The civil revision petitioner/3rd party has filed this civil revision petition as against the order dated 18.08.2008 in I.A.No.13528 of 2008 in O.S.No.5602 of 2008 passed by the XII Assistant Judge, City Civil Court, Chennai granting ad-interim injunction till 25.08.2008 and ordering issuance of notice to the respondents.
2.The trial Court, while passing orders in I.A.No.13528 of 2008, has inter alia observed that the 6th respondent/ petitioner/plaintiff has made out a prima facie case and granted ad-interim injunction till 25.08.2008 etc.
3.The learned counsel for the revision petitioner/3rd party contends that the order of the trial Court in granting ad-interim injunction is a clear abuse of process of law and that the trial Court has failed to note that the cause of action has not arisen within the city of Chennai to entertain the suit and that the suit has been filed only with a malafide intention to stall the lawful election process and moreover, the trial Court has not borne in mind of the fact that in para 25 of the plaint, it is specifically averred by the 6th respondent/petitioner/ plaintiff that except defendants 1 and 2, who are no way connected with the election process of the 5th respondent association no other cause of action of jurisdiction has been made out by the plaintiff to entertain the suit before the XII Assistant Judge, City Civil Court, Chennai and that as per clause 20(1) of the bye-law, the election process ought to have held before 30.09.2008 due to the temporary injunction which has been periodically extended on 18.08.2008, 25.08.2008, 10.09.2008, 17.09.2008 and subsequently extended to 24.09.2008 and that the order of the trial Court amounts to judicial review which cannot be made in the due process of election as per decision in 2001 (8) SCC at page 509 and after the commencement of election dated 07.07.2008, the 6th respondent/plaintiff and his associates Kalidoss, Murali filed petitions to stall the election process after the fixation of election date as 07.07.2008, decided by the Annual General Body Meeting of the Association and that no Court shall have the power to interfere in the peaceful election process as per decision in 2005 (2) CTC at page 161 and the trial Court has not taken note of the citations 2005 (4) MLJ at page 608, 2001 (8) SCC at page 509 and 1993 (4) SCC 216 and has resultantly interfered in the peaceful election process without jurisdiction and in any event, the order of the trial Court in granting ad-interim injunction is against law and a perverse one and therefore, prays for allowing the civil revision petition to promote substantial cause of justice.
4.It is pertinent to point out that the revision petitioner/3rd party initially filed W.P.No.21855 of 2008 before this Court praying for an issuance of writ of mandamus forbearing the second and third respondents therein from interfering in the peaceful election process which has been commenced to elect the new office bearers for the year 2008-2010 within a time frame as fixed by this Court and consequently, directing the second and third respondents to issue suitable orders immediately to 4th respondent to conduct the election on or before 30th of September as per clause 20(1) of the bye-law of the association for electing the new executive committee members and office bearers of Madurai District Tiny and Small Scale Industries Association, Madurai 20 and this Court by its order dated 05.09.2008 has directed the writ petitioner to convert the writ petition into a civil revision petition under
Article 227 of the Constitution of India and to comply with all legal formalities in this regard and accordingly, the said W.P.No.21855 of 2008 has been converted into Civil Revision Petition No.3324 of 2008.
5.The learned counsel for the revision petitioner/3rd party, in support of his contention that when once an election process has started in cooperative society elections the same cannot be stalled, cites the decision in Shri Sant Sadguru Janardan Swami(Moingiri Maharaj)Sahakari Dugdha Utpadak Sanstha and another V. State of Maharashtra and others (2001) 8 SCC 509 at page 510 whereby the Hon'ble Supreme Court has held as follows:
"The preparation of provisional list of voters, filing of objection against the provisional list of voters, consideration of the objection by the Collector and finalising the list of voters, all occur in the Rules which cover the entire process of the election. The Rules framed for election of specified societies are a complete code in itself providing for the entire process of election beginning from the stage of preparation of the provisional voters' list, decision on the objection by the Collector, finalisation of electoral rolls, holding of election and declaration of result of the election. In view of the scheme of the Act and the Rules, the preparation of voters' list must be held to be part of the election process for constituting the Managing Committee of a specified society."
6.He also relies on the decision in K.K.Modi Vs. K.N.Modi and others (1998) 3 SCC 573 wherein the Hon'ble Supreme Court has among other things observed as follows:
"... (2)Under Order 6 Rule 16, the court may at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the court. Power under clause(c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of the process of the court is manifest from the pleadings.
It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding."
