A.S.No.313 of 2008
1.P.Sivasubramanian
2.Theni Melapettai Hindu Nadars Uravin Murai Society (Regd) Through its President M.S.V.S.Chellapandian
3.The District Regitrar, Thenkarai, Periyakulam Road, Theni District.
... Respondents/Defendants in A.S.No.315 of 2008
1.Palanikumar
2.P.S.Pandiyan
3.R.V.Kumaraj ... Respondents/Defendants in A.S.No.316 of 2008 PRAYER IN A.S.No.313 of 2008 The second appeal is filed under Section 96 C.P.C.
against the decree and judgement of the District Judge, Theni dated 11.11.2008 in O.S.No.58 of 2007.
PRAYER IN A.S.No.315 of 2008 The second appeal is filed under Section 96 C.P.C.
against the decree and judgement of the District Judge, Theni dated 11.11.2008 in O.S.No.58 of 2007.
PRAYER IN A.S.No.316 of 2008 The second appeal is filed under Section 96 C.P.C.
against the decree and judgement of the District Judge, Theni dated 11.11.2008 in O.S.No.58 of 2007.
!For Appellants ... Mr.M.Vallinayagam ^For Respondents... Mr.Balasubramanian Iyer :COMMON JUDGMENT The appeal in A.S.No.313 of 2008 is filed by the Plaintiffs to set aside the amended portions of the judgment of the lower court dated 17.11.2008 and to restore the judgment which was rendered on 11.11.2008.
2.The appeal in A.S.No.315 of 2008 is filed by the Defendants to set aside the judgment and decree dated 11.11.2008 passed in O.S.No.19 of 2007 by the learned Principal District Court, Theni.
3.The appeal in A.S.No.316 of 2008 is filed by the Defendants to set aside the judgment and decree dated 11.11.2008 passed in O.S.No.58 of 2007 by the learned Principal District Court, Theni.
4.All the three appeals are filed against the common judgment and decree dated 11.11.2008 in O.S.Nos.19 and 58 of 2007 on the file of the learned Principal District Judge, Theni.
5.The brief facts of the case is as follows:
The subject matter of the suit is one Theni Melapettai Hindu Nadargal Uravin Murai Society (herein after called as "Society"), which is a registered society under the Registration of Societies Act XXI of 1860 (herein called as 'Act') under SC.No.37 of 1975. The Society is running several educational institutions, milk society, temple with marriage hall, a printing press, etc. According to the parties, the Society is in existence for more than 125 years, however, registered only in the year 1975 and governed by its own byelaws. The members are male adults belonging to Theni Melapettai Hindu Nadar Community. The Executive Committee consists of President, Vice President, General Secretary, Treasurer and 12 Executive Members, who were elected in the general body meeting held on 21.05.2004 and they are to administer the Society for a period of 3 years from 03.06.2004 to 02.06.2007. On 12.03.2005, the Treasurer namely, Ramar Pandiyan resigned from his post and on 25.04.2005, one R.V.Kamaraj was elected as Treasurer in his place. On 14.11.2006, the General Secretary namely, Maruthaiya also resigned from his post, and one Mr. Ramar Pandian was nominated as the General Secretary in the Executive meeting dated 1.12.2006 under the bylaws no.6.He was discharging the duties of the general secretary and on 14.3.2007 he issued a notice calling for the general body meeting on 7.4.2007 and one of agenda was election of new office bearers for the next three years.
6.The suit in O.S.No.19 of 2007 was filed before the learned Principal District Judge, Theni by one of the members of the Society viz., B.Sivasubramanian in his individual capacity, questioning the nomination of RamarPandian as General Secretary by the Executive Committee and the notice issued by the said General Secretary for convening the general body meeting on 07.04.2007 and he sought for a declaration and injunction. The suit was filed against the said Ramar Pandian as the first defendant, the Society represented by its President M.S.V.S.Selvapandian as 2nd defendant and against the District Registrar(Societies), Periyakulam, Theni District.
7.This suit was resisted by the first defendant on the ground that the suit filed by an individual is not maintainable,the society can only be represented by its secretary and not by its president and the nomination of the first defendant is valid.
8.An interim order was passed in I.A.no.712/2007,restraining the first defendant from convening the meeting on 7.4.07. It was made clear that convening a general body meeting and conducting an election in accordance with the bylaws was not restrained. On 7.4.07 the first defendant was relieved from his post and a new secretary was nominated and the general body meeting was conducted and new office bearers were elected.
9.The suit was amended and a prayer for a declaration that the general body meeting dated 7.4.07 and the resolution passed thereon are null and void was added.
10.Meanwhile the third defendant namely, M.S.V.S.Selvapandian,convened a general body meeting invoking his power under the bylaws on 14.5.07 and an election was conducted and a new set of office bearers were elected.
11.Yet another suit in O.S.No.58 of 2007 was also filed before the learned Principal District Judge, Theni by one M.Palanikumar and P.S.Pandian in a repesentative capacity. Initially the suit was filed against four defendants, who claimed to be the President, Vice President, General Secretary and Treasurer of the society alleged to have been elected in the general body meeting held on 07.04.2007. During the pendency of the suit, defendants 5 to 12 have impleaded themselves as defendants for and on behalf of 311 objectors/members. The suit in O.S.No.58 of 2007 was filed for a declaration that the notice dated 01.05.2007 issued by the 3rd defendant in the capacity of the General Secretary of the Society calling for a general body meeting on 28.05.2007 as null and void and for a consequential injunction and also for an injunction restraining the defendants 1 to 4 from interfering with the assuming charge of the Society by the newly elected office bearers elected on 14.05.2007 and for a declaration that the meeting held on 07.04.2007 as null and void.
12.This suit was resisted by the defendants on the grounds that the suit is not maintainable,the meeting as alleged by the said M.S.V.S.Selvapandian was not conducted,there was no election on 14.5.07,the plaintiffs are his hench men,the general body was conducted on 7.4.07,the president was absent and in his absence the vice president presided over the meeting, 324 members out of 513 attended, M.S.V.S.Selvapandian was removed from office by the general body,new office bearers were elected.
13.The learned Principal District Judge, Theni had framed as many as 7 issues in O.S.No.19 of 2007 and as many as 4 additional issues and in O.S.No.58 of 2007 framed three issues and six additional issues and delivered the common judgment on 11.11.2008.
14.The additional issues 1 to 4 in O.S.No.19 of 2007 and additional issues 3 to 6 in O.S.No.58 of 2007 relate to the maintainability of the suits.
15.All these issues were held in favour of the plaintiffs stating that a single member of the Society can maintain a suit in O.S.No19/2007 and two members can represent the other members in o.S.No58/2007.
16.While deciding the issue regarding whether the first defendant was nominated as General Secretary in accordance with byelaws, the learned trial Judge found that the first defendant was not nominated in accordance with the byelaws,however,as he was relieved from the post on 07.04.2007, the trial judge held that the prayer against the first defendant has become infructuous.
17.While deciding the issues whether the notice dated 14.03.2007 issued by the first defendant to convene a meeting on 07.04.2007 and the meeting convened as such and the resolution passed thereof are null and void, the trail court found that,they are null and void.
18.While deciding the issue in O.S.No.58/2007, whether the notice issued by the 3rd defendant dated 01.05.2007 is null and void,the court decided that they are not valid.
19.While deciding the issue No.2 in O.S.No.58 of 2007, whether the defendant have to be injuncted from assuming the office for the period from 03.06.2007 to 02.06.2010, the learned judge has found that the office bearers elected on 07.04.2007 are not entitled to assume office for the period from 03.06.2007 to 02.06.2010, as the general body meeting held on 07.04.2007 was held to be null and void.
20.The learned trial judge under the issue No.7 in O.S.No.19 of 2007 and under the issue No.3 in O.S.No.58 of 2007 vis a vis "what the other reliefs the plaintiffs are entitled to" has held that the general body meeting conducted on 14.05.2007 by M.S.V.S.Selva Pandian is also not in accordance with the byelaws of the Society. Since the general body meeting dated 07.04.2007 conducted by the defendants and the general body meeting conducted by the M.S.V.S.Selva Pandian on 14.05.2007 are found to be not valid, the learned trial judge had proceeded to solve the problem by appointing a Court Commissioner to conduct a new election to elect the office bearers for the period from 03.06.2007 to 02.06.2010.
21.However, the prayer (b) in O.S.No.58 of 2007 was for an injunction restraining the defendants therein from interfering with the assuming of the office by the newly elected office bearers, who were elected on 14.05.2007.
22.In the result, the learned judge found in O.S.No.19 of 2007 that the prayer 'a' and 'b' have become infructuous as the first defendant was relieved from the office on 07.04.2007 and there cannot be any decree against him. However, he had granted a declaration in favour of the plaintiff under the prayers 'b(a)' that the general body meeting dated 07.04.2007 and the resolution passed thereon are not valid.
23.As far as the suit in O.S.No.58 of 2007 is concerned, the learned judge had decreed the suit in total. However, on 17.11.2008 the learned judge reviewed his own judgment under Section 152 C.P.C. He found that there is an error apparent on the face of the record in decreeing the suit in O.S.No.58 of 2007 in total,therefore amended the decree and judgment thereby dismissing the prayer
(b) wherein an injunction was sought for restraining the defendants from interfering with the assuming charge of the newly elected office bearers on 03.06.2007, as there was a finding in the judgment that the general body meeting held on 14.05.2007 is also not valid.
