Babu and Ajay Praseel v. K.V. Suresh, Baiju, and S.N.D.P. Yogam, Thrissur Union

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 21ST DAY OF MAY 2013/31ST VAISAKHA 1935** ## **CRP.No. 182 of 2013 ()** **----------------------AGAINST THE ORDER/JUDGMENT IN CMA 46/2013 of ADDL.DISTRICT COURT, THRISSUR DATED 12-04-2013** ## **REVISION PETITIONER(S)/APPELLANTS/NON-PARTY:** ## **--------------------------------------------** **1. BABU, AGED 42 YEARS S/O PALLOMAKKAL VEETTIL SREEDHARAN, MANNUTHY DESOM OLLUKKARA VILLAGE, THRISSUR TALUK.** ## **2. AJAY PRASEEL,** - **S/O THAZHATHU VEETTIL VASU, KARIATTUKARA DESOM ARANATTUKARA VILLAGE, THRISSUR TALUK.** **BY ADVS.SMT.DAISY A.PHILIPOSE SRI.JAI GEORGE SRI.K.V.ARUN** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS AND DEFENDANT:** **-------------------------------------------------** **1. K.V.SURESH S/O KANDENGATH VEETTIL VELAYUDHAN KARIATTUKARA DESOM, ARANATTUKARA VILLAGE THRISSUR TALUK.** **2. BAIJU, AGED 38 YEARS** - **S/O NAYARUVEETTIL BALAKRISHNAN, KARIATUKARA DESOM ARANATTUKARA VILLAGE, THRISSUR TALUK.** **3. S.N.D.P. YOGAM,** **THRISSUR DISTRICT REP. BY ITS PRESENT SECRETARY PRASANNAN S/O INIKKAL GOVINDAN, MISSION QUARTERS THRISSUR VILLAGE, THRISSUR TALUK.** **R3 BY ADV. SRI.C.A.CHACKO R1-R2 BY ADV. SRI.C.P.PEETHAMBARAN** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BKA** ## **P.N.RAVINDRAN** , **J.** ## **--------------------------C.R.P. No.182 of 2013 -------------------------Dated this the 13[th] day of November, 2013** ## **O R D E R** The petitioners are the plaintiffs in O.S.No.285 of 2012 on the file of the Court of the Munsiff of Thrissur, a suit instituted by them on 19.1.2012 for an order directing the defendants to take steps to hold elections to all the 66 Sakas affiliated to the SNDP Yogam Thrissur Union and also to the Thrissur Union. The third respondent herein is the second defendant in that suit. Along with the plaint in O.S.No.285 of 2012, the petitioners filed I.A.No.996 of 2012 for an interim order of injunction restraining the defendants from holding elections to the SNDP Yogam Thrissur Union except after holding elections to the 66 Sakas affiliated to it. An order of injunction was not passed on the said application, though the respondents/defendants had entered appearance and filed objections resisting the application and it stood posted for various dates. The main contention raised by the petitioners in the plaint in O.S.No.285 of 2012 is that elections to the SNDP Yogam Thrissur Union can be held only after elections are held to C.R.P.No.182 of 2013 -:2:- all the 66 Sakas affiliated to it. While that suit was pending, the petitioners filed I.A.No.3145 of 2012 to cause production of some documents maintained by the second defendant. When that application came up for hearing on 10.4.2012, the learned counsel appearing for the second defendant gave an oral undertaking to the effect that elections will not be held during the court vacation period, meaning thereby the period between 10.4.2012 to 22.5.2012. The records disclose that the said applications have not so far been heard an disposed of and are still pending. 2. While matters stood thus, on 7.3.2013 respondents 1 and 2 herein instituted O.S.No.960 of 2013 in the Court of the III Additional Munsiff of Thrissur joining the third respondent herein as the sole defendant wherein they prayed for a mandatory injunction directing the defendant to hold elections to the SNDP Yogam, Thrissur Union in accordance with the bye-laws within a time limit to be fixed by the court after appointing an Advocate Commissioner as the Returning Officer. They also prayed for other reliefs including a declaration that the decision taken by the SNDP Yogam after 2.4.2012 when its term expired are not valid. Along with the plaint in O.S.No.960 of 2013 the plaintiffs therein C.R.P.No.182 of 2013 -:3:- filed I.A. No.3155 of 2013 for an interim mandatory injunction directing the defendants to hold elections to the SNDP Yogam Thrissur Union within a time limit to be fixed by the court after appointing an Advocate commissioner as the Returning Officer. 