7.Added further, the learned counsel for the revision petitioner also presses into service the decision in Ramachandra Ganpat Shinde and another V. State of Maharashtra and others (1993) 4 SCC 216 at page 217 whereby the Hon'ble Supreme Court has observed that 'normally court would not interfere and direct the parties to have recourse to the alternative remedy available under statute, but when the order of the High Court under
Article 226 formed the basis for conduct of election contrary to the Act, Rules and bye-laws, then the High Court itself or on appeal Supreme Court alone can correct the erroneous order.'
8.The grievance of the civil revision petitioner/3rd party is that each member of the Association cannot file a suit throughout the State in different Courts and that the revision petitioner is a contestant in the election and he is an aggrieved person and once an election process has commenced, it cannot be interfered with by the trial Court. As against respondents 1 and 2 no relief has been sought for.
9.It cannot be gainsaid that one Kalidoss as petitioner/plaintiff has moved I.A.No.729 of 2008 in O.S.No.340 of 2008 on the file of learned District Munsif, Tirumangalam under Order 39 Rule 1 and 2 of Civil Procedure Code praying for an order of temporary injunction restraining the respondents therein from conducting the election for the executive committee members of the first respondent Association on 14.07.2008 or any other future dates on the basis of the notification dated 12.06.2008 issued by the third respondent therein and it is inter alia held that 'this Court is of the prima facie opinion that injuncting the election at this stage would not be proper and resultantly, dismissed the application on 07.08.2008 without costs.'
10.At this juncture, the learned counsel for the revision petitioner/3rd party submits that the plaintiff- Kalidoss in O.S.No.340 of 2008 on the file of learned District Munsif, Tirumangalam, (a member of the Association) has not succeeded before the Tirumangalam District Munsif Court in not obtaining an order of interim injunction and now another person (said to be a unit member under the 4th defendant) has filed O.S.No.5602 of 2008 on the file of XII Assistant Judge, City Civil Court, Chennai praying for the relief of declaration that the notification dated 12.06.2008 issued by the 6th defendant therein is illegal, void and not enforceable and for the relief of mandatory injunction directing the second defendant to appoint a special officer to the 4th defendant association by removing the existing office bearers as their period is over and to conduct the election to the executive committee for the year 2008-2010 by issuing fresh notification and for the relief of permanent injunction restraining the defendants 4 to 6 from in any way conducting the election for the executive members of the 4th defendant society on the basis of notification issued by the 6th defendant dated 12.06.2008 and for the relief of permanent injunction restraining defendants 1 to 3 from registering the names of executive committee members for the 4th defendant society to be submitted by the defendants 4 to 6 and also filed I.A.No.13528 of 2008 praying for the relief of ad-interim injunction and the real fact is that jurisdiction for filing of the suit is only at Madurai and not within the Court of Chennai and consequently, the City Civil Court, Chennai viz., XII Assistant Judge, City Civil Court, Chennai has no jurisdiction to deal with the matter and to grant the interim relief of ad-interim injunction.
11.It is significant to point out that in the plaint in O.S.No.5602 of 2008 on the file of XII Assistant Judge, City Civil Court, Chennai at para 22 to 25 it is averred as follows:
"22.In the said circumstances the plaintiff sent a representation on 31.07.2008 to the defendants 1 to 3 to appoint a special offer to the 4th defendant association by removing the existing office bearers as their period has over and to conduct the election to the Executive Committee for the year 2008-2010 by issuing fresh notification. However, defendants 1 to 3 have not taken any action against the defendants 4 to 6. The copy of the representation dated 31.7.2008 made by the plaintiff to the defendants 1 to 3 is produced as document No.12 along with the plaint.
23.Hence, the plaintiff filed the suit for (a)declaration the notification dated 12.06.2008 issued by the 6th defendant is illegal and void (b)for mandatory injunction directing the 2nd defendant to appoint a special officer to the 4th defendant association by removing the existing office bearers as their period is over and to conduct the election to the Executive Committee for the year 2008-10 by issuing fresh notification, (c) for permanent injunction restraining the defendants 4 to 6 from in any way conducting the election for the Executive Committee members of the 4th defendant society on the basis of the notification issued by the 6th defendant dated 12.06.2008 and (d) for permanent injunction restraining the defendants 1 to 3 from registering the names of the executive committee members for the 4th defendant Society to be submitted by the defendants 4 to 6 and for other reliefs.
24.Therefore, the plaintiff is constrain to file the present suit for declaration and injunction restraining the defendants 1 to 3 from registering the names of the executive committee members for the 4th defendant society to be submitted by the defendants 4 to 6 is only a personal relief against the defendants 1 to 3 that could be secured entirely by personal obedience of the defendants 1 to 3 who actually having office within the jurisdiction of this Hon'ble Court. Hence this Hon'ble Court has jurisdiction to entertain the suit under proviso to section 16 of CPC.
