George K. Kuruvila and Unnikrishnan M.L. v. Dr. P. Gopinath and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 16TH DAY OF NOVEMBER 2017/25TH KARTHIKA, 1939** **OP(C).No. 1776 of 2017 (O) --------------------------I.A 3204/2017 IN O.S 817/2017 OF MUNSIFF COURT-111, THIRUVANANTHAPURAM** ## **----------** **PETITIONER(S)/DEFENDANTS 4 & 6/COUNTER PETITIONERS 4 & 6: ---------------------------------------------------------** **1. GEORGE K.KURUVILA, AGED 68 YEARS,S/O. KURUVILA, POOTHICATE BHAVAN, BELHAVAN GARDENS, KAWDIAR, THIRUVANANTHAPURAM 695 010** ## **2. UNNIKRISHNAN M.L,** **AGED 55 YEARS, S/O. MANOHARAN, T.C 36/1022,SREEKAMALAM, ENCHAKKAL JUNCTION, VALLAKKADAVU P.O, THIRUVANANTHAPURAM 18** **BY ADVS.SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA** **RESPONDENT(S)/PLAINTIFF & RESPONDENTS 1 TO 3,5,7 TO 16/PETITIONER: ------------------------------------------------------------------** ## **1. DR.P.GOPINATH,** - **AGED 77 YEARS, S/O. K. PADMANABHAN, CONSULTANT GENERAL PHYSICIAN HAVING ADDRESS AT S.K HOSPITAL, PATTAKULAM, VEERANAKAVU VILLAGE, THIRUVANANTHAPURAM 695 572** ## **2. SRI MULAM CLUV,** - **VAZHUTHACAUD, THIRUVANANTHAPURAM 695 010 REPRESENTED BY ITS SECRETARY** **3. SECRETARY, SRI MULAM CLUV, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 010** ## **4. MATHEW T.C,** - **THE RETURNING OFFICER, SRI MULAM CLUB RESIDING AT 7 K,SARASWATHY NILAYAM,JAWAHAR NAGAR, KAWDIAR P.O, THIRUVANANTHAPURAM 695 003** **5. JOSEPH ABRAHAM AGED ABOUT 59 YEARS, S/O. ABRAHAM, C-13,JAWAHAR NAGAR, THIRUVANANTHAPURAM 695 041** ## **OP(C).No. 1776 of 2017 (O)** ## **---------------------------** ## **6. S.R BAIJU,** **AGED ABOUT 42 YEARS, T.C 11/1939(4) "NANDANAM", PLAMOODU, PATTOM, THIRUVANANTHAPURAM 695 001** ## **7. K.M VARGHESE,** - **AGED ABOUT 58 YEARS, 160, GANDHI NAGAR, THIRUVANANTHAPURAM 695 014** ## **8. ASHWIN R,** - **AGED ABOUT 38 YEARS, S/O. RAJENDRAN, T.C 25/534(1-2),CRP TOWER, KAITHAMUKKU, THIRUVANANTHAPURAM** ## **9. PADMACHANDRAN C,** **AGED ABOUT 54 YEARS, "SREEPADMAM, UNRA-85,PTP NAGAR P.O, THIRUVANANTHAPURAM 695 038** ## **10. BIJU S,** **AGED ABOUT 44 YEARS, S/O. SADASIVAN,"MEENAKSHI" CRA-12 CHEMBUKONAM LANE, VAZHOTTUKONAM, VATTIYOORKAVU, THIRUVANANTHAPURAM 695 013** - **11.BIMAL ROY C.V,** **AGED ABOUT 48 YEARS, S/O. VISHNUDAS,"POURNAMI", KP 5/194, KUDAPPANAKUNNU, THIRUVANANTHAPURAM** ## **12.PRAKASH** **AGED ABOUT 54 YEARS,"SOPANAM", RRVRA, BYE PASS NAGAR,' VALIYAKUNNU, ATTINGAL, THIRUVANANTHAPURAM 695 101** ## **13.SIVAKUMAR R** **AGED ABOUT 38 YEARS, "SIVA COTTAGE", THAZHEVETTIPPURAM, MYLAPPRA P.O, PATHANAMTHITTA** ## **14.SAKTHIDHARAN S.R,** **AGED ABOUT 70 YEARS, HOUSE NO 5, "SAKTHIGEETHAM" SANTHI NAGAR, THIRUVANANTHAPURAM 695 001** **15.DEEPU S,** **AGED ABOUT 41 YEARS, TC 16/832(1),ELAMPAYYIL, SKNRA-137 SREEKRISHNA NAGAR, JAGATHY,KOCHAR ROAD, THYCAUD, THIRUVANANTHAPURAM 695 014** **R1 BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI R2,R3 BY ADV. SRI.R.T.PRADEEP R4 BY ADV. SMT.A.AFREEZAA KHAN R5 TO R15 BY ADV. SRI.M.R.SUDHEENDRAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **OP(C).No. 1776 of 2017 (O)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE ELECTION RESULT** **ANNEXURE A2 TRUE COPY OF THE PLAINT IN O.S NO 817/2017 FILED BY THE 1ST RESPONDENT BEFORE THE MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 30-05-2017 ANNEXURE A3 TRUE COPY OF THE I.A NO 3204/2017 IN O.S NO 817/2017 FILED BY THE 1ST RESPONDENT BEFORE THE MUNSIFFS COURT,THIRUVANANTHAPURAM DATED 30-05-2017 ANNEXURE A4 TRUE COPY OF THE ORDER IN I.A NO 3204/2017 IN O.S NO 817/2017 OF THE MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 31-05-2017 RESPONDENT(S)' EXHIBITS NIL -----------------------** **/TRUE COPY/ K.V. P.S.TO JUDGE** ## **ANIL K.NARENDRAN, J.** ## **---------------------------------------** ## **O.P.