24.The plaintiffs in O.S.No.58 of 2007 has preferred the appeal in A.S.No.313 of 2008 questioning this amended part and dismissal of the prayer(b) of the judgment and decree.
25.The first defendant in O.S.No.19 of 2007 has preferred A.S.No.315 of 2008 against the decree and judgement in O.S.No.19 of 2007 and the defendants in O.S.No.58 of 2007 has preferred the appeal in A.S.No.316 of 2008, on the ground that the general body meeting held on 07.04.2007 was in accordance with byelaws of the society as it was not convened by the said Ramarpandiyan. The other grounds raised in the appeal are also relating to the maintainability of the suit by few individuals against the society and on the ground that the trial court has not considered that the general body has elected the new office bearers on 07.04.2007 and they have assumed office.
26.The points for consideration arise in these three appeals are as follows:
i) Whether the suit in O.S.No.19 of 2007 is maintainable by a single member of the Society without representative capacity?
ii) Whether the suit in O.S.No.58 of 2007 by two members of the Society in the representative capacity is maintainable?
iii) Whether the suit is maintainable for a prayer of permanent injunction restraining the defendants not to interfere in the assumption of charge of the Society by the newly elected members for the subsequent period without adding them as parties?
iv) Whether such prayer is maintainable by the third party?
v) Whether the amendment made on 17.11.2008 by way of review under Section 152 C.P.C. is sustainable?
vi) Whether the relief granted by the trial court for appointment of an Advocate Commissioner to conduct a fresh election is sustainable? Vii) Whether the finding of the lower court that the general body meeting held on 07.04.2007 as well as on 14.05.2007 are not valid is sustainable?
27.For convenience, the plaintiffs in O.S.Nos.19 & 58 of 2007 are referred as plaintiffs and the defendants in O.S.Nos.19 and 58 of 2007 are referred as defendants in these appeals.
28.Before deciding the above issues, at the risk of repetition, the events are summarised as follows:
The suit society is a registered society and governed by the byelaws. The byelaws extensively deals with the general body and its powers, Executive Committee and its powers, Presidents, Vice President and their rights and duties, General Secretary and his powers and duties and also deals with Sub Committees on the management of the properties and about the administration of temple committee. The general body will elect one President, one Vice President, one General Secretary, one Treasurer and 12 Executive Committee members and the members to the various sub committees for a period of three years. The Executive Committee will consist of the President, Vice President, General Secretary, Treasurer and 12 Committee Members. An election was conducted on 21.05.2004 for the period from 03.06.2004 to 02.06.2007. On 14.11.2006 the General Secretary Maruthaiya resigned and the same was accepted by the executive committee. Earlier to that, Ramar Pandian had also resigned and a new Treasurer was elected to his place in an earlier general body meeting.
29.On 01.12.2006, a resolution was passed nominating RamarPandian as the General Secretary and the resolution was passed by the President and other members, who were present. He acted in that capacity for 3 months. He called for a meeting of the general body to be convened on 07.04.2007 and one of the agenda was to elect new office bearers for the next 3 years. At that stage, the plaintiffs have challenged the election of Ramar Pandian as General Secretary by filing O.S.No.19/2007 and an interim injunction was passed against him not to convene a meeting on 07.04.2007. However, the general body meeting was held on 07.04.2007 and office bearers were elected. Meanwhile, the President namely, SelvaPandian called for another general body meeting on 14.05.2007 and another set of office bearers were also elected and the suit in O.S.No.58 of 2007 was came to be filed for the reliefs as stated above. The main issue is, which one of the general body meetings is valid and which one of the office bearers are entitled to administer the society.
30.On this background, now I have to advert to the issues relating to the maintainability of the suit by a single member,maintainability of the second suit by two members in a representative capacity and also the issues relating to nonjoinder of necessary parties.
POINTS i to iv
31.The learned counsel for the defendants who are the appellants in A.S.Nos.315 and 316 of 2008 would submit that the plaintiffs in O.S.No.19 of 2008 has not filed the suit in the representative capacity of the members of the Society and therefore, the suit is not maintainable. The learned counsel also pointed out that the second defendant is represented by its President and not by its General Secretary and the same is not maintainable. The learned counsel also pointed out that O.S.No.58 of 2007 was filed as if the plaintiffs are the representatives of the entire Society and the Society is not a party.
32.Order l Rule 8 (1) of C.P.C. reads as follows;
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 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 sued or may defend such suit,on behalf of,or for the benefit of ,all persons so interested.
33.This provision is attracted when numerous persons have the same interest in one suit and a decree passed in a suit is binding on all persons whose behalf, or for whose benefit the suit is instituted.
34.The suits relate to the administration of a registered society. There were two general body meetings and there are two set of elected members. The issues were brought to the court in the interest of the society and the issues have to be decided to give a finality as it involves administration of various institutions.
