IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 OP(C).No. 1306 of 2011(O) -------------------------------------- CMA.NO. 2/2011 of ADDL. DISTRICT COURT, PATHANAMTHITTA .................... PETITIONER -------------------- GEORGE ABRAHAM,AGED 41 YEARS,S/O.GEORGE, BUSINESS,RESIDING AT :ALAPATTAYA KACHANATHU HOUSE, NELICKMON(P.O),ANGADI MURI,ANGADI VILLAGE, RANNI TALUK. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): -------------------------- 1. RANNI MARTHOMA MEDICAL MISSION CENTRE, MAMUKKU,ANGADI MURI,ANGADI VILLAGE,RANNI TALUK, REP;BY ITS VICE-PRESIDENT,C.K.THOMAS, S/O.KUNJOOMMEN,AGED: 72 YEARS,RESIDING AT: CHERUVAZHAKUNNEL,PAZHAVANGADI.P.O,PAZHAVANGADI MURI & VILLAGE,RANNI TALUK,PIN-689 673. 2. THE SECRETARY,T.S.THOMAS,RANNI MARTHOMA, MEDICAL MISSION CENTRE,ANGADI RANNI,PIN-689 674. 3. THE TREASURER,SHAJI THOMAS @ SHAJI PANAVELIL,RANNI MARTHOMA MEDICAL MISSION CENTRE, MAMUKKU,ANGADI MURI,ANGADI VILLAGE,RANNI TALUK, PIN-689 674. 4. THE RETURNING OFFICER,REV.DR.ALEXANDER A.THOMAS,RANNI MARTHOMA MEDICAL MISSION CENTRE, ANGADI,RANNI,PIN-689 674. 5. REV.FR.K.S.ABRAHAM,AGED:79 YEARS, S/O.LATE.VARKEY SCARIAH,KACHANATHU HOUSE, PULLUPRAM.P.O,ANGADI VILLAGE,RANNI TALUK, PIN-689 674. 2/- -2- OP(C)NO.1306/2011 6. GEORGE VARGHESE,S/O.REV.C.V.GEORGE, AGED: 57 YEARS,EETTICHUVADU HOUSE,EETTICHUVADU.PO, ANGADI MURI,ANGADI VILLAGE,RANNI TALUK, PIN-689 675. R1 TO R3 BY ADV. SRI.M.NARENDRA KUMAR R4 BY ADV.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.1306/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE MEMORANDUM OF ASSOCIATION & RULES AND REGULATIONS OF THE ASSOCIATION OF THE FIRST RESPONDENT ASSOCIATION. P2 COPY OF THE NOTIFICATION DATED 15/11/2010 ISSUED BY THE 2ND RESPONDENT . P3 COPY OF THE NOTIFICATION DATED 15/11/2010 ISSUED BY THE 2ND RESPONDENT UNDER RULE 25 OF THE ASSOCIATION. P4 COPY OF THE PLAINT IN O.S NO.6/11. P5 COPY OF THE I.A.NO.49/11 FILED BY THE PETITIONER IN OS NO.6/11 BEFORE THE MUNSIFF COURT, RANNY. P6 COPY OF THE OBJECTION FILED BY RESPONDENTS 2 AND 3 IN IA NO.49/11 IN OS NO.6/11. P7 COPY OF THE OBJECTION FILED BY THE 4TH RESPONDENT IN IA NO.49/11 IN OS NO.6/11. P8 COPY OF THE ORDER DATED 22/01/2011 PASSED BY THE MUNSIFF COURT, RANNY IN IA NO.49/11 IN OS NO.6/11. P9 COPY OF THE APPEAL IN C.M.A. NO.2/11. P10 COPY OF THE JUDGMENT DATED 10/02/11 PASSED BY THIS HON'BLE COURT IN OP(C) 502/11. P11 COPY OF THE JUDGMENT DATED 19/03/11 PASSED BY THE ADDITIONAL DISTRICT COURT, PATHANAMTHITTA IN C.M.A.2/11. P12 COPY OF THE INTERIM ORDER DATED 21/03/2011 PASSED BY THIS HON'BLE COURT IN OP(C) NO.1129/11. RESPONDENT'S EXHIBITS AND ANNEXURES: ANNEX A1 COPY OF THE COUNTER AFFIDAVIT DATED 31/03/2011 AGAINST OP(CIVIL) NO.1129 OF 2011 BY THE DEPONENT ALONG WITH EXHIBIT IN IT. ANNEX A2 COPY OF THE PHOTO TAKEN ON 21/03/2011 IN THE PRESENCE OF REV.GEEVARGHESE MAR ATHANASYOS WHEREBY THE NEWLY ELECTED PERSONS ASSUMED OFFICE. /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1306 of 2011 ==================================== Dated this the 02nd day of September, 2011 J U D G M E N T Respondents 1 to 4 appear through counsel. Respondents 5 and 6 are served but there is no response. 2. This Original Petition is filed in challenge of Ext.P11, judgment dated March 19, 2011 of the court of learned Additional District Judge, Pathanamthitta in C.M.A. No.2 of 2011 reversing Ext.P8, order passed by the learned Munsiff, Ranni on January 22, 2011 on I.A. No.49 of 2011 in O.S. No.6 of 2011. 3. Dispute concerns election to the Ranni Marthoma Medical Mission Centre (for short, “the Mission Centre”). The Committee which was in office appointed the 4th respondent as returning officer and took steps to conduct election on January 30, 2011. For the said purpose, election notification was issued on November 15, 2010. Petitioner filed the suit before the learned Munsiff on January 12, 2011 for a declaration that the election notification, publication of final list of voters and acceptance of nominations are invalid and for prohibitory injunction restraining O.P(C) No.1306 of 2011 -: 2 :- the respondents from conducting the election. There was an interim order passed by the learned Munsiff which culminated in Ext.P8, order after hearing the parties. That order was challenged before learned Additional District Judge in C.M. Appeal No.2 of 2011. Learned Additional District Judge reversed the order of learned Munsiff by Ext.P11, judgment. While the C.M. Appeal was pending, learned Additional District Judge passed an interim order allowing the respondents to conduct the election. Petitioner challenged that order in this Court in O.P(C) No.502 of 2011. That resulted in Ext.P10, judgment. This Court confirmed the interim order passed by the learned Additional District Judge. Accordingly election was held. According to the petitioner, in O.P(C) No.1129 of 2011 he obtained an order from this Court on 21.03.2011 against the elected Managing Committee assuming office. Respondents however maintain the stand that the elected Managing Committee assumed office at 9.30 a.m on 21.03.2011. Now the elected Managing Committee is in office, respondents claimed. Challenging Ext.P11, judgment of the learned Additional District Judge, petitioner has filed this Original Petition under Article 227 of the Constitution on 30.03.2011. This Court passed an order on 31.03.2011 directing the parties to O.P(C) No.1306 of 2011 -: 3 :- maintain status quo as on the date of the order. 