KERALA VYPARA VYAVASAYA EKOPANA SAMITHY, Kayamkulam Unit Committee v CINIL SABAD and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 2ND DAY OF NOVEMBER 2016/11TH KARTHIKA, 1938** ## **OP(C).No. 2750 of 2016 (O) ---------------------------** ## **IA.NO.2069/2016 IN OS.NO.304/2016 OF MUNSIFF COURT, KAYAMKULAM ---------------** ## **PETITIONER(S): -------------** **KERALA VYPARA VYAVASAYA EKOPANA SAMITHY, KAYAMKULAM UNIT COMMITTEE, REPRESENTED BY GENERAL SECRETARY, B. SELVAKUMAR, S/O. BHASKARAN, AGED 54 YEARS, PADMAS, KALLUMMOOD, CHIRAKKADAVOM, KAYAMKULAM.** **BY ADVS.SRI.C.S.MANILAL SRI.S.NIDHEESH** **RESPONDENT(S):** **--------------** **1. CINIL SABAD, S/O. SABAD KUTTY, SAMLA BHAVANAM, KALLUMMOODU, KAYAMKULAM PRESIDENT (ADHOC) KERALA VYPARA VYAVASAYA EKOPANA SAMITHY, KAYAMKULAM 690 502.** **2. P. SOMARAJAN, S/O. PURUSHOTHAMAN, KIRAN, PUTHUPPALLY SOUTH, KAYAMKULAM, GENERAL SECRETARY (ADHOC), KERALA VYAPARA VYAVASAYA EKOPANA SAMITHI, KAYAMKULAM, KAYAMKULAM 690 502.** **3. NIJUMUDHEEN ALUMMOOTTIL, ALUMMOOTTIL, CHERUVALLY MURI, KAYAMKULAM 690 502.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **OP(C).No. 2750 of 2016 (O)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 TRUE COPY OF THE COPY OF THE BYELAW OF THE VYAPARA VYAVASAYA EKOPANA SAMITHI EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 18-06-2016 ISSUED TO THE 3RD RESPONDENT EXHIBIT P3 TRUE COPY OF THE SUIT O.S NO 304/2016 BEFORE THE MUNSIFF COURT, KAYAMKULAM FILED BY THE RESPONDENTS 1 AND 2 EXHIBIT P4 TRUE COPY OF THE INJUNCTION APPLICATION I.A NO 2069/16 IN O.S NO 304/2016 EXHIBIT P5 TRUE COPY OF THE ORDER DATED 9-9-2016 IN I.A NO 2069/16 IN O.S NO 304/16 EXHIBIT P6 TRUE COPY OF THE APPLICATION I.A NO 2875/2016 IN I.A NO 2069/2016 IN O.S NO 304/2016 EXHIBIT P7 TRUE COPY OF THE APPLICATION I.A 2909/2016 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT COURT SEEKING TO IMPLEAD IN THE SUIT RESPONDENT(S)' EXHIBITS ----------------------NIL. / TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **K. RAMAKRISHNAN, J.** ....................................... O.P.(C).No.2750 of 2016 ........................................ Dated this the 2[nd] day of November, 2016. ## **JUDGMENT** This is a petition filed by the petitioner challenging Ext.P5 order passed by the court below under Article 227 of the Constitution of India. 2. It is alleged in the petition that the petitioner is the General Secretary of Kayamkulam unit of Vyapari Vyavasaya Ekopana Samithi and it is governed by its byelaw evidenced by Ext.P1. The Kayamkulam Unit owns and possess land and a two storied building as per the Document No.1438/2003 of SRO Kayamkuam dated 12.6.2003. The ground floor of the building was let out to the Kayamkulam Vyapari Vyavasaya Co.operative Society and the first floor is being used as the office of the unit. The entire possession and rights over the office is with the elected committee which is now in power of which the petitioner is the General Secretary. While so, the adhoc District Committee of the Samithi, Alappuzha claimed that the unit committee at Kayamkulam was dismissed for anti association activity and there was no written communication or order that has been issued to the unit committee or to the petitioner. On 18.6.2016, a communication was issued to the third respondent herein who is the elected President of the unit stating that the first respondent has been nominated as adhoc President and the second 2 O.P.