3. The said application came up for consideration before the trial court along with the plaint on 8.3.2013. On that day urgent notice was ordered to the respondents and the application was posted to 15.3.2013. On 15.3.2013 the third respondent herein who is the sole defendant in O.S.No.960 of 2013 entered appearance and sought time to file objections. The application was adjourned to 19.3.2013. On 19.3.2013 the third respondent herein filed objections to I.A.No.3155 of 2013. In that objection, the third respondent referred to the fact that O.S.No.285 of 2012 filed by the petitioners herein is pending in the Court of the Munsiff of Thrissur . He also produced along with the objections a copy of the plaint in the said suit. He contended that the elections should have been held on 2.4.2012 but on account of the pendency of the suit, the elections could not be held. He contended that he is ready and willing to hold the elections, but on account of the fact that O.S.No.285 of 2012 is pending, the C.R.P.No.182 of 2013 -:4:- elections could not be held. The Court of the Munsiff of Thrissur considered I.A.No.3155 of 2013 on 19.3.2013 and passed the following order:- _“Heard both sides. Respondent has no objection in conducting the election as per bye-law and under the supervision of an Advocate Commissioner. Advocate M.Sathyanathan is appointed as Advocate Commissioner. The petitioner shall pay batta of Rs.5,000/- initially and file memo. This amount can be realized from the respondent association on its consideration by the newly elected executive. Advocate Commissioner shall supervise and initiate decisions for conducting the election as per the byelaw. Report shall be filed at intervals with respect to the progress of the election. For interim report.”_ 4. On coming to know of it, the petitioners herein filed I.A.No.4032 of 2013 to get themselves impleaded as parties to O.S.No.960 of 2013, I.A.No.4036 of 2013 to get themselves impleaded as parties to I.A.No.1355 of 2013 in O.S.No.960 of 2013, I.A.No.4033 to stay the operation of the order passed on I.A.No.3155 of 2013 and I.A.No.4035 of 2013 to vacate that order. The said applications were adjourned to 20.5.2013 for objections. On 20.5.2013 the applications were adjourned to C.R.P.No.182 of 2013 -:5:- 6.7.2013. After the aforesaid applications were adjourned to 20.5.2013, the petitioners filed I.A.No.1077 of 2013 in the Court of the District Judge of Thrissur for leave to file an appeal along with C.M.A.No.46 of 2013 challenging the interim order dated 19.3.2013 passed by the Court of the Third Additional Munsiff of Thrissur on I.A.No.3155 of 2013 in O.S.No.960 of 2013. By order passed on 1.4.2013 the lower appellate court granted leave, admitted the appeal and also passed an interim order staying the operation of the order passed by the trial court on 19.3.2013. After the respondents entered appearance, the appeal was heard and dismissed by judgment delivered on 12.4.2013. The lower appellate court held that in the light of the provisions of bye-law 14(D) of the S.N.D.P.Union bye-laws, elections can be held to the Union without elections being held to the Sakhas. The court below also held that the mere fact that the petitioners have filed O.S.No.285 of 2012 is not a reason to interfere with the elections ordered to be held for the reason that any election will be subject to the final decision in the suits. Hence this Civil Revision Petition challenging the order dated 12.4.2013 passed by the Court of the First Additional District Judge of Thrissur in C.M.A.No.46 of 2013 C.R.P.No.182 of 2013 -:6:- and the order dated 19.3.2013 passed by the Court of the Munsiff of Thrissur on I.A.No.3155 of 2013 in O.S.No.960 of 2007. 5. The Civil Revision Petition was finally heard and disposed of by me after hearing Smt.Daisy A.Philipose, learned counsel appearing for the petitioners, Sri.C.P.Peethambaran, learned counsel appearing for respondents 1 and 2 and Sri.C.A.Chacko, learned counsel appearing for the third respondent. By that order I allowed the Civil Revision Petition, set aside the judgment dated 12.4.2013 in C.M.A.No.46 of 2013 on the file of the Court of the First Additional District Judge of Thrissur, allowed the said appeal, set aside the order dated 19.3.2013 on I.A.No.3155 of 2013 in O.S.No.960 of 2013, transferred O.S.No.960 of 2013 to the Court of the Munsiff of Thrissur and directed the Court of the Munsiff of Thrissur where O.S.No.285 of 2012 is pending, to jointly try and dispose of both the suits expeditiously and in any event within an outer limit of six months from 21.5.2013 and directed the Court of the Munsiff of Thrissur where O.S.No.285 of 2012 is pending and to which O.S.No.960 of 2013 stands transferred to take up I.A.No.3155 of 2013 in O.S.No.960 of 2013 and I.A.No.1324 of 2013 in O.S.No.285 of 2012 for consideration and pass orders C.R.P.No.182 of 2013 ## -:7:- thereon expeditiously and in event within an outer limit of one month from the date of receipt of a copy of the order. I also directed the Court of the Munsiff of Thrissur to which O.S.No.960 of 2013 stands transferred for joint trial along with O.S.No.285 of 2012 to take up the applications filed by the petitioners to get themselves impleaded in O.S.No.960 of 2013 and the applications therein and pass appropriate orders thereon. 