* IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO(OS) No.25/2007 and FAO(OS) No.26/2007 % Date of decision : 28th March, 2008 1. FAO(OS) No.25/2007 Shri P. Subba Rao and others ..... Appellants Through Mr.B.B.Sawhney, Sr. Advocate with Mr.M.J. Nasir, Advocate versus Andhra Association, Delhi (Regd.) & Ors. ..... Respondents Through Mr.Jayant Bhushan, Sr. Advocate with Mr.Vivek Narayan Sharma and Mr.Manish Vishnoi, Advocates for respondents No.1 and 2. AND 2. FAO(OS) No.26/2007 Shri R. Damodar and others ..... Appellants Through Mr.B.K. Sood with Mr.Yogesh Kumar Bhatt, Advocates versus Andhra Association, Delhi (Regd.) & Ors. ..... Respondents Through Mr.Jayant Bhushan, Sr. Advocate with Mr.Vivek Narayan Sharma and Mr.Manish Vishnoi, Advocates for respondents No.1 and 2. CORAM: HON’BLE THE CHIEF JUSTICE HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers be allowed to see the judgment ? Yes FAO(OS) 25/07 & FAO(OS) 26/07 page 1 of 20 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in the Digest ?Yes DR. MUKUNDAKAM SHARMA, CJ: 1. These appeals have been filed by the appellants being aggrieved by the order dated 20th December, 2006 passed by the learned Single Judge, whereby two applications filed by the appellants herein under Order XXXIX Rules 1 & 2 CPC, registered as IA No.5642/2004 in CS(OS) No.945/2004 titled R. Damodar and others v. Andhra Association, Delhi (Regd.) and others and IA Nos.7848- 49/2004 in CS(OS) No.1328/2004 titled P. Subba Rao and others v. Andhra Association, Delhi (Regd.) and others were dismissed. As in both these appeals the appellants are challenging the common order dated 20th December, 2006 and the reliefs sought for are also similar, we dispose of these two appeals by this common judgment and order. 2. The aforesaid applications under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure for grant of interim injunction were filed in the aforesaid two suits, challenging the election process of the Andhra Association (respondent No.1 herein). The records placed before us clearly disclose and establish that the suit of Shri R. Damodar and others was filed earlier than the suit filed by Shri P. Subba Rao and others with an identical subject-matter. In Suit No.945/2004 filed by Shri R. Damodar and others, the following reliefs were sought for in the FAO(OS) 25/07 & FAO(OS) 26/07 page 2 of 20 injunction application being IA No.5642/2004: “a) this Hon'ble Court may be pleased to restrain defendants from carrying on and holding elections of Defendant No.1 Association on 5.9.2004. b) direct the defendants to hand over the records of the Association regarding the existing and enrolled members, either by the Association itself or through Branch Secretaries/Chairman/Vice Chairman/Joint Secretaries of the various Branches to an administrator/Officer appointed by this Hon'ble Court for the purpose of scrutiny and to hold the elections, after including all the legitimate members of the Association.” 3. The said application was filed on 31st August, 2004 and by filing the aforesaid application, the appellants prayed for an interim order restraining the respondents / defendants herein from carrying on and holding elections of the Andhra Association on 5th September, 2004. When the said suit was listed before the learned Single Judge, while issuing summons in the suit, notice was issued on the injunction application and the statement of the counsel appearing for the plaintiffs was also recorded to the following effect: “...... Shri S.Madhusudan Babu is directed not to declare the results till further Orders of this Court. Mr.Sood further submits that the Plaintiff believes that the election will not be conducted in a fair manner. He presses for the appointment of an Observer who would independently report the proceedings to this Court.” 4. However, so far as the prayer restraining the holding of the election was concerned, the learned Single Judge passed a specific FAO(OS) 25/07 & FAO(OS) 26/07 page 3 of 20 order holding that as the election process had already commenced, it would not be appropriate or in fact necessary to interdict the holding of the elections. The learned Single Judge also observed that serious disputes had been raised and, therefore, the Returning Officer was directed not to disclose the results till further orders of the Court. The learned Single Judge, as it appears, accepted the prayer of the counsel appearing for the appellants / plaintiffs for appointment of an Observer and appointed a Court Observer with a direction that he should be present during the course of election. The said order was passed by the learned Single Judge on 2nd September, 2004. Consequent to the said order, election for electing the office bearers to the aforesaid Association was held as per schedule on 5th September, 2004 but the election results were not declared. 