35.One suit was filed by a single member and the second suit was filed by two members in representative capacity. In the second suit, representatives of 311 members who opposed the suit were also impleaded as parties. Now all the persons having the same interest in the suit have become parties and therefore the suit does not suffer any procedural irregularity.
36.Therefore, I am of the considered view that a single member of a registered society, who is aggrieved by an action of the executive committee or a member of an executive committee, can question the same in a court of law. The next question is whether the 2nd defendant Society can be represented by the President. Though, under the byelaws, the Society can institute a suit represented by its General Secretary, the case of the plaintiff is that the office of the General Secretary has fallen vacant and it is only the President can represent the society. Therefore, the suit as laid is maintainable and the points are answered accordingly. In O.S. 58/07 the office bearers are not parties. The third parties have asked the relief for an injunction. But the suit is filed in the representative capacity, therefore there is no illegality. The points are answered accordingly.
POINT NO.vii
37.The main issue to be decided is that, between the rival contenders who is entitled to administer the Society?
38.As stated earlier, the trouble started when the first defendant who was nominated as General Secretary in the Executive Committee meeting held on 01.12.2006 issued a notice calling for a general body meeting on 07.04.2007 for an election of office bearers. His nomination itself was questioned. The contention of the defendants is that if there is a vacancy in the executive committee, the same can be filled up by the committee from the members of the Society for the remaining period of the office. Byelaw 6 reads as follows: "gjtpf;fhyk; Kotjw;Fs; Bjh;e;bjLf;fg;bgw;w eph;thff;FG mA;fj;jpdh; gjtp, cgfkpl;ofspd; jiyth; brayhsh;, mA;fj;jpdh; gjtp fhypahdhy; mth;fSf;Fg; gjpyhf eph;thff;FGBt cwtpd;Kiwapd; mA;fj;jpdh;fspy; vtiuBaDk; mg;gjtpf;F epakpf;fyhk;. mt;thW epakpf;fg;bgw;wth;fspd; gjtpf;fhyk; fhypahd mA;fj;jpdhpd; vq;rpa fhyk; tiu nUf;Fk;"
39.The learned counsel for the appellants would submit that an executive committee was convened on 01.12.2006 under the Chairmanship of the President M.S.V.S.Selva Pandian and it was discussed in detail and a resolution was passed to the effect that the office of the General Secretary has fallen vacant and there are educational institutions which has to be administered by the General Secretary and the convening of general body meeting immediately is also not possible and on such extraordinary circumstances, by invoking the powers under byelaws No.6, RamarPandian was nominated as General Secretary for the remaining period.
40.The learned counsel pointed out that the change was intimated to the Registrar of the Societies and the Registrar of Society has rightly accepted the change. The learned counsel also pointed out that the General Secretary had acted from 01.12.2006 and the same was not objected by any of the members of the Society and the General Secretary had issued notice dated 14.03.2007 under Ex.A2 calling for a meeting on 07.04.2007 and the agenda was to elect new office bearers for the subsequent period. The learned counsel pointed out that the plaintiffs had obtained an interim injunction and the court had passed an order of restricted injunction wherein convening of a general body meeting on 07.04.2007 was not prevented and therefore, the general body meeting was convened on 07.04.2007 and a new set of office bearers were elected and they are in the administration of the Society.
41.The learned counsel also pointed out that the then President M.S.V.S.SelvaPandian was absent for the meeting and therefore, as per the byelaws, the Vice President presided over the meeting and out of 593 members, as many as 324 members attended the meeting and the majority of the members elected the new office bearers and they are in administration of the Society.
42.On the contrary, the learned counsel for the respondents would submit that the nomination of RamarPandian as the General Secretary was not in accordance with the byelaws and the learned counsel pointed out that the byelaws No.6 relates to only an appointment of any of the members out of 12 executive committee members and it does not speak about the President, Vice President, General Secretary and Treasurer who are the office bearers of the Society. The learned counsel also pointed out that in an earlier occasion, a suit in O.S.No.219 of 2000 was filed and in I.A.No.255 of 2000 the same issue was raised and in C.R.P.No.712 of 2001 this court has held that the nomination of an office bearer by the executive committee and the subsequent ratification by the general body were not in accordance with the byelaws and the finding has become final.
43.As stated by the learned counsel for the respondents, this Court has already decided in C.R.P.No.712 of 2001 that the office bearers namely, the President, Vice President, General Secretary and Treasurer cannot be nominated under the byelaws No.6.
44.The question whether the executive committee as mentioned in byelaw No.2 includes office bearers or only the members need not be gone into as the same was already decided by this court in C.R.P.No.712/2001.
45.However there is an ambiguity in the byelaws of the society for filling up the vacancy of the office bearers for the remaining period and the same can be clarified by amending the byelaws.
46.Based on the interpretation given for byelaws No.6 in C.R.P.No.712/2007, the trail court has come to the right conclusion that the nomination of the said RamarPandian as General Secretary for the remaining period is not in accordance with the byelaws of the Society. However, the fact remains that he had acted in that capacity from 01.12.2006 till he was relieved on 07.04.2007. He had issued notice dated 14.03.2007 for convening a general body meeting. After filing of the suit, an interim injunction was granted in I.A.No.21 of 2007. An order was passed on 05.04.2007 granting interim order of injunction restraining the said RamarPandian from convening the meeting of the general body as per notice dated 14.03.2007. However, it was made clear by the learned Principal District Judge that the interim order of injunction will not prevent the Society from convening a general body meeting and electing new office bearers in accordance with the byelaws.
47.The learned counsel for the appellants would submit that the injunction was a limited injunction restraining only the first defendant not to convene the meeting on 07.04.2007 and the first defendant was relieved from the post of General Secretary on 07.04.2007 and the general body had nominated one Thirupathy for the post of General Secretary and the general body had also elected the new office bearers on 07.04.2007. Therefore, the meeting held on 07.04.2007 was in accordance with the byelaws.
48.The learned counsel for the respondent would vehemently argue that the trial judge had found that the nomination of RamarPandian as General Secretary is not valid and therefore, the convening of the general body meeting on 07.04.2007,in furtherance of the notice issued by him is not valid and consequent to which the resolutions passed in the general body are also not valid. The learned counsel pointed out that the trial court has found that the meeting convened on 07.04.2007 was not valid only after holding that the person issued the notice had no locustandi.
49.The byelaws also deals with the general body and its powers. Under byelaws No.1, every year a general body meeting shall be conducted before the end of Tamil month "Vaikasi". It is clear that the notice has been issued to the members under byelaws No.2,i.e.,by the general secretary calling for such annual meeting. Under byelaws No.3, if two third of members in writing request for convening a general body meeting, that shall be convened. If not convened, the members, who requested for the meeting, are empowered to conduct a general body meeting. Under byelaws No.4, in extraordinary circumstances, on the resolution of the executive committee, the General Secretary can convene a meeting by giving 21 days notice. Byelaws No.2 confers powers on the General Secretary to convene the General Body meeting and the executive committee meeting.
50.On three occasions, the General Secretary can convene the general body meeting, i)annual general body meeting before the Tamil month of "Vaikasi" of every year, ii)on request of two third of the members and iii)an extraordinary general body meeting on the resolution passed by the Executive Committee.
51.The byelaws is silent about who can convene the general body meeting, if the office of the General Secretary falls vacant. Under the head "the duties and powers" of the President and Vice President, byelaws No.4 would state that if the General Secretary is indisposed or not in station,the President is empowered to convene the general body or an executive committee. The words used is 'mbrsfh[pak;' which literally means personal inconvenience.
52.Nevertheless, on 01.12.2006 the executive committee has nominated the said RamarPandian for the remaining period to act as a General Secretary and he had, in fact acted till 07.04.2007 and no one had objected till the plaintiff chose to file the suit.
53.In I.A.No.21 of 2007, the said Ramar Pandian in his personal capacity, was restrained by an injunction not to convene a general body meeting. Otherwise, the order did not prevent convening of a general body meeting in accordance with the byelaws. The learned trial judge had referred the findings of the I.A. in paragraph 52 of his judgment. The said findings read as follows: "Fwpg;ghf tprhuiz ePjpkd;wj;jpy; gpwg;gpf;fg;gl;ljhd nilf;fhy cj;jputpy; uhkh; ghz;oad; tpjpKiwgo Bjh;e;bjLf;fg;glhj bghJr; brayhsh; vd;Wk;, mth; bghJr; brayhsuhf bray;glf; TlhJ vd;Wk; jil cj;jput[ tHA;fg;gl;oUf;Fk; tptuj;ij fUj;jpy; bfhs;Sk; BghJ me;j mwptpg;g[ mth; jFjp tha;e;j bghJr; brayhsuhf ny;yhky; mDg;gg;gl;l th.rh.M.2 mwptpg;gpd; mog;gilapyhd bghJf; FG Tl;lk; 07.04.2007y; thjpfs; Fwpg;gpLtjhd Tl;lk; vd;gij fUj;jpy; bfhs;Sk;BghJ me;j bghJf; FG Tl;lKk; rl;lg;go jFe;j bghJr; brayhsuhy; mwptpg;g[ bfhLf;fg;gl;L eilbgw;w Tl;lk; my;y vd;Wk;, vdBt me;j bghJf; FG Tl;lj;jpy; Vw;gl;l jPh;khdA;fs; tpjpKiwia rhh;e;jJ my;y. kw;w cWg;gpdh;fis fl;Lg;gLj;jf; Toajy;y vd;Wk;, me;j tifapy; thjpfs; TWtJ Bghy; Vw;Wf;bfhs;sf; Toajhft[k; bghUe;jf; Toajhft[k; cs;sJ vd;W Kot[ bra;fpBwd;."
