CR No.5592 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5592 of 2008 (O&M) Date of Decision: 20.10.2008 Ramesh Sharma & Ors. ....Petitioners Vs. Mool Chand & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Arun Palli, Sr.Advocate, with Mr.Harkesh Manuja, Advocate, for the petitioners. Mr.M.L.Sarin, Sr.Advocate, with Mr.Kabir Sarin, Advocate, for the Caveator-respondent No.1. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) The petitioners have invoked the jurisdiction of this court under Article 227 of the Constitution of India for setting aside the order dated 10.10.2008 passed by the learned Additional District Judge, Kurukshetra CR No.5592 of 2008 2 accepting an appeal filed by the respondent/plaintiff against the order passed by the learned Civil Judge (Junior Division), Kurukshetra on an application moved under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short the Code). The respondent/plaintiff filed a suit for declaration that he is life time President of the Shri Krishna Educational Trust, Kurukshetra (for short the Trust) and the proceedings in the meetings held on 14.5.2007 and 15.5.2007 are null and void and not enforceable. He also challenged the amendment of the trust deed. Along with the suit, he moved an application under Order 39 Rules 1 and 2 of the Code for seeking restraint against the petitioner/defendant No.2 from acting as President of the Trust and petitioner/defendant No.5 as Secretary of the Trust and petitioner/defendants No.1, 4, 5 and 6 from acting as Chairman, Vice Chairman, General Secretary and Treasurer of Shri Krishna Polytechnic, Kurukshetra. Injunction was also sought restraining the defendants from obstructing the respondent/plaintiff from discharging the duties of President till the disposal of the case. It is not in dispute that Shri Krishna Educational Trust, Kurukshetra is a registered trust and the parties to the litigation are trustees of the said trust. It is running two educational institutions. Rules and regulations have been framed for running working of the Trust. The respondent/plaintiff claimed that he was the President of the Trust and he is holding the office from which he cannot be removed. CR No.5592 of 2008 3 Defendants No.1 to 6 in collusion with each other entered into an agreement to take over the control and management of the Trust forcibly and illegally and in order to achieve this object called a meeting on 14.5.2007 in violation of rules and without obtaining approval from the President in violation of the terms of the trust deed. In the meeting of 14.5.2007, in which the plaintiff/respondent was said to have been removed, no agenda was circulated in this regard, nor three days' notice was served upon the trustees to consider the agenda. The proceedings of the meeting were not written by the Secretary as required under the terms of the trust deed. The plaintiff/respondent prayed that the proceedings conducted on 14th and 15th of May, 2007 were illegal and that he be allowed to continue as President at least for a fixed tenure of 3 years as there was no challenge to the resolution electing him as President for a period of 3 years as per terms of the original trust deed. The petitioner/defendants claimed that the application was not maintainable and that the plaintiff/respondent had no prima facie case as the proceedings of the meeting dated 7.11.2006 in which the plaintiff/ respondent was made life time President stood cancelled. It was also the case of the petitioners that amendment of trust deed in pursuance to the meeting held on 14th and 15th of May, 2007 has been carried out in a constitutional and democratic manner. It is also the case of the petitioners that the object of the plaintiff/respondent is to assume unfettered power of President and jeopardize the public interest. It was claimed that the resolution dated 7.11.2007 vide which it was proposed that the respondent/ CR No.5592 of 2008 4 plaintiff would be holding the office of the President during his life time was never finalised as the said resolution was not confirmed by the trustees. It was also the case of the defendant/petitioners that meeting was called on 27.2.2007 for confirmation of the proceedings dated 7.11.2006 but the same could not be held because of absence of the respondent/plaintiff on both the occasions. It was also claimed that on 14.5.2007 respondent/plaintiff was present in the meeting and the meeting dated 7.11.2006 was not confirmed. It was claimed that the proceedings regarding the amendment in the trust deed were declared to be null and void and therefore, fresh election as per the original clause was held on 21.5.2007 wherein the petitioners have been elected as the office bearers. Defendants No.7 and 8 in the suit filed a separate written statement and took a plea that the proceedings were conducted in the meeting dated 7.11.2006 with the approval of the President and that the said proceedings were conducted unanimously which stood ratified. It was claimed that agenda prepared on 11.5.2007 for meeting to be held on 14.5.2007 was without approval of the President and