25. The cause of action for the suit arose on 12.06.2008 when the 6th defendant issued notification, on 07.07.2008 when the Annual General Body meeting was adjourned, on 14.07.2008 when the Annual General Body meeting was concluded without electing the executive committee members on 31.07.2008 when the plaintiff sent the representation to the defendants 1 to 3 and on several subsequent dates when the defendants 4 to 6 are taking steps to conduct the election at Chennai where the defendants 1 and 2 are having office and the representation sent by the plaintiff were served to the defendants 1 and 2 at Chennai within the jurisdiction of this Honourable Court."
Moreover, in para 27 of the plaint it is mentioned as follows:
"27. As the plaintiff is filing the suit to get an urgent and immediate relief as against the defendants 1 to 3 the plaintiff is filing the suit without serving notice to the defendants 1 to 3 under Section 80 CPC. Separate application for permission to institute the suit without serving notice is also filed under Section 80(2) C.P.C."
12.Continuing further, the learned counsel for the revision petitioner submits that bye-laws of the Association speak of holding the elections and it is wrongfully mentioned in the plaint in O.S.No.5602 of 2008 on the file of XII Assistant Judge, City Civil Court, Chennai at para 25 '... that when the defendants 4 to 6 are taking steps to conduct the election at Chennai where the defendants 1 and 2 are having office and representative sent by the plaintiff were served to the defendants 1 and 2 at Chennai within the jurisdiction of this Hon'ble Court and in the absence of jurisdiction, the XII Assistant Judge, City Civil Court, Chennai has no power to hear and decide the matter and the order passed in I.A.No.13528 of 2008 dated 18.08.2008 by the trial Court is only as nullity in the eye of law.
13.Contending contra, the learned counsel for the 6th respondent/petitioner/plaintiff submits that the civil revision petition is not maintainable either in law or on facts and that the present civil revision petition is an abuse of process of law and that the revision petitioner/3rd party is not an aggrieved person and therefore, the civil revision petition is not maintainable before this Court and further that the civil revision petitioner has no interest over the subject matter of the suit and the 6th respondent/ plaintiff has suffered on account of illegal election notification and as against defendants 1 and 2 the relief is claimed and they are the competent authorities who are within the jurisdiction of the City Civil Court, Chennai and as such, the cause of action has arisen before the jurisdiction of XII Assistant Judge, City Civil Court, Chennai and that the 6th respondent/plaintiff is a member of 6th respondent Association and that the aim of the association is to protract the welfare of its members through administration of elected office bearers by conducting elections periodically as per clause 20(1) of the bye-law of the Association and that on 07.07.2008 the Annual General Body meeting has been postponed and to 14.07.2008 for want of quorum of members and but no decisions have been taken on 14.07.2008 and that on 14.07.2008, on the General Body meeting, the audit report for the year 2007-2008 which has been submitted for approval has irregularities and in it and no clear accounts have been submitted and further that in the election process there has been lots of irregularities and in the interest of the Association, the 6th respondent/plaintiff filed civil suit O.S.No.5602 of 2008 on the file of XII Assistant Judge, City Civil Court, Chennai and an ad-interim injunction has been granted from proceeding with the election in I.A.No.13528 of 2008 and in lieu of the interim order granted by this Court on 31.010.2008, the 6th respondent/plaintiff and every member of the association is put to hardship and difficulty and if the election is permitted to be proceeded with, the civil revision petition as well as the main suit will become infructuous and therefore, prays for dismissal of the civil revision petition in furtherance of substantial cause of justice.
14.The learned counsel for the 6th respondent/plaintiff submits that under the Maharastra Cooperative Societies Act, the jurisdiction of the Court is barred, whereas no such rule in Tamil Nadu Cooperative Societies Act is there and Section 14 of the Tamil Nadu Cooperative Societies Registration Act refers to register of members and as per chapter 7 jurisdiction of the Civil Court is not barred under the Tamil Nadu Societies Registration Act and Section 52 speaks of the power of Inspector General of registration and that the said Inspector General shall have superintendence over all other registrars functioning under the Act etc. and even before the election the 6th respondent /petitioner/plaintiff has approached the Inspector General of registration and the register of members is a crucial document and out of thousand members 521 have resigned and in W.P.(MD)No.9917 and 9992 of 2008 filed by L.Murari and another before the Madurai Bench of the Madras High Court on 11.11.2008 it is inter alia ordered that 'the petitioners, on receipt of a copy of this order, by enclosing the same, are authorized to submit their representations to the second respondent, who thereupon shall, after giving due opportunity of being heard to the petitioner and others concerned, if he chooses to do so, probe into it relating to the latest Form No.VII submitted by the fourth respondent and pass necessary orders as expeditiously as possible, keeping in mind the paragraph No.20 of the decision of the Full Bench of this Court in C.M.S.Evangelical Suvi David Memorial High Secondary School Committee, Karisal, through its Secretary, Sri.S.David Stephen V. The Dist. Registrar, Cheranmahadevi, Tirunelveli District and others reported in 2005 (2) CTC 161 as extracted supra and with the above directions, these writ petitions are disposed of and further that there is a provision when a person can submit his resignation from the Society and that the registrar is directed to look into whether 521 members have resigned and it is a case of the 6th respondent/plaintiff that they are members and 400 members want to take away the society and in fact, the revision petitioner has nothing to do with the subject matter of the suit and ex facie there has been a collision between the revision petitioner and respondents 4 and 5 and when an order has been passed against respondents 4 and 5 the fact remains that they do not file civil revision petition as persons aggrieved and therefore, the civil revision petition has to be dismissed.
