IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 WP(C).NO. 20997 OF 2009(O) -------------------------- {CMA.23/2008 OF THE PRINCIPAL SUB COURT,THALASSERY IN O.S.NO.305/2008 OF THE PRINCIPAL MUNSIFF'S COURT, KANNUR} .................... PETITIONER(S): 1ST RESPONDENT : ----------------------------------------- C.T.YADEENDRADAS, S/O.C.K.RAGHAVAN, AGED 60 YEARS, RESIDING AT C.M.NILAYAM, C.H.E.16/216, NEAR MAHA SIVA TEMPLE, CHOVVA POST, KANNUR DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S): APPELLANT& 2ND RESPONDENT: ------------------------------------------------------- 1. THE CHOWA EDUCATIONAL SOCIETY, REPRESENTED BY ITS PRESIDENT, POST CHOVVA, KANNUR DISTRICT. 2. T.K.SUKUMARAN, S/O.T.K.KUNHIKANNAN, AGED 70 YEARS, SECRETARY, CHOVVA EDUCATIONAL SOCIETY, POST CHOVVA, KANNUR DISTRICT. 3. K.A.LAKSHMANAN, S/O.POKKAN, AGE ABOUT 70 YEARS, TREASURER AND MANAGER, THE CHOVVA EDUCATIONAL SOCIETY, POST CHOVVA, KANNUR DISTRICT. 4. THE CORRESPONDENT, THE CHOVVA EDUCATIONAL SOCIETY, POST CHOVVA, KANNUR DISTRICT. WP(C).NO. 20997 OF 2009 :: 2 :: 5. P.P.RAJENDRAN, S/O.T.KUNHIKANNAN, AGE NOT KNOWN, DIRECTOR OF THE CHOVVA EDUCATIONAL SOCIETY, POST CHOVVA, KANNUR DISTRICT. 6. T.K.RAMAKRISHNAN, S/O.T.K.GOVINDAN, AGED ABOUT 70 YEARS, DIRECTOR, THE CHOVVA EDUCATIONAL SOCIETY, POST CHOVVA, KANNUR DISTRICT. 7. A.V.RAJEEV NAMBIAR, S/O.KARUNAKARAN NAMBIAR, AGED ABOUT 60 YEARS, DIRECTOR, THE CHOVVA EDUCATIONAL SOCIETY, POST CHOVVA, KANNUR DISTRICT. 8. T.K.JAYARAMAN, S/O.T.K.KUNHIRAMAN, AGED ABOUT 57 YEARS, DIRECTOR, THE CHOVVA EDUCATIONAL SOCIETY, POST CHOVVA, KANNUR DISTRICT. 9. T.K.GIREESHAN, S/O.T.K.KUMARAN, AGED ABOUT 55 YEARS, DIRECTOR, THE CHOVVA EDUCATIONAL SOCIETY, POST CHOVVA, KANNUR DISTRICT. ADV. SRI.GRASHIOUS KURIAKOSE FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON 08/03/2010 DELIVERED THE FOLLOWING: WP(C).NO. 20997 OF 2009 :: :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE ORDER IN CMA 23/2008 ON THE FILE OF THE SUBORDINATE JUDGE, THALASSERY. EXT.P2: TRUE COPY OF THE ORDER IN I.A.2278/2008 ON THE FILE OF PRINCIPAL MUNSIFF, KANNUR. EXT.P3: TRUE COPY OF THE PLAINT O.S.305/08 ON THE FILE OF PRINCIPAL MUNSIFF, KANNUR. EXT.P4: TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION I.A.2278/2008 ON THE FILE OF PRINCIPAL MUNSIFF, KANNUR. EXT.P5: TRUE COPY OF THE COUNTER STATEMENT FILED BY RESPONDENTS 1, 2 & 3. EXT.P6: TRUE COPY OF THE COUNTER STATEMENT FILED BY RESPONDENTS 4, 5, 7, 8 & 9. EXT.P7: TRUE COPY OF THE ORDER-DATED 20.6.2008 APPOINTING THE COMMISSIONER FOR CONDUCT6 OF THE ELECTION. EXT.P8: TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITON TO JOIN THE NEWLY ELECTED OFFICE BEARERS. EXT.P9: TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION FOR LEAVE TO AMEND THE PLAINT TO CHALLENGE THE CONDUCT OF THE ELECTION. EXT.P10: TRUE COPY OF THE ORDER BY SUBORDINATE JUDGE THALASSERY DISMISSING IA 2639/2008 IN CMA 23/2008 DATED 13TH AUGUST, 2008. WP(C).NO. 20997 OF 2009 :: :: RESPONDENTS' EXHIBITS: EXT.R2(A): TRUE COPY OF REGISTRATION CERTIFICATE OF THE VEHICLE BEARING NO.KL-13-4348. EXT.R2(B): TRUE COPY OF AFFODAVOT DATED 28-5-2009 FILED BY THE THIRD RESPONDENT BEFORE THE MUNSIFF COURT, KANNUR. EXT.R2(C): TRUE COPY OF STATEMENT OF ACCOUNT GIVEN BY THE UNION BANK OF INDIA, CHOVVA, KANNUR. //true copy// P.S. To Judge SK/- S.S. SATHEESACHANDRAN, J. = = = = = = = = = = = = = = = = = W.P.(C)No.20997 of 2009 = = = = = = = = = = = = = = = = = Dated this the 8th day of March, 2010. JUDGMENT The writ petition is filed seeking the following reliefs: i) Set aside Exhibit P1 order and restore Exhibit P2 order; ii) To make such other writ or order, which the Hon'ble High Court fo Kerala deems fit in the circumstances of the case. 2. Plaintiff in O.S.No.305/08 on the file of the Principal Munsiff's Court, Kannur is the writ petitioner. Challenge raised in the writ petition is against Ext.P1 judgment rendered by the learned Sub Judge in C.M.A.No.23/08 by which Ext.P2 order passed by the learned Munsiff in the interlocutory application for injunction moved by the plaintiff directing for an interim arrangement W.P.(C)No.20997 of 2009 :: 2:: for the administration of a society, subject matter involved in the suit, till a proper election selecting its managing committee was set aside allowing the appeal. 3. The dispute involved relate to a society viz., Chovva Educational Society which is in management of two schools, an aided higher secondary school, and an unaided high school and upper primary school. Plaintiff claiming to be a member of the above society laid the suit seeking a declaration that defendants 2 to 10 who continue to administer the affairs of the society even after the term of their management is over, have no further right to continue in management, and for a permanent prohibitory injunction restraining them from holding any election on the basis of a notice already issued by the 3rd defendant. The plaintiff also canvassed for appointment of an advocate commissioner to hold the election of the governing body of the 1st W.P.