(C).No.1776 of 2017** ## **---------------------------------------Dated this the 16[th] day of November, 2017** ## **J U D G M E N T** Petitioners, who are defendants 4 and 6 in O.S.No.817 of 2017 on the file of the Munsiff's Court-III, Thiruvananthapuram, are before this Court in this Original Petition filed under Article 227 of the Constitution of India, seeking an order to call for the records relating to O.S.No.817 of 2017 on the file of the said court and to quash Exts.P2 and P4. Ext.P2 is a copy of the plaint in O.S.No.817 of 2017 and Ext.P4 is a copy of the order of the said court in I.A.No.3204 of 2017, an interlocutory application filed in that suit under Order XXXIX, Rule 1 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'.). 2. On 06.06.2017, when this Original Petition came up for admission, this Court admitted the matter on file and issued notice by speed post to the respondents. This Court has also granted an interim stay of operation of Ext.P4 order of temporary injunction, for a period of one month. The said interim order was extended from time to time. 3. Heard the learned counsel for the petitioners/defendants 4 and 6, the learned counsel for the first respondent/plaintiff, the learned counsel for second and third respondents/ defendants 1 and 2 O.P.(C).No.1776 of 2017 2 and also the learned counsel for other respondents/other defendants. 4. The issue that arises for consideration in this Original Petition is as to whether the petitioners, who are defendants 4 and 6 in O.S.No.817 of 2017 can invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to quash Ext.P2 plaint in O.S.No.817 of 2017 and also to set aside Ext.P4 order granted in that suit, in I.A.No.3204 of 2017 filed in that suit under Order XXXIX, Rule 1 of the Code. 5. The petitioners, who are defendants 4 and 6 in O.S.No.817 of 2017, are members of the first defendant club which is registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. The election to the Executive Committee of the first defendant club for the year 201718 was held on 28.05.2017. In the said election, defendants 4 and 6 were elected as the President and Secretary respectively. Defendants 5, 7 to 16, were elected as the members of the Executive Committee. 6. The plaintiff, who is a permanent life member of the first defendant club filed O.S.No.817 of 2017 seeking a declaration that the result of the election declared by the third defendant Returning Officer as null and void or in the alternative to set aside the same. O.P.(C).No.1776 of 2017 3 He has also sought for an order to restrain and prohibit defendants 4 to 16 from assuming office as office bearers and executive members of the first defendant club for the year 2017-18 or in the alternative to keep status quo of the administration of the club by the present Committee. Along with the said suit, I.A.No.3204 of 2017 was filed seeking temporary injunction restraining defendants 4 to 16 from assuming office as office bearers and executive members of the club for the year 2017-18 or in the alternative to keep status quo of the administration of the club by the present Committee. In the said interlocutory application filed under Order XXXIX Rule 1 of the Code, the court below ordered status quo of administration of the club by the present Committee until further orders. ## 7. In **Shalini Shyam Shetty v. Rajendra Shankar Patil** **[(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice O.P.(C).No.1776 of 2017 4 remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. ## 8. In **Jai Singh v. Municipal Corporation of Delhi [(2010)** **9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It can not be exercised like a 'bull in a china shop', to correct all errors of the 5 O.P.