AZIZ and other, Appellants , and THONDAMAN and others, Respondents

055-NLR-NLR-V-61-AZIZ-and-other-Appellants-and-THONDAMAN-and-others-Respondents.pdf


217
BASNAYAKJE, C. J.—Aziz v. Thondaman
Present: Basnayake, C.J., and Pulle, J.AZIZ and others, Appellants, and THONDAMAN andothers, Respondents
S. G. 9—D. G. {Inly.) Golombo, 683/Spl.
Actions—Trade Union—Provision in rides for a domestic appellate tribunal—Juris-diction, in such a case, of a court of law—■Right of a,person to ask for a declaratorydecree—Amendment of pleadings—Procedure—Civil Procedure Code, ss. 5,93, 184, 217.
Where the rules of a Trade Union or a club provide for a right of appeal to adomestic tribunal, but the composition and powers of the appellate body arenot defined, it is open to a member or office-bearer, who has been wronglyexpelled, to invoke the aid, in the first instance, of a court of law.
Meld further, that a declaratory decree under section 217 of the Civil ProcedureCode cannot be refused by a court if the plaintiff has established his right to it.The right of a citizen to invoke the aid of the courts is one that cannot be takenaway by the rules of any association or body of persons. It is so fundamentalthat it cannot be taken away even by the legislature itself.
When pleadings are amended, the provisions of section 93 of the CivilProcedure Code should be scrupulously observed.
A
fi-PPEAL from a judgment of the District Court, Colombo.
G. G. Weeramantry, for Plain tiffs-Appellants.
B. Wikramanayahe, Q.G., with R. L. N. d& Zoysa, for Defendants-Respondents.
Gur. adv. wilt.
October 26,1959. Basnayake, C. J.—
The five plaintiffs claim to be members of the Executive Council ofthe Ceylon Workers’ Congress, a Trade Union registered under the TradeUnions Ordinance. In this action which they have instituted againstthe forty-four defendants who were at the material time members of theExecutive Committee of the same Trade Union they pray a declaration—•
(а)that the meeting of the defendants on 18th December 1955 was
irregularly held and that its proceedings are null and void ;
(б)that the resolutions passed at the said meeting were wrongfully
passed ;
that the plaintiff's are entitled to have those proceedings expunged
from the minutes;
that the expulsion of the plaintiffs from the Ceylon Workers’
Congress and its Executive Council is illegal and invalid ;
10—t.xt
2J. K. B 10304-1,995 (12/59)
218B ASNAYAELE, C.J.—Azizv. Thondaman
that the election of K. Rajalingam the 3rd defendant as Presidentand of M. Periasamy, V. R. Velu, V. Annamalay, 1ST. Vellayanand M. Ettiyapan as memhers of the Executive Council is illegaland invalid ;
(/) that the declaration submitted to the Registrar of Trade Unionson the authority of the said meeting of 18th December 1955 isillegal and invalid;
that the changes caused to be made in the Register of Trade Unions
are illegal and invalid ;
that the plaintiffs are members and office-bearers of the Trade
Union known as the Ceylon Workers’ Congress ;
that the defendants acted illegally when they purported to exercise
the functions of the Executive Council with persons or memberswho were illegally elected ;
that the meetings held by the defendants subsequent to 18th
December 1955 were bad for want of notice to the plaintiffsand others who are members of the Executive Council andthat the proceedings at such meeting are null and void.
Twenty-two of the defendants filed a joint answer on 27th August1956. On 29th October 1956 the 19th. 25th and 41st defendants filedanswer. On 26th November 1956 the 21st and 35th defendants indicatedto the court that they had no objection to the plaintiffs’ prayer beinggranted. On 12th March 1957 the trial was commenced and counselfor the respective parties suggested in the form of issues the questions offact and law which they invited the court to decide ; but as counsel forthe defendants based his issues on what he called ” an amended answer ”which was not before the court the trial was adjourned.
I must pause to point out that the Judge and counsel all proceeded onthe. basis that the defendants were at complete liberty to amend theanswer as they liked. Filing of fresh pleadings under the guise of amendedpleadings has now become the rule- and Judges of first instance do notappear in the majority of appeals that have come before me to exercisethe discretion vested in them by section 93 of the Civil Procedure Code.It is essential that in the exercise of their functions trial Judges shouldscrupulously observe the provisions of the Code. Section 93 provides—
“ At any hearing of the action, or any time in the presence of, or afterreasonable notice to, all the parties to the action before final judgment,the court shall have full power of amending in its discretion, and uponsuch terms as to costs and postponement of day for filing answer orreplication, or for hearing of cause, or otherwise, as it may think fit,all pleadings and processes in the action, by way of addition, or ofalteration^. or of omission. And the amendments or additions shallbe clearly written on the face of the pleading or process affected by theorder ; or if this cannot conveniently be done, a fair draft of thedocument as altered shall be appended to the document intended to beamended, and every such amendment or alteration shall be initialledby the Judge.”