4. Learned counsel for petitioner contends that proceedings pursuant to which election was conducted as per the order of learned Additional District Judge are patently illegal being against the provisions of Ext.P1, bye-law. It is contended that learned Munsiff having considered the relevant aspects of the matter and come to a prima facie satisfaction that the proposed election is illegal and having granted injunction, learned Additional District Judge was not justified in reversing the said order for the reason that a different view was also possible. According to the learned counsel when the trial court has passed an order in exercise of its discretion, the appellate court could interfere with such order only if the order of trial court is arbitrary, perverse or capricious and not when a different view is also possible. It is argued that the appellate court cannot substitute its own view for the view taken by the trial court when two views are possible. Learned counsel placed reliance on the decision in Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai (2006 KHC 744). It is contended that appellate court has not entered any finding that the order passed by the trial court is of such a nature that it O.P(C) No.1306 of 2011 -: 4 :- required interference in the circumstances stated above and hence judgment of learned Additional District Judge cannot stand and the same is liable to be set aside. Learned counsel has referred me to paragraph 13 of Ext.P11, judgment of the learned Additional District Judge where it is stated that prima facie there appears to be no illegality in the election procedure adopted by the 4th respondent (returning officer) and the order of injunction passed by the trial court is liable to be set aside. That observation according to the learned counsel is not sufficient to interfere with the order passed by the trial court. 5. Learned counsel for respondents 1 to 3 contended that there is no illegality in the procedure adopted for conducting the election. It is pointed out that as permitted by learned Additional District Judge and as confirmed by this Court, election was conducted and the elected Managing Committee is now in office and hence there is no reason to interfere with Ext.P11, judgment. It is pointed out by learned counsel from paragraphs 10 to 12 of Ext.P11, judgment that learned Additional District Judge has found that there is no illegality in the proposed election as pointed out by the learned Munsiff and that conclusion of learned Additional District Judge rests upon the said finding. I O.P(C) No.1306 of 2011 -: 5 :- have also heard learned counsel for the 4th respondent, the returning officer. 6. My attention is drawn mainly to two aspects: Exhibit P3 is the notice dated 15.11.2010 issued by the Secretary of the Mission Centre on behalf of its governing body stating that election will be held on 30.01.2011. Learned counsel for petitioner would contend that as per clause (7) of the bye-law (Ext.P1) the parishes, etc, taking membership in the Association shall appoint as many representatives as the membership taken by them, such representatives shall be appointed for three years at a time by the general body of the parishes, etc., and the names reported by its President before December 31 of the year of registration of the Association and thereafter every third year. It is pointed out by learned counsel that as against the said provision in Ext.P1, bye-law, it is stated in Ext.P3, notice that details of representatives of the parishes and institutions are to be given on or before November 30, 2010. In response, learned counsel for respondents 1 to 3 contended that as per clause (22) of Ext.P1, bye-law names of institutional representatives must be submitted to the Secretary on or before November 30th. Learned counsel for petitioner pointed out that the said provision only O.P(C) No.1306 of 2011 -: 6 :- related to the institutional representatives and not representatives of the parish, etc., as referred to in clause (7) of Ext.P1. A further (alleged) illegality pointed out by the learned counsel for petitioner is concerning clause (23) of Ext.P1, bye- law where it is stated that it is for the returning officer (4th respondent herein) to publish the list and take necessary steps for election. But Ext.P3, notice would show that the said notice for election was issued not by the returning Officer but by the Secretary on behalf of the governing body. That according to the learned counsel is illegal. In response it is contended by learned counsel for respondents 1 to 3 that as per clause 25(4) of Ext.P1, bye-law it is within the power of the returning officer to appoint necessary staff to assist him in the conduct of election and that in accordance with that power vested on him the returning officer has requested the Secretary of the governing body by letter dated 05.11.2010 (Ext.B1) to issue Ext.P3, notice. It is also pointed out from Ext.P3 that by the said letter the 4th respondent had authorized and empowered the Secretary of the governing body to issue Ext.P3, notice and as such as found by the learned Additional District Judge there is no illegality in the proceeding initiated for conduct of the election. O.P(C) No.1306 of 2011 -: 7 :- 7. There could be no doubt regarding the principles stated by learned counsel for petitioner as to when the appellate court could interfere with a discretionary order passed by the trial court. It is not as if learned Additional District Judge has not adverted to the alleged illegalities which the learned Munsiff has pointed out. Learned Additional District Judge was of the view that there is no such illegality in the matter of conduct of election. I must bear in mind that notwithstanding Exts.P8 and P11 order/judgment, it is ultimately for the trial court to decide whether conduct of election was legal or proper. A further fact which I must bear in mind at this stage is that learned Additional District Judge has permitted conduct of election during the pendency of the C.M. Appeal and that order was confirmed by this Court. Viewed in that line there is no reason why I should interfere at this stage with the election already held but of course, that should be subject to the result of the suit. 8. On the question whether the elected Managing Committee has assumed office or not, there is dispute between parties – petitioner contending that the Managing Committee has not assumed office and respondents 1 to 3 claiming that the Managing Committee has assumed office. According to the O.P(C) No.1306 of 2011 -: 8 :- learned counsel for respondents 1 to 3, the elected Managing Committee has assumed office at 9.30 a.m on 21.03.2011 and minutes of the Managing Committee would show that on the said day and time the new Managing Committee has assumed office. 9. Learned counsel for petitioner has invited my attention to the order dated 21.03.2011 in O.P(C) No.1129 of 2011. Assuming that the presumption is that proceedings of the court are taken at the earliest point of time, it could be stated that the said order was passed on 21.03.2011 at 10.15 a.m according to respondents 1 to 3, the elected Managing Committee assumed office at 9.30 that day. I leave these matters to be decided by the trial court. 10. Grievance of petitioner has to be looked into since he has challenged the election on various grounds. It is for the trial court to decide whether the election conducted is legal and proper. I must bear in mind that if it is found that the election held is not legal and proper, it is within the power of learned Munsiff to order fresh election and issue necessary directions in that behalf. In that situation there should be some arrangement in the matter of maintenance of accounts of the Mission Centre. Learned counsel for petitioner pointed out that if any vacancy O.P(C) No.1306 of 2011 -: 9 :- arose in the Managing Committee, that has to be filled up by the Patron in accordance with the power conferred on him under clause (26) of the bye-law. This is not disputed by respondents 1 to 3 also. 11. Having heard counsel on both sides and gone through relevant records I find no reason to interfere with Ext.P11, judgment. But while disposing of this Original petition I am inclined to issue the following directions. (a) Learned Munsiff shall decide whether the election conducted is legal and proper and in accordance with the provisions of Ext.P1, bye-law untrammelled by the observations or findings either in the order of the learned Munsiff or judgment of learned Additional District Judge, Ext.P10, judgment of this Court or the observations contained in this judgment. (b) In case learned Munsiff finds that the election conducted is not legal and proper, it is open to the learned Munsiff to order fresh election O.P(C) No.1306 of 2011 -: 10 :- and issue necessary directions in that behalf. (c ) The Managing Committee in office is directed to file statement of income and expenditure of the Mission Centre in the trial court once in three months beginning from 01.11.2011 onwards until disposal of the suit. (d) The Managing committee shall also file statement of accounts in the trial court from the date of its (allegedly) assuming charge till 01.11.2011 on or before 15.11.2011. (e) It is directed that if any vacancy arose in the Managing Committee that shall be filled up by the Patron as provided in clause (26) of Ext.P1, bye-law and which will be subject to the result of the suit. (f) Learned Munsiff is directed to dispose of the suit as early as possible having regard to O.P(C) No.1306 of 2011 -: 11 :- the urgency of the matter. Original Petition is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv