendant No.1 that prayer sought by the plaintiffs in the
plaint has become infructuous on the date of suit as the plaintiff No.
was appointed for the period 2007-2008 as alleged in the prayer
clause and in view of admission made by the plaintiff No.1, the suit is
not maintainable. There is a force in the submission of the Senior
counsel appearing on behalf of plaintiffs that there is typing mistake
otherwise the period of appointment of plaintiff No.1 was for two
years. Learned Senior counsel has referred Article 11 of the
Constitution of JUH which reads as under :
“The membership of Jamait Ulama-i-Hind and its duration.
Article (11)
CS(OS) No.1970/2008 Page 23 of 24
(a) xxxxxxxxxx...
(b) xxxxxxxxxx...
(c) Now term of Jamait Ulama-i-Hind and its units will
commence from the date of when Central Office elects the
new president and he took charge of the same. The tenure
of the president will be for the two years. The process of
making members will start after commencement of new term
and Working Committee will fix its duration. However during
emergency period, the General Secretary of the Jamait
Ulama-i-Hind after consultation with the president can
extend its duration.”
In view of the above, there is no force in the submissions of
the Senior counsel appearing on behalf of defendant No.1. Even if
the earlier two plaints are read, it is specifically mentioned about the
appointment of plaintiff No.1 for two years i.e. for 2007 and 2008.
Thus, the objection is not sustainable.
25. In view of aforesaid reasons, there is no merit in both
applications filed by defendant Nos.1 and 2. The same are
dismissed.
CS(OS) No.1970/2008
st
26. List the matter before Roster bench on 1 July, 2015 for
further proceedings.
(MANMOHAN SINGH)
JUDGE
APRIL 10, 2015
CS(OS) No.1970/2008 Page 24 of 24
th
% Judgment pronounced on: 10 April, 2015
+ I.A. Nos.1124/2009 & 6828/2009 in CS(OS) No.1970/2008
HAZRAT MAULANA ARSHAD MADANI AND ORS .....Plaintiffs
Through Mr.R.K.Dash, Sr.Adv. with
Mr.Md.Irshad Hanif, Adv. for
plaintiffs No.1,2,8,10,11,13,14 & 15.
Mr.J.C.Mahendru, Adv. with
Mr.Aarif Ali, Adv. for plaintiffs
No.3,4,5,6,7,9 & 12.
versus
MAULANA QARI MOHAMMAD USMAN AND ORS
.....Defendants
Through Mr.Anoop G.Choudhry, Sr.Adv. &
Mrs.June Choudhry, Sr.Adv. with
Mr.Sunil Malhotra, Mr.M.Taiyab
Khan & Mr.Niaz Farooqui, Advs.
for D-1.
Mr.Siddharth Yadav, Adv. with
Mr.Wasim Ashraf, Adv. for D-2.
Mr.S.A.Saud, Adv. for D-3 to 18.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. Eighteen plaintiffs have filed the present suit for declaration
and injunction. It is alleged in the plaint that plaintiff No.1 is the duly
elected President and plaintiffs No.2 to 18 are the Members of the
Working Committee of Jamiat Ulama-I-Hind (hereinafter referred to
CS(OS) No.1970/2008 Page 1 of 24
as the “JUH”) which is an unregistered society. The JUH is a socio-
religious organization and also a representative body of Muslims in
Indian Union having been founded in the year 1919.
In the plaint, it is averred that the JUH has its own Constitution
and having regard to the eminence, stature and scholarly character of
all its Presidents, there was no provision made in the Constitution for
bringing a Vote of “No-Confidence” against the President. Such a
move, it may be stated, was strongly opposed by Maulana Abul
Kalam Azad in his capacity as Member of the Working Committee so
that the President once elected continues to function uninterruptedly
for the whole duration of the period for which he was elected. The
Constitution of the JUH which was drawn up in 1919 continues to be
followed in toto by all Members of the JUH till date. The Constitution
has thus achieved its own sanctity and no one ever thought of
committing breach of the Constitution.
1.1 It is the claim of plaintiff No.1 that he was the elected
th
President of the JUH vide circular dated 19 February, 2007 as per
Section 51(a) of the Constitution. Earlier, Late Maulana Syed Asad
Madani R.A. had been the elected President of the JUH for more
th
than 32 years till 6 February, 2006 when he expired. As per Section
11(c) of the Constitution and the practice, the elections for the
President are held every two years. The elections are also held at
the level of local bodies including City, District and State level. On
the basis of the nomination of Presidential Candidate from each
State, the election to the post of the President is held.