6. While disposing of the Civil Revision Petition I proceeded on the basis that the third respondent herein had not brought to the notice of the court before which O.S.No.960 of 2013 was pending about the pendency of O.S.No.285 of 2012 in the Court of the Principal Munsiff of Thrissur and that he had conceded for the appointment of an Advocate Commissioner to hold the elections with a view to get over the undertaking given by him in O.S.No.285 of 2012. The said order was reviewed on application filed by the third respondent as R.P.No.550 of 2013 by order passed on 14.8.2013. I held, after perusing the records which had been called for, that the third respondent herein had filed a counter affidavit in I.A.No.3155 of 2013 in O.S.No.960 of 2013 opposing the grant of the relief prayed for therein and alerted the C.R.P.No.182 of 2013 -:8:- trial court about the pendency of O.S.No.285 of 2012. I also took note of the fact that the undertaking given by the third respondent, who is the sole defendant in O.S.No.960 of 2013, was that no election would be held during the court vacation period meaning thereby during the period from 14.4.2013 to 20.5.2013. The Civil Revision Petition has accordingly come up before me for further hearing today. 7. I heard Smt.Daisy A.Philipose, learned counsel appearing for the petitioners, Sri.C.P.Peethambaran, learned counsel appearing for respondents 1 and 2 and Sri.Ranjit Thampan, learned Senior Advocate, appearing for the third respondent. I have also gone through the pleadings and the materials on record. Smt.Daisy A.Philipose, learned counsel appearing for the petitioners, contended, referring to bye-law 14 of the Bye-laws of the S.N.D.P.Union that representatives of all the 66 Sakhas affiliated to the S.N.D.P.Yogam, Thrissur Union are entitled to be members of the Union and therefore, unless elections are held to all the Sakhas, elections cannot be held to the third respondent Union. The learned counsel contended that the third respondent had filed I.A.No.1324 of 2013 in O.S.No.285 of 2012 seeking the C.R.P.No.182 of 2013 -:9:- appointment of an Advocate Commissioner to hold elections to the S.N.D.P.Yogam Thrissur Union, that the said application stood posted to 31.5.2013 and it was in the meanwhile that O.S.No.960 of 2013 was instituted at the instance of the third respondent with a view to have the elections to the S.N.D.P.Yogam Thrissur Union held without holding elections to the 66 Sakhas affiliated to it. The learned counsel for the petitioners submitted that the conduct of the respondents discloses that the instant suit and the applications filed therein are collusive and that it was brought about by the third respondent with a view to get over the undertaking given by him in O.S.No.285 of 2012 that elections would not be held to the S.N.D.P.Yogam Thrissur Union without holding elections to the Sakhas affiliated to it. Referring to Byelaw 40 the learned counsel contended that the interpretation placed by the lower appellate court on Bye-law 40 is incorrect and is liable to be set aside. Per contra, Sri.C.P.Peethambaran, learned counsel appearing for respondents 1 and 2 and Sri.Ranjit Thampan, learned Senior Advocate, appearing for the third respondent contended that the third respondent had in the objections filed by him to I.A.No.3155 of 2013 in O.S.No.960 of C.R.P.No.182 of 2013 -:10:- 2013 referred to the fact that he is disabled from holding the elections in view of the pendency of O.S.No.285 of 2012, that the undertaking given by the third respondent was only for the period from 14.4.2013 to 20.5.2013, that the undertaking was not renewed or given thereafter, that the third respondent was always desirous of having the elections held and that was the reason why the third respondent had filed I.A.No.1324 of 2013 in O.S.No.285 of 2012 seeking the appointment of an Advocate Commissioner to hold the elections and therefore, it cannot be said that the third respondent had colluded with respondents 1 and 2 when he submitted in the court where O.S.No.960 of 2013 was instituted that he has no objection to the elections being held under the supervision of an Advocate Commissioner. The learned Senior Advocate appearing for the third respondent contended that the submission made by the third respondent in O.S.No.960 of 2013 was in consonance with the stand taken by him in I.A. No.1324 of 2013 in O.S.No.285 of 2012 and therefore, no exception can be taken to the impugned judgment/order. Relying on the written statement filed in O.S.No.285 