Case: VIRUDHUNAGAR HINDU NADARGAL DHARMA PARIBALANA SABAI Vs. TUTICORIN EDUCATIONAL SOCIETY

grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai (2003) 6 SCC 675 , pointed out in Radhey Shyam Vs. Chhabi Nath (2015) 5 SCC 423 that orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.14. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.15. Another aspect that was overlooked by the High Court was that the second respondent herein namely Shri A. Rajendran was already restrained by the Sub-Court, from functioning as the Secretary of the first respondent society. It is seen from the records that the civil revision was filed before the High court by the first respondent society as well the second respondent herein. The second respondent herein was not only the second petitioner in the Civil Revision Petition filed before the High Court, but he also sought to represent the first respondent-Society as its Secretary, before the High court in the Civil Revision.16. But in a connected Civil Miscellaneous Appeal No.7 of 2018 filed by the appellants herein (plaintiffs in the suit), the Sub-Court, Thoothukudi passed an order dated 22.04.2018 restraining the second respondent herein for acting as the Secretary of the first respondent-Society. This appeal arose out of the dismissal by the trial court, of an interlocutory application I.A.No. 387 of 2018 filed by the appellants herein for restraining the second respondent herein from acting as the Secretary and another person from acting as the Patron. The trial Court dismissed I.A.No.387 of 2018, but the plaintiffs filed an appeal in Civil Misc. Appeal No.7 of 2018. The same was allowed by an order dated 22.04.2018 by the Sub-court, Thoothukudi unseating the second respondent as the Secretary. Though the second respondent has claimed in his rejoinder, that the order passed in C. M. A. No. 7 of 2018 was challenged in a revision in CRP (MD) No. 1295 of 2019 and an order of status quo was obtained, from the Madurai Bench of the Madras High Court, the same happened after more than a year. Therefore, on the date on which the first respondent-Society filed the Civil Revision CRP (MD) No. 1084 of 2018 before the high court, the second respondent herein was not the secretary and could not have acted on behalf of the society. This aspect was also overlooked by the High Court.17. The observation of the High Court that the trial Court proceeded in great haste, appears to be uncharitable. It is true that the application for injunction was moved on 24.4.2018 but the respondent nos. 1 & 2 were very vigilant, if not overzealous and, hence, they not only filed a counter affidavit to the application for injunction on 25.04.2018, but also filed 19 documents. They also advanced arguments, only after considering which the trial Court passed an order on 26.4.2018.18. Order XXXIX Rule 3A of the Code of Civil Procedure itself mandates the disposal of an application for injunction within 30 days, whenever an injunction was granted without notice to the opposite party. In this case, the trial Court, without granting an ex-parte order of injunction, chose to allow the opposite parties to file counter affidavit(s) along with documents and then heard the opposite parties before allowing the application for injunction. Finding the line of demarcation between speedy disposal and hurried dispatch, with mathematical precision, is not possible. In any case, even if the High Court was convinced that the trial Court had proceeded hastily, the High Court could have only remanded the matter back. But the High Court allowed the application for injunction without recording any finding on merits. In fact the order of the Trial Court deals with the rival contentions and is one passed on merits after due consideration of the pleadings and documents. The High Court unfortunately did not even deal with the matter on merits to over turn the decision of the Trial Court. Therefore, the order of the High Court is liable to be set aside and the order of the Trial Court is liable to be restored.19. But it is brought to our notice that after the High Court allowed the Civil Revision petition by its order dated 28.08.2018, the second respondent herein proceeded with the meeting of the General Body and the Executive Committee on 25.09.2018 and also conducted elections. Notice was ordered and the interim order of the status quo was passed in the above special leave petition only on 8.10.2018. Hence, it was sought to be contended that the above appeal has virtually become infructuous.20. In normal circumstances, we would have agreed. But this is a case where every meeting of the General Body and every attempt at holding elections to the first respondent-Society seem to have created a series of litigation before three different fora namely (i) the Civil Courts) (ii) the Registrar of Societies (iii) the High court (in Writ Petitions arising out of orders of the Registrar of Societies). This can be seen from the following table:table21. Therefore, we are of the view that the only way to bring to an end all the litigations between the parties before various fora is to set aside the impugned order and the elections held pursuant thereto and to appoint an Advocate Commissioner to convene the General Body as well as the Executive Committee for the election of office bearers.