Dr. Bhaskar Subin Sugath v. Dr. John T John and Kerala Orthopaedic Association and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941** ## **OP(C).No.662 of 2019** **(AGAINST THE ORDER IN IA NO.892/2019 IN OS 154/2019 of I ADDITIONAL MUNSIFF COURT,ERNAKULAM)** ## **PETITIONER/S:** **DR. BHASKAR SUBIN SUGATH, AGED 46 YEARS S/O.P.B.SUGATHAKUMAR, TC 30/2016(1) ANJALI OPPOSITE BANK ROAD, ANAYARA.P.O., THIRUVANANTHAPURAM-695029.** **BY ADVS. SRI.K.K.CHANDRAN PILLAI (SR.) SMT.S.AMBILY** ## **RESPONDENT/S:** **1 DR. JOHN T JOHN, AGED 43 YEARS S/O.T.K.JOHN, THAYYIL HOUSE, BABY SMARAKA ROAD, ELAMAKKARA.P.O., ERNAKULAM-682026.** - **2 THE KERALA ORTHOPAEDIC ASSOCIATION, BLOCK II, FLAT 505, EASLAND ENCLAVE, ELAMKULAM, KADAVANTHRA.P.O, ERNAKULAM-682020, REPRESENTED BY ITS SECRETARY.** **3 DR.GOPINATHAN, CHIEF ELECTION OFFICE FOR THE YEAR 2018-2019, THE KERALA ORTHOPAEDIC ASSOCIATION, XXVIII/200A, KAILASAM, PULIMUGAL ROAD, CHANGAMPUZHA NAGAR, SOUTH KALAMASSERY.P.O., ERNAKULAM-683104.** **4 DR.SABIN VISWANATH PRESIDENT FOR THE YEAR 2018-2019, THE KERALA ORTHOPAEDIC ASSOCIATION, XXVIII/200 A, KAILASAM, PULIMUGAL ROAD, CHANGAMPUZHA NAGAR, SOUTH KALAMASSERY.P.O., ERNAKULAM -683104.** **BY ADVS. SRI.A.P.SUBHASH** O.P.(C) No.662/2019 2 **SRI.A.BALAGOPALAN SRI.K.J.SAJI ISAAC SRI.SHYAM PADMAN DR.ELIZABETH VARKEY KUM.LAYA MARY JOSEPH SMT.BOBY M.SEKHAR SMT.P.SEENA SRI.A.RAJAGOPALAN SRI.C.M.ANDREWS SRI.JITHIN SAJI ISAAC SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SRI.P.T.MOHANKUMAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24.06.2019, THE COURT ON 28/6/2019 PASSED THE FOLLOWING:** O.P.(C) No.662/2019 3 ## **JUDGMENT** This original petition arises from the order in IA No.892/2019 in OS No. 154/2019 of Additional Munsiff Court, Ernakulam, in a suit for declaration and consequential injunction. 2. The first respondent herein is the plaintiff. Respondents 2 to 4 are the defendants 1 to 3 in the suit. The second respondent is an Association of Orthopedic Surgeons in Kerala, registered under the name Kerala Orthopedic Association. 4[th] respondent was its president during the year 2018 and the third respondent was the Chief Election Officer for the year 2018 - 2019. According to the plaintiff, the election of the office bearers of the Association was declared to be held. Plaintiff and the petitioner herein submitted their nominations to the post of the Secretary. It is stated that the nomination of the petitioner was rejected by the third respondent on a ground that, the petitioner was disqualified, since he did not fulfill the required qualification to contest the election. The election was held on 14/1/2019 and as per the bye-law, the result was to be announced in the annual general meeting proposed to be held on 26/1/2019. In the annual general meeting, the result could not be declared, since the members raised O.P.(C) No.662/2019 4 objections. They allegedly compelled the third defendant, the Chief Election Officer, to conduct fresh election to the post of Secretary.. It was alleged that, the members raised objection regarding the rejection of nomination paper of the disqualified candidate and they forced the Chief Election Officer to conduct the re-election, permitting both the candidates to contest the election. Contending that the proceedings dated 26/1/2019 of the general body meeting, by which election held on 14/1/2019 was declared canceled and the decision for re-election, permitting disqualified candidate also to contest the proceedings, was illegal and nonest, plaintiff filed the above suit and sought mandatory injunction directing the third defendant to announce the result of the election held on 14/1/2019. It was contended that cancellation of the election and decision to conduct a fresh election were against the byelaw. 