BASNAYAKJ3, C.J.—Aziz v. Thondaman
219
In tlie instant case the defendants "Were allowed to file a second answercalled “ an amended answer ” without first submitting to the Judge theamendments they invited the court to make and obtaining his orderthereon. The Judge himself did not give his mind to the alterations thatwere made in the original answer and acted in complete disregard of theprovisions of section 93.
The following issues were suggested by counsel for the plaintiffs :—
"1. Was notice of the meeting of the Executive Council of the CeylonWorkers’ Congress that was purported to have been held on18.12.55 not duly given—
(а)to the plaintiffs ?
(б)to the other members of the Executive Council ?
“ 2. Was the failure to give notice deliberate with a view to a keepingaway the said members ?
“ 3. If issues 1 and/or 2 are answered in the affirmative—
(а)were the resolutions passed at the said meeting void and of
no effect ?
(б)are the plaintiffs entitled to have the proceedings of the
said meeting expunged from the said minutes 1
“4. Was the expulsion of the plaintiffs from the membership which ispurported to have taken place on the resolution of 18.12.55—
(а)ultra vires on (sic) the body that purported to expel ?
(б)irregular and illegal in that the said members were not given
any opportunity to defend themselves ?
“5. Was the expulsion of the plaintiffs from holding office in the CeylonWorkers’ Congress which is purported to have taken place on aresolution of 18.12.55—■
(а)ultra vires on (sic) the body that purported to expel ?
(б)irregular and illegal in that the said members were not given
any opportunity to defend themselves ?
" 6. If issues 4 and/or 5 are answered in the affirmative—•
were the said expulsions irregular and invalid 1
were the elections of the persons named in paragraph 9 to
fill those places illegal and iiregular ?
was the declaration submitted to the Registrar of Trade
Unions on the authority of the said meeting irregularand illegal ?
were the changes caused to be made in the Register of
Trade Unions irregular and illegal ?
are the plaintiffs entitled to a declaration that they are still
the office bearers and members of the Ceylon Workers’Congress ?
220
BASNAYAKE) C.J.—Aziz v. Thondaman
Counsel for the defendants agreed to the above issues and suggestedthe following farther issues :—
“ 7. Is this court debarred from entertaining this action by the Rulesof the Ceylon Workers’ Congress ?
“ 8. If so, can the plaintiffs have and maintain this action ?
“ 9. Was the alleged election of the plaintiffs and the various officersnull and void for non compliance with Rule 16 of the Congress ?
“ 10. On and before 18.12.55 and during dates material to this actiondid the following persons hold the respective offices :
Mr. Thondaman..President
Mr. Somasunderam..Secretary
Mr. Kumaravel..Treasurer ?”
When the hearing was resumedon3rdOctober 1957counsel for the
defendants who was not the counsel who appeared for them on 12thMarch 1957, the first date of trial, withdrew issues 9 and 10. It isnot clear under what provision learned counsel or the court acted becauseif those matters dealt with in the issues arose on the pleadings and Werein dispute it was the duty of the Judge to decide them.
Learned counsel for the defendants next invited the court to decideissues 6 (e) and 7 before the other issues were decided. Counsel for theplaintiffs objected to issue 6 (e) being decided first but had no objectionto issue 7 being so decided. Thereupon counsel for the defendantssuggested the following issue as issue 9—
“ Even if all the averments of fact in the plaint are held to be true,are the plaintiffs or any of them entitled to the relief prayed for in theplaint or any part thereof 1 ”
Counsel for the plaintiffs having no objection to this issue the Judgeproceeded to try and determine issues 7 and 9 first.
The learned District Judge has come to the conclusion that the plain-tiffs were not given notice of the meeting at which they were expelled a-nrlthat in consequence they were denied an opportunity of being heardbefore they were expelled and that there has been a violation of the audialteram partem rule of natural justice. He also went on to hold—
" It follows then that the principles of natural justice have beenviolated in their expulsion and they would ordinarily have the remedyopen to members irregularly or improperly expelled namely the rightto bring an action against the Committee for a declaration that theexpulsion is void and the plaintiffs are still members of the associationand for an injunction to restrain the Committee and their servants andthe servants of the club from excluding them from the association orexercising their rights as members.”
But in view of Rule 12 (5) of the Rules of the Ceylon Workers’ Congresswhich gave a right of appeal to the Working Committee of the CeylonWorkers’ Congress to any member, office-bearer, trustee, District Council,
BASNAYAKE C.J.—Aziz v. Thondaman
221
Branch or Agency or its or their office-bearers, against any disciplinaryaction taken by the Executive Council under the power conferred by thatRole, he held that the plaintiffs who had admittedly come into courtwithout appealing to the domestic appellate body should have appealedto the Working Committee of the Ceylon Workers’ Congress and thatthey must exhaust their domestic remedies before invoking the aid ofthe courts. He concluded his judgment thus—
“ It appears to me that this is not a fit case for the exercise of mydiscretion in favour of the plaintiffs to giant them the declaratorydecree they ask for.
