IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 WP(C).NO. 10388 OF 2010(O) -------------------------- OS.270/2010 OF ADDL.M.C.,IRINJALAKUDA .................... PETITIONER(S): --------------- 1. FRANKO POULOSE, S/O.EMMAKKATTUPARAMBIL POULOSE, KALPARAMBA DESOM, POOMANGALAM VILLAGE, THRISSUR DISTRICT. 2. K.V.DAVIS, S/O.KOZHIPATHY VARUNNY, ARIPALAM DESOM, POOMANGALAM VILLAGE, THRISSUR DISTRICT. 3. CHARLIE THERATTIL, S/O.THERATTIL CHEMMON ANTONY, THUMBOOR DESOM, KUTTANELLUR VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): --------------- 1. FRANCIS, S/O.AZHANAGATTIL A.P.DEVASSY, (LATE)PORATHASSERY VILLAGE, KARUVANOOR DESOM, MUKUNDAPURAM TALUK. 2. GEORGE, S/O.KALATHUPARAMBILI OUSEPH, CHAMAKUNNU DESOM, VADAKUMKARA VILLAGE, MUKUNDAPURAM TALUK. 3. DAVIS, S/O.PAYAMMAL VEETIL ANTONY, GANDHIGRAM DESOM, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK. 4. MUKUNDAPURAM EDUCATIONAL AND CULTURAL SOCIETY, REG.NO.395/02, NADAVARAMBA P.O., THRISSUR, REPRESENTED BY ITS SECRETARY VELUKARA VILLAGE, KADAVARAMBA KALLENKUNNU DESOM, MUKUNDAPURAM TALUK. 5. THE SECRETARY, MUKUNDAPURAM EDUCATIONAL AND CULTURAL SOCIETY, REG.NO.395/02, NADAVARAMBA P.O.,THRISSUR. 6. RETURNING OFFICER, ADV.P.PRAMOD, REPRESENTED MUKUNDAPURAM EDUCATIONAL AND CULTURAL SOCIETY, REG.NO.395/02, NADAVARAMBA P.O., THRISSUR. 7. A.BALAKRISHNAN, S/O.ANELATH MADHAVI AMMA VELUKARA VILLAGE, MUKUNDAPURAM TALUK. 8. T.C.FRANCIS, S/O.CHUMMAN THOMAN, AVITTATHUR DESOM, KADUPASSERY VILLAGE, MUKUNDAPURAM TALUK. ADV. SRI.N.SUBRAMANIAM FOR R1-3 SRI.M.S.NARAYANAN FOR R1-3 SRI.P.T.GIRIJAN FOR R1-3 SMT.USHA NARAYANAN FOR R1-3 SRI.V.BINOY RAM FOR R4 & 5 SRI.M.R.VENUGOPAL FOR R6 SMT.DHANYA P.ASHOKAN FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S. NO.270 OF 2010 ON THE FILE OF THE MUNSIFF'S COURT, IRINJALAKUDA DATED 3.3.2010. EXHIBIT P2 A TRUE COPY OF I.A. NO.860 OF 2010 IN O.S. NO.270 OF 2010 ON THE FILE OF THE MUNSIFF'S COURT, IRINJALAKUDA DATED 3.3.2010. EXHIBIT P3 A TRUE COPY OF THE ORDER PASSED IN I.A. NO.860 OF 2010 IN O.S. NO.270 OF 2010 DATED 4.3.2010 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, IRINJALAKUDA. EXHIBIT P4 A RUE COY O THE NOTICE PUBLISHED BY THE RETURNING OFFICER DATED 19.2.2010. EXHIBIT P5 A TRUE COPY OF THE FINAL VOTERS LIST PUBLISHED BY THE THIRD RESPONDENT DATED 27.2.2010. EXHIBIT P6 A TRUE COPY OF THE APPLICATION FILED BY THE THIRD DEFENDANT IN EXT.P1 SUIT DATED 9.3.2010. RESPONDENT'S EXHIBITS: ----------------------------------- EXHIBIT R1A TRUE COPY OF THE BYE-LAWS OF THE THIRD RESPONDENT SOCIETY. EXHIBIT R1B TRUE COPY OF THE FINAL VOTERS LIST PUBLISHED BY THE ADVOCATE COMMISSIONER. EXHIBIT R1C TRUE COPY OF THE REPORT FILED BY THE ADVOCATE COMMISSIONER. EXHIBIT R1D TRUE COPY OF THE REPORT FILED BY THE ADVOCATE COMMISSIONER. EXHIBIT R1E TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS IN THE WRIT PETITION TO EXHIBIT P2 INJUNCTION APPLICATION. EXHIBIT R1F TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HONOURABLE COURT. EXHIBIT R1G TRUE COPY OF THE NOTICE ISSUED BY THE SECRETARY OF THE SOCIETY. EXHIBIT R1H TRUE COPY OF THE NOTICE ISSUED BY THE NEWLY ELECTED PRESIDENT, SECRETARY & TREASURER OF THE SOCIETY. TRUE COPY THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.10388 of 2010 -------------------------------------- Dated this the 19th day of August, 2010. JUDGMENT Defendant Nos.5, 6 and 8 in O.S.No.270 of 2010 of the court of learned Additional Munsiff, Irinjalakkuda are the petitioners before me challenging Ext.P3, order dated 04.03.2010 on I.A.No.860 of 2010. O.S.No.270 of 2010 is a suit filed by respondent Nos.1 to 3 who are members of Mukundapuram Educational & Cultural Society, defendant No.1 in the suit (for short, “the Society”). Grievance of respondent Nos.1 to 3 is that defendant No.3, Returning Officer of the society is proceeding to conduct election without preparing proper voters’ list giving proportionate representation to such of the members who have additional shares as per Clause 8(d) of the Bye-law of the society. Respondent Nos.1 to 3 sought for a decree for prohibitory injunction to restrain the society from conducting election to its executive committee without publishing the list of eligible members entitled to vote at the election and showing their proportionate representation as per their respective shares. In the same line respondent Nos.1 to 3 also filed I.A.No.860 of 2010 for temporary injunction. The suit and application for injunction were filed on 03.03.2010. On the same day petitioners who are members of the society filed application for their impleadment in the suit and the application for temporary injunction. That application was allowed on 