V. Ramasubramanian
1. Leave granted.
Signature Not Verified 2. Digitally signed by R NATARAJAN Aggrieved by an order of the High Court passed Date: 2019.10.03 18:59:17 IST Reason:
under Article 227 of the Constitution, vacating an interim order of injunction granted by the trial 2 Court, the plaintiffs have come up with this appeal.
3. We have heard Mr. R. Anand Padmanabhan, learned counsel for the appellants and Mr. Vijay Hansaria, learned Senior Counsel for the respondent Nos. 1 &
2.
4. The appellants herein filed a suit O. S. No. 145 of 2018 on the file of Principal District Munsif, at Thoothukudi praying (i) for a declaration that the notice issued by the sixth defendant (second respondent in this appeal) convening the General Body Meeting of the first respondent–Society at 5 P.M. and the Executive Committee meeting at 5:30 P.M. on the same day namely 05.05.2018 was illegal; (ii) for a decree of permanent injunction restraining the defendant Nos. 5 & 6 from convening the meetings of the General Body and the Executive Committee of the first respondent–society; (iii) for a declaration that the appointment of the fifth defendant (third respondent in this appeal) as patron for life of the first defendantSociety was 3 unlawful; (iv) for a permanent injunction restraining the sixth defendant (second respondent in the appeal) from acting as the Secretary of the first defendantSociety and (v) for the appointment of a Commissioner to receive the list of members and to conduct free and fair election of office bearers of the first defendantSociety.
5. Along with the suit, the appellants/plaintiffs moved an Interlocutory Application i.e. I. A. No. 386 of 2018 seeking an interim order of injunction restraining the respondents from convening the meetings of the general Body and the Executive Committee on 5.5.2018. It appears that the appellants/plaintiffs also moved one more Interlocutory Application i.e. Interlocutory Application No.387 of 2018 seeking an injunction restraining the defendant nos. 5 & 6 from acting respectively as Patron and the Secretary.
6. It appears that the suit was filed on 23.04.2018 and the application for interim 4 injunction was moved on 24.04.2018. The Contesting defendants filed a counter affidavit on the very next day namely 25.04.2018 along with 19 documents.
7. Therefore, after hearing both sides, the trial Court passed an order on 26.04.2018 allowing Interlocutory Application No.386 of 2018 and injuncting the defendants from proceeding with the Meeting of the General Body and the Executive Committee as scheduled on 5.5.2018. It is relevant to note that the trial Court not only took note of the pleadings on both sides but also took note of 12 documents filed by the plaintiffs and 19 documents filed along with the counter affidavits of the defendants.
8. As against the order of the trial court granting injunction, the fifth defendant in the suit (the third respondent in this appeal) who was claiming to be the Patron for life, filed a Regular Appeal in C.M.A No.1 of 2018 on the file of the Sub Court at Thothukudi under Order XLIII Rule 1(r) of 5 the Code of Civil Procedure. But the respondent nos.1 & 2 herein who were the defendant Nos.1 & 6 respectively, instead of filing a Regular Appeal, filed a Civil Revision in C.R.P.(MD) (PD) No.1084 of 2018 on the file of the Madurai Bench of the Madras High Court, under Article 227 of the Constitution of India.
9. Despite objections to the maintainability of the revision on the ground of availability of an appellate remedy under the Code, the High Court allowed the Civil Revision Petition and set aside the order of injunction granted by the trial Court. It is against the said order that the plaintiffs have come up with the above appeal.
10. The objection to the maintainability of the revision was sought to be overcome by the High Court on the basis of a few decisions which revolved around the supervisory jurisdiction of the High Court to keep the subordinate courts within the bounds of law. Then the High Court found fault with 6 the trial Court for taking up the application for injunction filed on 24.04.2018, for hearing on 25.04.2018 and passing an order on 26.4.2018. This, in the opinion of the High Court, was a case of justice being hurried and consequently getting buried. Therefore, the High Court allowed the revision and set aside the order of injunction.
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 SubCourt 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 7 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. 1, 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 quasijudicial authorities and tribunals. In respect of cases falling 1 (2000) 7 SCC 695 8 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 Rai2, pointed out in Radhey Shyam Vs. Chhabi Nath3 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 2 (2003) 6 SCC 675 3 (2015) 5 SCC 423 9 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 SubCourt, 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 respondentSociety 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 SubCourt, Thoothukudi passed an order 10 dated 22.04.2018 restraining the second respondent herein for acting as the Secretary of the first respondentSociety. 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 Subcourt, 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 respondentSociety filed the Civil Revision CRP (MD) No. 1084 of 2018 before the 11 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 exparte order of injunction, chose to allow the opposite 12 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 13 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 respondentSociety 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:
21. 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. Accordingly, the appeal is allowed, the order of the high court as well as the elections purportedly held pursuant to the order of the High Court are set aside. Smt. S. SORNALATHA, Advocate, No.1, 1st Street, Chidambara Nagar, Thoothukkudi628 008, is appointed as Commissioner with a mandate to do the following:
(i) Within two weeks of receipt of a copy of this order, the Advocate Commissioner shall address letters to the sponsoring bodies/Societies of the first respondent society, for nominating members to the 17 General Body and the Executive Committee of the first respondentSociety, as per the byelaws.
(ii) Within one week of receipt of the letter from the Advocate Commissioner, the sponsoring bodies shall send a list of members nominated by them to the General Body/Executive Committee of the first respondent society
(iii) Within four weeks of receipt of the nominations, the Advocate Commissioner shall convene a meeting of the General Body and the meeting of the Executive Committee and hold elections in accordance with the bye –laws.
(iv) After holding elections, the Advocate Commissioner shall ensure that form Nos. 6 and 7 are registered with the Registrar of Societies so that the registration of such forms do not become the subject matter of any litigation at the instance of the rival groups.
(v) The Advocate Commissioner shall be paid, by the first respondent society, a remuneration of Rs. 18 1,00,000/ apart from the reimbursement of the expenses incurred by her.
(vi) Till the elections are held and results declared, the Advocate commissioner shall discharge the duties of the Secretary of the first Respondent Society …………....................J/ (Rohinton Fali Nariman) ………......................J/ (V. Ramasubramanian) OCTOBER 03, 2019 NEW DELHI.