CS(OS) No.1970/2008 Page 2 of 24
th
1.2 After the death of Maulana Syed Asad Madani on 6
February, 2006, the plaintiff No.1 was duly elected as President of
JUH for the remaining term, i.e. up to December, 2006. Plaintiff No.1
is the youngest brother of late Maulana Syed Asad Madani. The
plaintiff No.3 has been a Member of the Central Working Committee
of the JUH for the last about 25 years. Fresh elections for the period
2007-08 became due which were finally completed in July, 2007 as
per Section 51(a) of the Constitution of JUH. During the period when
the election process was initiated and completed, defendant No.2
held the post of General Secretary of JUH. It is alleged that the
plaintiff No.1 was declared as the elected President of JUH for the
term 2007 and 2008 and his election as President of JUH was
th
circulated vide circular dated 19 July, 2007 issued by defendant
No.2 himself who was the then General Secretary of JUH.
1.3 After the completion of the election of the President, defendant
No.2 as per the prescribed procedure announced the date for
election of the State Bodies as per Section 51(a) of the Constitution
st
of JUH with the direction to complete the same up to 31 January,
2008. Accordingly, the State elections in all the States (except
Rajasthan, Madhya Pradesh, Karnataka and Bihar) were completed.
As per the election procedure (per Section 45 of the Constitution of
JUH), the previous Working Committee continues to discharge its
duties till the members from at least three States are not elected in
new Working Committee of JUH. In view of the above, it is
incumbent on the elected President to nominate a new Working
CS(OS) No.1970/2008 Page 3 of 24
Committee comprising of up to 21 Members strictly in consonance
with Section 46 of the Constitution of JUH. Sections 45 and 46 of the
Constitution of JUH have been reproduced in the plaint as under:-
“45. So long as the members from at least three State
Jamiats are not elected in the new Governing Council of
the Jamiat-Ulama-i-Hind, the previous council shall
continue to discharge its duties as before.
46. (a) There shall be a Working Committee of Jamiat-
Ulama-i-Hind consisting of 21 members, which shall be
nominated by the President of Jamiat-Ulama-i-Hind.
(b) The Working Committee shall consist of the
President, Vice Presidents and General Secretary in their
respective capacities.”
1.4 Accordingly, plaintiff No.1 nominated its new Working
th
Committee in the meeting held on 6 March, 2008 announcing the
names of 16 members of the Working Committee. Since the newly
th
appointed Working Committee was appointed by plaintiff No.1 on 6
March, 2008 as aforesaid in consonance with Sections 45 and 46 of
the Constitution of the JUH, the previous Working Committee
automatically stood dissolved under law. It became infructuous and
non est in the eye of law.
th
1.5 After the meeting of 6 March, 2008, defendants No.1 and 2
whose names had not appeared, the newly elected Working
Committee created unruly scenes at the place of meeting. They held
a second meeting on the same day after the conclusion of first
meeting without any prior notice to all concerned. Defendant No.2
who was divested of his position and post in the Working Committee
CS(OS) No.1970/2008 Page 4 of 24
got annoyed and vowed to throw away the duly elected body of the
JUH. Defendant No.1 joined hands with defendant No.2 who was
destroying the democratic functioning of the JUH. In the second
meeting, they prepared the minutes against the plaintiffs. Plaintiff
th
No.1 after having some apprehension on 19 March, 2008 filed a suit
being CS (OS) No.519/2008 against defendants Nos.1 and 2 who
th
had called some meeting of the JUH on 26 March, 2008. As some
subsequent events happened, the plaintiff No.1 filed a fresh suit and
also moved an application for withdrawal of the first suit. The
application for withdrawal of the suit of the plaintiff No.1 was allowed.
th
It is alleged in the plaint that the defendants on 26 March, 2008
called some meeting at the premises of JUH to lend support. They
also suggested to resolve the issues through mediation on or about
rd
23 March, 2008. Therefore, the plaintiff No.1 filed the second suit
th
on 24 March, 2008.