thus, there was no question of holding of meeting on 14th and 15th of May, 2007. The application was dismissed by the learned trial court. The plaintiff/respondent raised a plea before the learned appellate court that in the meeting held on 14.5.2007 he was appointed as President for a period of 3 years as per the terms of the trust deed. It was also the case set up that subsequent to his election on 14.5.2007 he was appointed as life time President in the meeting held on 21.5.2007 and the CR No.5592 of 2008 5 amended trust deed was registered with Sub-Registrar,Thanesar on 3.1.2007. It was claimed that meeting dated 14th and 15 of May, 2007 were not in accordance with the rules and regulations governing the trust as the meeting was not held with the approval of the President nor three days' prior notice was given. It was also claimed that there was no agenda for removal of President. It was also contended before the learned lower appellate court that the learned trial court in its finding came to the conclusion that the proceedings held on 14.5.2007, 15.5.2007 and 21.5.2007 were not in accordance with law, but in spite of the said finding the application was dismissed while holding that the plaintiff was not having balance of convenience and that he was not going to suffer any irreparable loss. The finding, therefore, was claimed to be contradictory. It was noticed by the learned lower appellate court that there was litigation between the parties earlier in Civil Suit No.203 of 2000 titled as Shri Krishan Educational Trust Vs. Ramesh Sharma and at that time petitioners herein had taken the plea that the meeting could be called by the Secretary with the approval of the President and three days' clear notice was to be given. The case set up by the defendant-petitioners before the learned lower appellate court was that the plaintiff/respondent stood removed by majority decision and new Management stands elected. It was also claimed that the trust deed was amended on 7.11.2006 and that the meeting was called on 14.5.2007 with the approval of the President, that is the reason why the President was present and attended the meeting. It was claimed CR No.5592 of 2008 6 that even three days' notice was given to the trustees. It is the case of the petitioners that no plea has been raised with regard to the date of receipt of notice and therefore, the order passed by the learned trial court was fully justified. The plea was also raised that the learned lower appellate court could only interfere with the findings of the learned trial court if they were perverse. It was also the stand of the petitioners that if the interim relief as claimed is granted it would amount to decreeing the suit without leading formal evidence, which could not be permissible. It was also the case that the new management has already taken over and in that situation the court could at best pass an order of status quo as existed on the date of filing of the suit. However, relief claimed could not be granted. On consideration of the matter, learned lower appellate court recorded a positive finding that there was no agenda for removal of the life time President/President nor there was any meeting notice of 3 days so the proceedings conducted were not as per the law governing the trust. Learned lower appellate court also held that though the appellate court should be slow in interfering with the discretionary power exercised by the learned trial court but still if the order passed is arbitrary or contrary to the established principles of law in that situation, the injunction is required to be passed. Learned lower appellate court also came to the conclusion that the pleadings and the documents placed on record showed that the meeting called was without approval of the President, (2) no three days' clear notice for holding the meeting was given and (3) that there was no provision for removal of life time President/President and the meeting was not called with CR No.5592 of 2008 7 the approval of the President. Learned lower appellate court, thus, accepted the appeal and restrained the petitioner/defendant No.2 from acting as President of the Trust, defendant No.5 as Secretary of the trust and defendants No.1, 4, 5 and 6 from acting as Chairman, Vice President, Treasurer and Joint Secretary of the Trust. The petitioners were further restrained from obstructing the plaintiff from discharging the function of President of the Trust. However, permission was granted to the Trust to hold a fresh meeting if so advised in accordance with law after giving requisite notice. Mr.Arun Palli, learned senior counsel appearing on behalf of the petitioners challenged the impugned order by making a reference to Clause VI of the Trust Deed which defines the officers of the Trust. The contention of the learned senior counsel is that as per the trust deed office bearers of the Trust have been defined to be President, Vice President, Secretary, Treasurer and members. It may be pertinent to mention here that as per the original trust deed the President was to be elected for a period of three years and he was