Jose De Almeida & Others v Union of Anglo Indian Associations & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943 ``` ## **`OP(C) NO. 948 OF 2021`** ``` AGAINST THE ORDER/JUDGMENT IN CMA 6/2021 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM ``` ``` OS 1236/2020 OF III ADDITIONAL MUNSIFF COURT, EKM (RENT CONTROL) ``` ## **`PETITIONER/S:`** - **`1 JOSE DE ALMEIDA, AGED 68 YEARS`** ``` S/O. JOHN. D ALMEIDA, RODENSA ENCLAVE, THAIPARAMBIL HOUSE, POPULAR ROAD, VADUTHALA, COCHIN - 682023. ``` - **`2 JUDE A LUIZ, S/O. LATE LAWRANCE LUIZ, CHERUPUNATHIL HOUSE, NEAR PACHALAN JN, PACHALAM P.O, COCHIN - 682012.`** ``` 3ADRIN RODRIGUES LEONS APARTMENTS, ROSHAN LANE, OPP. SARITHA THEATER, BANERJI ROAD, COCHIN - 682018. ``` - **`4 GILROY JOHN LUIZ,`** ``` S/O. ANTONY WILLIAM LUIZ, LUIZ ESTATE, K.D. PLOT P.O, SOUTH KALAMASSERY, PIN - 683104. ``` ``` BY ADVS. ABRAHAM MATHEW (VETTOOR) SRI.ANIL ABEY JOSE ``` ## **`RESPONDENT/S:`** ``` 1THE UNION OF ANGLO INDIAN ASSOCIATIONS (REG. NO.9/1953) KERALA STATE, M.G. ROAD, PERUMANOOR, KOCHI - 682015, REPRESENTED BY ITS GENERAL SECRETARY, MARSHAL D'CUNHA, ``` ``` OP(C) NO. 948 OF 2021 ``` ``` 2 ``` ## **`AGED 51 YEARS, S/O. MARTIN D'CUNHA.`** ``` 2DALBIN D'CUNHA AGED 64 YEARS S/O. THOMAS, PRESIDENT IN CHIEF, UNION OF ANGLO INDIAN ASSOCIATIONS, M.G. ROAD, PERUMANOOR, KOCHI - 682015. ``` ``` 3MARSHAL D' CUNHA AGED 51 YEARS S/O. MARTIN D'CUNHA, GENERAL SECRETARY, THE UNION OF AGNLO INDIAN ASSOCIATIONS, KERALA STATE, M.G.ROAD, PERUMANOOR, KOCHI - 682015. ``` ``` BY ADV MANU ROY ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 948 OF 2021 ``` ``` 3 ``` ## **J U D G M E N T** In this original petition filed under Article 227 of the Constitution of India, the plaintiffs in OS No. 1236 of 2020 on the file of the III Additional Munsiff's Court, Ernakulam, challenge the order dated 14.01.2021 in I.A. No. 6/2020 in I.A. No. 2/2020 and judgment dated 16.03.2021 in CMA No.6/2021. 2. The plaintiffs are life members of the 1[st] defendant Union (The Union of Anglo Indian Associations) registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. According to the plaintiffs, they are eligible to participate and exercise their right to vote in the general body meetings and other meetings of the 1[st] defendant association, which has 45 Member Associations all over Kerala with 100 life members. As per Clause 7 of the Articles of Association, the official term of office of the governing committee of the 1[st] defendant Union is two years. On 08.07.2018, the governing ``` OP(C) NO. 948 OF 2021 ``` ``` 4 ``` committee of the 1[st] defendant Union with defendant No. 2 as its President-in-chief and defendant No. 3 as General Secretary was constituted. Their term of office, according to the plaintiffs, expired on 07.07.2020. They are not entitled to continue to hold the office anymore or competent to transact any business of the 1[st] defendant Union. Defendant Nos. 2 and 3 did not take any steps to conduct elections to the Member Associations. The 1[st] defendant Union issued a notice for an Annual General Body Meeting to be convened on 13.12.2020 to the members of their choice alone. Defendant Nos. 2 and 3 convened the meeting in a place, which was not indicated in the notice issued for the meeting. Defendant No. 3 communicated a notice dated 14.12.2020 intimating the proposed General Election to the 1[st] defendant. The attempt of defendant Nos. 2 and 3 and their supporters was to see that the election as manipulated through the Returning Officer remains valid, enabling them to continue in office for a further term of two years. ``` OP(C) NO. 948 OF 2021 ``` ``` 5 ``` Therefore, the plaintiffs prayed for a temporary injunction to restrain defendant Nos. 2 and 3 or anybody under them from taking any further action pursuant to the meeting held on 13.12.2020. 3. Respondents/Defendants resisted the application contending that the Annual General Body Meeting was conducted on 13.12.2020 with a proper quorum. They further contended that plaintiff Nos. 1 to 4 participated in the Annual General Body Meeting, but plaintiff Nos. 1 and 3 did not sign the attendance register. The election could not be conducted in time due to the Covid-19 restrictions imposed by the Government in view of the pandemic. Since Covid -19 restrictions were too strict and the Government had imposed a ban under Section 144 of the Cr.P.C., the election could not be conducted as scheduled. Another letter dated 16.11.2020 was sent to all Member Associations to conduct the Annual General Body Meeting. As per the said letter, time was given for those Member Associations who ``` OP(C) NO. 948 OF 2021 ``` ``` 6 ``` have not conducted election, to conduct the election by convening the Annual General Body Meeting and to submit the details of elected persons on or before 28.12.2020 and thereby giving maximum opportunity to the Member Associations to conduct the Annual General Body Meeting (AGM). The governing committee meeting held on 29.11.2020 suggested the name of Advocate Sri. Vimal Raj to be the Returning Officer to conduct the election and to take approval from the AGM. 4. The Returning Officer has finalized the voters’ list. The names of the petitioners/ plaintiffs were in the voters’ list and they all have the right to conduct the election. The entire formalities for conducting elections have been completed by the Returning Officer. Therefore, the petitioners/Plaintiffs are not entitled to the prohibitory injunction as prayed for. 5. Exts.A1 to A12 were marked on the side of petitioners/plaintiffs. Exts. B1 to B5 were marked on the side ``` OP(C) NO. 948 OF 2021 ``` ``` 7 ``` of respondents/defendants. 6. After appreciating the rival contentions and in the light of the materials placed, the Trial Court held that the petitioners/plaintiffs failed to establish a prima facie case for getting the relief as prayed for and the balance of convenience is also in favour of the respondents/defendants. The plaintiffs challenged the order dismissing I.A. No. 6/2020 in I.A. No. 2/2020 in O.S. No. 1236/2020 before the District Court, Ernakulam in CMA No. 6/2021. The appeal was made over to the II Additional District Court, Ernakulam, which confirmed the findings of the Trial Court. The petitioners/plaintiffs are before this Court challenging the impugned orders passed by the Trial Court and the District Court. 7. Heard Sri. Abraham Mathew, the learned counsel appearing for the petitioners/plaintiffs and Sri. Manu Roy, the learned counsel appearing for the respondents/defendants. ``` OP(C) NO. 948 OF 2021 ``` ``` 8 ``` 8. The learned counsel for the petitioners Sri. Abraham Mathew submitted that there is an error apparent on the face of the proceedings, and therefore, the orders impugned require interference. 9. The learned counsel for the respondents, Sri.Manu Roy supported Exts.P10 and P15 orders contending that no irregularity or injustice was caused to the petitioners. After appreciating the materials placed before the Court the Trial Court took note of the fact that the election process of the 1[st] respondent Union has already started and the election notice was published vide letter dated 14.12.2020. The Court also appreciated that the Member Associations of the 1[st] respondent Union were given direction to conduct the election on or before 28.12.2020 so as to expedite the election to the Union. The Trial Court was of the opinion that there was no clarity in the averments of the petitioners/plaintiffs that several Member Associations had not been included in the voters’ list. ``` OP(C) NO. 948 OF 2021 ``` ``` 9 ``` 10. The decision of the Trial Court is basically on the following reasons; i) Since the term of respondents 2 to 4 had expired, only if election to the 1[st] respondent is allowed to be conducted there can be new office bearers to the 1[st] respondent. ii) Since the election process to the 1[st] respondent has already commenced, it is not proper to stall the election to the 1[st] respondent. 