IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 WP(C).No. 26099 of 2009(O) -------------------------- CMA.107/2008 of II ADDL.DISTRICT COURT,ERNAKULAM OS.737/2008 of II ADDL.SUB COURT,ERNAKULAM (IA 5895/2008) .................... PETITIONER(S): --------------- 1. ERNAKULAM MERCHANTS UNION,REGISTER NO. 104 ER,ERNAKULAM MERCHANTS UNION BUILDING,POST BOX NO.1101,MERCHANT ROAD,KOCHI-11,REP.BY THE SECRETARY K.G.VENUGOPAL,S/O.GOVINDANKUTTY NAIR, KANNOTH HOUSE,NRA-91,H.P.C.JUNCTION, MATHAI MANJOORAN ROAD,PACHALAM P.O.,KOCHI-12. 2. K.G.VENUGOPAL,S/O.GOVINDANKUTTY NAIR, KANNOTH HOUSE, NRA-91,H.P.C.JUNCTION, MATHAI MANJOORAN ROAD, PACHALAM P.O., KOCHI-12. 3. T.J.FELITIOUS LEO PAUL, PRESIDENT, REGISTER NO.104 ER, ERNAKULAM MERCHANTS UNION BUILDING, POST BOX NO.1101, MERCHANT ROAD, KOCHI-11,RESIDINT AT H.NO.41/234A, THUNDIPARAMBIL, PUZHAKKARA PADAM, VENNALA P.O.,ALINCHUVADU, ERNAKULAM-28. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.SAJU.S.A RESPONDENT(S): --------------- 1. L.A.JOSHEY, S/O.NOT KNOWN OT THE PLAINTIFFS, PLANTAIN MERCHANTS & COMMISSION AGENT, STALL NO.59, MARKET, KOCHI-682 031. 2. K.M.MOHAMMED SAGEER, S/O.NOT KNOWN TO THE PLAINTIFFS, M/S.KALOOR METALS, CLOTH BAZAR ROAD, KOCHI-31. 3. P.S.PAUL, S/O.NOT KNOWN TO THE PLAINTIFFS, M/S.ST.FRANCIS DE SALES PRESS, P.B.NO.2562, BROADWAY, ERNAKULAM, KOCHI-31. ADV. SRI.S.SREEKUMAR FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.26099 OF 2009 -------------------------------- Dated this the 30th day of November 2009 ---------------------------------------------------------- JUDGMENT Concurrent decisions rendered by two courts that the petitioners/plaintiffs in O.S No. 737 of 2008 on the file of the Sub Court, Ernakulam are not entitled to the discretionary relief of interim injunction to restrain the respondents/defendants from carrying out any activity of the “Ernakulam Merchants Union” in the name of “Kerala Merchants Union” is the challenge in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. Ext.P2 is the copy of the plaint in the above suit in which petitioners/plaintiffs have sought for a declaration that the meeting held on 12/08/2008 at the behest of the defendants/respondents in respect of the union is against the provisions of Ext.P1 bylaws of that union, and also that the amendment proposed to Ext.P1 as per the decisions taken in such a meeting is also to be declared as a nullity W.P.(C).No.26099 OF 2009 Page numbers and invalid. In addition to the above reliefs, prohibitory injunction against the defendants from doing any activity in the changed name on the basis of the amendment made to Ext.P1 bylaws pursuant to the decisions purported to have been taken in the meeting and also a mandatory injunction directing the defendants to hand over the records of the union to the plaintiffs are also sought for. With the suit, the plaintiffs moved an application for interim injunction to restrain the defendants from carrying out any activities in the changed name of the union and also for a mandatory injunction directing them to hand over the records of the union to the plaintiffs. Ext.P4 is the copy of that application. Resisting the application, the third respondent on behalf of the defendants filed Ext.P5 counter affidavit. After hearing the counsel on both sides and examining the materials produced for the purpose of the interlocutory application, the learned Sub Judge passed Ext.P6 order holding that the petitioners/plaintiffs have not made out a prima facie case for injunction, with the result Ext.P4 application was dismissed. Challenge against Ext.P6 order by way of an W.P.(C).No.26099 OF 2009 Page numbers appeal was turned down by the learned District Judge, Ernakulam vide Ext.P7 judgment. Ext.P7 judgment of the learned District Judge confirming Ext.P6 order of the learned Sub Judge is challenged in the writ petition. 2. I heard the counsel on both sides. Inviting my attention to Ext.P2 plaint and Ext.P1 bylaws, the learned counsel appearing for the petitioners contended, both the courts have formed wrong conclusions without examining the disputed questions canvassed in the suit and that resulted in declining of the interim injunction sought for resulting miscarriage of justice. Though it has been specifically alleged in Ext.P2 plaint that second and third plaintiffs have instituted the suit on behalf of the first plaintiff as members of the union the learned Sub Judge on a wrong premise that the suit could be filed only in the capacity of office bearers of the first plaintiff union but not in the capacity as members held that they have no locus standie to file the suit and seek the interim relief of injunction. Second ground that weighed with the learned W.P.(C).No.26099 OF 2009 Page numbers Sub Judge to decline the relief of interim injunction by the learned Sub Judge, according to the learned counsel for the petitioner, is also patently erroneous and unsustainable both in law and facts. The case canvassed by the plaintiffs was that no due notice was issued as contemplated under Rule 7(j) of Ext.P1 bylaws which mandated advance notice of five days before a meeting. Meeting held on 12/08/2008 without such notice was ab initio void and illegal, according to the counsel. Without adverting to those aspects but giving unmerited consideration that in the meeting only one among the attendees objected to the proposed amendment the learned Sub Judge had come to the conclusion that the decision taken in the meeting cannot be assailed by the petitioners nor interfered by the civil court. When the meeting itself was conducted without complying with the provisions under the bylaws as to the mandatory requirement for prior notice in convening such meeting, according to the learned counsel, the civil court is competent to go into the disputed questions and it is no way interdicted from exercising its jurisdiction when a W.P.