15.As a matter of fact, the learned counsel for the 6th respondent/plaintiff take pleas that the revision petitioner /3rd party has not filed an impleading application under Order 1 Rule 10 of Civil Procedure Code to add him as a party in the suit and in W.P.(MD)No.6649 of 2008 filed by L.Murari, Partner M/s.Sayee Industries an order has been passed on 29.07.2008 by this Court directing the first respondent therein to consider the petitioners representation dated 15.07.2008 which is stated to be made under Section 34A of the Tamil Nadu Societies Registration Act, 1975 and pass appropriate orders on merits and in accordance with law, after giving notice to the petitioner as well as the 4th respondent and any other persons who are likely to be affected, expeditiously in any event, within a period of four weeks from the date of receipt of copy of the order and Government acts through Inspector General of registration at Madras office and for the purpose of jurisdiction the averments in the plaint alone are to be taken into account and that the averments of the plaint in toto will have to be taken into account and that the first and second defendants in O.S.No.5602 of 2008 are having office at Chennai and that the order passed in I.A.No.13528 of 2008 in O.S.No.5602 of 2008 dated 18.08.2008 is an appealable one as per Order 43 Rule 1(r) of Civil Procedure Code and when a Court of law has no jurisdiction then return of plaint can be resorted to as per Order 7 Rule 10 of Civil Procedure Code and further, the civil revision petitioner has not taken the lieu of this Court to file the present civil revision petition and he has filed only an application to accept the cause title and acceptance of cause title does not mean that the revision petitioner has obtained lieu of this Court to file the civil revision petition and when lieu has not been obtained the civil revision petition is not maintainable in law and therefore, crave leave of this Court to dismiss the civil revision petition.
16.The learned counsel for the 6th respondent/ petitioner/plaintiff cites the decision in S.M. Chandrasekaran V. S.S.Jayamani and others (2007) 5 MLJ 1045 wherein this Court has inter alia held that 'unless an appeal or revision is barred under the Tamil Nadu Buildings (Lease and Rent Control) Act, an aggrieved person is at liberty to prefer either appeal or revision etc.' He also presses into service the decision in Kalaivasagam and another V. Kammavar Iiaignar Sangam, Sivakasi and others (2006) 4 MLJ 926 wherein this Court has held that 'a third party to the suit can only file an appeal against the decree, if he/she is aggrieved by the same and cannot maintain a revision under
Article 227 of the Constitution, against the decree passed in the suit.' He also relies on the decision in Enercon (India) Limited, Mumbai V. J.T.Micheal Anjalo 2005 (2) CTC 365 at page 367 wherein this Court has held that 'if the petitioner is aggrieved by the order passed under Order 39, Rules 1 and 2 of Civil Procedure Code, there is an appeal remedy and he can avail, of it. If the petitioner's; case is that the plaint should be rejected, even then, he has his remedy. But unless, the circumstances warrants and the abuse of process of law stares in the face,
Article 227 cannot be invoked for striking of a case from the file. It is in these circumstances, the CRP is dismissed etc.'
17.He also draws the attention of this Court to the decision in A.Venkatasubbiah Naidu V. S.Chellappan and others 2000 (IV) CTC 358 at page 364 wherein the Hon'ble Supreme Court in para 17 and 18 has observed as follows:
"17.It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2-A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party which does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3-A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule.
18.Now what remains is the question whether the High Court should have entertained the petition under
Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well-recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned Single Judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition.