11. Mainly based on the above reasonings and the further finding that the petitioners failed to establish the contentions that several Member Associations were not included in the voters’ list, the Trial Court held that the plaintiffs failed to establish a prima facie case and the balance of convenience is in favour of the respondents and rejected the prayer for an interim injunction. The First Appellate Court confirmed those findings holding that, if injunction as sought for by the petitioners is granted, it ``` OP(C) NO. 948 OF 2021 ``` ``` 10 ``` would result in a stalemate situation as stated above, and it would cause hindrance to the functioning of the present committee of the 1[st] respondent Union elected vide election conducted on 17.01.2021 and would create a vacuum. 12. In the present case, the legal right assailed by the plaintiffs/petitioners and its alleged violations are both contested and uncertain. Those rights are to be established at the trial on evidence. 13. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion, the court applies the following tests - (i) whether the plaintiffs have a prima facie case, (ii) whether the balance of convenience is in favour of the plaintiffs/petitioners, and (iii) whether the plaintiffs would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when ``` OP(C) NO. 948 OF 2021 ``` ``` 11 ``` the existence of the legal right assailed by the plaintiffs and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of the interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. However, the need for such protection has to be weighed against the corresponding need to the defendant to be protected against injury resulting from violation of his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the balance of convenience lies. The trial court and the District Court weighed the need projected by the petitioners/plaintiffs and the one placed by the respondents/defendants and recorded the finding that balance of convenience lies in favour of the defendants. 14. On an analysis of the entire materials on record, this Court finds that the Trial Court and the District Court ``` OP(C) NO. 948 OF 2021 ``` ``` 12 ``` have exercised the discretion reasonably and in a judicial manner. In **Wander Limited vs. Antox India Private Limited (1990 Supp. SCC 727)** , the Hon'ble Apex Court held thus: " The appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the ``` OP(C) NO. 948 OF 2021 ``` ``` 13 ``` trial court's exercise of discretion". 15. This view was reiterated by the Apex Court in **Seema Arshad Zaheer Vs. Municipal Corporation [2006 (4) KLT 65 (SC)]** . 16. Therefore, the District Court is justified in not interfering with the discretionary relief granted by the Trial Court. 17. The power under Article 227 of the Constitution of India would be restricted to interference grave dereliction of duty or flagrant violation of law. It would be exercised most sparingly in cases where grave injustice would be done unless the High Court interferes. It cannot be used as an appellate or revisional power. 18. The supervisory jurisdiction is not available to correct mere errors of fact or law unless the following requirements are satisfied-- (1) the error is manifest or apparent on the face of the proceeding such as when it is based on clear ignorance or utter disregard of the provisions ``` OP(C) NO. 948 OF 2021 ``` ``` 14 ``` of law; and (2) a grave injustice or gross failure of justice occasioned thereby. 