54.The learned judge had come to the conclusion to declare the general body meeting held on 07.04.2007 as null and void as the said Ramarpandiyan has been declared as not duly elected General Secretary in the interlocutory application. It is a well settled principle that the findings in the interlocutory application has no bearing while disposing the main suit.
55.The learned counsel for the appellants would submit that the notice dated 14.03.2007 was issued by the first defendant in the capacity of a General Secretary on the decision of the Executive Committee. He further contended that convening of the meeting has not been prevented by the court in its interim order and therefore, the general body meeting held on 07.04.2007 should not be construed as illegal. The learned counsel also submitted that the act of the General Secretary was protected under Section 55 of the Tamil Nadu Societies Registration Act, 1975. The learned counsel also relied on a decision reported in 1981 Cri Law Journal 876 (Gokaraju Rangaraju Vs. State of Andrapradesh and others).
56.As stated earlier rightly or wrongly, Ramar Pandian was nominated by the executive committee on 01.12.2006 to act as a General Secretary for the remaining period which would expire on 02.06.2007 and he had also acted in that capacity from 01.12.2006 and has discharged his duties in various capacities which is evidenced by the various minutes filed by the appellants under 'Exhibits B' series. The election for the subsequent period is due and the convening of the general body had become necessary. The yearly mandatory general body meeting has to be conducted around the same period under byelaws i.e. during the tamil month Vaikasi around April - May.
57.Though the appellants would claim that the said RamarPandian had issued notice dated 14.03.2007 to convene a general body meeting on the decision of the executive committee under byelaw No.4,there is no evidence to that effect. Nevertheless, it can be construed that the notice dated 14.03.2007 under Ex.A2 is to convene a general body meeting as it has become due, to elect office bearers for the subsequent period. Had he been allowed to convene a general body meeting as scheduled on 07.04.2007 for the election of office bearers for the next consecutive year, the same would have been conducted and after another two months (April, May) the new office bearers validly elected by the general body could have taken charge of the Society. Unfortunately, the suit was filed and the validity of the nomination was decided in the interlocutory application. The trial court was also influenced by the findings in the interlocutory application. The trial court ought to have decided the issue without reference to the findings in the interlocutory application.
58.In any event, the order passed in an interlocutory application, filed under Order 39 Rule 1 and 2 is based on prima facie case, balance of convenience and irreparable loss. Such finding has no bearing while deciding the issues in the final disposal of the suit. There shall be an independent decision without the influence of the findings in the interlocutory application while disposing the suit.
59.The finding of the trial Court that the nomination of RamarPandian as General Secretary is not in accordance with byelaws is correct. However, the effect of Ex.A.2 notice dated 14.03.2007 at the time of final disposal was not considered by the trial court. Will the acts done by the said secretary in that capacity become invalid?
60.Section 55 of the Tamil Nadu Societies Registration Act reads as follows:
" Acts of registered societies, etc., not to be invalidated by certain defects-
No act or proceeding of a registered society or any committee or of any officer of the society shall be deemed to be invalid merely on the ground-
a) of any vacancy or defect in the organisation of the society or the formation of the general body or the constitution of the committee;
b) of any defect or irregularity in the election or appointment of a member of the committee or an officer of the society; or
c) of any defect or irregularity in such act or proceeding not affecting the merits of the case".
61.In my considered view, the acts done in such capacity, though the appointment is defective or irregular, are protected under Section 55 Of the Tamil Nadu Societies Registration Act.
62.I find a force in the argument of the learned counsel for the appellants. The said Ramar Pandiyan was nominated as General Secretary by a resolution of the executive committee, the resolution was accepted and he had acted upon in that capacity for more than 3 months. The plaintiffs never objected his nomination. The annual general body meeting was also due, to elect the office bearers for the subsequent period and the general secretary had issued a notice calling for a general body meeting for the election of new office bearers. The plaintiffs could have raised their objections in the annual general body meeting which is the supreme authority to decide the business of the Society.
63.Therefore, no act or proceeding of a registered society or any committee or of any officer of the society shall be deemed to be invalid merely on the ground of any defect or irregularity in the election or appointment of a member of the committee or an officer of the society. The acts done by the General Secretary for that period from 01.12.2006 to 07.04.2007 is protected under Sec. 55 Of the Tamil Nadu Societies Registration Act and the same cannot be invalidated and defeated.
64.The finding of the trail court that the general body meeting convened on 07.04.2000 is invalid as there was no notice by a competent General Secretary to call for a general body meeting is not correct. The President might be a competent authority to call for a meeting under the byelaws but only in the absence of the general secretary and the contingency referred is 'absent due to personal inconvenience or out of station'. Therefore the argument that the President alone is entitled to convene a meeting will not hold good.
65.Hence,the notice issued on 14.03.2007 under Ex.A2 in pursuant to the resolution passed by an executive committee is a valid notice to convene a general body meeting on 07.04.2007.
66.The learned counsel for the respondent would rely on the following judgments for the proposition that when the statute requires to do certain things in certain way, it has to be done only in that way and the method of performance in other way is forbidden.
1.2009(4) MLJ 508 2.2009(1) MLJ 761 3.2009(1) CTC 32 4.2009(1) MLJ 701 5.2008(4) CTC 539 6.2007(2) CTC 472 7.2006 WLR 684 8.2005(1) CTC 223 9.2003(1) SCC 123 10.2002(4) CTC 572 11.1999(3) SCC 422
12.AIR 1999(SC) 3558 13.1996(6) SCC 228 14.1996(1) SCC 243
67.In the absence of a specific provision in the byelaws for an election or nomination of a General Secretary in the event of vacancy,the interpretation of the byelaws varies from person to person. There is no provision in the bylaws to show that it has to be done only in that manner. Moreover,it has already been held that the nomination is not valid but the acts done during that period are protected under the Tamilnadu Societies Registration Act.
68.Therefore, the decisions referred by the learned counsel for the respondents are not relevant in this aspect.
69.For the above stated reasons, I am of the considered view that the nomination of the said Ramar Pandian as General Secretary is not in accordance with the byelaws as decided in C.R.P.No.712 of 2001. However, the executive committee had nominated the said RamarPandian as General Secretary to act in that capacity for the remaining period and he had acted in that capacity discharging various duties from 1.12.2006 to 07.04.2007. The acts done by him are protected under Section 55 of the Tamil Nadu Societies Registration Act. The convening of an annual general body meeting has become due and the notice dated 14.03.2007 under Ex.A2 was issued in the capacity of the General Secretary and in pursuance of which the meeting was convened on 7.4.2007 and it is a valid general body meeting.
70.The general body was attended by 324 members and in the absence of the then President, the Vice President had presided over it and various resolutions were passed by the majority of the members and resolution No.5 relates to election of new office bearers for the subsequent years and they were also elected and the same has been intimated to the Registrar of the Society and it has also been recorded.
71.As far as the validity of the meeting held on 14.05.2007 by the President M.S.V.S.SelvaPandian is concerned, there can not be an issue before the trial court. In O.S.No.58 of 2007 prayer (a) is for declaration that the impugned notice dated 01.05.2007 issued by the third defendant calling for a general body meeting to elect the office bearers on 28.05.2007 is null and void and the consequential injunction restraining the defendants 1 to 4 to convene such meeting on 28.05.2007. The notice dated 01.05.2007 is marked as Exs.A10 and A11. It calls for a general body meeting on 28.05.2007 but there is no agenda for the election of office bearers on that day. This notice relates to an executive committee meeting and by the resolution dated 30.04.2007 which is marked as Ex.B35. Certain disciplinary action was taken against some persons who are all not parties to the suit. In fact, a general body meeting has been conducted on 28.05.2007 and the proceedings are marked under Ex.B38 and the prayer has become infructuous. As the general body meeting dated 7.4.07 is held to be valid and the resolution passed thereon becomes valid. Therefore the said M.S.V.S.SelvaPandian can not convene a meeting and the same has become invalid.
POINT NO.V
72.The learned trial judge, while disposing of the suit in O.S.No.58 of 2007, initially he had decreed the suit in toto. As stated earlier, the prayer 'a' relates to a notice dated 01.05.2007 calling for a general body meeting on 28.05.2007 to elect office bearers and consequential injunction and it is found that the general body is called for some other purpose and the entire prayer is irrelevant to the suit. The prayer 'b' relates to restraining the defendants therein from interfering with the assumption of charge of the Society by the newly elected members from 03.06.2007. However, the learned judge has held that both the general body meetings are not valid and he had proceeded further by appointing an Advocate Commissioner to conduct a new election. After delivering the judgment on 11.11.2008, on 17.11.2008, the learned judge issued notice to both the parties and reviewed his judgment under Section 152 of the C.P.C. in relation to the prayer 'b'. The reason is that having found that the general body dated 14.05.2007 is not valid, he cannot grant an injunction preventing the defendants from interfering with the assumption of charge by the office bearers elected in the general body held on 14.05.2007. Probably this would have been brought to his knowledge at a later point of time. However, he had proceeded under Section 152 C.P.C. and reviewed the above said prayer and has dismissed the suit as far as this prayer is concerned.
73.The learned counsel for the appellants in A.S.No.313/2008 would submit that the trial court has no power to amend the judgment under Section 152 C.P.C. and relied on various judgment of this Court and the Supreme court. Those judgements are not referred here, as rightly pointed out by the learned counsel, it is well settled principle that the court can correct only the clerical or arithmetical mistakes in decrees or orders under Section 152 C.P.C. and courts are not empowered to review or rewrite the judgment. Section 152 C.P.C. reads as follows:
"152.Amendment of judgments, decrees or orders-
Clerical or arithmetical mistakes in judgments,decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
74.The prayer (b) relates to the general body dated 14.05.2007 though it is not mentioned as such in the prayer. An issue was framed by the trial court under issue no.2 as to whether the plaintiffs are entitled for an injunction restraining the defendants from assuming the office of the society on 03.06.2007. The issue was wrongly framed when there is no pleading or prayer. The prayer is restraining the defendants not to interfere in the assumption of charge of the newly elected office bearers.
75.Totally a wrong issue has been framed and has been decided affirmatively and in the result, as stated earlier, the suit was decreed in total when the finding was otherwise. Logically speaking, the court cannot grant a relief under prayer (b) when the general body dated 14.05.2007 was found to be not valid. How to correct or clarify the mistake after delivery of the judgement is a mute question.
76.As stated above, only the clerical or arithmetical error can be corrected by invoking Section 152 C.P.C. While granting the reliefs, the trial court has given a relief which is against its own finding. Whether intentional or unintentional the relief granted on 11.11.2008 under prayer (b) is erroneous which has to be corrected when it has been brought to the knowledge of the same court, otherwise, it would create confusion and confrontation between the parties.
77.The settled proposition of law is that after passing of the judgment, decree or order, the same becomes final and the court becomes functus officio. And in the situation like this, the provisions under Section 152 of C.P.C. cannot be pressed into service to correct an erroneous omission or commission which will definitely modify and alter the decree. The only remedy available for the aggrieved party is to file an appeal or a revision before the higher forum or a review application before the same forum subject to the limitation in respect of such remedy.
78.The provision under section 152 of C.P.C. cannot be invoked to modify, alter or add to the terms in the original order or decree or judgment so as to pass an effective judicial order after the judgment of the case.
79.Order 20 of Civil Procedure Code , deals with judgments and decrees.
" Order 20 Rule 5:
Court to state its decision on each issue;- In suits in which issues have been framed, the court shall state its finding or decision, with reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.
Rule 6,-Contents of the decree-
(1)The decree shall agree with the judgment;it shall contain the number of the suit, the names and descriptions of the parties,their registered addresses, and particulars of the claim and shall specify clearly the relief granted or other determination of the suit."
80.The trial courts while decreeing the suits, very often state that 'suit is decreed as prayed for' without specifying the reliefs granted in relation to the prayers. Some time granting of the relief may be contrary to the findings in the judgment. If the trial courts specify the relief granted in the operative portion of the judgments, drafting the decree will also be easier.
81.Therefore, the review dated 17.11.2008 is liable to be set aside. However, the relief under prayer (b) cannot be granted to the plaintiffs as the general body dated 07.04.2007 is found to be valid by this Court and there cannot be a second general body to elect new office bearers on 14.05.2007. Though the said amendment made by the trial Court under Section 152 C.P.C. is found to be not correct, the relief sought for in A.S.No.313 of 2008 cannot be granted, as the general body meeting conducted on 07.04.2007 is found to be valid.
Hence, these points are decided accordingly.
POINT NO VI
82.As stated above, the trial court had held that both the general body meetings are not valid and has proceeded to appoint an Advocate Commissioner to conduct a fresh election. While granting a relief which the court deems fit and proper, the court has to be cautious in granting such relief. The court cannot assume the a role of an arbitrator between the parties and take a new course to grant a relief which the court thinks, will settle the dispute between the parties, unless the parties have come forward for such course. When the court has found that the general body meetings are not valid, the option left to the trial court is to decide so and leave the parties to seek their own remedies. Appointment of an Advocate Commissioner to conduct a general body meeting is neither permitted in the byelaws nor the same was a prayer asked by either of the parties. The court cannot go beyond the reliefs sought for by the parties unless there is a voluntary settlement between the parties. Therefore, the relief granted by the trial court is uncalled for and this relief has also become infructuous as this Court has found that the general body dated 07.04.2007 is valid one.
83.For the reasons stated above, it is found that the general body dated 07.04.2007 is valid and the plaintiffs in O.S.Nos.19 and 58 of 2007 are not entitled for any relief.
84.In the result, the appeal in A.S.No.313 of 2008 is dismissed and the appeals in A.S.Nos.315 and 316 of 2008 are allowed and the decree and judgment of the trial court in O.S.Nos.19 & 58 of 2007 are set aside and the suits are dismissed. Consequently, connected M.Ps. are also closed.
nbj