3. The first defendant association filed the written statement and the counter affidavit traversing the various allegations raised in the plaint and in the interlocutory application. It was, inter alia, contended that the suit was bad for non joinder of necessary parties and also for misjoinder of parties. Hence, they filed IA No.1227/2019 to hear the question of non joinder of necessary parties and mis joinder of parties as a preliminary issue. The premise, on which such a contention was set up, was that in the suit, the Chief Election Officer and the O.P.(C) No.662/2019 5 disqualified candidate were not made parties. It was contended that, any decision taken in the suit would affect them and hence they were necessary parties. The court below, by Ext.P6 order held that the preliminary issue will be heard after the written statement was filed. In the meanwhile, the plaintiff had filed IA No.892/2019 with a prayer to restrain the defendants from conducting re-election to the post of the Secretary which was proposed to be held on 3/3/2019. By Ext.P7 order, the learned Munsiff held that, since it was decided to hear the preliminary issue and that the defendants other than the first defendant had not filed the written statement, preliminary issue will be considered only after the written statements were filed. Accordingly, it was directed that the parties should maintain status quo till the issue was determined. 4. Petitioner herein, who is not a party to the proceedings, claiming that he being the candidate who had submitted the nomination, but was disqualified by the Chief Election Officer, was a necessary party to the proceedings and that Ext.P7 order was nonest and was liable to be set aside, has preferred this original petition. 5. The second respondent-association and the third respondentChief Election Officer have filed their counter affidavit/affidavit traversing the various contentions in the original petition. Heard the learned senior counsel for the petitioner and each of the learned O.P.(C) No.662/2019 6 counsel for the contesting respondents. 6. The premise, on which Ext.P7 order is challenged by the petitioner herein, is that the petitioner was illegally disqualified by the Chief Election Officer and hence, the decision of the Chief Election Officer was wrong. The general body meeting held on 26/1/2019 had found that the rejection of the nomination paper of the petitioner was bad and had decided to conduct re-election permitting the petitioner to contest the election. According to the petitioner, that decision was proper and the court below should not have interfered in that decision. It was also contended that petitioner herein was an absolutely essential party to the proceedings and he was the only person directly affected by the outcome of the suit. It was further contended that, the order passed by the court below without the petitioner being in the party array, was liable to be interfered with. It was also contended that, a person, who approaches the court below without impleading the necessary party and procures an order, was liable to face the consequence and this court is entitled to interfere in such orders, exercising the powers under Article 227 of the Constitution of India. 7. Counter affidavit filed by the Association and the contentions set up in the course of hearing by the learned counsel for the Association, discloses that the memorandum of association relied on by the Chief Election Officer was not the one approved by the general O.P.(C) No.662/2019 7 body meeting. According to the Association, approved bye-law of the association was Ext.R2(h). The general stand of the Association was that, the nomination paper of the petitioner herein was improperly rejected and on a proper interpretation of the approved bye-laws of the Association, the petitioner did not stand disqualified. 8. Contention of the plaintiff was that, the decision taken by the general body on 26/1/2019 was an interference in the due election process, since the petitioner stood disqualified. Till that decision was challenged in appropriate proceedings, the general body was not justified in taking a decision cancelling the election, it was urged. It was also contended that the chief election officer had taken the proper decision. It seems that the chief election officer and the plaintiff essentially supported the decision of the Chief Election Officer and also the election held on 14/1/2019. 