Present Appeal from Order has been filed by the appellant-original plaintiff being aggrieved with the impugned order passed by the City Civil Court below application, Exhs.6-7 as well as notice of motion, Exhs.40-41 filed by the original defendants-IRDA on the grounds stated in memo of Appeal from Order.
It is required to be mentioned that by notice of motion (Exhs.6-7), following prayer has been prayed by the plaintiffs :-
19(A) this Hon ble Court, by way of an ad-interim injunction, may be pleased to restrain the council created as a result of the impugned 4th council elections from taking charge from the present councils whereof the present plaintiff is an on date the Acting President until final hearing and disposal of the present Suit;
Following observations have been made by the Court below in Para No.19 of the impugned order at Page No.69 :-
Considering the rival submissions and documents filed by the either parties, it appears that election of 4th council of the IIISLA has been successfully over and the president was elected amongst the members of the IIISLA and so elected president in the election of 4th council is joined as a party defendant No.5, to the suit. It also appears from the Minutes of the meeting that the elected 4th council had taken the charge over. In that circumstances, in any opinion, the relief prayed in Exhs.6/7, by the plaintiff is itself infructuous and more particularly, when the plaintiff has joined defendant No.5 as president of IIISLA in suit, interim injunction as prayed by the plaintiff is not maintainable Learned counsel, Shri Utkarsh Jani appearing for the appellant has referred to the papers and submitted that the Articles of Association of the respondent no.2-original defendant no.2 provided that only those members, who had paid the membership fees, could only vote. He submitted that there has been irregularity, which the IRDA has committed and in fact same has resulted into the irregularity in the election, for which, the suit has been filed with notice of motion seeking necessary injunction/relief. Learned counsel, Shri Jani has also submitted that the Court below has failed to appreciate these aspects under the relief that IRDA being the regulatory authority had every power and in fact, it has observed in the impugned order in Para No.21, which he pointedly referred to that However, it can be certainly noted that IRDA being a regulatory authority has jurisdiction to mould the rule in accordance with the situation demands. Therefore, if the installment is made in the payment of membership fee, it does not per say violation of the rule of memorandum and articles of association and therefore, at prima-facie, the contention of learned Advocates Mr.Jani for the plaintiff is not acceptable. Learned counsel, Shri Jani therefore submitted that the Court below has committed an error and, therefore, the present Appeal from Order may be allowed and the impugned order may be quashed and set aside as the Court below has failed to appreciate the relevant material and has proceeded contrary to the provisions of law.
Learned counsel, Ms.Dharmishta Raval appearing for the respondent no.1 has referred to the papers and submitted that IRDA is an agency appointed by the Central Government and it is the regulatory body, which is appointed to take care of the rival interest. She submitted that prayer which has been asked has become infructuous as stated in the impugned order in asmuchas the election has already been over and new President has taken over, who has already been joined as defendant no.5 as party. She therefore submitted that the present Appeal from Order may not be entertained as otherwise, it would amount to granting the relief even before the suit is decided on the basis of the material and evidence. She further submitted that the emphasis which has been given with regard to the so-called irregularity referring to the observation made in Para No.21 of the impugned order requires a closure scrutiny. She pointedly referred to the Para No.21 of the impugned order and submitted that the Court has stated that it requires elaborate recording of the evidence and, therefore, it has been stated that it cannot be decided whether the Rules have been flouted or not. Therefore, she submitted that the present Appeal from Order may not be entertained.
In rejoinder, learned counsel, Shri Jani has referred to the letter of the Ministry of Finance & Company Affairs produced at Page No.352 as Annexure-R4 and submitted that IRDA was to have a limited role and had to only promote the institute but cannot interfere with the day-to-day affairs. Therefore, learned counsel, Shri Jani submitted that the present Appeal from Order may be allowed.
In view of these rival submissions, as could be seen from the facts, the suit has been filed for the prayer regarding the declaration that election of 4th council conducted by the respondent no.1, who is the election officer, be declared null and void. Admittedly, this prayer cannot be considered at this stage as otherwise it would amount to allowing the suit without even material and evidence. The election of the 4th council has been conducted and in fact implemented when newly elected Present has taken over, who has been joined as defendant no.5 as party. It is in these circumstances, the Court is required to consider whether any interim relief as prayed for in Appeal from Order could be entertained particularly when the issue requires to be decided on the basis of the material and evidence with regard to any irregularity during the election which has been over and new body having taken over. Further it is required to be mentioned that as recorded in the impugned order passed earlier by other bench, the record and keys were not handed over and, thereafter, it was ordered to be handed over.
Further, IRDA is an independent agency appointed by the Central Government for regulating as well as for advising and protecting the rival interest of the different groups and, therefore, it cannot be said that IRDA has any prejudice or any motive. Therefore without any further elaboration, since the election has already been over and new President has taken over, the interim relief cannot be granted and final relief regarding the declaration of the election as null and void could be decided on the basis of the material and evidence after the trial in the aforesaid civil suit.
It is well accepted that by catena of judicial pronouncements with regard to the approach in such Appeal from Order and the scope of exercise of discretion with the discretionary orders at the appellate stage, the Hon ble Apex Court in a judgment in case of Wander Ltd. & Anr. Vs. Antox India P. Ltd., reported in 1990 (Suppl.) SCC 727 has made observation that even if different view is possible, interference with the discretionary order may not be disturbed unless it can be shown that it is perverse. Further, the Division Bench of this Court in a judgment in case of Jasoda Indralal Vadhva Vs. Hemendrabhai Kakulal Vyas & Ors., reported in 2009(4) GLR 3213 has made observation with regard to the approach in such matter that normally the discretionary order may be disturbed.
Therefore, there has to be a prima facie case first in favour of the plaintiff then other relevant criteria could be considered. Moreover as observed in the judgment, it is required to be seen whether the relevant criteria for the grant of injunction has been considered or not and whether the Court below has misdirected for either not considering the aforesaid criteria or any relevant provisions of law or relevant material. In the facts of the case as discussed above, the Court has considered the well settled criteria for the purpose of deciding such injunction application and has considered the relevant material, which does not call for any interference. Therefore, I am in complete agreement with the impugned order passed by the City Civil Court below Exsh.6-7 as well as Exhs.40-41 dated 12.03.2012.
Therefore, the present Appeal from Order cannot be entertained and deserves to be dismissed. Accordingly, present Appeal from Order stands dismissed. Notice is discharged.
In view of dismissal of main Appeal from Order, Civil Application Nos.4882, 6311, 6368 & 8264 of 2012 do not survive and stands disposed of accordingly. Notice, if any, stands discharged.
In view of above detailed order, Civil Application No.719 of 2013 filed by the applicant does not survive and also stands disposed of.
Sd/-
(RAJESH H.SHUKLA, J.) Gautam Page 9 of 9