IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7th DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.Nos. 11764-765/2017 (GM-CPC) BETWEEN:
1 SRI B S KESHAVA MURTHY S/O LATE B.S.SRIANGACHAR AGED ABOUT 89 YEARS R/A “SRIRANGA”
DOOR NO.59, 1ST MAIN ROAD LOWER PALACE ORCHARDS BANGALORE 560 003 BY HIS POWER OF ATTORNEY SRI B.A.RAMAKRISHNA 2 SRI B.A.RAMAKRISHNA AGED ABOUT 64 YEARS S/O LATE B.S.ANANTHARAGHAVACHAR EARLIER R/A NO.280 3RD B CROSS, 3RD STAGE 3RD BLOCK, BASAVESHWARANAGAR BANGALORE 560 079 NOW AT C-001, “VELAPURI” RENAISSANCE AERO 10/3, JAKKUR MAIN ROAD BANGALORE 560 092 3 SRI B.K.ARUN KUMAR AGED ABOUT 69 YEARS S/O LATE B.S.KASTURI NO.1, TEMPLE ROAD FORT BELUR – 573 115 HASSAN DISTRICT 4 SRI SUDARSHAN AGED ABOUT 60 YEARS S/O LATE N.S.RAMANUJAM R/O RATNA RAO STREET FORT BELUR 573 115 HASSAN DISTRICT 5 SMT.SANGEETHA AGED ABOUT YEARS W/O RAM KISHAN KOGODE TRAVELS NO.8, LAKSMIVENKATESHWARA BUILDING, ONTIKOPPAL MYSORE 570 002 6 SMT.KANAKALAKSHMI AGED ABOUT 69 YEARS W/O LATE B.K.RAMANNA R/A NO.545, “VELAPURI” 1ST FLOOR, 12TH CROSS 1ST PHASE, J.P.NAGAR BANGALORE 560 078 ... PETITIONERS (BY SRI B G SURYAKUMAR, ADVOCATE) AND:
1 SRI B.K.PRASAD AGED ABOUT 74 YEARS S/O LATE B. BASHYACHAR R/O VAIKUNTA STREET BELUR 573 115 HASSAN DISTRICT 2 SRI B K KESHAVA KRUPA AGED ABOUT 68 YEARS S/O LATE B KESHAVA PURANIK PURANIK HOUSE, VAIKUNTA STREET BELUR 573 115 HASSAN DISTRICT 3 SRI VAISHNAVA GOSHTI A REGISTERED SOCIETY REGISTERED UNDER KARNATAKA SOCIETIES REGISTRATION ACT,1960 HAVING ITS OFFICE AT YADUGIRI YATIRAJA MATH, FORT BELUR HASSAN DISTRICT 573 115 BY ITS SECRETARY 4 SRI B.K.BHAGAVAN AGED ABOUT 85 YEARS S/O LATE KASTURI R/A NO.1, TEMPLE ROAD FORT BELUR 573 115 HASSAN DISTRICT ... RESPONDENTS (BY SRI. SRINIVASA RAGHAVAN, SR.COUNSEL FOR R-1 AND 2;
SRI ABHINAV RAMANAND, ADVOCATE FOR R-3 & 4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 18.04.2013 ON I.A.NOS.II & VIII MADE IN O.S.123/2012 BY THE HON’BLE CIVIL JUDGE,JR.DIVN,, BELUR AT ANNEXURE-V AND ALSO THE ORDER OF SR.CIVIL JUDGE, BELUR DATED 5.12.2016 IN M.A.13/2013 AT ANNEXURE-Y.
THESE PETITIONS COMING ON FOR DICTATING ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R In these writ petitions, order dated 18.04.2013 passed by Civil Judge (Jn.Dn.,) Belur- Annexure-V in O.S.No.123/2012 allowing the application filed by the plaintiffs under Order 39 Rule 1 and 2 of CPC and dismissing the application filed by defendants 2 and 5 to 9, which came to be confirmed in M.A.No.13/2013 on 05.12.2016 by the Senior Civil Judge & JMFC, Belur – Annexure-Y has been called in question by defendants 2 and 5 to 9.
2. Parties are referred to as per their rank in the trial Court.
3. Plaintiffs have instituted a suit in O.S.No.123/2012 against the defendants for the following reliefs.
“(a) Declaration declaring that the 2nd defendant is not entitle to act as the President of the 3rd Defendant Society, that the Defendants 6 to 9 are not entitle to act as members of the Executive Committee of the 3rd Defendant Society and that the alleged reconstitution of the committee as inserted and other insertions from the bottom half of page No.96 to 99 in the proceedings book of the 3rd defendant Society of the meeting of 03.04.2012 is illegal, null and void.
(b) Grant Permanent Injunction restraining 2nd defendant from acting as the President of the 3rd Defendant Society, restraining the defendant Nos.
6 to 9 from acting as members of the Executive Committee of the 3rd defendant society, restraining the defendants from giving effect to or acting upon in any manner the so called proceedings of the General Body Meeting of the 3rd Defendant Society which is recorded at the bottom of half of pages 96 to 99 of the proceedings book of the Annual General Body Meeting of the 3rd Defendant Society.”
(i) It was contended by the plaintiffs that they are members of “Sri Vaishnava Ghoshti” - a society registered under the Karnataka Societies Registration Act, 1960 and though it was formed in the year 1950, same came to be registered in the year 1994 and the object of society is to spread the knowledge and glory of Vishistadvaitha Darshana and Sampradaya of Swamy Ramanujacharya, apart from celebrating festivals and functions and rendering assistance to devotees of Sri.Channakeshava Swamy Temple, Belur, who would be attending annual car festival and performing sevas at the said temple amongst other objects.
(ii) It was further contended that as per Memorandum of Association, management and affairs of the society vests with the executive committee consisting of 15 members comprising President, Vice President, Secretary, Joint Secretary cum Treasurer and 11 members to be elected by the General Body of the members once in three (3) years. It is further contended by the plaintiffs that first defendant was functioning as President, second defendant as Vice President, fourth defendant as Secretary and fifth defendant as Joint Secretary and Treasurer apart from other members discharging their duties as members of the Executive Committee. It is further stated that Executive Committee resolved to hold Annual General Body meeting on 03.04.2012 during the annual car festival being conducted at Belur and accordingly, the meeting was held and first defendant, as the President of the society, had expressed his desire to lay down his office due to his advanced age and being away at United States of America. It is also contended that he was dissuaded by the General Body of members from resigning and at the same meeting, the members who were present approved the accounts of the society including the income and expenditure, after which the meeting came to be concluded on the said date i.e., on 03.04.2012. It is further contended that there was no other subject in the agenda to be discussed and as such, the General Body meeting came to be concluded and minutes of the meeting came to be recorded in the minutes book maintained for the said purpose. Plaintiffs further contend that members who were present at the General Body meeting had affixed their signatures at the conclusion of the meeting and thereafter second defendant had taken the proceedings book from the custody of fourth defendant on the pretext of showing it to the President and as such, fourth defendant had handed over the proceedings book to the second defendant. It is further contended that on account of meeting having concluded and there being large number of devotees having assembled due to the annual car festival, the members of the committee who had assembled for the purposes of the meeting left the venue of the meeting, as they had to attend to the activities of the festival. It is further contended that on completion of the car festival next day, plaintiffs asked the fourth defendant as to whether the second defendant had returned the proceedings book and in reply, fourth defendant stated that second defendant had not returned the book. It is further contended that fourth defendant was questioned by the plaintiffs as to how he could have allowed the proceedings book of the society being handed over to second defendant, they were informed by the fourth defendant that he will take immediate action to secure the said book from the second defendant.