(C)No.20997 of 2009 :: 3:: defendant society after preparation of a roll of its genuine members. Ext.P3 is the copy of the plaint. 4. With the suit the plaintiff moved an application for an interim injunction to restrain the defendants/respondents from acting as the governing body members of the society until they are duly elected, and also from holding election on the basis of the notice already issued by the 3rd defendant. Ext.P4 is the copy of that application. The 3rd defendant filed a counter against Ext.P4 application on his behalf and also for defendants 1 and 2 as well, controverting and disputing the averments sworn to by the plaintiff in support of his application for the discretionary relief of injunction. Ext.P5 is the copy of that counter affidavit. A counter statement was filed by respondents 4, 5, 7 and 8 also to Ext.P4 application, in which supporting the allegations raised by the W.P.(C)No.20997 of 2009 :: 4:: plaintiff they requested for passing of appropriate orders in that application. Ext.P6 is the copy of that counter statement filed by the above defendants. 5. The learned Munsiff, after hearing the counsel on both sides on Ext.P4 application, on the basis of the submissions made by both sides appointed an advocate commissioner as observer for conducting the election to the society. The election process has already been set on with publication of notice, as contended by the contesting respondents 1 to 3, was taken due note by the court in appointing an advocate commissioner as observer for the election. The commissioner was directed to observe strictly the rules and regulations of the society granting him liberty to seek police aid for smooth conducting of the election. Ext.P7 is the copy of that order. The advocate commissioner appointed as observer filed two W.P.(C)No.20997 of 2009 :: 5:: reports before the court which indicated of irregularities in the conduct of the election including shifting the venue for the election on the date notified for conducting of such election. After those reports were filed before the court Ext.P4 application for injunction was again taken up for consideration. At the time of hearing of that petition, contesting defendants 2 and 3 with the latter representing the 1st defendant society also in the suit contended that election in accordance with the rules and regulations of the society were conducted in a lawful manner and new office bearers had been duly elected to administer the society. The learned Munsiff, considering the materials produced, including the two reports of the advocate commissioner, and also the rival submissions made by both sides, came to the conclusion that the election conducted was not proper and the election process was carried W.P.(C)No.20997 of 2009 :: 6:: out in violation of the rules and norms applicable to a fair election. In that view of the matter, taking note of the facts and circumstances of the case it was held that the plaintiff has made a prima facie case for the discretionary relief claimed in his application. Ext.P4 application was allowed restraining defendants 2 and 3 by an injunction from acting as the governing body members of the 1st defendant society until they are duly elected in a lawful election. Taking note that the 1st defendant is an educational society, the learned Munsiff also passed orders for interim arrangement for administering the society directing the 4th respondent, the Manager to administer the management of the society till proper election is conducted. The 4th defendant was directed to obtain sanction from the court for all actions being taken to manage the affairs of the society except the routine matters. W.P.(C)No.20997 of 2009 :: 7:: Defendants 2 and 3 were directed to hand over the records to the 4th defendant, who was put in management of the society by the interim arrangement made under Ext.P2 order. 6. Ext.P2 order was challenged by the 3rd defendant preferring an appeal as C.M.A.No.23/08 before the Sub Court, Thalassery. The learned Sub Judge, after hearing both sides, reversed Ext.P2 order and dismissed Ext.P4 application of the plaintiff holding that the validity of the election conducted by the advocate commissioner appointed by the court was not required to be considered in disposing of Ext.P4 application. The elected members were not heard and they were not even made parties in the suit or proceedings of Ext.P4 application was another reason which weighed with the learned Sub Judge to interfere with Ext.P2 order of the learned Munsiff. While passing Ext.P2 order, the learned Munsiff has not given any reason W.P.