held eligible for reelection of the founder trustee. Learned senior counsel for the petitioners thereafter made a reference to trust deed to contend that any officer or member can be removed on the advice of the Board from membership of the council or committee on the grounds given thereunder. The grounds on which the officers can be removed are as under:- CR No.5592 of 2008 8 “a) For acting in any way prejudicial to the interest of the Trust. b) Failing to pay the subscription due to the Trust. c) Have failed to perform the duties entrusted to him. d) Have failed to attend the three consecutive meetings.” However, it may be noticed that an officer can only be removed with the approval of the President. Learned senior counsel appearing on behalf of the petitioners also referred to the Clauses of the trust deed to say that the rules and regulations can be amended and altered by the trust. However, the amendment should not be inconsistent, repugnant or contrary to the aims and object of the constitution or the duties and powers reserved under this rule by 2/3rd majority. By referring to the different provisions of trust deed learned senior counsel for the petitioners contended that the respondent/plaintiff had no prima facie case as he stood removed by the trustees and in the present case approval of President was not required as the plaintiff/respondent himself was the President. It is also the contention of the learned senior counsel that under the General Clauses Act a person competent to do an act can also undo the same. The plea raised, therefore, is that once the President was to be elected by the trustees it was within their power to remove him also. The contention raised by the learned senior counsel cannot be accepted. Firstly for the reason that the President was elected for a period of CR No.5592 of 2008 9 3 years and the said period had not expired. Even if for the sake of arguments the meeting dated 7.11.2006 is held to be bad in law, in that event also the plaintiff/respondent could not be removed as President as his election for a period of 3 years was not in dispute. Once a person is elected to an office for a specified period it is not open to electorates to set aside the said election by invoking the provisions of Section 16 of the General Clauses Act as is sought to be contended by the learned senior counsel. It is not in dispute that there is no provision in the trust deed for removal of the President. Learned senior counsel appearing on behalf of the petitioners challenged the finding recorded by the learned lower appellate court by contending that the learned lower appellate court committed an error in coming to the conclusion that the meeting was called without the approval of the President. The contention raised by the learned senior counsel for the petitioners is that once it is shown that the plaintiff/respondent was present in the meeting on 14.5.2007 it has to be presumed that the meeting was held with his approval. This plea is also totally misconceived. The approval of the President was required to be taken at the time of issuance of agenda and thereafter notice issued to the parties. Mere presence of the President in the meeting cannot lead to a presumption that the meeting has been called with the approval of the President. Learned senior counsel thereafter contended that learned lower appellate court committed an error in recording a finding that three days' CR No.5592 of 2008 10 notice was not issued. The contention of the learned senior counsel for the petitioners was that in the suit filed it was clearly pleaded that meeting was called on 10.5.2007 for 14.5.2007. Thus, it amounted to clear three days' notice. Though this argument on the face of it looks attractive but on consideration I find no force in this contention too. Notice issued for the meeting to be held on 14.5.2007 has been placed on record as Annexure P.3. Reading of the agenda shows that there was no agenda for removal of the president. In fact, the meeting was called to consider the following agenda:- “1. For approval of the proceedings of the earlier meeting. 2. For discussion for increase of the seats from next session in SKIET and SKP. 3. For discussion so as to fulfill the vacant post in the faculty (Lecturers), Assistant Professors, Professors in SKIET. 4. Other issues with the consent of the President.” Thus, this plea of the learned senior counsel also cannot be accepted. Learned senior counsel appearing on behalf of the petitioners thereafter referred to the proceedings of 14.5.2007 to contend that no confidence motion against the plaintiff/respondent was passed which was unanimously approved. Thus, the decision is said to have been taken to confirm the meeting held on 7.11.2006. CR No.5592 of 2008 11 This plea also does not advance the case of the petitioners. As already discussed above, once the meeting held on 14.5.2007 itself was illegal and contrary to the provisions of the trust deed nothing recorded therein can advance the case of the petitioners. Mr.Arun Palli, learned senior counsel appearing on behalf of the petitioners