IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 12TH OCTOBER 2011 / 20Th ASWINA 1933 OP(C).No. 2187 of 2011(O) ------------------------- CMA.38/2011 of II ADDL. DISTRICT COURT, KOLLAM OS.829/2010 of PRINCIPAL SUB COURT,KOLLAM (IA 4830/2010) .................... PETITIONER: --------- SATHEESH KUMAR, VYSHANAVAM, VELICHIKKALA P.O., HOUSE NO.669, WARD NO.4, ADICHANALLOOR, KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENTS: ----------- 1. K.P.RAMACHANDRAN NAIR, ARYA GRIHA, VADAKKEVILA CHERRY, VADAKKEVILA P.O., KOLLAM. 2. Y'S MEN INTERNATIONAL, SOUTH WEST INDIAN REGION, REPRESENTED BY ITS REGIONAL DIRECTOR, RESIDING AT 26, THEVALLY NAGAR, THEVALLY, KOLLAM-691009 3. V.S.RADHAKRISHNAN, REGIONAL DIRECTOR, NOMINATION COMMITTEE MEMBER, Y'S MEN INTERNATIONAL, SOUTH WEST INDIAN REGION, RESIDING AT 26, THEVALLY NAGAR, THEVALLY, KOLLAM-691009 R1 BY ADV. SRI.P.B.SURESH KUMAR, SRI.LEO GEORGE, SRI.K.N.SASIDHARAN NAIR, SRI.M.SUNIL & SMT.BABITHA THAMBI R3 BY ADV.SRI.R.KRISHNA RAJ THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2011, THE COURT ON 12/10/2011 DELIVERED THE FOLLOWING: MM OP(C).No. 2187 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN O.S.NO.829/2010 BEFORE THE SUB COURT KOLLAM P2 COPY OF THE INJUNCTION APPLICATION I.A.NO.4830 OF 2010 IN O.S.NO.829/2010 BEFORE THE SUB COURT KOLLAM P3 COPY OF THE COUNTER FILED TO EXHIBIT P2 INJUNCTION APPLICATION I.A.NO.4830 OF 2010 IN O.S.NO.829/2010 BEFORE THE SUB COURT KOLLAM P4 COPY OF THE BYE-LAW OF 2nd RESPONDENT P5 COPY OF THE INJUNCTION ORDER IN I.A.1078 OF 2010 IN O.S.NO.236 OF 2010 OF SUB COURT, KOLLAM P6 COPY OF THE COMPROMISE IN O.S.NO.236/2010 P7 COPY OF THE PALINT IN O.S.NO.614 OF 2010 BEFORE THE MUNSIFF COURT P8 COPY OF THE ORDER IN I.A.NO.4830 OF 2010 IN O.S.NO.829 OF 2010 BEFORE THE SUB COURT P9 COPY OF THE ORDER IN I.A.NO.976 OF 2011 IN CMA.NO.38 OF 2011 BEFORE THE DISTRICT COURT, KOLLAM P10 COPY OF THE JUDGMENT IN CMA.NO.38 OF 2011 BEFORE THE DISTRICT COURT, KOLLAM DATED 04-07-2011 P11 COPY OF THE DOCUMENTS SHOWING THAT THE PETITIONER IS RECOGNISED AND FUNCTIONING LT.REGIONAL DIRECTOR ELECT OF ZONE 11 P12 COPY OF THE NOTICE DATED 29-6-2011 RESPONDENT'S EXHIBITS: NIL TRUE COPY P.A. TO JUDGE MM THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2187 of 2011 --------------------------------------- Dated this 12th day of October, 2011 JUDGMENT The 7th defendant in O.S.No.829 of 2010 of the Court of learned Sub Judge, Kollam aggrieved by Ext.P8, order on I.A.No.4830 of 2010 as confirmed by the learned Second Additional District Judge, Kollam by Ext.P10, judgment has come to this Court requesting to exercise its supervisory power under Art.227 of the Constitution. 2. The litigation concerns right claimed by petitioner and the first respondent/plaintiff as Lt. Regional Director-elect of Zone II of the second respondent/first defendant for the period 2010-2011 expiring on 30.06.2011 and as Lt. Regional Director, up to 30.06.2012. First respondent/plaintiff claimed that he was duly elected as Lt. Regional Director-elect for 2010-2011 and as Lt. Regional Director up to 30.06.2012 on 12.06.2010 while, petitioner/7th defendant contended that he was so elected on 18.10.2010. First respondent/plaintiff on the strength of his election as aforesaid prayed for a declaration that he was duly elected as Lt. Regional Director-elect and as Lt. Regional Director, that he is entitled to function as such up to 30.06.2011 O.P(C).No.2187 of 2011 -: 2 :- (as Lt. Regional Director-elect) and thereafter as Lt. Regional Director till 30.06.2012 and for prohibitory injunction to restrain petitioner and other contesting defendants from obstructing his acting as such. Certain other reliefs are also claimed. Vide order on I.A.No.4830 of 2010 learned Sub Judge granted an order of interim injunction to which petitioner filed Ext.P3, objection. After hearing both sides learned Sub Judge granted Ext.P8, order making the interim order of injunction absolute until disposal of the suit which learned Second Additional District Judge confirmed by Ext.P10, judgment. 3. Learned counsel for petitioner has contended that the suit itself is not maintainable since as per sections. 4 and 11of Ext.P4, bye-law only a club can be a member of the second respondent, a club alone can nominate a member of that club for election to the post of Lt. Regional Director and since as per Sec.28 of the said bye-law, any club having grievance as to any decision taken by the second respondent or any election has to go before the Dispute Settlement Committee. According to the learned counsel, the individual member of a member-club has no right either to approach the Dispute Settlement Committee or even file a suit as done by the first respondent. The further argument is that though petitioner was nominated as the candidate of his club for election to the post of Lt. Regional O.P(C).No.2187 of 2011 -: 3 :- Director Zone II, his nomination was rejected for no valid reason. The nominating Committee which is to conduct the election deleted name of petitioner from the list of candidates for the post for the reason that the club of petitioner is not having good standing status (ie., by clearing the dues of the club before 29.09.2010) but, the club of petitioner contacted by e-mail the Y's men International Head Quarters at Geneeva as to the status of the club on 08.03.2010 and on 09.03.2010, a reply received was that the club of petitioner is having good standing status as on 09.03.2010 meaning thereby that as on the date petitioner was nominated by his club as aforesaid, there was no dues for his club to the second respondent. It is also the contention of learned counsel that the club of petitioner had filed O.S.No.236 of 2010 to restrain the second respondent from declaring any person elected as Lt. Regional Director-elect of Zone II, in that case the club of petitioner had filed I.A.No.1078 of 2010 for an order of temporary injunction and the Court granted Ext.P5, order of injunction on 19.03.2010. While so, in violation of the said order, the second respondent declared first respondent as elected on 13.06.2010. It is contended that the club of petitioner filed application to prosecute the second respondent (third defendant in O.S.No.236 of 2010) for violation of Ext.P5, order by declaring the first respondent as elected on 13.06.2010. But, by O.P(C).No.2187 of 2011 -: 4 :- that time a compromise was entered between the parties in O.S.No.236 of 2010 (Ext.P6 is the compromise petition) based on which O.S.No.236 of 2010 was withdrawn. It is contended that as per Ext.P6, it was agreed that there will be a fresh election to the post of Lt. Regional Director-elect of Zone II for 2010-2011. Accordingly petitioner was elected on 18.10.2010 which has been accepted and recognized by the second respondent as revealed from Ext.P11, hand book and directory, 2011 of Y's men International South West India Region Zone II. Learned counsel has invited my attention to pages 82 and 83 of the paper book (hand book and directory, 2011) where petitioner is shown as the Regional Treasurer and Lt. Regional Director (elect 2010-2011) of Zone II. It is also pointed out that the club of the first respondent had filed O.S.No.614 of 2010 (Ext.P7 is the copy of the plaint) for a decree for prohibitory injunction to restrain the Regional Director from conducting election as per notification (issued pursuant to Ext.P6). Learned counsel contends that in that case no injunction was granted as prayed for by the club of the first respondent and later, after the (impugned) election of petitioner on 18.10.2010, O.S.No.614 of 2010 was dismissed as not pressed. According to learned counsel, first respondent is bound by the decision in O.S.No.614 of 2010. In the circumstances, courts below were not correct in not recognizing O.P(C).No.2187 of 2011 -: 5 :- the status of petitioner as Lt. Regional Director-elect for 2010- 2011 and Lt. Regional Director for 2011-2012 ending by 30.06.2012. 4. Learned Senior Advocate for the first respondent/plaintiff contends that so far as individual right of the first respondent/plaintiff as duly elected Lt. Regional Director of Zone II is concerned, it is open to him to file a suit to establish his right under Sec.9 of the Code of Civil Procedure (for short, "the Code”) and that no statute either expressly or impliedly barred that right of first respondent. Learned Senior Advocate submits that not only Ext.P4, bye-law did not restrain the first respondent from instituting the suit but could not also do so since the express or implied bar referred to in Sec.9 of the Code must be by statute - Ext.P4 bye-law cannot have the force of a statute and hence cannot abridge the power of Civil Court to interfere with the right of first respondent to enforce his right in the Civil Court. It is also argued by the learned Senior Advocate that Ext.P6, compromise in O.S.No.236 of 2010 does not in any way bind or affect the first respondent or his club since neither of them was a party to that suit. It is submitted that Ext.P6, compromise itself is fraudulent