(iii) Plaintiffs have further contended that fourth defendant was asked as to whether proceedings book had been returned by the second defendant and they were informed that second defendant had taken away proceedings book to Mysore and had assured fourth defendant that it would be sent back and they have further contended that second defendant had taken away the book with a view to incorporate certain writings to show as if certain other decisions were also taken at the General Body Meeting and also to include as though certain persons have been taken to the Executive Committee by excluding the plaintiffs. On this apprehension, plaintiffs contended that they continued to demand the fourth defendant to take immediate action to call for Executive Committee meeting and to ensure that proceedings book is returned. They further contend that Executive committee meeting was called and in the said meeting, fourth defendant who was the Secretary was asked to preside over the meeting and it was unanimously decided to take immediate steps to secure the proceedings book apprehending that it was taken away by second defendant with a view to make certain writings. It is also stated that as discussed in the said meeting (said to have been held on 08.04.2012), second defendant was contacted over telephone and asked to return the book immediately and as per the assurance given by second defendant, he is said to have returned the book to fourth defendant and it was placed in the meeting summoned by fourth defendant held on 21.04.2012.
(iv) It is the contention of plaintiffs that in the said meeting, proceedings book which had been received by fourth defendant from second defendant by courier service was opened and read out the contents of the minutes of the meeting held on 03.04.2012 and to their shock, they found certain other writings having been inserted, making it appear as if certain decisions have been taken and there is clear interpolation and concoction. Plaintiffs further contended that insertions which had been incorporated in the proceedings book were condemned by the members who are present at the said meeting.
(v) Plaintiffs also contended that the so called insertion shown as if defendants-6 to 9 having been appointed to the Executive Committee is illegal and as such, plaintiffs were aggrieved by the illegal action of defendants-1 and 2. Plaintiffs claim that they gave a letter to the fourth defendant asking for copy of proceedings of the meeting held on 03.04.2012 as well as the portion which were inserted, which came to be noticed by them in the meeting held on 21.04.2012 when the book was returned by second defendant by courier from Mysore. Hence, plaintiffs allege that act of second defendant in taking away the book, recording proceedings of the annual General Body meeting and making insertion and as well as the act of first defendant in signing them are wholly illegal and contrary to the bye-laws of the society. On these amongst other grounds, plaintiffs sought for a declaration that second defendant is not entitled to act as President of third defendant -Society and defendants- 6 to 9 who are members of the society are not entitled to act as members of the Executive Committee of third defendant – society and alleged reconstitution of the committee said to have taken place on 03.04.2012 be declared as illegal, null and void. Plaintiffs have also sought for permanent injunction to restrain the second defendant from acting as the President of third defendant –Society, to restrain defendants - 6 to 9 from acting as members of the executive committee of third defendant –society and to restrain the defendants from giving effect to or acting upon in any manner on the basis of the proceedings of the General Body meeting.
4. In aid of main relief, plaintiffs filed an application under Order 39 Rule 1 and 2 of CPC seeking temporary injunction to restrain the second defendant from acting as the President and to restrain defendants- 6 to 9 from acting as members of the Executive committee of the third defendant - Society pending disposal of the suit.
5. All the defendants were served with suit summons. Defendants- 1 to 7 appeared through their respective learned Advocates and defendants -8 and 9 were placed exparte. Second defendant has filed his written statement as also objections to I.A.No.2.
(i) Perusal of written statement filed by second defendant would disclose that he has admitted the conducting of meeting on 03.04.2012 and has further contended that meeting which commenced with a dull note in view of sad demise of one of the office bearers and after observing silence for two minutes, the meeting came to be adjourned for some time to pay respects to the departed soul and was to re-assemble. It is further contended the General Body accordingly re-assembled and continued with the meeting, wherein the first defendant who was the President of the third defendant-Society had declined to continue as such. Hence, members of the General Body had requested him to continue as Patron–in-Chief of the third defendant – society and he was requested to reconstitute the executive committee as was the tradition existing in the “Ghoshti”. He has further contended that accordingly, second defendant who was the Vice President of the society was nominated as President, fourth defendant who was Secretary was made Vice – President, fifth defendant who was the Joint Secretary cum treasurer was made the Secretary and Sri. N.S. Narasiman, who was the internal auditor was made Joint Secretary cum Treasurer among 11 other members being appointed as executive committee members. It was also contended that various sub-committees were formed to decentralize the responsibilities and lessen the burden of work of individuals and also to co-ordinate the work with fourth defendant.