(C)No.20997 of 2009 :: 8:: why the 4th defendant was chosen to administer the society by way of an interim arrangement when plaintiff had sought an injunction against that defendant as well in Ext.P4 application also, to some extent persuaded the learned Sub Judge to interfere with Ext.P2 order passed by the learned Munsiff. Setting aside Ext.P2 order and allowing the appeal, the learned Sub Judge directed the parties to maintain status quo on the basis of the election conducted on 23.6.2008 until further orders are passed by the court over the validity of election after hearing all the parties. The appellate court in Ext.P1 judgment expressed the view that the judgment will not preclude the court below from considering the question of validity of the election conducted on 23.6.2008 on a separate petition filed by any of the parties or even without petition, if the court finds that question of validity of the election has to be W.P.(C)No.20997 of 2009 :: 9:: determined in the suit. Ext.P1 judgement would also show that in case such an enquiry on the validity of the election is taken up, then the court has to give notice and hear also the elected members in the election already held. Ext.P1 judgment with the above directions and observations reversing Ext.P2 order of the learned Munsiff and dismissing of Ext.P4 application of the plaintiff, is challenged in the writ petition. 7. I heard the counsel on both sides. The learned counsel for the petitioner [hereinafter referred to as 'the plaintiff'] assailed Ext.P1 judgment rendered by the learned Sub Judge mainly on the ground that the appellate Judge had exercised his jurisdiction improperly in substituting his views over that of the learned Munsiff on erroneous conclusions drawn which are not supported by the materials, nor by the principles of law applicable in disposing of W.P.(C)No.20997 of 2009 :: 10:: an application for interim injunction. The appellate court has exercised its discretion to take a divergent view from that of the learned Munsiff for the sole reason that the validity of the election was not a question emerging for consideration in the disposal of the interlocutory application, according to the counsel. The election was conducted under the auspices of an advocate commissioner appointed by the court and in fact there was a postponement of the consideration of the injunction application in view of the submissions made by both sides that an election can be conducted by appointing a commissioner as an observer to elect a new management committee for administering the society, according to the counsel. The election process has already commenced issuing a notice to convene the general body of the society also weighed with the court in postponing the consideration of the injunction W.P.(C)No.20997 of 2009 :: 11:: application and passing of Ext.P7 order appointing an advocate commissioner as observer to conduct the election. Inviting my attention to Ext.P7 order, the learned counsel submitted that such an order was passed after hearing both sides on the injunction application. By the appointment of the advocate commissioner to conduct the election, according to the counsel. The court has only relegated the consideration of the injunction application to a later stage. The term of the officer bearers of the 1st defendant society had expired long ago and despite a decree passed in a previous suit for conducting a fresh election, no such election was conducted even after 1½ years of passing of such decree was also taken note of by the court, according to the counsel, in passing Ext.P7 application. When the election was directed to be conducted by appointing an advocate commissioner as observer in the light of the suit filed and W.P.(C)No.20997 of 2009 :: 12:: also after hearing both sides over the discretionary relief applied for under Ext.P4 application, it is the submission of the learned counsel, the validity of the election can be assailed if the election had been irregularly and improperly conducted in the very same suit and even at the stage of consideration of the pending injunction application in which the court had passed Ext.P7. The two reports of the advocate commissioner appointed as observer to conduct the election, according to the counsel, clearly demonstrate that the election was conducted in a most irregular and haphazard manner in changing the venue on the date of the election and not even furnishing the relevant registers and voters' list to the advocate commissioner even on his demand. The court has ordered in Ext.P7 order permitting the commissioner to seek police assistance to conduct the election is highlighted by the W.P.(C)No.20997 of 2009 :: 13:: counsel, with reference to the reports submitted by the commissioner before the court, as to the irregularities in conducting the election. A fraud on the court was committed in conducting of the election as disclosed by the reports of the commissioner was overlooked by the appellate court according to the counsel, in interfering with Ext.P2 order of the learned Munsiff on the reasoning that the validity of the election was not the subject matter of the suit or the injunction application and any dispute over the election required has to be agitated independently with notice to the persons who have been elected to the committee for management of the society. Maintainability of the appeal preferred by the 3rd defendant giving rise to Ext.P1 judgment was also impeached by the learned counsel contending that the society, the 1st defendant, was not made a party in such appeal against Ext.P2 W.P.(C)No.20997 of 2009 :: 14:: order passed by the learned Munsiff, which is binding on that society and its members. In the absence of the 1st defendant society in the appeal, according to the counsel, it was a fractured appeal and Ext.P1 decision, wherein the society was not a party, cannot bind the society or its members. Reference was also made to Ext.P10 order passed by the appellate court on the stay petition moved by the 3rd defendant in his appeal wherein, according to the counsel, after considering meticulously all aspects involved in the case that relief canvassed was declined. Though the findings made by the appellate court in the interlocutory application for stay have no decisive force, in Ext.P1 judgment rendered by the appellate court later the sound reasonings given in Ext.P10 order have been given a goby and not even taken note of while interfering with Ext.P2 order of the learned Munsiff, submits the counsel. Reliance has been placed W.P.(C)No.20997 of 2009 :: 15:: by the counsel in Sally Prakash & ors. v. 1st Additional District Judge {AIR 2002 Allahabad 198} to contend that the directions and orders issued by the court by the learned Munsiff in Ext.P2 order are in effect passed in exercise of his jurisdiction under Section 151 of the Code of Civil Procedure taking note of the irregularities in the election conducted, which was held under the supervision of the court by the appointment of an advocate commissioner as observer and any challenge against such order cannot be maintained by way of an appeal, but only by way of a revision before this court, if there was sufficient ground to challenge the order by that course. To buttress the argument that the learned Sub Judge in appeal had overstepped his jurisdiction in interfering with Ext.P2 order by supplementing different views from that of the learned Munsiff without examining and holding that the views formed in Ext.P2 order W.P.(C)No.20997 of 2009 :: 16:: are improper on the facts involved and under law, the learned counsel has relied on U.P.Co- operative Federation Ltd. v. Sunder Bros., Delhi {AIR 1967 SC 249}. Ext.P1 judgment rendered by the appellate court is liable to be reversed and Ext.P2 order by the learned Munsiff has to be restored, is the submission of the learned counsel, contending that otherwise justice would be a casualty since by Ext.P1 judgment the fraud committed on the court by the defendants in the conducting the election is recognized and given effect to. 8. The learned counsel for the 3rd respondent/4th defendant supported the submissions made by the learned counsel for the plaintiffs. 9. Per contra, the learned counsel appearing for the 3rd respondent inviting my attention to the memorandum of association of the 1st defendant society contended that the society has been established for administering W.P.(C)No.20997 of 2009 :: 17:: education institutions and any direction or order by the court without sufficient cause would prejudice and cause serious injury to the interest of the society in administering the schools where the interests of a good number of students are involved. Even the commissioner appointed by the court has reported that the election was conducted in a fair manner, and the allegations imputing that it was irregularly conducted, according to the counsel, are unworthy of any merit. The conduct of the 4th respondent, who was appointed under Ext.P2 by the learned Munsiff for management of the society as an interim arrangement was not in the best interest of the society, according to the counsel, contending that soon after passing of Ext.P1 judgment,without authority he had drawn a sum of Rs.2 lakhs from the funds of the society. Plaintiff and the 4th defendant are acting hand in glove and they are not interested in the W.P.(C)No.20997 of 2009 :: 18:: welfare of the society is the submission of the counsel. When the election process was set in motion and notification was issued for convening the general body, the plaintiff rushed to the court and filed a suit and moved the injunction application raising frivolous allegations against the defendants. The learned counsel inviting to the narrow scope of interference in exercise of the supervisory jurisdiction of this court under Article 227 of the Constitution of India submitted that Ext.P1 judgment rendered by the learned Sub Judge in appeal, as it does not suffer from jurisdictional infirmity, does not call for any modification in the extraordinary jurisdiction of this court, and as the rights of the parties are preserved including the conduct of fresh election under that judgment, according to the counsel, the writ petition is only to be dismissed. Referring to Ext.P8 order of the court below, it is contended by W.P.