04.03.2010. Accordingly petitioners were impleaded as additional defendants in the suit and application for injunction. On WP(C) No.10388/2010 2 04.03.2010 learned Munsiff appointed an Advocate Commissioner to supervise the election and on the same day vide Ext.P3, order on I.A.No.860 of 2010 directed Advocate Commissioner to prepare the draft voters’ list and publish the same and supervise the election. Advocate Commissioner was directed that draft voters’ list was to be prepared in accordance with the Bye-law of the society. After publication of the draft voters’ list objection if any made by any voter was to be considered by the Advocate Commissioner. He was directed to publish draft voters’ list on 08.03.2010. Certain other directions were also issued to the Advocate Commissioner. Learned counsel for petitioners/defendant Nos.5, 6 and 8 contend that it is without hearing petitioners that the impugned order was passed. According to the learned counsel there was no scope for passing such an order in the light of relief prayed for in the suit which was purely for a prohibitory injunction. Learned counsel contended that going by Ext.P3, order it is not clear who is the authority to take final decision as to the acceptability of voters’ list prepared by the Advocate Commissioner. Learned counsel for respondent Nos.1 to 3 contend that there is no reason to interfere with Ext.P3, order and it was well within the power of learned Munsiff to pass the impugned order. It is also pointed out by learned counsel that direction was given to the Advocate Commissioner to proceed in accordance with Clause 8(d) of the Bye-law of the Society. Accordingly, Advocate Commissioner prepared a voters’ list after hearing the objections of the members concerned (produced along with the counter affidavit as Ext.R1(B)). WP(C) No.10388/2010 3 2. It is seen from Ext.P3, order and it is also not disputed before me that petitioners were impleaded in the suit and I.A.No.860 of 2010 and they were represented by an Advocate at the time application for injunction came up for hearing. Prima facie I am not impressed by the contention that Ext.P3, order was passed without hearing petitioners. Hence that objection cannot be sustained. 3. On the question whether learned Munsiff was competent to issue Ext.P3, order directing conduct of election it is true that the relief prayed for is in the nature of a prohibitory order. When respondent Nos.1 to 3 prayed that there shall not be any election to the executive committee of the society without complying with the formalities as per the Bye-law it meant that election was to be conducted in accordance with the Bye-law. Dispute concerned election to the executive committee of the society. Election proposed is to be conducted in accordance with the Bye-law of the society to resolve the dispute between the parties and put an end to the litigation. Hence I cannot accept the contention of petitioner that conduct of election was beyond the power of learned Munsiff. 4. Then the next question is regarding conduct of election. Defendant No.3 is the Returning Officer of the society who is to conduct the election. The impugned order only says that Advocate Commissioner shall prepare the voters’ list in the manner referred to therein and supervise the election. 5. So far as objection to the voters’ list is concerned, learned counsel for respondent Nos.1 to 3 has invited my attention to Clause 8(d) of the Bye-law WP(C) No.10388/2010 4 which entitled such of the members who hold additional shares to have a higher number of votes proportionate to the shares they are holding. It is not disputed that Advocate Commissioner has prepared a draft voters’ list. It is seen from Exts.R1(b) and (c) that objections to the draft voters’ list were considered by the Advocate Commissioner. Learned counsel for petitioners say that defendant No.3 also has prepared a voters’ list (Ext.P5) but that ofcourse was prior to institution of the suit and was not agreeable to respondent Nos.1 to 3. Learned Munsiff is directed to consider the objections to the draft voters’ list prepared by the Advocate Commissioner, in the light of the contentions raised by the parties and the relevant Clauses in the Bye-law and finalise the list of voters. The issue regarding proportionate representation shall also be decided by the learned Munsiff. Based on the voters’ list to be finalized thus election shall be conducted by defendant No.3, Returning Officer but under the supervision of the Advocate Commissioner appointed in the case. Resultantly this Writ Petition is disposed of with the directions made above. THOMAS P.JOSEPH, Judge. cks