5. Thereafter, the other suit, namely, CS(OS) No.1328/2004 was filed by Shri P. Subba Rao and others in which also an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure was filed. In the said application, the appellants as plaintiffs sought for the following reliefs as an interim measure: “It is therefore respectfully prayed that this Hon'ble Court may be pleased to withhold the results of the elections conducted on 05/09/2004 pending disposal of the suit and maintain status quo during the pendency of the suit.” 6. While issuing summons in the said suit, notice was also issued FAO(OS) 25/07 & FAO(OS) 26/07 page 4 of 20 on the application seeking for injunction. Since, there was already a restraint order to the effect as stated hereinbefore, although elections were held as per schedule, results were not declared. The said applications thereafter were taken up for consideration by the learned Single Judge before whom several issues appear to have been raised. The learned Single Judge took notice of all the pleas raised before her. On 7th November, 2006, after some arguments on the application IA No.5642/2004, the learned Single Judge observed that the prayer to restrain the defendants from carrying on and holding election of the defendant No.1 Association on 5th September, 2004 would not survive as the elections had already been held under the supervision of the Observer and the results were kept in a sealed cover and were not declared, pursuant to the interim orders passed by the Court. It was also observed by the learned Single Judge that the second prayer in the application filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure is for appointment of an Administrator. After referring to the aforesaid prayer, the submission of the counsel for the appellants in the said suit was recorded that since fresh elections are due in the year 2007, an Administrator had to be appointed and to that extent the application would survive for consideration. The learned Single Judge observed in the order passed that the prayer for appointment of an Administrator in the application only related to the FAO(OS) 25/07 & FAO(OS) 26/07 page 5 of 20 election already held. It was also observed that the prayer for appointment of an Administrator would amount to seeking a mandatory injunction, which, under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, can be granted only in a very rare situation and that if mandatory injunction was granted, the same would amount to disposing of the whole suit. The learned Single Judge also referred to the prayer for injunction in CS(OS) No.1328/2004 and in respect of the same, it was observed that the same relates to the declaration of the result of the election already held. As it appears from the tenor of the impugned order passed, the only limited question on which the arguments were addressed before the learned Single Judge was whether the result of the election should be declared or not. The pleas raised by the counsel appearing for the parties were recorded, and thereafter the same were considered, and finally by order passed on 20th December, 2006 both the applications were dismissed and it was observed by the learned Single Judge that the result of the election should now be declared and, therefore, it was held that the sealed cover be opened and the result be declared. Immediately thereafter, results were declared and the new office bearers of the Association took charge of their office and are continuing in office till date. 7. The appeals were filed as against the aforesaid impugned order, which were considered by us and on which we have heard the learned FAO(OS) 25/07 & FAO(OS) 26/07 page 6 of 20 counsel appearing for the parties. It may be stated herein that the appeal filed by Shri R. Damodar and others was filed on 23rd January, 2007 i.e. after the declaration of the election results and after assumption of office by the new office bearers. The issue, which arises for our consideration in these appeals pertains to interim orders to be passed in respect of holding of election. It is established and there is no dispute with regard to the fact that elections have been held, results have been declared and the new office bearers have assumed charge. The injunction applications on the basis of which we are hearing these appeals have thus been rendered infructuous by the subsequent developments that have taken place, as noticed in the various orders passed by the learned Single Judge, at different stages. Elections having been held, results having been declared, the new office bearers having assumed charge and having begun to discharge their duties as office bearers, there is no question of passing any interim temporary injunction, either restraining the holding of elections or restraining the declaration of the results. 8. Accordingly, on a conspectus of the facts of the present appeals, we are of the opinion that the reliefs sought for in the interim applications, which are the subject matter of the present appeals, have been rendered infructuous and, therefore, nothing survives in these appeals for consideration. FAO(OS) 25/07 & FAO(OS) 26/07 page 7 of 20 9. Even otherwise it has been held by the Supreme Court in the case of Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha and anr. v. State of Maharashtra and ors . reported in (2001)8SCC509 and the Division Bench of this Court in the case of Javed Rahat and Ors. v. Bar Council of India and Ors. reported in 129(2006)DLT104 that when the election process commences, there should not be any interference by the Courts. It is only after the election results are declared and the persons elected assume the charge of the office, that an election petition, if permitted under the rules, can be filed. If there is no provision for an election petition, then a civil suit should be filed. However, the Court should not interfere once the election process has started. 