9. Evidently, the chief election officer had taken a decision disqualifying the petitioner in the light of a bye-law relied by him. However, according to the Association, that was not approved bye-law. Another set of bye-laws has been produced in the original petition. Hence, it is clear that the rejection of the nomination paper of the petitioner herein and the decision of the chief election officer disqualifying the petitioner herein, itself is a disputed question of fact. The general body of the association, which is the supreme authority to O.P.(C) No.662/2019 8 take any decision, in its wisdom, had, on 26/1/2019, resolved to cancel the earlier election. They did not approve the decision of the chief election officer and resolved to conduct new election, permitting both candidates to contest the election. No reliable material has been placed before the court below to prima facie establish that the decision of general body was tainted, due to any vitiating circumstances. At this stage, I find no reason to interfere in the collective wisdom of the general body. 10. It is pertinent to note that the first relief sought in the suit was to declare the decision of the general body dated 26/1/2019 as nonest and the second prayer was to direct the chief election officer to declare the result of the election held on 14/1/2019. The person, who would have been directly affected by any order passed in the suit, was the petitioner herein, since he had contested the election. A perusal of the plaint also shows that, at more than one place in the plaint, the petitioner is referred to as the disqualified candidate, without naming him. He is not made a party to the suit. Prima facie, he appears to be a necessary party. 11. Learned senior counsel for the petitioner relied on the decisions of this court in _**Manoj O.R. v. Guruvayur Devaswom and Others (2011 (2) KHC 607)**_ and in _**Varghese @ Varkey T.P. v. Fast Line Builders & Developers Kerala and Others(2013 KHC 2761)**_ to O.P.(C) No.662/2019 9 contended that petitioner was not entitled to seek any relief against a person who not made him a party to the proceeding . If such a person is not impleaded and orders are obtained, this court will be justified in interfering with that order invoking Article 227 of the Constitution of India, it was argued. In Manoj's case(supra), it was held that, it is not the function of the Court to keep intact the orders which are liable to be vacated, only for the purpose of avoiding the suit becoming infructuous. If no injunction should be granted, nevertheless it was erroneously granted, the court is bound to vacate the same, unmindful of the consequences. If the suit becomes infructuous as a consequence of vacating the interim injunction,that event would take place. It cannot be attributed as the error committed by the Court. It was held that the practice of applying for interim injunction, grant of which would have the immediate effect of adversely affecting persons who are not parties to the suit,should be deprecated . In Varghese's case (supra), the court held that, where a person against whom the order of injunction was to operate was not made a party, injunction cannot be issued. 12. Applying the above legal propositions to the facts of this case, it is clear that the plaintiff had approached the court below with unclean hands and obtained an order affecting the rights of the petitioner, who was not made a party. Necessarily, Ext.P7 order is O.P.(C) No.662/2019 10 liable to be vacated. 13. It was submitted at the time of hearing that, subsequently, reelection was held on 3/3/2019 with petitioner and the plaintiff in the fray. The result could not be declared in the light of the interim order of this Court dated 28/2/2019 by which it was ordered that the result of the election held on 3/3/2019 shall not be declared without the permission of this court. Since Ext.P7 order cannot be sustained in the eye of law, the original petition is liable to be allowed and the impugned order is liable to be set aside. 