1.6 The proposed process of mediation was trapped, laid to
deprive the plaintiffs from their legal remedy through judicial process.
st
During the process of mediation, plaintiff No.1 wrote a letter dated 1
April, 2008 to the Mediator expressing regret regarding the consent
given by him to defendant No.2 to convene a meeting of the so-called
th
Working Committee on 5 April, 2008 for the same agenda as was
th
earlier proposed in the meeting on 26 March, 2008 which meeting
was cancelled. However, the plaintiffs by way of advertisement in the
nd
newspaper published on 2 April, 2008 came to know about the
calling of a meeting of the Central Working Committee scheduled for
CS(OS) No.1970/2008 Page 5 of 24
th
5 April, 2008 at Delhi. The said advertisement was issued by
defendant No.2 claiming himself to be the Secretary of the JUH, an
office from which he already stood demitted on the appointment of
the new General Secretary (plaintiff No.5). It was also reported that in
th
the subsequent second meeting on 6 March, 2008 which was held
th
after the conclusion of the lawful meeting earlier on 6 March, 2008,
the said defendant removed the plaintiff No.1 as President of the
JUH.
1.7 It is argued that nowhere in the Constitution of the JUH, there
is any provision for removal of the duly elected President. Defendant
No.2 is claiming himself to be the General Secretary of the JUH as he
th
had addressed a letter dated 7 April, 2008 in this regard. In view of
the above, in the second suit filed by the plaintiff No.1 being CS(OS)
No.685/2008, the relief was sought to declare the alleged
th th
proceedings held in second meeting on 6 March, 2008 and 5 April,
2008 which were conducted by defendants Nos.1 and 2 to be
unlawful and nullity and an injunction was also sought.
th
1.8 On 25 August, 2008, this Court in CS (OS) No.685/2008
rejected the plaint by allowing the applications being I.A.
Nos.6047/2008 and 6348/2008 filed by defendants Nos.1 and 2. The
operative portion of the said order is reproduced as under:-
“28. In this case, the plaintiff’s application, IA 6338/2008,
under Order I Rule 8 generally mentions about the District
Committees having authorized him to file the suit on behalf
of Jamat. However, the membership of those committees
remains undisclosed; the membership of the Jamat, whose
interests are allegedly affected due to the impugned
CS(OS) No.1970/2008 Page 6 of 24
resolution, has not been shown. According to the suit, the
Jamat has a membership base of one crore. These
lacunae are, in the opinion of this court, incurable.
29. For the above reasons, it is held that the suit is not
maintainable. IA 6047/08 and IA 6348/2008 accordingly
deserve to succeed and are allowed. The plaint is
accordingly rejected; the interim orders are vacated. All
pending applications are disposed of accordingly. In the
circumstances of this case, parties shall bear their costs.”
1.9 It is alleged in the present suit that after passing the said
th
order, on 26 August, 2008 defendants Nos.1 and 2 along with few
other persons came to the office of JUH and threatened the plaintiffs
No.1 to 5 to handover the charge of the working of the JUH as their
suit has been dismissed by the Court. They also issued the press
release raising their claims. It is specifically alleged in the plaint that
the plaintiffs are the members of the Working Committee of the JUH
and such representatives of the JUH in accordance with the
provisions of the Constitution of the JUH and plaintiff No.1 continues
to enjoy the support from all quarters, bodies, Committees and
Working Committee throughout the country. Therefore, the plaintiffs
have no option but to file the fresh suit.
2. By this order, I propose to decide the two pending
applications; one being I.A. No. 1124/2009 and other being I.A. No.
6828/2009 filed by the defendant Nos.1 and 2 respectively for
rejection of plaint under Order 7 Rule 11 CPC.
3. In both the applications, similar prayer is made for rejection of
plaint on the following grounds:-
CS(OS) No.1970/2008 Page 7 of 24
(i) The present suit is not maintainable in law by virtue of the
provisions of Order 23 Rule 1 Sub Rule 4 CPC because the
plaintiff filed CS(OS) No.519/08 seeking amongst others the
following relief :
“Declare that the alleged meeting dated 6.3.2008 said to
have been conducted by Defendant No. 1 allegedly
bringing no confidence motion against plaintiff No. 2 to
be void unlawful and nullity the same being without
authority of law and hence ab initio void "
(ii) The plaintiff No. 2 filed an application for withdrawal of suit
CS(OS) No.519/08 and sought liberty to file a fresh suit.
However before withdrawal of CS (OS) No. 519/08, CS(OS)
No. 685/08 was filed, an objection was raised by the present
defendant No. 1 in CS(OS) No.685/08 that CS(OS) No.
685/08 was not maintainable because no liberty had been
th
granted by this Court in order dated 11 April, 2008 to file a
fresh suit, and therefore the said suit was not maintainable
under Order 23 Rule 1 Sub Rule 4 (b) CPC. This Court vide
th
order dated 25 August, 2008 held that since C.S. (OS) No.
685/08 was filed prior to withdrawal of C.S. (OS) No. 519/08
provisions of Order 23 Rule 1 CPC would not be applicable.