finally contended that in the present case learned trial court had rightly come to the conclusion that there is no balance of convenience in favour of the plaintiff/respondent and that no irreparable loss was likely to be caused to the petitioners. This plea is also misconceived. Once the learned trial court as well as learned lower appellate court have recorded a finding that meetings of 14.5.2007 and 15.5.2007 and 21.5.2007 were illegal, respondent/plaintiff had a prima facie case . Once elected President was sought to be removed in illegal manner, it can safely be said that the balance of convenience is in favour of the plaintiff/respondent and that he is likely to suffer irreparable loss if he is not allowed to function during his tenure as President. This view of mine will find support from the judgment of this court in the case of Guru Nanak Education trust (Regd.) Model Town,Ludhiana and others Vs. Sh.Balbir Singh and others AIR 1995 Punjab & Haryana 290, wherein this court has been pleased to lay down as under:- “25. Grant of injunction in such like matters is not only justified but necessary also so that the people are not deprived of their right to hold a particular office. In Suresh Kumar CR No.5592 of 2008 12 Sanghi V. Amrit Kumar Sanghi, AIR 1982 Delhi 131, a learned single Judge of the Delhi High Court held that an injunction restraining other partner from interfering with the management and partnership business deserves to be granted. The court held (at page 139 of AIR)-- “ The Court will restrain a partner from violating the terms of his partnership contract of acting inconsistently with the duties as a partner irrespective of the fact whether dissolution is also sought or not. It may be that where an agreement of partnership has not at all been acted upon the Court may, in a proper case, refuse to decree specific performance thereof because it may not be considered just or equitable to force partnership on an unwilling partner. However, the position in a case like the present where a partnership agreement was acted upon for several years and the partnership was subsisting would be altogether different. Certainly, after the commencement and during the continuation of a partnership it will be equitable for the Court in many a case to interpose to decree specific performance of articles/terms of the partnership. The necessity for such an action arises when the conduct of a partner virtually imperils the success of a partnership enterprise and jurisdiction to enjoin a partner from doing that which CR No.5592 of 2008 13 seriously interferes with the business or which is a breach of the express terms of the partnership agreement is now well established, even if the suit does not seek a dissolution of the partnership.” It also requires to be mentioned here that learned senior counsel appearing on behalf of the petitioners relied upon the judgment of this court in the case of India Medical Association Haryana State & Ors. Vs. Dr.Kamal Gupta & Ors. 1995 (1) Civil Court Cases 327 to contend that the petitioners having been duly elected cannot be deprived of their legitimate claim to assume office of President till the matter is finally adjudicated by the Court. Thus, the judgment relied upon by the learned senior counsel is of no help as the plaintiff/respondent also claims right to continue in office in view of his election as President. It may be noticed that the election of the plaintiff/respondent for a period of 3 years in the meeting of 14.5.2007 was never challenged so his tenure of three years still continues. Learned senior counsel appearing on behalf of the petitioners placed reliance on the judgment of Hon'ble Supreme Court in the case of Metro Marins & Anr. Vs. Bonus Watch Co. Pvt. & Ors. 2005 (1) Civil Court Cases 308 to contend that temporary mandatory injunction cannot be granted as it would mean decreeing the suit even before trial. However, it may be noticed that the Hon'ble Supreme Court in the judgment referred to above laid down that mandatory injunction can be granted in exceptional circumstances. The facts of the present case reveal CR No.5592 of 2008 14 that the petitioners are illegally denying the right of continuance in office though the respondent/plaintiff is duly elected President. Learned senior counsel also by placing reliance on the judgment of Hon'ble Delhi High Court in the case of Delhi Cloth and General Mills Co. Ltd. Delhi and another Vs. Dharam Singh AIR 1981 Delhi 157, contends that the court should be slow in denying the elected representative in discharging his functions The proposition of law as raised cannot be disputed. But in the present case it may be noticed that by way of impugned order learned lower appellate court has permitted the elected President to perform his duties under the trust deed and has restrained the petitioners from interfering in the function of elected person by adopting illegal means. For the reasons stated above, no ground is made out to interfere with the well reasoned judgment passed by the learned lower appellate court. Dismissed. 20.10.2008 (Vinod K.Sharma) rp Judge