in that as stated in Ext.P6, compromise, there was no decision to hold election taken in the meeting of the council as revealed from Ext.A10, copy of minutes O.P(C).No.2187 of 2011 -: 6 :- produced in the trial court. It is argued that so far as election of the first respondent on 12.06.2010 has not been challenged either by petitioner/7th defendant or by any person aggrieved, that election should stand and therefore, there was no possibility, occasion or necessity for conducting a fresh election as stated in Ext.P6 and as claimed by the petitioner on 18.10.2010. It is contended by learned counsel that Ext.P4, bye-law does not contemplate any election by consensus among the clubs and at any rate, even if it is assumed so, no such consent was given by the club of the first respondent. Hence whatever that is stated in Ext.P6 cannot bind the first respondent or his club. It is pointed out by learned counsel that these aspects were considered by the learned Sub Judge and learned Second Additional District Judge in Exts.P8, P10 and so far the decision of the learned Sub Judge and learned Second Additional District Judge are within the power conferred on them and they have not exceeded the power conferred on them, this Court shall not interfere under Art.227 of the Constitution. It is also pointed out that even on facts, unless the decision is perverse it is not required to interfer under Art.227 of the Constitution. 5. So far as maintainability of the suit filed by the first respondent/plaintiff is concerned, though learned Sub Judge has not referred to that, learned Second Additional District Judge has O.P(C).No.2187 of 2011 -: 7 :- observed in paragraph 10 of Ext.P10, judgment that on going through Ext.P4, bye-law, it does not reveal that an institution of the suit is barred. I find from clause II of Sec.28 of Ext.P4, bye- law that all the members of the Y's men International South West India Region agreed that they are bound to exhaust all remedies provided in this Constitution and rules thereunder for settlement of complaints/election disputes or any other disputes before initiating any legal action. But it prima facie appears that 'member' referred therein is the club and not individual member of a member-club. 6. In this connection, it is relevant to refer to Sec.9 of the Code which confers power on the Civil Court to entertain a suit of civil nature unless the cognizance is expressly or impliedly barred. Referring to the said provision in Rajasthan State Road Transport Corporation and Anr. Vs. Bal Mukund Bairwa ((2009) 4 SCC 299) it is stated in paragraph 12 that a litigant, having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. It is further stated that ex facie in terms of Sec.9 of the Code, civil courts can try all suits, unless barred by the statute, either expressly or by necessary implication. Prima facie it appears to me that Ext.P4, bye-law cannot be treated as a 'statute' which O.P(C).No.2187 of 2011 -: 8 :- could expressly or impliedly bar the jurisdiction of the civil Court under Sec.9 of the Code. I must also bear in mind the decision in T.P Daver Vs. Lodge Victoria (AIR 1963 SC 1144) where in paragraph 8 it is held referring to a dispute within a club that jurisdiction of the civil Court is rather limited, it cannot obviously sit as a court of appeal from decisions of such a body but it can set aside the order of such a body if the said body acts without jurisdiction or does not act in good faith or acts in violation of the principles of nature justice as explained in the decisions cited supra. 7. I must bear in mind that presently, I am not deciding the maintainability of the suit, nor am I required to do so. For, in deciding whether first respondent/plaintiff has a prima facie case I need only generally mention about maintainability of the suit, leaving it to the trial court to decide ultimately whether the suit is maintainable or not if a contention in that regard is raised by petitioner/7th defendant or any other contesting defendant. Therefore I leave that matter there for the decision of the trial court. Presently, the contention that the suit is not maintainable cannot prima facie be accepted. 8. Coming to the question whether learned Sub Judge was right in granting injunction in favour of the first respondent and the learned Second Additional District Judge, justified in O.P(C).No.2187 of 2011 -: 9 :- confirming that, I have already referred to the contentions that the parties have raised. 