However the plaint in C.S. (OS) No. 685/08 was rejected.
Thus the suit CS(OS) No. 685/08 ceased to exist.
(iii) The present suit would therefore be a fresh and subsequent
suit to which provisions of Order 23 Rule 1 CPC would be
squarely applicable and since CS(OS) No. 519/08 was
withdrawn without the liberty to institute a fresh suit in respect
CS(OS) No.1970/2008 Page 8 of 24
of the subject matter of that suit the plaintiffs are precluded
from instituting the present suit since it relates to the same
subject matter as that of CS(OS) No.519/08.
(iv) The plaintiff No. 1 had previously on the same/ identical
cause of action brought two suits against the defendants. The
prayers made in all these suits are similar. The plaintiffs are
agitating the same claim by raising identical/ similar prayers
even though the previous two suits have been dismissed by
this Court on the same cause of action.
(v) The defendant No. 1 in CS (OS) No. 685 of 2008 amongst
other objections preferred l.A. No. 6342/2008 under Order VII
Rule 11 CPC wherein it was pleaded that CS (OS) No. 519 of
2008 had been withdrawn after the filing of CS (OS) No. 685
of 2008, hence the second suit was not maintainable. It was
pleaded that plaintiff No. 2 therein does not and cannot
represent JUH as he is neither its elected President nor
authorised by the present Working Committee to institute the
said suit. It was further pleaded that JUH is not a juristic
entity, not being a registered body. Hence, the plaintiff No. 1
in the present suit could not have instituted that suit on the
basis of his claim to represent the entire organisation.
(vi) All the issues raised in the present suit were mainly covered
and considered by the Single Judge of this Court, vide order
th
dated 25 August, 2008. The present suit has been instituted
through several plaintiffs, all of whom claim themselves to be
office bearers of the Committee appointed by plaintiff No. 1,
CS(OS) No.1970/2008 Page 9 of 24
as President of JUH. Once the appointment and claim of
plaintiff no. 1 as President of JUH is itself under challenge,
then his right to appoint any office bearer/ Committee does
not arise and such individuals cannot claim themselves to
represent the interest of all the registered members of JUH
as the plaintiff No.2 to 18 have not claimed any independent
relief. The President and members of its Working Committee
are elected by the General Body. The relief claimed by
plaintiff No.1 cannot be granted since defendants by
themselves are not the General Body of JUH. They are only
the nominated members of Executive Committee having
been nominated by the defendant No.1 who was elected as
th
president of JUH on 5 April, 2008 by the General Body of
JUH with 1857 members voting in his favour out of the 1858
present in the said General Body.
(vii) In order to overcome the lacuna in the previous suit and the
decision of the Single Judge in CS (OS) No. 685 of 2008, the
plaintiff no. 1 this time has differently worded paragraph 1 of
the plaint. The plaintiffs have not preferred an appeal against
the order of Single Judge, hence the findings have attained
finality and hence remain binding upon the parties. The
present suit being hit by the principle of resjudicata and
estoppels.
There was no surviving cause of action on the day the
present suit was filed. In paragraph 16 of the plaint it is
th
alleged that cause of action arose on 19 July, 2007 when
CS(OS) No.1970/2008 Page 10 of 24
the plaintiff No. 1 was elected as president of JUH for 2007-
2008. In clause (a) of the prayer clause it is prayed that the
plaintiff No. 1 be declared as president of JUH for the period
2007-2008. Thus on the day the present suit was filed, the
term of President for which the declaration was sought stood
expired.
(viii) The dispute between the plaintiff No. 1 and defendant No. 2
was referred for arbitration before the arbitrator. Both the
plaintiff No. 1 and defendant No. 1 had given their written
consent to the arbitration and interim directions were also
issued by the Arbitrator from time to time.
4. In reply filed by the plaintiffs to the above said applications the
plaintiffs mainly have reiterated the statement and averment made in
the plaint and have denied the objections raised by the defendant
Nos.1 and 2. It is submitted that the defendant No.2 at one point of
time had in fact tried to assume the office of the President when the
question of filling the post for interregnum period arose. Consequent
upon the death of Late Maulana Asad Madani he withdrew his name
since he could not muster support thereafter he prompted defendant
No.1 to claim himself to be the President though the fact remains that
the defendant No.1 also in the regular elections did file his
nomination for the post of the President. The names from all over the
State were forwarded, all the states forwarded the name of the
plaintiff except one state i.e. the State of West Bengal forwarded the
name of defendant No.1, knowingly fully well that if the defendant
CS(OS) No.1970/2008 Page 11 of 24
No.1 remains in the contest he was surely and certainly likely to
suffer the defeat accordingly the defendant No.1 withdrew his name
consequently the plaintiff was duly elected. The defendant No.2
th
declared the result of the plaintiff by circular dated 19 July, 2007
interalia declaring him as the President of JUH therefore it does not
lie in the mouth of either the defendant No.2 or defendant No.1 to say
and suggest that the plaintiff is claiming himself to be the President
for two years as per Article-II.