(ii) Second defendant has also contended that the bye-laws of the third defendant – society do not provide for more than two consecutive terms for any person to hold a post in the society and also taking into consideration the resentment expressed by the family members of fourth defendant on continuing the fourth defendant in the affairs of the third defendant – society as well as his age, he was made the Vice President which fact was within his knowledge and he had declined to sign the proceedings and started instigating other members also not to affix their signature to the proceedings with dire consequences if they dared to sign the proceeding. It is further contended by second defendant that on second defendant being made the President, he was allowed to take the proceedings book to know the contents of earlier proceedings and this fact was within the knowledge of fourth defendant and it was the fourth defendant who had suggested the name of second defendant to the post of the President. Hence, second defendant asserted his right over custody of the proceedings book. Second defendant has further pleaded that fourth defendant being aware of these facts, had started a mis-information campaign against defendants – 1 and 2. He further alleges that the accounts of the Ghoshti was not audited and the financial statement for six years had got audited at one go by a statutory auditor and report submitted to the Special General Body Meeting held in June, 2010. He has further alleged that renewal of registration of the Ghoshti was not made for several years by the fourth defendant and on these amongst other grounds, the executive committee was reconstituted.
(iii) It is further contended by second defendant that fourth defendant was aware of all these developments and on account of fourth defendant not being allowed to continue as Secretary, he started threatening the members of the executive committee and has also alleged that the recording of the proceedings in the meeting held on 08.04.2012 had no legal sanctity. He further states that fourth defendant was fully aware of the entire proceedings that took place on 03.04.2012 and the meeting held on 21.04.2012 is without any sanctity and fourth defendant has instigated the plaintiffs to file the suit in question. He further contends that though it is stated that in the meeting held on 21.04.2012 the proceedings of the meeting held on 03.04.2012 had been read over, same does not find a place in the proceedings of the meeting held on 21.04.2012 and there being no recording of the alleged writings from page 96 onwards in the General Body meeting held on 03.04.2012, would fortify the stand of second defendant that fourth defendant is the man behind the entire episode.
(iv) Second defendant had further contended that fourth defendant after commencing mis- information campaign had also telephonically contacted many office bearers of the society and had directed them not to attend the meeting on 12.05.2012. He has further contended that fourth defendant is tactfully avoiding holding of General Body meeting and selection of office bearers for many years, contrary to the bye-laws.
(v) It is also contended that second plaintiff was not at all present in the General body meeting held on 03.04.2012 and as such the allegation that second defendant had asked the fourth defendant for return of the proceedings book is patently false statement and in good faith, second defendant had sent the book to the fourth defendant. It is also contended that the suit is based on false and frivolous grounds and plaintiffs are chronic litigants and as such, second defendant has sought for dismissal of the suit and on the same lines, has sought for rejection of the application for temporary injunction.
6. Defendants-2 and 5 to 9 also filed an interlocutory application – I.A.No.8 under Order 39 Rule 1 & 2 CPC to grant an order of temporary injunction to restrain fourth defendant, his associates and plaintiffs from interfering with the peaceful possession and functioning of the applicants along with other office bearers as members of the executive committee of third defendant – Ghoshti by holding its meeting and performing the “Samaradhana” during Rathotsavam of Lord Sri Chennakeshava Swamy, Belur in the premises of the Ghoshti. Said application came to be resisted by plaintiffs by filing detailed statement of objections and denying the averments made in the affidavit supporting the application. Likewise, fourth defendant also filed objections to I.A.No.8 by denying all the allegations made in the affidavit filed in support of I.A.No.8.
7. On the basis of pleadings of the parties, the trial Court heard the arguments advanced by learned Advocates and by a common order dated 18.04.2013 allowed I.A.No.2 filed by the plaintiffs and restrained second defendant from acting as President, defendants-6 to 9 from acting as members of the Executive Committee. I.A.No.8 filed by defendants-2 and 5 to 9 came to be dismissed. The learned trial Judge had formulated six points for consideration and answered point Nos.1 to 3 in the affirmative i.e., in favour of the plaintiffs and point Nos.4 to 6 in the negative i.e., against defendants and held that balance of convenience lies in favour of plaintiffs. The learned trial Judge has opined that in the meeting held on 03.04.2012, 35 members were present and they have affixed their signatures and on the same day, the resolution regarding formation of new executive committee was passed as recorded in page Nos.96 to 99 and this fact is in dispute and it is only defendants-1 and 2 who have put their signatures and others who were present at the meeting had not affixed their signatures. To arrive at this conclusion, learned trial Judge has relied upon copy of the resolution produced by the plaintiffs. Hence, learned trial Judge has held that second defendant has not at all specifically pleaded in his written statement regarding election being conducted and new executive committee having been formed and as such, this has to be decided by a full fledged trial. On the issue of maintainability of the suit, the learned trial Judge has held the suit for declaration and permanent injunction is maintainable. On these amongst other reasons assigned therein, the learned trial Judge, as already noticed hereinabove, allowed I.A.No.2 filed by the plaintiff and dismissed I.A.No.8 filed by the defendants 2 and 5 to 9 by order dated 18.04.2013. Being aggrieved by the same, defendants 1, 2, 5 to 9 filed an appeal in M.A.No.13/2013. The learned Appellate Judge by order dated 05.12.2016 has dismissed the appeal and confirmed the order passed by the trial Judge by arriving at a conclusion that there was no ground urged in the appeal with regard to the proceedings book and as such, held that there is no error committed by the learned trial Judge and as such dismissed the appeal.
8. Though order dated 18.04.2013 passed by the trial Court would disclose that defendants- 7 and 8 had adopted written statement filed by second defendant and defendants- 1 and 5 had not filed their written statement and objections to I.A.No.2, which is seriously disputed by learned counsel appearing for petitioner in this writ petition and there being no material placed on record to demonstrate as to what was the stand of these defendants namely, defendants-1, 5, 7 and 8, no opinion is expressed by this Court in that regard and same is left at it.
9. In these writ petitions, the challenge is to the order dated 18.04.2012 passed in O.S.No.123/2012 which has been affirmed in M.A.No.13/2013 on 05.12.2016, which appeal had been filed by defendants – 1, 2, 5, 6 to 9, same is only examined.
10. I have heard the arguments of Sri.B.G.Suryakumar, learned Advocate appearing for the petitioner and Sri Srinivasa Raghavan, learned Advocate appearing for the respondents. Perused the records. During the course of arguments, the learned Advocate appearing for fourth respondent has also filed a memo enclosing the original resolution book of the third defendant.
11. It is the contention of Sri B G Suryakumar, learned Advocate appearing for defendants-1 and 5 to 9 that the plaintiffs have instituted the suit based on a false and tampered document at the instance of fourth defendant knowing the said documents are false only with the intention to mislead the Court and to obtain an order of injunction. He would draw the attention of the Court to certain documents produced by the plaintiff for being compared with the proceedings book to contend that fourth respondent had stealthily made certain writings after it was received by him from second defendant through courier. He would also submit that when two applications filed by the second defendant for temporary injunction and enquiry for action being taken for producing false documents were pending, I.A.Nos.2 and 8 ought not to have been adjudicated. Hence, without going into these aspects, the learned trial Judge could not have granted an order of injunction.
12. Per contra, Sri Srinivasa Raghavan, learned Senior Counsel appearing for respondents-1 and 2 has supported the impugned orders and would elaborate his submission by contending that under supervisory jurisdiction, finding of facts recorded by the Courts below ought not to be interfered. He would submit that on 13.06.2010 the General Body Meeting of the society was held wherein it was recorded that the Executive Committee, certain positions have become vacant and elections had not taken place and as such, an adhoc provisional committee was formed on the said date.
13. Having heard the learned Advocates appearing for parties and on perusal of records, this Court is of the considered view that following points would arise for consideration:
(i) Whether in exercise of supervisory jurisdiction under Article 227 of Constitution of India, this Court can examine the correctness and legality of the impugned orders?