18.Moreover, the learned counsel for the 6th respondent /petitioner/plaintiff seeks the aid of the Judgment passed by this Court in L.P.A.No.134 of 1952 and W.P.No.317 of 1952 wherein it is held that 'it is improper to grant leave to appeal to every person who may in some remote or indirect way to prejudicially affected by decree or judgment etc.' Further, he invites the attention of this Court in C.R.P.PD.Nos.1807 and 1808 of 2005 between M.V.Sachidanandam V. Prakash Kumar and others wherein this Court has held that 'when the petitioner has an effective alternative remedy available under the C.P.C. by filing an appeal, there is no extraordinary circumstances in existence warranting this Court to interfere under
Article 227 of the Constitution of India etc.' Added further, he relies on the decision in Dr.G.Krishnamurthy V. The President, Madras High Court Advocates Association and others wherein this Court has held that 'an association cannot take up cudgels and agitate the issue against an individual who has no concern with the said association etc.'
19.The learned counsel for respondents 4 and 5 submits that the order passed by the trial Court in I.A.No.13528 of 2008 in O.S.No.5602 of 2008 granting ad-interim injunction on 18.08.2008 is that assigning reasons and the trial Court has in first 2 paragraphs of its order in IA deals with the submission of the 6th respondent/petitioner/plaintiff counsel and in paragraph 3 it has held that 'I am of the opinion that the petitioner has made out a prima facie case. Ad-interim injunction is granted till 25.08.2008, issue notice to the respondents etc.' and this order of trial Court in observing that the 6th respondent/petitioner/ plaintiff has made out a prima facie case etc. shows that the trial Court has not approached the matter in issue in proper perspective and therefore, in the interest of justice, the said order has to be set aside by this Court.
20.The substance of contention of the learned counsel for respondents 4 and 5 is that the trial Court has granted ad-interim injunction without recording proper reasons thereto and therefore, this Court can exercise its revisional powers under
Article 227 of the Constitution and set aside the orders of the trial Court passed in I.A.No.13528 of 2008 in O.S.No.5602 of 2008 to prevent aberration of justice. In support of his contention, he relies on the decision in Rt.Rev. Dr.V. Devasahyam, Bishop in Madras CSI and another V. D.Sahayadoss and others 2002 (1) CTC 458 wherein this Court has inter alia held that 'grant of exparte injunction is an extraordinary power which has to be exercised taking into consideration facts and circumstances of the case and further that the trial Court passing exparte order of injunction without recording reasons as mandated by law is untenable etc.' He also presses into service the decision in N.P.Ponnuswami V. Returning Officer, Namakkal Constituency and others 1952 Supreme Court Reports 219 wherein it is observed as follows:
"Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while, it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.
The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.
Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of."
21.Moreover, the learned counsel for respondents 4 and 5 contends that the 6th respondent/petitioner/plaintiff has suppressed the factum of election being held at Madurai and instead in the plaint in O.S.No.5602 of 2008 before the City Civil Court, Chennai at para 25 it is wrongfully mentioned as .... when the defendants 4 to 6 are taking steps to conduct the election at Chennai etc. In the Tamil Daily Dinamalar Madurai Edition dated 06.11.2008 the election notice of MADITSSIA refers to the executive committee election for the year 2008-2010 as 13.11.2008 at about 10.00 a.m. To 3.00 p.m. At MADITSSIA Arangam.
22.The learned counsel for the respondents 4 and 5 takes a plea that when the election process has already commenced the trial Court ought not to have interfered with by granting the relief of ad-interim injunction in I.A.No.13528 of 2008 and in support of his said contention, he seeks in aid of the decision in Shri Sant Sadguru Janardan Swami(Moingiri Maharaj)Sahakari Dugdha Utpadak Sanstha and another V. State of Maharashtra and others (2001) 8 SCC 509 whereby the Hon'ble Supreme Court has observed that 'where the election process had already commenced (and election was held during pendency of writ petition), held on facts, High Court rightly declined to entertain writ petition of appellants seeking setting aside of elections and further it also observed that preparation of voters list, is part of the election process for constituting managing committee of a specified society. He also cites the decision in Harpal Singh V. State of Punjab 2008 (1) Crime 82 (SC) wherein the Hon'ble Supreme Court has held that 'in the absence of jurisdiction the Court has no power to hear and decide the matter and the order passed by it would be a nullity.' Added further, he cites the decision in Ramachandra Ganpat Shinde and another V. State of Maharashtra and others (1993) 4 SCC 216 at page 229 and 230 wherein the Hon'ble Supreme Court has inter alia observed as follows:
"When the matter was brought by special leave under
Article 136, this Court held that T.N.Panchayats Act, 1958 and the Rules provided forum to decide election disputes though alternative forum does not have the effect of overriding the powers of the High Court under
Article 226 but it may be taken into consideration in determining whether it would be appropriate for the High Court to exercise its powers under
Article 226 in a particular case(emphasis supplied). Taking an overall view of the facts, this Court held that the exercise of the jurisdiction under
Article 226 cannot be supported and the validity of the election should be decided in the alternative forum provided under the Act. Accordingly, the appeal was allowed. Therefore, this Court held that there is no constitutional bar to the exercise of the jurisdiction in respect of election to local bodies. It is equally sound exercise of discretion to bear in mind the policy of the legislature to have the dispute decided speedily through the machinery of election petition and decline to exercise its writ jurisdiction in election dispute. Once the election process was set in motion according to law any illegality or irregularity committed while the election process is in progress or the conduct of the election is vitiated by any illegality or irregularity in its process, the proper remedy is to lay the action before the tribunal constituted under that Act by means of an election petition and have the dispute adjudicated without the election process being interdicted or retarded midway. The High Court or this Court while exercising the constituent plenary power under
Article 226 or 32 or under 136,as the case may be, would decline to interfere with the election process and relegate the parties to take recourse to the alternative remedy of the election petition provided under the statute."
23.Continuing further, the learned counsel for the respondents 4 and 5 submits that in I.A.No.729 of 2008 in O.S.No.340 of 2008 on the file of learned District Munsif, Tirumangalam the interim injunction originally granted has been vacated and before the Madurai Bench of Madras High Court W.P.No.7397 of 2008 has been filed by a member by questioning the election notification etc. and the same has been dismissed on 18.08.2008 as devoid of merits and also as not maintainable and thereafter, an I.A.No.13528 of 2008 in O.S.No.5602 of 2008 has been filed by another member before the XII Assistant Judge, City Civil Court, Chennai to stall the election process and the order of injunction granted by the trial Court in I.A.No.13528 of 2008 has been challenged by a contesting member by means of W.P.No.21855 of 2008 before this Court and later on it has been converted into C.R.P.PD.No.3324 of 2008 and that the once election process has commenced the Court shall not interfere and that election must be permitted to be completed in a scheduled manner within the schedule period and therefore, prays for dismissal of the civil revision petition.
24.The learned counsel for the 6th respondent/ petitioner/plaintiff submits that the jurisdiction of the Civil Court is not barred under
Article 329 B of the Constitution of India and therefore, the suit O.S.No.5602 of 2008 filed by the 6th respondent/petitioner/plaintiff before the XII Assistant Judge, City Civil Court, Chennai is perfectly maintainable in law. The respondents 2 and 3 are to permit the fourth respondent to conduct the election. The suit O.S.No.5602 of 2008 on the file of XII Assistant Judge, City Civil Court, Chennai is also for the relief of mandatory injunction directing the second defendant therein to appoint a special officer to the 4th defendant association by removing the present office bearers as their period is over and to conduct the election to the executive committee for the year 2008-2010 by issuing fresh notification.
25.The learned counsel for the 6th respondent/ petitioner/plaintiff submits that by mere filing the form before the competent authority a member cannot be removed and there are no letters for resignation of 521 members and the registrar has to conduct an enquiry in regard to the Form VII and on 01.07.2008 it has been submitted to the registrar. According to the learned counsel for the 6th respondent/petitioner/ plaintiff, the members list itself is in dispute and the registrar is directed to look into the fact whether 521 members have resigned.
26.In fact, this Court points out that the Registrar under the Tamil Nadu Societies Registration Act cannot adjudicate any dispute between the parties and an aggrieved person is to move the Civil Court for a proper remedy in the manner known to law. In regard to the term 'an aggrieved person' this Court points out that it includes 'an individual' against whom a decision has been made, which has wrongfully deprived him something which he has a right to demand. As a matter of fact, the word 'Aggrieved' is little bit wider than the term 'injured' and a person is aggrieved if a decision has been referred which has wrongfully refused him something to which he has a right to demand, in the considered opinion of this Court. Indeed, 'person aggrieved' includes any individual who has a real grievance because an order has been made prejudicially affecting his interest. To put it differently, the term 'aggrieved' points out to a substantial grievance, a denial of some pecuniary, personal or property right or the imposition upon a person of a burden or obligation. Further, under statutes providing the right of appeal to a party aggrieved by an order or judgment, a party affected is one whose pecuniary interest is directly affected by the adjudication; one whose right of property may be established or divested thereby.
27.At this stage, this Court pertinently points out that the term 'aggrieved person' specifies an elastic, and to an extent an elusive concept and its meaning lays on diverse, variable factors such as the content and intent of the constitute of which contravention is alleged, the specific circumstances of the case, the nature and extent of an individual's/petitioner's interest and the nature and extent of the prejudice or injury suffered/received by him.
28.Inasmuch as the revision petitioner claims to be a bonafide member in an association called as Madurai District Tiny and Small Scale Industries Association and since he is said to be affected by the or4der of ad-interim injunction passed in I.A.No.13528 of 2008 in O.S.No.5602 of 2008 on the ground that earlier order passed by the Madurai Bench of Madras High Court and the order of dismissal in I.A.No.729 of 2008 in O.S.No.340 of 2008 on the file of District Munsif, Tirumangalam have been suppressed by the 6th respondent/petitioner/plaintiff, this Court is of the considered view that he is an aggrieved person in a wider construction of the term 'aggrieved person' in the eye of law and resultantly, the issue of petitioner obtaining prior leave of the Court to file the present revision petition does not arise on any score, in the considered opinion of this Court.
29.The need to assign reasons before passing exparte orders of injunctions has been emphasised by the Hon'ble Supreme Court in the decision in Shivkumar Chadha V. MCD (1993) 3 SCC 161 and the same runs as follows:
"... The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such exparte orders have far reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then, the introduction of the proviso by the parliament shall be a futile exercise and that part of R.3 will be a surplus usage for all practical purposes. Proviso to R.3 of Order 39 of the Code of Civil Procedure, attracts the plea, that if a constitute requires a thing to be done in a particular manner it should be done in that manner or not at all."
30.This Court quotes the decision Wajid Ali Mirza and another V. M.A.Qaher and others AIR 1989 NOC 113 (ANDH. PRA) wherein it is held as under:
"Civil P.C. (5 of 1908), O.43, R.1 (r), O.39, R.1 - Appeal against ex parte interim injunction - Ex parte order of injunction passed by court after due compliance of O.39, R.3 - Held, proper course was to direct aggrieved party to approach same court for vacating ex parte order, when its continuance would not result in abuse of process of Court."
31.In Airport Authority of India V. M/s.Paradise Hotel and Restaurant AIR 2002 Gauhati at page 146, it is held that 'an exparte ad-interim temporary injunction is appealable and not amenable to revisional jurisdiction of High Court. Moreover, in the aforesaid decision at para 12, it is observed as follows:
"12.While answering the above question, it needs to be borne is mind that notwithstanding the decision in Subhas Mohan Dev's case (supra), relied upon by Mr.K.N.Choudhury, Full Bench of this Court in (1984)1 GLR 133 : (AIR 1984 Gauhati 86) (Akmal Ali v. State of Assam) has laid down the law on the subject in the following words:-
"If an order of ad interim injunction is passed under Order 39, R.1 or 2 of the Code of Civil Procedure, whether ex parte or otherwise, it is appealable, as O. 43, R.1 (r) enables a party aggrieved by any order under O.39, R.1 or 2 to prefer on appeal ............................ In our opinion, therefore, the Court cannot refuse to entertain an appeal only on the ground that such orders are temporary or interim or provisional. Similarly, by their very nature ad interim injunctions passed under O.1 or 2 are always rendered ex parte, Parliament being fully aware of the situation permitted appeals against such orders. In our opinion, therefore, an ex parte order of temporary injunction, whether provisional, temporary or interim, are appealable, if rendered under O.39, Rr.1 and 2. On perusal of Order 43, R.1(r) we notice that it speaks that an appeal shall lie from an "order" under R.1, R.2-A, R.4 and R.10 of Order 39. Therefore, any order under Rr.1, 2, 2-A and 4 is appealable.......................................................................................... However, there is a line of decisions in which it has been held that an ex parte or ad interim order of injunction under O.39, Rr.1,2,2-A is not appealable as it is temporary or ex parte or non-speaking. But in the same breath the High Courts recognise the right of petition against such orders under O.39, R.4 of the Code. An ex-parte non-speaking temporary or ad-interim order of injunction is revisable but it is not appealable, although the characteristics of the impugned order are absolutely the same both in O. 39, R.4 as well as in O. 43, R.1(r), seems to be irreconciliable. If it is an order of injunction, it is appealable as well. Similarly, if it is an order of injunction it is revisable under O.39, R.4. Situated thus, we find it difficult to accept the line of reasoning and respectfully differ from the view. In our opinion, all ex parte ad interim injunction are appealable under O.43, R.1(r) as well as revisable under O.39, R.4 of the Code ................................................... Any controversy as to whether reasons need be recorded while making an ex parte order of an interim injunction has been removed by the introduction of R.3, which provides that the Court after recording reasons for its satisfaction that the object of granting injunction would be defeated by delay, etc. may pass an order of ex parte ad interim injuctions under Rr.1 and 2 of O.39. It does not stand to scrutiny that an ad interim order devoid of reasons, rendered in violation of the well known principles that a judicial order must contain reasons, and in violation of the mandatory provision of R.3 can escape the jurisdiction of the appellate Court, but the same order can be revisedb y the very same Court. Judicial order must be reasoned order. After the amendment, it must contain reason. The trial Court must apply its mind to the materials placed before it, and, on being satisfied about the requirements of O.39, Rr.1 and 2 make the order. Further, R.3 enjoins "reasons to be recorded." Under these circumstances when the trial Court is required by law state reasons, but does not furnish them in its order, it violates the provisions of 'the Code.' By its own inaction or intentional violation of the mandatory provisions of the Rules a Court cannot take away the right of appeal of a person aggrieved by that order. As such, an ex parte order of injunction, whether speaking or non-speaking, is appealable." (Emphasis is added)
32.In the decision Bengal Club Limited V. V.Chowdhury AIR 2003 Calcutta at page 96 it is inter alia held that 'a person aggrieved by an order of exparte injunction by way of filing an appeal can urge before the appellate Court that the plaintiff before trial Court has suppressed the facts.' Admittedly, a right of appeal is always a creature of statute and the right of appeal conferred under Order 43 Rule 1 of Civil Procedure Code is an appeal both on facts and law. No wonder, the requirement of assigning reasons for the grant of exparte ad-interim injunction is a mandatory one.