4.1 The plaintiffs No.2 to 18 have filed the instant suit against the
defendants for the first time. It is further submitted that the plaintiffs
No.2 to 18 neither filed CS(OS) No.519/2008 nor CS(OS) No.
685/2008 against any of the defendants. The first suit was withdrawn
with liberty to file the subsequent suit, the liberty was afforded by this
Court. The second suit CS (OS) No.685/2008 was filed by the plaintiff
No.1 though the liberty was later on granted by this Court, the said
plaint was rejected on technical grounds by allowing the application
of the defendant under Order 7 Rule 11 CPC and the application of
the plaintiff under Order 1 Rule 8 CPC was dismissed. The merit of
the earlier two suits was not considered. The plaintiff No.1 was
constrained to prefer an application under Order 1 Rule 8 CPC which
application was simply dismissed without touching the merits of the
suit.
4.2. On merit it is submitted that even for the interregnum period
the plaintiff No.1 was an elected president consequent upon the
expiry of his term as an interim president. Regular elections were
CS(OS) No.1970/2008 Page 12 of 24
conducted in accordance with the provisions of JUH in which
elections his name was duly forwarded by all states unanimously
except the State of West Bengal who had forwarded the name of
defendant No.1 also along with the plaintiff No.1. It is also an
accepted fact that the defendant no.1 seeing his imminent defeat
withdrew his name consequentially the defendant no.2 by circular
th
dated 19 July, 2007 declared the plaintiff No.1 as a duly elected
president. Therefore there is all legitimacy for the plaintiff No.1 to
continue and claim himself to be a duly elected President in
consonance with the constitutional provisions of Section 39 and 40 of
the Constitution of JUH. It is submitted that once all the electorates
having exercised their franchise and a regular elections having been
held the present plaintiff having duly been elected in the proper and
regular election in consonance with the provisions of the Constitution
of JUH and the defendant No.2 himself declared him as the President
th
by virtue of his circular dated 19 July, 2007, nothing further survives
and the fact remains that the merits of the lis in between the parties
was never gone into by the Single Judge as is evident from the
th
operative portion of the order dated 25 August, 2008.
4.3. The question of preference of an appeal could have only
arisen if the case in hand would have been decided on merits. The
merits having been not touched, the law of the land clearly permits
and stipulate to prefer the instant suit therefore there was no
necessity to prefer an appeal. There is no reason or cause for the
present suit being barred by the principles of resjudicata or being hit
CS(OS) No.1970/2008 Page 13 of 24
by the principles of estoppel. The defendant No.1 and 2 therefore
cannot be allowed to short circuit the present proceedings.
4.4. The plaintiffs have common interest in the suit and they have
been nominated by plaintiff No. 1 under the powers conferred and
duty cast on him in terms of Section 46 of the Constitution of JUH.
The relief claimed in regard to the resolution of the alleged
th
general body dated 5 April, 2008 is consequential to the relief in
th
regard of the resolution dated 6 March, 2008 is wrong and contrary
to the stand taken by defendant No.1 and 2.
th
4.5. The General Body meeting alleged to have taken place on 5
April, 2008 has acted unconstitutionally, illegally as there is no
provision in the constitution for bringing no confidence motion against
the duly elected President, thus any business transacted in the said
alleged meeting is unconstitutional, illegal and void ab-initio.
4.6. It is alleged by the plaintiff that in earlier two suits namely CS
(OS) 519/2008 and CS (OS) 685/2008 there were two plaintiffs out of
whom plaintiff No.1 of the present suit was one of them. The other
plaintiffs i.e. 2 to 18 in the present suit are allegedly the members of
the working committee of JUH and they were not parties to the two
earlier suits in any capacity.
4.7. The present suit has been filed by the plaintiffs in their
individual capacity and not for or on behalf of JUH. It is further
submitted that president is elected as per Section 51 of the
Constitution of JUH and plaintiff No. 1 has been duly elected as
President strictly as per the provisions of Constitution of JUH. No
CS(OS) No.1970/2008 Page 14 of 24
application under Order 1 Rule 8 CPC was required to be filed for
filing the present suit.