10. So far the issue with regard to appointment of an Administrator is concerned, the prayer in the application was that an Administrator be appointed for the purpose of holding the elections. There is no prayer that an Administrator should now be appointed for the management and functioning of the Association. Even if such a prayer is made, it would not be possible to pass such an order at this stage by way of an interim order, for even if such an order is passed, the same would be amount to the passing of a final order in the suit, FAO(OS) 25/07 & FAO(OS) 26/07 page 8 of 20 which cannot be done. Not only this, the new office bearers, who have been elected, are not parties either before us or in the suits and in case such an order is passed, vested rights accruing to them would be taken away without there being any effective contest in the suit. It cannot also be said to be a case for issuance of mandatory injunction at this stage, for, the pre-condition for grant of such an injunction is not made out in this case. All the pleas that are raised in the applications filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure and also in the suits are seriously disputed by the respondents/defendants, who have filed their reply to the injunction applications and also their written statements in the main suits and, therefore, the said pleas are required to be proved and established in accordance with law. These disputed questions of fact cannot be finally decided at this stage, without there being proof of the pleadings in accordance with law. 11. In this connection, we may appropriately refer to the decision of the Supreme Court in Bharat Sanchar Nigam Ltd. and others v. Prem Chand Premi and another, reported in (2005) 13 SCC 505. In the said decision it was held by the Supreme Court that the High Court should not have granted the ultimate relief at the interim stage as the issue seems to be a highly debatable one. In State of U.P. and others v. Ram Sukhi Devi reported as (2005) 9 SCC 733, the FAO(OS) 25/07 & FAO(OS) 26/07 page 9 of 20 Supreme Court again had an occasion to deal with a similar issue as to whether the Court should grant almost the final relief by way of interim measure. In that connection, in paragraph 8 of the said judgment, the Supreme Court held as follows: “...... Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case having been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See CCE v. Dunlop India Ltd. (1985) 1 SCC 260, State of Rajasthan v. Swaika Properties (1985) 3 SCC 217, State of U.P. v. Visheshwar (1995 Supp (3) SCC 590), Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa (1995 Supp (2) SCC 593), Shiv Shankar v. Board of Directors, U.P.SRTC (1995 Supp (2) SCC 726) and Commr/Secy to Govt. Health and Medical Education Deptt. Civil Sectt. v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC 214)]. No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above, that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench and without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons.......” 12. Having considered the ratio of the aforesaid decisions of the Supreme Court, we hold that the reliefs that are sought for by the appellants in these appeals cannot be granted, inasmuch as if such prayer is granted, the same would amount to grant of final relief in the FAO(OS) 25/07 & FAO(OS) 26/07 page 10 of 20 form of an interim injunction, which cannot be granted as settled by the Supreme Court. Besides, any order passed in the injunction application amounting to unsettling a settled matter and throwing out the elected members as office bearers without giving them an opportunity of hearing would not be permissible as the same would amount to affecting valuable vested rights and infringing the same without giving the said parties an opportunity of hearing. Even otherwise, there is no prayer in the appeals for appointing an Administrator to run and administer the activities and functioning and administration of the association and, therefore, the question of appointment of such an Administrator would not arise at this stage. We may also refer to the decision of the Supreme Court in Avtar Singh Hit v. Delhi Sikh Gurdwara Management Committee and others reported in (2006) 8 SCC 487. In paragraphs 31, 32 and 33 of the said judgment the Supreme Court held thus: “31. In our view no relief could have been granted to the writ petitioners on account of the fact that the newly elected office bearers of the Executive Board, who would have been affected by the decision of the writ petitions, were not impleaded as party to the writ petitions. In Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue 1963 Supp (1) SCR 676 : AIR 1963 SC 786, it was observed that where in a petition for a writ of certiorari made to the High Court, only the tribunal whose order was sought to be quashed was made a party but the persons who were parties before the lower tribunal and in whose favour the impugned order was passed were not FAO(OS) 25/07 & FAO(OS) 26/07 page 11 of 20 joined as parties; the writ petition was incompetent and had been rightly rejected by the High Court. In Prabodh Verma v. State of U.P. (1984) 4 SCC 251 : AIR 1985 SC 167, it was held: (SCC p. 256) “A High Court ought not to hear and dispose of a writ petition under Article 226 without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties.” 32. In Ishwar Singh v. Kuldip Singh (1995) Supp. (1) SCC 179, it was held that a writ petition challenging selection and appointment to some posts without impleading the selected candidates was not maintainable. This view has been reiterated in Arun Tewari v. Zila Mansavi Shikshak Sangh AIR 1998 SC 331. 