(C).No.26099 OF 2009 Page numbers declaration is sought for by the petitioners/plaintiffs that such meeting is void and the decisions taken in such meeting are inoperative, invalid and nullity. When the view taken by the learned Sub Judge was as indicated above, without appreciating the case canvassed by the petitioners/plaintiffs, according to the counsel, the learned District Judge in the appeal traversed to areas beyond the controversy arising on the pleadings placed and dismissed the appeal on a new ground that without challenging the election of the respondents as office bearers of the union, the petitioners are incompetent to challenge the meeting and the decisions taken in that meeting. Petitioners have not raised any challenge as to the election of the respondents as office bearers of the union, according to the learned counsel, in no way precluded them from challenging the validity of the meeting when such meeting was held flouting the requirements of advance notice contemplated under Ext.P1 bylaws. That alone was the question to be looked into in examining whether the petitioners/plaintiffs are entitled to the discretionary relief of injunction applied W.P.(C).No.26099 OF 2009 Page numbers for. Contending that both courts have failed to appreciate the question in accordance with legal principles and the facts and circumstances involved in the case, the learned counsel for the petitioners urged for setting aside the orders and remitting the matter for reconsideration of the application for injunction atleast by one of the forums, either by the learned District Judge or by the learned Sub Judge, for fresh consideration and disposal. On the other hand, the learned counsel for the respondents submitted that non service of notice to some of the members over the convening of the meeting related only to three members, but, none of them had raised any objection as to the meeting held or to the decisions taken in the meeting. Further more after the amendment had been approved in the meeting, according to the counsel, the first plaintiff registered under the Travancore – Cochin Literary, Scientific & Charitable Societies Registration Act (Act 12 of 1955), got approval from the competent authority for the amendment and it has been given effect to as well. Competency of the respondents to represent the union as duly elected office W.P.(C).No.26099 OF 2009 Page numbers bearers is not a matter under challenge in the suit is also highlighted by the counsel that the discretionary relief of injunction which had been declined by two courts below does not warrant interference in exercise of the visitorial jurisdiction vested with this court. If at all the plaintiffs have any legal right to impeach the validity of the meeting and the correctness of the amendment carried out in the name of the union, according to the counsel, it can be adjudicated upon and decided in the trial of the suit after providing reasonable opportunity to both sides to establish their respective case. 3. After having heard the counsel on both sides at length and perusing the exhibits produced with reference to Ext.P7 judgment rendered by the learned District Judge and Ext.P6 order of the learned Sub Judge, though I find there is some force in the submissions made by the learned counsel for the petitioners that Ext.P4 application for interim injunction was not appreciated with respect to the disputed question raised over the meeting by the petitioners on the W.P.(C).No.26099 OF 2009 Page numbers validity of the meeting as having not been convened with prior notice as mandated by Ext.P1 bylaws. However in the given facts of the case, where the respondents, as duly elected office bearers, continue to operate the union in the amended name and that amendment having been duly recognised by the Registrar of Societies under the statute governing the union, I find it is not proper and appropriate for this court to exercise its visitorial jurisdiction to interfere with Ext.P6 order and Ext.P7 judgment. The court cannot be oblivious to the facts involved in the case and also the events which had taken place after the meeting had been convened, the validity of which is impeached, while passing orders on interlocutory applications. Any order by this court at this stage in exercise of its visitorial jurisdiction may cause prejudice and hardship to the respondents where it is prima facie shown that a majority of the members who attended the meeting had approved the proposed amendment for changing the name of the union. It has been brought to my notice that the total membership of the union as and when the meeting was held was roughly about 250 W.P.(C).No.26099 OF 2009 Page numbers and out of the 173 members who attended the meeting, only one opposed the proposed amendment who is stated to be the second plaintiff. When such be the case and especially when two courts have declined the discretionary relief of injunction claimed under Ext.P4 application, I find that no interference with the orders passed thereof is warranted. However, I make it clear that none of the observations made by this court in the judgment shall have any reflection or bearing in the disposal of the suit on merits. The learned Sub Judge is also directed to dispose the suit untrammelled by any of the observations made in Ext.P6 order and Ext.P7 judgment rendered by the learned District Judge as expeditiously as possible, at any rate within a period of six months after affording reasonable opportunity to both sides to lead evidence in support of their respective case. Writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv