- (1.) This Rule is directed against an order, being Order No. 25 dated 23.6.79 passed by Sri M. R. Mullick, Judge, City Civil Court, Calcutta, allowing the application for amendment of plaint. Before I deal with the points taken by the learned Advocates on both sides, the facts of the case may be stated as follows: - The plaintiff opposite party filed a suit for declaration that the defendant petitioner, Association is not entitled to be registered under the Societies Registration Act, 1961 as it is compulsorily registrable under the Companies Act, as such it is an illegal association and, accordingly it is carrying on business illegally. The plaintiff-opposite party also prayed for mandatory and permanent injunction in the suit. The suit, being numbered as Title Suit No. 1523 of 1977, was registered in the City Civil Court at Calcutta. On 30th September, 1977, the plaintiff-opposite party made an application for injunction in the said suit for restraining the defendant petitioner from transacting the business of the said society and/or carrying on its affairs as a society under the Societies Registration Act and for a direction upon the Registrar of Societies to cancel the said registration and to rectify the Register accordingly, and for appointment of a Receiver. Subsequently in the same suit the plaintiff-opposite party made another application praying for mandatory injunction directing the defendant petitioner to accept the plaintiff-opposite party's membership subscription and the purported distribution cost for 1978 and to maintain the allotment of the opposite party's share of photographic materials imported and allotted by the State Trading Corporation Ltd. and cancel or withdraw the defendant petitioner's letters dated 27th and 28th February, 1978 and/or not to give effect or further effect to the said letters. The said application for mandatory injunction was heard by the learned Judge, 2nd Court, City Civil Court, on 6th March, 1978 and the said learned Judge by his order dated 7.3.78 was pleased to reject the said application for mandatory injunction holding inter alia that a party shall not be allowed to blow hot and cold at the same moment and if the plaintiff thought that he was liable to be prosecuted for being a member of the said society for non-registration of defendant, Association under section 115 of the Companies Act, 1956, the Court cannot pass an order on the defendant to accept from the plaintiff membership subscription for the year 1978 so as to allow the plaintiff to be prosecuted in a Criminal Court. The plaintiff opposite party preferred an appeal against the said order in this Court and M. M. Dutt and Sharma, JJ. were pleased to dismiss the appeal, but their Lordships were pleased to observe that ?The plaintiff may pray for the amendment of the plaint in accordance with law?. After ten months of passing of the order passed by their Lordships the opposite party filed an application for amendment of the plaint in Title Suit No. 1523 of 1977 pending before the learned City Civil Court, Calcutta, praying for amendment of the plaint by adding the following paragraphs: - ?27A (a) During the pendency of this suit membership subscription of the plaintiff for 1978 fall due and on or about 2nd January, 1978 the defendant No. 1 sent its bill to the plaintiff for payment of the same. (b) By letter dated 24.1.1978 the plaintiff tendered to the defendant No.1 by cheque Rs..60.00 being its said subscription demanded as aforesaid without prejudice to the plaintiff's rights and contentions in the suit. (c) On or about 2nd January, 1978 the defendant No.1 by its Memo No.91 allotted to the plaintiff the plaintiff's quota of 50 units and requested to pay Rs.450-00 being the distribution cost therefore. By letter dated 30.1.1978 the plaintiff duly tendered to the defendant No. 1 the said sum. (d) The said two payments were made by cheques and were received by the defendant No. 1 on 24th and 30th January, 1978 respectively. (e) By letters dated 27th and 28.2.1978 the defendant No. 1 wrongfully returned the said cheques to the plaintiff falsely and wrongfully alleging, inter alia, that the defendant No. 1 treated the said letter of the plaintiff dated 24.1.1978 as a letter of resignation of its membership and that since the plaintiff had eased to be member of the Association there is no question of the plaintiff's participation in the said quota and thereby purported wrongfully to terminate the plaintiff's membership and to deprive the plaintiff of his said quota. 