(ii) Whether the impugned orders passed by the Courts below suffers from any material irregularity or illegality calling for interference by this Court?
(iii) What order?
RE: POINT NO.1 14. There cannot be any dispute with regard to the proposition that jurisdiction under Article 227 of the Constitution of India cannot be exercised in the “cloak of an appeal in disguise” as held by the Hon’ble Apex Court in the case of STATE vs NAVJOTH SANDHU reported in (2003)6 SCC 641.
Power under Article 227 vested with this Court is used sparingly and only in appropriate cases. The power available under Article 227 is a revisional jurisdiction and would not confer an unlimited authority to correct all orders. At the same time, it requires to be noticed that jurisdiction under Article 227 of the Constitution of India may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction, but where the Court asks itself a wrong question or approaches the question in an improper manner, even if it comes to the finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will be amenable to correction at the hands of this Court under Article 227 of the Constitution of India. Even failure to render necessary findings to support its order would also be a jurisdictional error liable to correction as held by Hon’ble Apex Court in KISHORE KUMAR KHAITAN vs PRAVEEN KUMAR SINGH reported in (2006)3 SCC 312. In the “decision making process” if the Court deciding the case has either ignored the vital material available on record or has considered such material erroneously and thereby arrived at an erroneous conclusion, the power vested in this Court under Article 227 of the Constitution of India can be invoked to set right such errors and prevent gross injustice that may have occurred.
15. The power under Article 227 of Constitution of India is discretionary and cannot be claimed as of right by any party. Last but not the least, the exercise of power under Article 227 of Constitution of India is supervisory and not appellate jurisdiction.
16. Keeping these principles in mind, the facts on hand are required to be considered and in the light of rival contentions raised with regard to non- consideration of material placed or erroneous consideration of the available material, as canvassed by learned Advocate appearing for the writ petitioners-defendants, this Court is of the considered view that factual matrix obtained in the present case calls for exercise of supervisory jurisdiction under Article 227 of the Constitution of India for the reasons assigned while answering point No.2 herein below.
RE: POINT No.2:
17. There is no dispute to the fact that third defendant is a Society registered under the Karnataka Societies Registration Act established with the object of spreading the knowledge and glory of ‘Vishishta Advaitha Darshana’ propounded by Sri Ramanujacharya and in this direction third defendant has been conducting various programs including extending facilities for member-devotees, who would be attending the car festival and performing various sevas at Channakeshava Swamy Temple of Belur.
18. As per the memorandum of association of third defendant-Society the management and affairs of Society vests with an executive committee, which consists of 15 members, which includes President, Vice President, Secretary, Joint Secretary cum Treasurer and Executive Committee is to be elected by the General Body of Members every year. However, for reasons best known, the general body of members have not elected the members of executive committee every year but have been elected once in three or four years and activities of the third defendant – society are conducted accordingly.
19. In the General Body Meeting of third defendant –Society held on 13.06.2010 it has been recorded that certain posts of the office bearers had become vacant and elections had not taken place and as such, it was resolved till such General Body is being held an adhoc committee should be formed and accordingly Adhoc Provisional Committee came to be formed. In the said General Body held on 13.06.2010 second defendant was elected as the Honorary Vice President, fourth defendant was elected as Honorary Secretary, fifth defendant was elected as Honorary Joint Secretary and one Sri.N.S.Narasimha was elected as the internal auditor. This has not been denied by the defendants-2, 6 to 9 in the written statement filed by them. The original proceedings book, which has been made available by the learned counsel appearing for fourth respondent i.e., seventh defendant, would disclose that there is no such resolution passed for constituting an Adhoc Provisional Committee. However, this fact is not denied by either of the parties and it is admitted that an adhoc committee came to be constituted with effect from 23.06.2010 vide Annexure-G.