14. In the result, the original petition is allowed . Ext.P7 order stands set aside. Consequently, interdiction of this court dated 28/2/2019 directing the general body not to announce the result of election held on 3/3/2019 shall also stand vacated. Association will be free to proceed with the annual general body and to declare the result of the election held on 3/3/2019. The original petition is allowed as above. **Sd/-** **SUNIL THOMAS** dpk **JUDGE** O.P.(C) No.662/2019 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTERED BYE-LAW OF THE 2ND RESPONDENT.** **EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S.NO.154/2019 DATED 30/01/2019 FILED BY THE 1ST RESPONDENT HEREIN BEFORE THE FIRST ADDITIONAL MUNSIFF COURT, ERNAKULAM.** **EXHIBIT P2 TRUE COPY OF THE I.A.NO.892/2019 IN O.S.NO.154/2019 DATED 30/01/2019 FILED BY THE 1ST RESPONDENT BEFORE THE FIRST ADDITIONAL MUNSIFF COURT, ERNAKULAM.** **EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT DATED 15/02/2019 FILED BY THE 1ST DEFENDANT IN O.S.NO.154/2019 BEFORE THE FIRST ADDITIONAL MUNSIFF COURT, ERNAKULAM.** **EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.892/2019 IN O.S.NO.154/2019 DATED 19/02/2019 FILED BY THE 1ST RESPONDENT BEFORE THE FIRST ADDITIONAL MUNSIFF COURT, ERNAKULAM. EXHIBIT P5 TRUE COPY OF THE IA.NO.1227/2019 IN O.S.NO.154/2019 DATED 13/02/2019 FILED BY THE 1ST RESPONDENT BEFORE THE FIRST ADDITIONAL MUNSIFF COURT, ERNAKULAM. EXHIBIT P6 THE TRUE COPY OF THE ORDER DATED 21/02/2019 IN IA.1227/2019 IN O.S.NO.154/2019 PASSED BY THE FIRST ADDITIONAL MUNSIFF COURT. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 21/02/2019 IN I.A.NO.892/2019 IN O.S.NO.154/2019 PASSED BY THE FIRST ADDITIONAL MUNSIFF COURT.** **EXT.R3(H) COPY OF THE RERLEVANT PAGE OF THE KOA NEWS FOR THE YEAR 2016. EXT.R3(I): COPY OF THE RELEVANT PAGE OF THE KOA NEWS FOR THE YEAR 2017. EXT.R3(J): COPY OF THE RELEVANT PAGE OF THE KOA NEWS FOR THE YEAR 2018.** **EXT.R3(K): COPY OF THE NOMINATION DATED 15/10/2018 SUBMITTED BY THE** O.P.(C) No.662/2019 12 ## **PETITIONER.** **EXT.R3(L): COPY OF THE MINUTES OF THE ELECTION COMMITTEE DATED 4/11/2018.** **EXT.R3(M): COPY OF THE LETTER DATED 4/11/2018 SENT BY THE 3RD RESPONDENT ALONG WITH THREE ZONAL ELECTION OFFICERS.** **EXT.R2(A); COPY OF THE MINUTES OF THE ANNUAL GENERAL BODY MEETING HELD ON 26/1/2018 AT 4.45 P.M.** **EXT.R2(B): COPY OF THE NOTICE DATED 19/5/2019 OF THE SPECIAL GENERAL BODY SCHEDULED TO BE CONDUCTED ON 9/6/2019 WITH AGENDA.** **EXT.R2(C): COPY OF THE MINUTES OF THE SPECIAL GENERAL BODY MEETING CONDUCTED AT KOLLAM ON 26/1/2019 AT 4.45 P.M.** **EXT.R2(D): COPY OF THE NOTIE OF THE SPECIAL EXECUTIVE COMMITEE DATED 2/5/2019 WITH AGENDA.** **EXT.R2(E): COPY OF THE MINUTES OF THE SPECIAL EXECUTIVE COMMITTEE HELD ON 12/5/2019.** **EXT.R2(F): COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT IN IA NO. 892/2019 IN OS NO. 154/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, ERNAKULAM.** ## **EXT.R2(G) COPY OF THE LEGAL NOTICE DATED 4/4/2019 ISSUED BY THE 3RD RESPONDENT'S LAWYER.** **EXT.R2(H): COPY OF THE MEMORANDUM ALONG WITH BYE LAW WHICH IS BEING FOLLOWED AND APPROVED BY THE GENERAL BODY OF THE PETITIONER/2ND RESPONDENT ASSOCIATION.** **EXT.R2(I). COPY OF THE CONSOLIDATED CHANGES IN THE BYE LAW TO BE PLACED IN THE SPECIAL GENERAL BODY MEETING SCHEDULED TO BE CONDUCATED ON 9/6/2019.** **EXT.R2(J): COPY OF THE CERTIFICATE OF REGISTRATION DATED 5/8/2992 OF THE KERALA ORTHOPAEDIC ASSOCIATION REGISTERED UNDER THE TRAVANCORE COCHIN LITERARY, SCIENTIFIC AND CHARITABLE SOCIETIES REGISTRATION ACT, 1955.** **EXT.R2(K): COPY OF THE MEMORANDUM OF ASSOCIATION AND BYELAWS GIVEN FOR REGISTRATION ALONG WITH THE COVERING LETTER DATED 5/8/1992 ADDRESSED TO THE DISTRICT REGISTRAR(GENERAL)** .