27B. The plaintiff states and contends that the said letter of the defendant No. 1 and its contention that the plaintiff was no longer a member, is illegal, inoperative and null and void by reason, inter alia, of the following: - (a) The plaintiff did not resign and by letter dated 2nd March, 1978, it is requested the defendant No. 1 to withdraw the said letter and to accept the plaintiff's subscription and distribution costs against his quota both however without effect. (b) There are no provisions to expel the plaintiff from membership as purported to have been made in the articles of the defendant No. 1 or its rules and regulations, nor have such rules regarding expulsion been complied with. (c) There are no provisions under which the plaintiff could be so expelled and/or his membership terminated and/or to discontinue the membership terminated and/or to discontinue the membership of an existing member. The plaintiff cannot be lawfully expelled from the said Association and his membership of the said Association. 27C. The plaintiff was and is always ready and willing to pay its subscription and to avail of its quota rights. 27D. The plaintiff reasonably apprehends that the said letters 27th and 28th February, 1978, if left outstanding may cause the plaintiff serious injury and the plaintiff is entitled to have the same adjudged void, delivered up and cancelled. 27E. In any event, the said letter was issued to render the suit nugatory and to non-suit the plaintiff. 27F. (a) The plaintiff states that there is an obligation existing in its favour whereby the defendant No. 1 is obliged not to interfere with or disturb the plaintiff membership and/or its rights to receive the said quota pending determination of this suit and the plaintiff is entitled to enjoy the benefits thereof and the defendant No. 1 has invaded the same. It cannot do so. (b) There exists no standard for ascertaining the actual damage caused or likely to be caused by the said invasion. 27G. By reason of the premises, it is necessary to compel defendant No. 1 by a mandatory injunction to withdraw and/or not to give effect to the said letters dated 27th and 28.2.78.?
(2.) The prayer was also sought to be amended as follows: - (1a) Adjudication of the rights and liabilities of the parties. (1b) A declaration that the letters of the defendant No. 1 dated the 27th and 28th February, 1978 are void and should be declared and cancelled by the learned Court. (1c) An injunction be passed restraining the defendant No. 1 its servants and/or agents from giving effect to and/or acting in terms of the said letters dated 27th and 28th February, 1978. (1d) A mandatory injunction be passed directing the defendant No.1 to issue to the plaintiff its said quota against payment of the said sum of Rs. 450/-.
(3.) The petitioner put in an objection to the application for amendment of the plaint on two grounds, firstly that the application for amendment is not a bona fide one and that it will change the nature and character of the suit. The petitioner also contended that declaration sought for cannot be allowed inasmuch as the same was contradictory and the plaintiff opposite party cannot at the same time claim such contradictory reliefs. The matter was heard by the learned Judge who after hearing the learned Advocate of both the parties was pleased to allow the application for amendment by Order No. 25 dated 23rd June, 1979. It is against this order that the petitioner has come up in revision. It is contended on behalf of the petitioner that by allowing the amendment the plaintiff opposite party has been allowed to change the entire character of the suit and thereby the Court has assisted the plaintiff to establish a new cause of section. It is further submitted on behalf of the petitioner that in view of the case set up in the original plaint that the petitioner, Association be declared an illegal Association no relief can be granted to the opposite party by an illegal Association by making a prayer for incorporating the paragraphs quoted above and thus by allowing the amendment the learned Judge erred. It is further urged by the learned Advocate for the petitioner that in view of the frame of the suit that the defendant petitioner is an illegal body, the proposed amendment would certainly change the nature and character of the suit and that the opposite party who would be liable to be prosecuted for being the member of an illegal Association cannot at the same time claim the reliefs by way of amendment of the plaint from that illegal Association and the Court should not assist him in getting the reliefs prayed for by him by amending the body of the plaint and the prayer to the plaint. On the other hand, Mr. Das appearing for the opposite party has submitted that this application under section 15 of the Civil Procedure Code is not maintainable as the learned Judge had the jurisdiction to allow or not to allow the amendment and no relief by way of revision can be given to the petitioner against the order passed by the learned Judge allowing the amendment of the plaint of the opposite party. If the Court had jurisdiction to allow the amendment then it does not come within any of the provisions of section 115 of the Civil Procedure Code.;