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. Primarily the High Court, in our view, went wrong in overlooking the fact that there was already an appeal in C.M.A. No. 1 of 2018 filed before the Sub-Court at Tuticorin under Order XLI, Rule 1 (r) of the Code, at the instance of the fifth defendant in the suit (third respondent herein), as against the very same order of injunction and, therefore, there was no justification for invoking the supervisory jurisdiction under Article 227.12. Secondly, the High Court ought to have seen that when a remedy of appeal under section 104 (1)(i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu Vs. S. Chellappan & Ors.(2000) 7 SCC 695 , this Court held that ?though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a Constitutional remedy?.13. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai(2003) 6 SCC 675  , pointed out in Radhey Shyam Vs. Chhabi Nath(2015) 5 SCC 423   that orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.14. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.15. Another aspect that was overlooked by the High Court was that the second respondent herein namely Shri A. Rajendran was already restrained by the Sub-Court, from functioning as the Secretary of the first respondent society. It is seen from the records that the civil revision was filed before the High court by the first respondent society as well the second respondent herein. The second respondent herein was not only the second petitioner in the Civil Revision Petition filed before the High Court, but he also sought to represent the first respondent-Society as its Secretary, before the High court in the Civil Revision.Therefore, on the date on which the first respondent-Society filed the Civil Revision CRP (MD) No. 1084 of 2018 before the high court, the second respondent herein was not the secretary and could not have acted on behalf of the society. This aspect was also overlooked by the High Court.17. The observation of the High Court that the trial Court proceeded in great haste, appears to be uncharitable. It is true that the application for injunction was moved on 24.4.2018 but the respondent nos. 1 & 2 were very vigilant, if not overzealous and, hence, they not only filed a counter affidavit to the application for injunction on 25.04.2018, but also filed 19 documents. They also advanced arguments, only after considering which the trial Court passed an order on 26.4.2018.The observation of the High Court that the trial Court proceeded in great haste, appears to be uncharitable. It is true that the application for injunction was moved on 24.4.2018 but the respondent nos. 1 & 2 were very vigilant, if not overzealous and, hence, they not only filed a counter affidavit to the application for injunction on 25.04.2018, but also filed 19 documents. They also advanced arguments, only after considering which the trial Court passed an order on 26.4.2018.Order XXXIX Rule 3A of the Code of Civil Procedure itself mandates the disposal of an application for injunction within 30 days, whenever an injunction was granted without notice to the opposite party. In this case, the trial Court, without granting an ex-parte order of injunction, chose to allow the opposite parties to file counter affidavit(s) along with documents and then heard the opposite parties before allowing the application for injunction. Finding the line of demarcation between speedy disposal and hurried dispatch, with mathematical precision, is not possible. In any case, even if the High Court was convinced that the trial Court had proceeded hastily, the High Court could have only remanded the matter back. But the High Court allowed the application for injunction without recording any finding on merits. In fact the order of the Trial Court deals with the rival contentions and is one passed on merits after due consideration of the pleadings and documents. The High Court unfortunately did not even deal with the matter on merits to over turn the decision of the Trial Court. Therefore, the order of the High Court is liable to be set aside and the order of the Trial Court is liable to be restored.19. But it is brought to our notice that after the High Court allowed the Civil Revision petition by its order dated 28.08.2018, the second respondent herein proceeded with the meeting of the General Body and the Executive Committee on 25.09.2018 and also conducted elections. Notice was ordered and the interim order of the status quo was passed in the above special leave petition only on 8.10.2018. Hence, it was sought to be contended that the above appeal has virtually become infructuous.20. In normal circumstances, we would have agreed. But this is a case where every meeting of the General Body and every attempt at holding elections to the first respondent-Society seem to have created a series of litigation before three different fora namely (i) the Civil Courts) (ii) the Registrar of Societies (iii) the High court (in Writ Petitions arising out of orders of the Registrar of Societies).In normal circumstances, we would have agreed. But this is a case where every meeting of the General Body and every attempt at holding elections to the first respondent-Society seem to have created a series of litigation before three different fora namely (i) the Civil Courts) (ii) the Registrar of Societies (iii) the High court (in Writ Petitions arising out of orders of the Registrar of Societies).Therefore, we are of the view that the only way to bring to an end all the litigations between the parties before various fora is to set aside the impugned order and the elections held pursuant thereto and to appoint an Advocate Commissioner to convene the General Body as well as the Executive Committee for the election of office bearers.