" I hold (A) that the plaintiffs are not entitled to come into courtuntil they have exhausted the remedies open to them in the domestictribunal in terms of the rules which show their contract, (B) that inany event this is not a fit case for the granting of a declaratory decreein that it would be a decree without consequential relief in terms of therelief sought for in the pleadings.
“ In the result I dismiss plaintiffs’ action with costs.”
The learned Judge and even learned counsel do not appear to haveexamined the rules of the Ceylon Workers’ Congress {marked XI) filedwith the plaint. Those rules do not provide for the composition of theappellate body. They do not state—
(а)by whom the Working Committee of the Ceylon Workers’ Congress
is to be constituted ;
(б)whether they are to be elected or nominated and by what procedure ;
how many shall be members of that Committee ;
how long that body is to hold office :
how appeals are to be taken to that body ;
(/) how many members shall hear an appeal.
Now it is impossible for an aggrieved person to appeal to a body whosecomposition is not defined and which exists only in name. Even thefollowing agreement recorded in the course of the argument does notprovide a solution :“ It is agreed that Bide 12 (5) should now read
‘ Ceylon Democratic Congress ’. ” We are not informed how this bodyis. constituted or what its powers are, and whether it can entertainan appeal by the plaintiffs. The foundation of the Judge’s judgment iswrong and for this reason alone it must be reversed. But as the learnedJudge has also proceeded to express his views as to the powers of thecourt in an action in Which it is sought to obtain a declaratory decree,,which I am of opinion are wrong, I think I must deal with the question,which is one of considerable importance.
The learned Judge seems to think that the granting of a declaratorydecree is a matter in his discretion. He seems to have derived thisview from certain English decisions cited to him by learned counselfor the defendants. The Civil Procedure Code makes provision fordeclaratory actions. In modem Society in which the state is constantly
2J. X. B 19804 (12/59)
222
BASjSTAYAKE, C.J.—A vie v. Thondaman
encroaching on the subjects’ rights it is becoming increasingly necessaryfor the subject to seek this remedy. A person is free to institute anaction if he has a cause of action, -which is the wrong for the preventionor redress of which an action may be brought, and includes the denial of aright, the refusal to fulfil an obligation, the neglect to perform a duty,and the infliction of an affirmative injury (s. 5). An action may bebrought—
(а)for the prevention or redress of a wrong :
(б)to assert a right which is denied ;
to enforce an obligation tbe fulfilment of which is refused ;
to enforce the performance of a duty the performance of which is
neglected ;
to obtain redress for the infliction of an affirmative injury ;
(/) to have a right or status declared ;
and tbe courtis empowered (s. 217) to grant a decree or order command-ing any person—
to pay money ;
to deliver movable property ;
to yield up possession of immovable property ;
to grant, convey, or otherwise pass from himself any right to,
or interest in, any property;
(32) to do any act not falling under any one of the foregoing heads ;or it may enjoin that person—
not to do a specified act, or to abstain from specified conduct
or behaviour;
or it may, without affording any substantive relief or remedy—
declare a right or status.
Once a plaint is presented and the court does not refuse under section46 (2) to entertain, it on any of the grounds prescribed therein or doesnot reject it thereunder the action must be decided by the court in themanner provided in the Civil Procedure Code, and the Judge has no rightto refuse to grant a decree in favour of the plaintiff if he holds that he hasestablished his right to relief. In the instant case the learned JudgeWas clearly mistaken in thinking that he was free to refuse to grant theplaintiffs a decree in their favour although they had established theircase. Once an action reaches the stage of trial the Judge must give judg-ment for the party in whose favour he has found (s. 184). He has nodiscretion to deny judgment to the successful party, as the learnedDistrict Judge has done in the instant case. The right of a citizento invoke the aid of the courts is one that cannot be taken away by therules of any association or body of persons. It is so fundamental thatit cannot, in my view, be taken away even by our legislature itself. It
Wijesinghe v. Ktdatunga
223
is unnecessary for the purpose of this judgment to elaborate this view ;it is sufficient to say that a power to legislate for peace, order and goodgovernment, does not include a power to deny access to the courts Whichare the living symbols of peace, order and good government, for thedenial of such right would be a negation of the very purpose for whichlegislative power is conferred on the legislature. Not only cannotsuch a right be taken away but it also cannot be denied by any courtwhose jurisdiction is invoked in proper proceedings.
For the above reasons the order of the District Judge is set asideand the case is sent back for trial on the remaining issues.
The appellants are declared entitled to costs both here and below.Pullu, J.—I agree.
Order set aside.