9. The claim made by the first respondent is based on his election on 12.06.2010. It is claimed that pursuant to that election he was installed as the Lt. Regional Director-elect on 13.06.2010. That election is not called in question in any proceeding. Nor did the club of petitioner take up that election before the Dispute Settlement Committee as stated in Sec.28 of the Ext.P4, bye-law. 10. So far as the impugned election of petitioner on 18.10.2010 is concerned, that election is on the strength of notification issued by the Regional Director pursuant to Ext.P6, compromise. In Ext.P6 (the compromise in O.S.No.236 of 2010 in which first respondent or his club are not parties), it is stated in paragraph 1 that a meeting of the supreme body of Y's men International South West India Region held on 11.07.2010 at Thiruvananthapuram decided to conduct election to the post of Lt. Regional Director of Zone II for 2010-2011. It is pursuant to Ext.P6, that O.S.No.236 of 2010 was withdrawn by the club of petitioner. But it is pertinent to note from Ext.A10 produced in the trial court ( a copy of which learned Senior Advocate appearing for the first respondent has given to me for perusal) that in the meeting of Regional Council of the Y's men O.P(C).No.2187 of 2011 -: 10 :- International South West India Region held on 11.07.2010 that what is stated therein is that “RD explained the issues in connection with the last years' LRD election in Zone II and he seek approval for conducting fresh election subject to the permission of the Honourable Court”. It is also stated in Ext.A10 that any decision was taken to conduct fresh election as suggested by the Regional Director. As earlier stated, the first respondent or his club were not parties in the suit in which Ext.P6, compromise was filed. There is therefore prima facie, some force in the contention of learned Senior Advocate for the first respondent that there was no such decision to conduct election as referred to in Ext.P6 taken on 11.07.2010. If that be so, prima facie it affects the very substratum on which petitioner claims to have been elected on 18.10.2010. For, it is pursuant to the so called decision on 11.07.2010 referred to in Ext.P6, that a notification for election is said to have been issued by the second respondent and petitioner is said to have been elected. Therefore, it remains to be decided whether there was any such decision on 11.07.2011 as referred to in Ext.P6, in the light of Ext.A10 produced in the trial court so that, it could be said that petitioner was duly elected on 18.10.2010. If, as claimed by the first respondent he was elected on 12.06.2010 and the result was declared on 13.06.2010, question arises whether there could O.P(C).No.2187 of 2011 -: 11 :- have been a fresh election for the same post and period on 18.10.2010 as petitioner claims. These are matters which are to be thrashed out after trial. 11. So far as withdrawal of O.S.No.614 of 2010 is concerned, no doubt that suit was filed by the club of the first respondent but, that suit was withdrawn after petitioner was allegedly elected on 18.10.2010. That was not a suit challenging the election of petitioner, as such instead for injunction to restrain election. Prima facie, withdrawal of that suit by the club of the first respondent particularly as it did not concern the election of petitioner, cannot affect the individual right of the first respondent. I must bear in mind that there was no decision rendered in O.S.No.614 of 2010 which affected present claim of the first respondent/plaintiff. 12. In the light of what I have sated above, it cannot be said that courts below acted without jurisdiction in holding that the election of petitioner on 18.10.2010 cannot prima facie be recognized and that the first respondent has shown a prima facie case that he was elected on 12.06.2010. Viewed in that line I am not inclined to think that power under Art.227 of the constitution is to be invoked in this proceeding. 13. But, I make it clear that the observations contained in Ext.P8, order Ext.P10, judgment and in this judgment shall be O.P(C).No.2187 of 2011 -: 12 :- confined to the disposal of I.A.No.4830 of 2010 and that the trial court shall decide the issues involved untrammelled by any of those observations or findings. Having regard to the fact that the period of the elected person is to expire by 30.06.2012, learned Sub Judge is directed to dispose of the suit giving it top priority after completing the preliminary steps. This original petition is dismissed. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-