5. Both the parties have made their submissions on many
accusations. I have also gone through the record of earlier two suits
which were earlier ordered to be tagged with the present suit. It is the
admitted position that the plaintiff No. 2 to 18 were not the parties in
earlier two suits. In the present suit JUH is also not a party. The relief
sought in the present suit is substantially similar. Therefore, it is to
examine as to whether the present suit is maintainable or the plaint is
liable to be rejected.
6. Order VII Rule 11 CPC under caption 'Rejection of the plaint'
reads as under:
" The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the court to correct the
valuation within a time to be fixed by the court, fails to do
so;
(c) where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped, and the
plaintiff, on being required by the court to supply the
requisite stamp paper within a time to be fixed by the
Court, fails to do so;
(d) where the suit appears from the statement in the plaint
to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provision of
Rule 9."
7. While considering the application under Order VII Rule 11
CPC, the court is not required to take into consideration the defence
CS(OS) No.1970/2008 Page 15 of 24
set up by the defendant in his written statement. The question
whether the plaint discloses any cause of action is to be decided by
looking at the averments contained in the plaint itself. While
considering the application, the strength and weakness of the
plaintiffs’ case is, not to be judged.
8. CS(OS) No. 519/2008 was dismissed as withdrawn with leave
th
of the Court by order dated 11 April, 2008. When the said order was
passed, CS (OS) No. 685/2008 had already been filed.
th
9. From the order dated 25 August, 2008 passed by this Court
in CS (OS) No.685/2008 the defendant No.1 in the said suit raised
two submissions namely:
(a) That the suit is not maintainable on the same cause of action
and for the same-self relief claimed in the earlier suit without
leave of the court.
b) That JUH being an unregistered association the plaintiff No.2
in the said suit unless could show his competence, in any
manner to represent JUH, cannot legally maintain suit without
taking resort to the provisions of Order I Rule 8 CPC.
10. The Court rejected the contention of the defendant No.1 as to
the maintainability of suit on ground (a) relying upon the decision of
Supreme Court in Vimlesh Kumari Kulshreshta vs. Sambhajirao
th
(Appeal (Civil) 2976/2004 decided on 5 February, 2008). In para 19
of the said order it was held that the previous suit which was pending,
cannot be defeated. In rejoinder filed by the defendant No.2 in para 9,
it was observed by the Court that it has now been admitted that the
CS(OS) No.1970/2008 Page 16 of 24
liberty was granted to institute fresh proceedings upon the same
cause of action. It was held that Order XXIII Rule 1 CPC cannot be
read so as to bar a suit which is, already instituted before the other
suit has been abandoned or dismissed. The said findings were not
challenged by defendant No.1 and 2 in appeal. However, they are
again trying to re-agitate the same in the applications filed by them
under Order 7 Rule 11 CPC.
11. Thus, the objection of the defendant No.1 and 2 that no
leave/liberty was granted to file fresh suit is rejected.
12. The main reasons for rejection of plaint was given in the
ultimate paragraph of the order, this Court in second suit being
CS(OS) No. 685/2008 observed as under:
“In this case, the plaintiff's application, I.A. No. 6338/2008,
under Order 1 Rule 8 generally mentions about the
District Committees having authorized him to file the suit
on behalf of Jamat. However, the membership of those
committees remains undisclosed the membership of the
Jamat, whose interest are allegedly affected due to the
impugned resolution has not been shown. According to
the suit, the jamat has a membership base of one crore.
These lacunas are in the opinion of this Court, incurable"
The C.S. (O.S.) No. 519/2008 was dismissed by the
Single Judge upon filing of I.A. No. 4545/2008 under
order XXIII Rule 1, CPC. The order passed on the said
th
application on 11 April, 2008 is as follows: ''learned
counsel for the plaintiff seeks liberty to withdraw this suit
in view of the subsequent suit no. CS (OS) No. 685/2008.
It is submitted that this suit sought injunctive relief in
respect of the meeting dated 26.03.2001 and the fresh
CS(OS) No.1970/2008 Page 17 of 24
suit has questioned the legality of the subsequent
meeting.
Leave Granted.
The Suit CS (OS) 519/2008 and all the pending
applications are, therefore, dismissed as withdrawn."
13. Order 7 Rule 13 CPC provides as under:-
"Where rejection of plaint does not preclude
presentation of fresh plaint .— The rejection of the plaint
on any of the grounds hereinbefore mentioned shall not of
its own force preclude the plaintiff from presenting a fresh
plaint in respect of the same cause of action."