of 2012 Sri.Ranjit Thampan, learned Senior Advocate appearing for the third respondent contended C.R.P.No.182 of 2013 -:11:- that elections to the different Sakhas are held at different point of time, that the term of office of the office bearers of the Sakhas is three years and therefore elections to the S.N.D.P.Yogam, Thrissur Union cannot be held after elections to all the 66 Sakhas are held. The learned Senior Advocate submitted that if the interpretation sought to be placed by the petitioners on the byelaws is adopted it will lead to a situation where the elections to the S.N.D.P.Yogam, Thrissur Union can never be held. The learned Senior Advocate also contended relying on lthe decision of this Court in _**Thilakan v. Kunhalankutty**_ , 2004 (1) KLT 235 that a revision would not lie from the judgment in C.M.A.No.46 of 2013. and therefore, on that score also, the Civil Revision Petition is liable to be dismissed. 8. I have considered the submissions made at the Bar by the learned counsel on either side. Shorn of details, the main grievance voiced by the petitioners appears to be that before I.A.No.3155 of 2013 in O.S.No.960 of 2013 was disposed of by order passed on 19.3.2013 the court below did not issue notice to them notwithstanding the fact that it was alerted about the pendency of O.S.No.285 of 2012 and the relief sought therein. It C.R.P.No.182 of 2013 -:12:- is evident from the pleadings and the materials on record that the dispute raised in the two suits, ie. O.S.No.285 of 2012 and O.S.No.960 of 2013 is identical. The dispute relates to and centres round elections to the S.N.D.P.Yogam Thrissur Union. It is also not in dispute that the second defendant in O.S.No.285 of 2012 is the sole defendant in O.S.No.960 of 2013 and that the second defendant in O.S.No.285 of 2012 had himself filed I.A.No.1324 of 2013 in O.S.No.285 of 2012 seeking the appointment of an Advocate Commissioner as the Returning Officer to hold elections to the S.N.D.P.Yogam, Thrissur Union. The said application, which was filed on 29.1.2013, was pending at the point of time when I.A.No.3155 of 2013 in O.S.No.960 of 2013 was heard and disposed of by order passed on 19.3.2013 and when C.M.A.No.46 of 2013 was heard ad dismissed by the Court of the First Additional District Judge of Thrissur on 12.4.2013. As on that day, I.A.No.3124 of 2013 stood posted to 31.5.2013. In such circumstances I am of the opinion that the proper course for this Court would be to consolidate those suits by transferring the suit O.S.No.960 of 2013 from the Court of the Third Additional Munsiff of Thrissur to the Court of the Principal C.R.P.No.182 of 2013 -:13:- Munsiff of Thrissur to be tried and disposed of along with O.S.No.285 of 2012, to set aside the impugned orders/judgments and and to direct the Court of the Principal Munsiff of Thrissur to pass revised orders on I.A.No.1324 of 2013 in O.S.No.285 of 2012 and I.A.No.3155 of 2013 in O.S.No.960 of 2013 after affording both sides an opportunity of being heard. I accordingly allow this Civil Revision Petition, set aside the judgment dated 12.4.2013 in C.M.A.No.46 of 2013 on the file of the Court of the First Additional District Judge of Thrissur, allow the said appeal and set aside the order dated 19.3.2013 on I.A.No.3155 of 2013 in O.S.No.960 of 2013, transfer O.S.No.960 of 2013 to the Court of the Principal Munsiff of Thrissur and direct the Court of the Principal Munsiff of Thrissur where O.S.No.285 of 2012 is pending, to jointly try and dispose of both the suits expeditiously and in any event within an outer limit of six months from today. The Court of the Munsiff of Thrissur where O.S.No.285 of 2012 is pending and to which O.S.No.960 of 2013 stands transferred shall take up I.A.No.3155 of 2013 in O.S.No.960 of 2013 and I.A.No.1324 of 2013 in O.S.No.285 of 2012 for consideration and pass orders thereon expeditiously and in event C.R.P.No.182 of 2013 -:14:- within an outer limit of one month from the date of receipt of a copy of this judgment. The Court of the Munsiff of Thrissur to which O.S.No.960 of 2013 stands transferred for joint trial along with O.S.No.285 of 2012 shall also take up the applications filed by the petitioners to get themselves impleaded as supplemental defendants in O.S.No.960 of 2013 and the applications therein and pass appropriate orders thereon. I.A.No.4033 and I.A.No.4035 in O.S.No.960 of 2013 shall stand closed as unnecessary in view of this judgment. The parties shall bear their respective costs. The election process initiated by the Advocate Commissioner appointed in O.S.No.960 of 2013 shall stand canceled. ## **P.N.RAVINDRAN, Judge.** ## **vps/ahg.**