20. Be that as it may. The bone of contention between the parties to the suit relates to proceedings of the General Body Meeting held on 03.04.2012. On the one hand, plaintiffs have contended that after the Secretary read out the report and accounts came to be approved, meeting got concluded and members present had affixed their signatures to the proceedings and no other subject came to be discussed and meeting was closed. It is also the contention of plaintiffs that President himself had endorsed at the end of the proceedings on said date as “closed”. However, at this juncture itself it would be apt and appropriate to note that in the entire proceedings book of third defendant-Society, which has been perused by this Court, does not disclose of any such endorsement having been made by the President of the Society in any of its previous meetings or subsequent meetings. This is an intriguing factor, which will have to be resolved after trial. On the other hand, it is the contention of defendants-4 and 5 to 9 that proceedings book, which was with the fourth defendant, has been tampered and on 03.04.2012 the General Body commenced with a dull note in view of demise of one of the office bearers and after observing silence for 2 minutes, meeting came to be adjourned and members had reassembled thereafter and continued with the meeting. It is also contended that, the then President, who presided over the meeting on 03.04.2012, had reconstituted the executive committee of third defendant - society as was the tradition existing. In the said meeting, second defendant, who was the Vice President was nominated as President, fourth defendant, who was the Secretary was made Vice President and fifth defendant, who was Joint Secretary cum Treasurer was made the Secretary and Sri.N.S.Narasimhan was made the Joint Secretary cum Treasurer among 11 members being nominated as members of the executive committee. It is in this background of rival contentions, the pleadings of parties with reference to the documents produced has been examined by the Courts below for granting a temporary injunction in favour of plaintiffs and to refuse the prayer for grant of temporary injunction in favour of defendants-2 and 5 to 9.
21. It is a trite law that while considering an application for temporary injunction three (3) necessary ingredients, which requires to be considered are:
(a) prima facie case;
(b) balance of convenience to either of the parties;
(c) irreparable loss and injury.
While considering a prayer for grant of temporary injunction a mini trial is not required to be held. If prima facie the material on record discloses that a disputed question of fact would arise, the safe course to be adopted is to refuse grant of temporary injunction. At that stage, the Court would only examine the documents produced and statement made on oath by the parties to ascertain in whose favour prima facie case is made out.
22. While considering an application for grant of temporary injunction, primafacie case cannot be confused with primafacie title and Court must see whether not granting an order of temporary injunction would result in irreparable loss and injury to the party seeking such relief and whether balance of convenience is in favour of granting an order of temporary injunction.
23. As noticed herein above, in the meeting held on 03.04.2012, according to defendants-2 and 5 to 9, a condolence meeting was held and thereafter the members had re-assembled which has been denied. Fourth defendant admit that he had received the proceedings book by courier and same was opened in the meeting held on 21.04.2012. However, there is no proceedings of the meeting placed on record to establish that on 21.04.2012 any meeting having been held or conducted. Minutes of the meetings held on 29.01.2012 would disclose that it was held under the Presidentship of Sri B.S.Keshava Murthy. However, after 13.06.2010 up to 03.04.2012, four meetings are said to have taken place i.e., on 02.03.2011, 14.04.2011, 16.04.2011, 29.01.2012 in which meeting, the President i.e., first defendant who according to the plaintiff’s and fourth defendant had continued as such, has not affixed his signature nor his name finds a place in the proceedings book. It is also admitted by fourth defendant who is sailing with the plaintiffs that he had received the proceedings book by courier and it was in his custody. A bare reading of the entries made in the meeting held on 03.04.2012 with regard to “closure of the meeting” as well as recording “there are no other subjects to be discussed and on the permission of the Chair, meeting having been adjourned” would suggest same having been entered subsequently. In fact, defendants-2, 5 and 9 have denied such notings having been made by the President who presided over said meeting.
24. This aspect has not received the attention of the Courts below which has occasioned material irregularity. In fact, the contesting defendants had produced the copies of the meeting proceedings held on 03.04.2012, which according to them prima facie establish that there were no such entries found in the proceedings of the meeting held on 03.04.2012. In fact, in the appeal filed by the defendants-1 to 9 i.e., M.A.No.13/2013, a specific ground has been raised by them in that regard and yet the learned appellate Judge has failed to examine the said issue and lower appellate Court being the last fact finding authority, ought to have examined this ground or contention raised by the appellants i.e., defendants-1 to 9. In fact, this would also be an issue which will have to be thrashed out after trial.