14. The dispute centres around between the plaintiffs on one hand
and the defendants on the other as to who are the actual President,
office bearers and members of the working committee of JUH. It has
been stated earlier that after rejection of the plaint in CS(OS) No.
th
685/2008 vide order dated 25 August, 2008, defendant No. 1 and 2
on next day threatened the plaintiffs to hand over the charge of the
JUH and have been threatening to illegally possess the office of the
JUH.
15. The plaintiffs in their individual capacity have filed the present
suit as President, office bearers and members of the working
committee of JUH and this has been refuted by the defendants in
their written statement. Defendant No.1 in his separate written
statement has pleaded inter alia that it is defendant No.1 who was
elected as President and he himself nominated new working
committee of the JUH.
CS(OS) No.1970/2008 Page 18 of 24
16. The present suit is not for and on behalf of the members of the
district and state committees. It is appropriate to refer to relevant part
of Order 1 Rule 8 CPC which reads as under:
"8. One person may sue or defend on behalf of all in
same interest.-
(1) Where there are numerous persons having the same
interest in one suit,—
(a) one or more of such persons may, with the permission
of the court, sue or be sued, or may defend such suit, on
behalf of, or for the benefit of, all persons so interested;
(b) the court may direct that one or more of such persons
may sue or be sued, or may defend such suit, on behalf
of, or for the benefit of, all persons so interested.
xxxxxxxxxx xxxx xxxxxxx”
The present suit has also not been filed against JUH which is
an unregistered body and if any proceedings are initiated against it,
the permission of the Court under Order 1 Rule 8 CPC is mandatory.
No doubt, the plaintiffs sought time to file the application under Order
th
1 Rule 8 CPC which was granted by order dated 14 May, 2012 but
the same was not filed. Counsel for the plaintiffs submits that it is not
necessary as JUH is not a party and plaintiff Nos.2 to 14 are claiming
their independent rights and even otherwise, the plaint can be thrown
out at this stage as merit of the case has to be considered atleast by
the Court. It is settled law that no suit shall be defeated by reason of
misjoinder and non-joinder of parties. In case necessary parties are
CS(OS) No.1970/2008 Page 19 of 24
joined, the said issues/objections of the defendant Nos.1 and 2 no
doubt would be considered at the appropriate stage of the suit.
17. It is argued on behalf of plaintiffs that the sine-qua-non for
applying Order 1 Rule 8 CPC, is the existence of the same interest.
The expression 'same interest' implies a joint and inseparable
interest. The test would be whether a judgment which a party might
obtain in its favour in respect of its rights arising out of or invaded by
act or transaction would ipso facto restore the rights of those who are
not parties on the record. In the present suit as stated earlier, the
plaintiffs have claimed rights in individual capacity as the office
bearers of the JUH and the interests of the members of district and
state committees and the members in general body are in no way
concerned and no relief has been claimed in the suit in the
representative capacity for and on behalf of them. In such view of the
matter Order I Rule 8 CPC is not attracted. The issue with regard to
applicability of Order I Rule 8 CPC to the present suit cannot be gone
into and decided while dealing with the application (s) filed under
Order VII Rule 11 CPC. It requires to be decided in a full fledged trial
after issues are settled.
The reliefs claimed against the defendants are declaration and
injunction. A reading of the plaint would reveal that plaintiffs' specific
case is that defendant Nos. 1 and 2 are imposters and illegally
claiming to be President and General Secretary of JUH, are
threatening to interfere with the plaintiffs' possession of the office of
JUH. Therefore, prayer has been made to restrain them in the
CS(OS) No.1970/2008 Page 20 of 24
plaintiffs' possession of the office of JUH and also to direct defendant
No. 2 to hand over the entire records of JUH since those were in his
possession when he held the office of General Secretary.
18. Defendants No.2 in paragraph 3 of the application has urged
that previously suit was filed on same cause of action. The defendant
No.2 does not say that plaint does not disclose cause of action to file
the present suit. The expressions 'no cause of action' is different from
the plea that the plaint 'does not disclose any cause of action'. In the
event, plaint does not disclose any cause of action, the court may
reject the plaint, but not in case where the plea is taken that there is
no cause of action or lack of cause of action.
19. To ascertain whether the plaint discloses any 'cause of action'
the averments made therein should be read as a whole. In paragraph
11 of the plaint it is stated thus:
th
"That on 26 August 2008 the defendants Nos. 1 and 2
along with few other persons came to the office of JUH
and threatened the plaintiff Nos. 1 and 6 to hand over the
charge of the working of the JUH as their suit has been
dismissed by this Hon'ble Court. As a matter of fact the
plaintiffs are in occupation and possession of the offices
of JUH and the defendants are threatening to get the
same vacated by hook or by crook".
th
One relief was sought to declare the meetings held on 6
th
March, 2008 and 5 April, 2008 by defendants Nos.1 and 2 bringing
No Confidence motion against plaintiff No.1 as void ab intio, unlawful
and nullity in the eyes of law. Thus the said relief sought in the
present suit was not in the earlier suits being CS(OS) No. 685/2008.
CS(OS) No.1970/2008 Page 21 of 24
20. The phrase "does not disclose cause of action" has to be very
narrowly construed. The rejection of the plaint at the threshold entaills
very serious consequences. This power therefore, has to be used in
exceptional circumstances and ought to be exercised only when the
court is absolutely sure that the plaintiff does not have an arguable
case at all.
21. Even there are certain averments in the plaint that there being
the subsequent cause of action, the plaintiffs in one of the reliefs of
the present suit have prayed to restrain the defendants from
interfering with the plaintiffs’ possession of JUH's Office as well as
other offices connected with the central organization. It is also settled
law that at the time of deciding of application for rejection of plaint,
merely the averment in the plaint and documents annexed with the
plaint are to be considered.
22. With regard to the another objection about the maintainability
of suit in terms of relevant provisions of Arbitration and Conciliation
Act, 1996 as urged by defendant Nos. 1 and 2, suffice it to say that
the question was raised and agitated in the present suit and the same
nd
was turned down by this Court by order dated 22 January, 2010 in
I.A. No.1123 of 2009. Therefore, the said objection cannot be
agitated afresh in the present applications and the same is rejected.
23. The objection is also that filing of the present suit amount to
resjudicata, the plaintiffs No.2 to 18 were not parties to the earlier two
suits and therefore, the present suit cannot be said to be not
maintainable so far as they are concerned. The averments made in
CS(OS) No.1970/2008 Page 22 of 24
the plaint would show that he has filed the suit in his individual
capacity as a President of JUH. Similarly the other plaintiffs in their
individual Capacity as members of the working committee of JUH
have brought the suit seeking several reliefs. Nothing on merits has
th
been considered in the order dated 25 August, 2008. Parties in the
present suit are also not same. Prima facie, I am of the view that
there is a force in the submission of the plaintiffs that there is now no
impediment to proceed the suit on merit as the fresh suit for the same
cause of action is maintainable under Order 7 Rule 13 CPC. In case,
the objections in subsequent suit are cured, the suit is maintainable,
however at the same time, the other party is entitled to raise the
objection. It is for the court to decide as to whether fresh plaint is
rejected or not.
24. The last objection raised by the Senior counsel appearing on
behalf of defendant No.1 that prayer sought by the plaintiffs in the
plaint has become infructuous on the date of suit as the plaintiff No.
was appointed for the period 2007-2008 as alleged in the prayer
clause and in view of admission made by the plaintiff No.1, the suit is
not maintainable. There is a force in the submission of the Senior
counsel appearing on behalf of plaintiffs that there is typing mistake
otherwise the period of appointment of plaintiff No.1 was for two
years. Learned Senior counsel has referred Article 11 of the
Constitution of JUH which reads as under :
“The membership of Jamait Ulama-i-Hind and its duration.
Article (11)
CS(OS) No.1970/2008 Page 23 of 24
(a) xxxxxxxxxx...
(b) xxxxxxxxxx...
(c) Now term of Jamait Ulama-i-Hind and its units will
commence from the date of when Central Office elects the
new president and he took charge of the same. The tenure
of the president will be for the two years. The process of
making members will start after commencement of new term
and Working Committee will fix its duration. However during
emergency period, the General Secretary of the Jamait
Ulama-i-Hind after consultation with the president can
extend its duration.”
In view of the above, there is no force in the submissions of
the Senior counsel appearing on behalf of defendant No.1. Even if
the earlier two plaints are read, it is specifically mentioned about the
appointment of plaintiff No.1 for two years i.e. for 2007 and 2008.
Thus, the objection is not sustainable.
25. In view of aforesaid reasons, there is no merit in both
applications filed by defendant Nos.1 and 2. The same are
dismissed.
CS(OS) No.1970/2008
st
26. List the matter before Roster bench on 1 July, 2015 for
further proceedings.
(MANMOHAN SINGH)
JUDGE
APRIL 10, 2015
CS(OS) No.1970/2008 Page 24 of 24