19. Therefore, this Court is of the view that the impugned orders require no interference on merits. 20. The learned counsel for the petitioners, Sri. Abraham Mathew submitted that the District Court had exceeded its powers while recording the finding that based on clause 3 (c) of the byelaws of the 1[st] respondent Union, it cannot be assumed that the President in Chief and General Secretary of the 1[st] respondent Union have become defunct by 07.07.2020. One of the prayers in the original suit is for a declaration that the governing committee of the 1[st] defendant union headed by the 2[nd] defendant as President in chief has become defunct with effect from 07.07.2020 on account of expiry of its term of office and accordingly, they are not entitled to transact any business including convening of meetings and holding elections of the 1[st] respondent subsequent to that date. ``` OP(C) NO. 948 OF 2021 ``` ``` 15 ``` 21. The learned counsel for the petitioners contended that, the findings of the District Court relying on clause 3 (c) of the byelaws that it cannot be assumed that the President in Chief and General Secretary of the 1[st] respondent Union have become defunct by 07.07.2020 would cause prejudice in the trial. The District Court expressed only a prima facie conclusion. The petitioners/plaintiffs are at liberty to raise their contentions on all those issues before the Trial Court. 22. Having regard to the stakes involved, the Trial Court shall dispose of the original suit within a period of six months from the date of receipt of a copy of this judgment untrammelled by any of the observations of the District Court on the contentious issues. The original petition stands disposed of as above. Sd/- **K.BABU** **JUDGE** LU ``` OP(C) NO. 948 OF 2021 ``` ``` 16 ``` ## **`APPENDIX OF OP(C) 948/2021`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 ``` ``` A TRUE COPY OF THE MOA OF THE 1ST RESPONDENT. ``` ``` EXHIBIT P2A TRUE COPY OF THE AOA OF THE 1ST RESPONDENT. ``` - **`EXHIBIT P3`** ``` A TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 24.11.2020. ``` - **`EXHIBIT P4`** ``` A TRUE COPY OF THE PLAINT IN OS NO. 1236 OF 2020 OF IIIRD ADDL. MUNSIFF COURT, ERNAKULAM DATED 10.12.2020. ``` - **`EXHIBIT P5 A TRUE COPY OF THE VOTERS LIST PUBLISHED BY THE 3RD RESPONDENT AND THE ADVOCATE COMMISSIONER.`** - **`EXHIBIT P6 A TRUE COPY OF THE SUPPLEMENTARY VOTERS LIST PUBLISHED BY THE 3RD RESPONDENT AND ADVOCATE COMMISSIONER DATED 29.12.2020.`** ``` EXHIBIT P7A TRUE COPY OF IA 6 OF 2020 IN I.A. NO.2 OF 2020 IN O.S. NO. 1236 OF 2020 OF IIIRD ADDL, MUNSIFF COURT, ERNAKULAM. ``` ``` EXHIBIT P8A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS DATED 04.01.2021 IN THE I.A 6 OF 2020. ``` - **`EXHIBIT P9`** ``` A TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE PETITIONERS TO THE COUNTER AFFIDAVIT FILED IN I.A NO. 6 OF 2020. ``` ## **`EXHIBIT P10`** ``` A TRUE COPY OF THE ORDER PASSED BY THE HON'BLE MUNSIFF COURT, ERNAKULAM IN IA NO. 6 OF 2020 DATED 14.01.2021. ``` ``` OP(C) NO. 948 OF 2021 ``` ``` 17 ``` ## **`EXHIBIT P11`** ``` EXHIBIT P12 ``` ``` EXHIBIT P13 ``` ``` EXHIBIT P14 ``` ``` EXHIBIT P15 ``` ``` A TRUE COPY OF THE MEMORANDUM OF APPEAL FILED IN CMA 6 OF 2021 DATED 16.01.2021 BEFORE THE HON'BLE DISTRICT COURT, ERNAKULAM EXCEPT DOCUMENT 2 TO 5 IN THE INDEX ``` ``` A TRUE COPY OF THE INTERIM ORDER PASSED BY THE DISTRICT COURT IN IA NO.2 OF 2021 IN CMA 6 OF 2021 DATED 16.01.2021. ``` ``` A TRUE COPY OF THE MINUTES OF THE 1ST RESPONDENT UNION.(RELEVANT PAGES) ``` ``` A TRUE COPY OF A NOTICE ISSUED BY THE 3RD RESPONDENT DATED 26.01.2021. ``` ``` A TRUE COPY OF ORDER PASSED BY THE HON'BLE DISTRICT COURT IN CMA 6 OF 2021 DATED 16.03.2021. ``` ## **`// True Copy // PA To Judge`**