25. The learned trial Judge at paragraph 43 of the impugned order dated 18.04.2013 has opined to the following effect:
“43. Admittedly, at the first instance xxx to their signatures. Thereafter, on the same day, a new Executive Committee Resolution was recorded at page No.96 to 99 and some sub committees were also formed. These subsequent General Body Meeting is in dispute. “ 26. In this regard, it requires to be observed that defendants-2 and 5 to 9 in their written statement as well as in their objections filed to I.A.No.2 have specifically contended that entries with regard to closure of the meeting purported to have been made by the President as well as the endorsement made by the Secretary has been seriously disputed and they have produced the photocopies of the proceedings of the meeting held on 03.04.2012 commencing from page Nos.95 to 99 which does not contain the said entry. This factual aspect has not received the attention of the learned trial Judge. In other words, this material fact which has been pleaded has been ignored or not even considered by the learned trial Judge and the appellate Court has not even examined this plea though raised as a ground in the appeal filed by defendant Nos.1 to 9. In fact, first defendant though had not filed written statement has denied these two entries made in the grounds of appeal and as such, it was incumbent upon the appellate Judge to examine the said issue. On account of non-consideration of this aspect by the appellate Court, it has resulted in an error in exercise of jurisdiction calling for interference by this Court in supervisory jurisdiction.
27. A serious dispute exists with regard to the entries found in the proceedings book and non- examination of these aspects by both the Courts below has resulted in the impugned orders having been passed by granting temporary injunction in favour of plaintiffs to which, primafacie, plaintiffs would have not been entitled to.
28. This Court cannot lose sight of the fact that the plaintiffs have reiterated before this Court that on account of election to the third defendant – society not being held from past several years, they are ready and willing to hold or conduct the elections either themselves or by any such third party the Court may nominate and have also submitted before this Court they would be ready and willing to abide by any such direction/s that may be issued by this Court. Sri Srinivas Raghavan, learned Senior counsel appearing on behalf of the plaintiffs and Sri Abhinav Anand, learned Advocate appearing for defendant No.4 have reiterated this fact. However, Sri B.G.Suryakumar, learned Advocate appearing for defendants-1, 5 to 9 (writ petitioners) would submit, such an exercise cannot be undertaken by this Court since there is no prayer made in that regard. It is in this background, it would be necessary to observe that parties would be at liberty to move the trial Court for appropriate relief in that regard and it is needless to state that in the event of such an application being filed, the trial Court would consider the same and pass orders in accordance with law.
29. In the light of aforestated discussion, this Court is of the considered view that matter requires adjudication afresh by the trial Court and as such, the application - I.A.No.2 and I.A.No.8 filed by the plaintiffs and defendants-2, 5 to 9 respectively, are restored to the trial Court for being adjudicated afresh.
30. Hence, I proceed to pass the following ORDER (i) Writ petitions are hereby allowed in part.
(ii) Order dated 18.04.2013 passed in O.S.No.123/2012 and order dated 05.12.2016 passed in M.A.13/2013 are hereby set aside and I.A.No.2 and I.A.No.8 filed by plaintiffs and defendants-2 and 5 to 9 are restored to the file of Civil Judge, Belur for being adjudicated afresh expeditiously and at any rate, within two months from the date of receipt of copy of this order.
(iii) It is made clear that interim arrangement which had been made on 19.04.2017 in the writ petitions shall continue till disposal of the interlocutory applications – I.A.Nos.2 and 8 by the trial Court.
(iv) In the light of observations made in paragraph No.28 herein above, learned trial Judge shall consider the application, if any, filed for conducting the elections to third defendant/society and shall pass orders thereon on merits and in accordance with law, necessarily after affording opportunity to parties to the suit and trial Court would be at liberty to dispose of the said application either prior to disposal of I.A.Nos.2 and 8 or simultaneously with the said applications (I.A.Nos.2 and 8) and it is left to the discretion of trial Court.
(v) No order as to costs.
SD/-
JUDGE *sp