(C)No.20997 of 2009 :: 19:: the counsel that the interim report of the commissioner with reference to the non- production of the registers cannot be given much significance when the commissioner has been appointed only to oversee the election as an observer. The commissioner, in the final report, has stated that the election was conducted in a fair manner, and the report of that observer deserve acceptance, and all other disputed questions involved in the case have to be left open for adjudication after a fair trial of the case, is the submission of the counsel. 10. I have considered the rival submissions of the counsel with reference to Ext.P1 judgment of the learned Sub Judge and Ext.P2 order of the learned Munsiff and other exhibits produced in the writ petition. On the facts presented and submissions made, the solitary question that emerges for consideration is whether the learned Sub Judge W.P.(C)No.20997 of 2009 :: 20:: was justified in interfering with Ext.p2 order passed by the learned Munsiff for the reason that the validity of the election was not a dispute covered by the injunction application and, further, the office bearers of the 1st defendant society elected, have not been made parties to the application for injunction and the suit. Before adverting to that question, it is necessary to refer to the challenges raised by the plaintiff's counsel that the appeal itself against Ext.P2 order before the learned Sub Judge was not maintainable require to be dealt with. The argument was that the exercise of the discretion by the trial judge in the interlocutory application for injunction cannot be interfered with by the appellate court for the sole reason that a different view is permissible and the orders passed under Ext.P2 are, in effect, rendered by the court in exercise of its jurisdiction under Section 151 of the Code of Civil W.P.(C)No.20997 of 2009 :: 21:: Procedure from which a challenge by way of an appeal is not maintainable. Though some decisions are relied in support of the proposition canvassed, I find, in the given facts of the case, the maintainability of the appeal preferred against Ext.P2 on the grounds canvassed cannot be sustained. In the interlocutory application the court has given some additional relief which is not sought for in the application and perhaps in exercise of its inherent power taking note of what transpired during the pendency of that application by itself does not deprive the affected party from challenging its correctness by way of an appeal as directed by the statute. The appellate court is fully competent to re-appreciate the materials to examine whether the discretion had been correctly exercised by the inferior court in granting or declining the relief of injunction. True, that the findings entered W.P.(C)No.20997 of 2009 :: 22:: by the trial judge and also the discretion exercised by him in granting or declining the relief is not liable to be disturbed unless it is shown that it suffered from some infirmity warranting interference to advance the ends of justice. That, of course, is a question to be determined on a proper evaluation of the facts and circumstances evolved and the materials produced and also the entitlement of the party who has applied for the discretion relief of injunction. There was yet another challenge from the learned counsel for the plaintiff that the appeal was not maintainable for the reason that it was a fractured appeal inasmuch as the 1st defendant society was not made a party in the appeal. That challenge deserve to be taken note of only for holding as meritless since the appeal was preferred by the 3rd defendant who was the Secretary of the society. In the suit, 1st defendant is shown as represented by its president who had been W.P.(C)No.20997 of 2009 :: 23:: impleaded as the 2nd defendant. Injunction was sought against the 3rd defendant and other office bearers in management of the society, contending that their continuance as such is illegal since their term had expired. When a challenge is raised against an order passed in the injunction application so filed providing for an interim arrangement by another, 4th defendant, over the affairs of the society, the presence of the society in the appeal against that order does not make any significance when it continues to be represented by one among the officer bearers of the existing committee. The absence of the society or other defendants in the application for injunction in the appeal, can, in no way, affect the maintainability of the