33. This being the settled legal position, the non- impleadment of the newly elected office bearers of the Executive Board was fatal and no relief could have been granted to the writ petitioners. The result of granting any relief in the writ petitions, as was done by the learned single Judge, was that the members of the newly elected Executive Board lost the office which they were holding without affording them an opportunity to present their case which is clearly impermissible in law. The writ petitions were liable to be dismissed on this count as well.” 13. The counsel appearing for the appellants relied upon and referred to the decision of the Single Judge Bench of this Court in Shri FAO(OS) 25/07 & FAO(OS) 26/07 page 12 of 20 Sarbjit Singh & Others v. All India Fine Arts & Crafts Society & others reported in 1989 (2) Delhi Lawyer 360 in support of his contention that in an appropriate case an Administrator can also be appointed by way of interim injunction order on the basis of an application filed under Order XXXIX Rules 1 and 2 of the Code of the Civil Procedure. 14. The facts of the said case cannot be equated with the facts of the present case in view of the different nature of the applications filed and different subject matter altogether. The aforesaid decisions of the Supreme Court which are relied upon by us are clear and unambiguous and, therefore, the said ratio of the decisions of the Supreme Court would squarely apply and govern the matter in hand. 15. We may also refer to the decision of the Supreme Court in Deoraj v. State of Maharashtra and others reported in (2004) 4 SCC 697. In paragraph 12 of the said judgment, the Supreme Court stated as follows: “Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case -- of a standard much higher than just prima facie case, the considerations of balance of convenience and FAO(OS) 25/07 & FAO(OS) 26/07 page 13 of 20 irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent.” 16. In the said judgment, the Supreme Court has cautioned that the power to grant any interim injunction by way of granting a final relief should be rarely exercised in rare and exceptional cases, and the Court should grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing. 17. In the present case although debatable issues have been raised. It cannot be said that the balance of convenience is in favour of the appellants and that they would suffer irreparable injury if the prayer made in the appeals is not granted. In fact, due to the changed circumstances and subsequent events, reliefs as sought for cannot be granted as all the interim reliefs sought for and extracted above have FAO(OS) 25/07 & FAO(OS) 26/07 page 14 of 20 been rendered infructuous. The suits will now have to be contested, the evidence will have to be led to prove and establish the pleadings of the parties, and only thereafter the issues raised could be decided. The said issues are being fully contested by filing replies and also written statements. 18. Several issues have also been raised and argued before us by the counsel appearing for the appellants in order to show that the preparation of the electoral rolls, the rejection of the nomination papers and, in fact, the entire process of election was vitiated. It was contended on behalf of the appellants that the respondents did not make available the complete voters list for rectification on the 12th, 13th and 14th of August, 2004. It was further submitted that complete voters list was not made available for sale on 21st August, 2004, and thereby the entire election process is vitiated. The entire electoral roll, which was prepared, was also vitiated as the names of 500 life members were left out and many ghost members were included in the voters list. It was also submitted that altogether about 6000 members, who were required to be included in the voters list, were not included. 19. Mr.B.B. Sawhney, Sr. Advocate, appearing on behalf of the appellants – Shri P. Subba Rao and others, also took up three issues contending, inter alia, that there was wrongful exclusion of as many as 6140 members from the voters list, as the applications were received FAO(OS) 25/07 & FAO(OS) 26/07 page 15 of 20 by the Branch Secretaries, who after completion of all formalities, wrongly did not include the names of the applicants in the voters list. He has also submitted that there was a denial of right of scrutiny and rectification of the voters list, which had adversely affected the result of the elections. His submission was that the opportunity for