33.In Dover Park Builders Private Limited V. Madhuri Jalan and others AIR 2003 Calcutta at page 55 it is held that 'variation, discharge and vacating of interlocutory order can only be made by the Court, which has granted such order. Where the order of injunction was granted by the appeal Court on refusal to grant by trial Court, therefore, ordinarily going by wording of Order 39 Rule 4 of Civil Procedure Code the petitioner would have to approach the Division Bench of High Court for the appeal, but for the leave reserve in the order itself the defendants approach the trial Judge that is now being dealt with by the High Court under
Article 226 and High Court under
Article 226 if varies or modifies the order of injunction granted by the appeal Court it would not be deemed to be variation of order of appeal Court by it in an exercise of its jurisdiction of the trial Court and so it will not be committing judicial in discipline. It is futile to contend that the defendant cannot make such an application as the appeal Court do not grant such permission because permission or no permission when the law enjoined the right to the litigating parties to approach the Court straight away if it causes undue hardship.
34.It is worth recalling the observations of Hon'ble Supreme Court in the decision in T.Arivandandam V. Satyapal and another AIR 1977 SC 2421 at page 2423 which runs as follows:
"... The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O.VII R.11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under O.X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage etc."
35.Be that as it may, where an exparte interlocutory order is unjust then, appeal is maintainable inspite of recourse available to a litigant under Order 39 Rule 4 of Civil Procedure Code. In fact, the two remedies are available to a defendant against an order of exparte injunction (i)an application under Order 39 Rule 4 of Civil Procedure Code for varying or vacating the order; (ii) an appeal under Order 43 Rule 1(r); the two remedies are concurrent. In fact, an order passed under Order 39 Rule 1 and 2 of Civil Procedure Code is an appealable order under Section 104 read with Order 43 Rule 1(r) of Civil Procedure Code and therefore, it comes within the ambit of the exclusion under cl (a) of Section 2(2) and resultantly cannot be termed as 'decree' within the meaning of Section 2(2) of Civil Procedure Code in the considered opinion of this Court. It is not out of place to point out that in Celin V. Thomas Johnson AIR 2006 Ker. 297 it is held that 'the remedy available against an order vacating injunction is to file an appeal under Order 43 Rule 1(r) of Civil Procedure Code and not writ petition.' However, this Court points out that the requirement of assigning reasons for the grant of ad-interim injunction are not an empty ritual.
36.On a careful consideration of respective contentions, this Court is of the considered view that the civil revision petitioner cannot invoke the jurisdiction of this Court under
Article 227 of the Constitution of India when he has got two concurrent remedies (i) under Order 39 Rule 4 of Civil Procedure Code to vary or vacate or discharge the order passed by the trial Court in I.A.No.13528 of 2008 in O.S.No.5602 of 2008 dated 18.08.2008; and (ii) to file an appeal under Order 43 Rule 1(r) of Civil Procedure Code whether the said exparte order is a reasoned or non-reasoned one and further, the jurisdiction under
Article 227 of the Constitution of India has to be sparingly exercised by this Court and in this view of the matter, the civil revision petition is dismissed.
37.In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Liberty is given to the petitioner/3rd party to workout his remedy as per Civil Procedure Code. Consequently, connected miscellaneous petitions are also dismissed.
7.01.2009 Index : Yes Internet : Yes sgl To The XII Assistant Judge, City Civil Court, Chennai.
M.VENUGOPAL,J.
Sgl Order in C.R.P.(PD).No.3324 of 2008 7.01.2009