(C).No.1776 of 2017 judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 9. On the question of maintainability of O.S.No.817 of 2015, the learned counsel for the petitioners/defendants 4 and 6 would contend that such a suit is not maintainable in view of the provisions under clause (a) of sub-section (1) of Section 25 of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. In order to buttress the said contention, the learned counsel placed reliance on the decision of this Court in **Kerala Vyapari Vyavasayi v. Kerala Vyapari Vyavasayi Ekopana Samithi [2014 (1) KLT 756]** . Per contra, the learned counsel for the 1[st] respondent/plaintiff would rely on the order of this Court dated 21.12.2010 in C.R.P.No.187 of 2010, wherein after referring to the decision in **Kerala Vyapari Vyavasaya Ekopana Samithi's case (supra)** this Court upheld the maintainability of suit of similar nature. 10. In _**Jacky v. Tiny @ Antony [(2014) 6 SCC 508]**_ , the Apex Court held that the High Court under Article 227 of the Constitution of India has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, O.P.(C).No.1776 of 2017 6 exercise the powers vested in them within the bounds of their authority. If a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Article 226 and 227 of the Constitution of India can be exercised to question a plaint. 11. The question as to whether O.S.No.817 of 2017 is legally maintainable or not is an issue to be raised before that court below by raising appropriate pleadings. Viewed in the light of the law laid down by the Apex Court in the decision referred to supra, the first relief sought for in this Original Petition seeking an order to quash Ext.P2 plaint in O.S.No.817 of 2017 cannot be entertained under Article 227 of the Constitution of India. 12. The further relief sought for in this Original Petition is to set aside Ext.P4 order granted in I.A.No.3204 of 2017 in O.S.No.817 of 2017, which is an interlocutory application filed under Order XXXIX, Rule 1 of the Code. 13. In **A.Venkatasubbaiah Naidu v. S.Chellappan [(2000) 7 SCC 695]** the Apex Court held that, any order passed in exercise of the powers under Order XXXIX, Rule 1 of the Code of Civil Procedure would be appealable as indicated in Order XLIII, Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the same court 7 O.P.(C).No.1776 of 2017 which passed the ex parte order for any relief. Though no hurdle can be put against the exercise of the constitutional powers under Article 227 of the constitution of India, it is well recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies, one or the other, before he resorts to a constitutional remedy. 14. Ext.P4 order granted in I.A.No.3204 of 2017 is an applealable order under Order XLIII, Rule 1(r) of the Code. The choice is for the petitioners/defendants 4 and 6 either to move the appellate court or to approach the court below which passed Ext.P4 order for any relief. Therefore, the challenge made against Ext.P4 order cannot also be entertained in this original petition filed under Article 227 of the Constitution. 15. In such circumstances, this Original Petition can only be dismissed as not maintainable. It is the for the petitioners to work out their remedy against Ext.P4 order before appropriate court. Without prejudice to the said right of the petitioners and also their right to raise the question of maintainability of O.S.No.817 of 2017 before the court below, this Original Petition stands dismissed as not maintainable. 16. The interim order granted by this Court is to the effect of staying the operation of Ext.P4 order of the court below in 8 O.P.(C).No.1776 of 2017 I.A.No.3204 of 2017 in O.S.No.81 of 2017. It is made clear that, the said interim order shall continue to be in force for a period of one week from this date, so as to enable the petitioners to work out their remedy before appropriate court. Once such an application is made, the court below shall consider the same in accordance with law. Sd/- **ANIL K. NARENDRAN JUDGE** AV