(C).No.2750 of 2016 respondent was nominated as adhoc General Secretary. It was also directed to handover possession of the premises, office, documents and other valuables evidenced by Ext.P2. It was never communicated to the petitioner as General Secretary of the unit. According to Clause 64(a) of Ext.P1, the President of the unit committee can be removed only by the general body of the unit committee. There was no such general body convened. So according to the petitioner, Ext.P2 itself is void ab initio. Respondents 1 and 2 filed OS.No.304/2016 evidenced by Ext.P3 before the Munsiff Court, Kayamkulam for injunction restraining the sole defendant namely respondent No.3 herein that too in his personal capacity not to cause any sort of obstruction to the smooth functioning of the unit committee. The petitioner as the General Secretary of the unit is the custodian of the property and records who was not made party to the suit. As per clause 42 of the byelaw the General Secretary alone is competent to represent the unit in legal proceedings. So the suit itself is not maintainable. Respondents 1 and 2 filed Ext.P4 for injunction as IA.No.2069/2016 in OS.No.304/2016 for interim injunction and Ext.P5 order was passed. The petitioner was not aware of the order as he was not a party to the proceedings. Respondents 1 and 2 filed Ext.P6 application as IA.No.2875/2016 seeking police aid to take over possession of the property. At that time, the O.P.(C).No.2750 of 2016 3 petitioner filed IA.No.2909/2016 before the Munsiff court to implead him in the suit evidenced by Ext.P7. It is posted to 11.11.2016 for objection and hearing. So far no action has been taken. While so, the petitioner filed OS.No.467/2016 before the Munsiff Court, Kayamkulam challenging Ext.P2 and also for injunction, filed interim injunction application but that was not granted. That is posted to 8.11.2016 for return of notice. So the petitioner has no other remedy except to approach this court seeking the following reliefs: _(i) set aside Ext.P5 order._ _(ii) Issue appropriate order or direction directing the Munsiff Court, Kayamkulam to consider and dispose of Ext.P7 within a time frame enabling the petitioner to move under Order 39 Rule 4 and further direct Ext.P5 to be kept in abeyance till the statutory exercise under Order 33 Rule 4 is decided on merit by the court below._ 3. Heard Sri. C.S. Manilal, learned counsel appearing for the petitioner. 4. Learned counsel appearing for the petitioner submitted that as per Ext.P1 byelaw the General Secretary, Kerala Vyapari Vyavasaya Ekopana Samithi, Kayamkulam Unit can be represented only by General Secretary and he was not made party to the suit. Further without hearing him, an order has been passed which is not binding on him. Further, now respondents 1 and 2 are trying to O.P.(C).No.2750 of 2016 4 enforce that order using police force and they want to take over possession of the office on the guise of Ext.P2 illegal order which is under challenge in OS.No.467/2016 of the same court. According to him, till the impleading application is disposed of, injunction order will have to be kept in abeyance and a direction will have to be given to the court below to expedite the disposal of that injunction application. He had also submitted that since he being a non party to the proceedings, he can challenge the order by filing a petition under Article 227 of the Constitution of India. He had relied on the decision reported in _**Varghese v. Fast Line Builders and Developers Kerala Pvt.**_ (2013 (2) KLT SN 92 Case No.116) in support of his case. 5. The petitioner is now claiming to be the General Secretary of Kerala Vyapari Vyavasaya Ekopana Samithi, Kayamkulam unit committee. According to the petitioner, as per Ext.P1 byelaw, he alone is entitled to represent the committee. Admittedly respondents 1 and 2 have filed Ext.P3 suit as OS.No.304/2016 before the Munsiff Court, Kayamkulam impleading the third respondent herein who was the then elected President of the committee seeking an injunction restraining him from obstructing the petitioners therein from functioning as office bearers of the committee. They relied on Ext.P2 intimation given by the District Unit of the Kerala Vyapari Vyavasaya Ekopana Samithi removing O.P.(C).No.2750 of 2016 5 the Secretary and the President and entrusting the same to an adhoc committee represented by the plaintiffs in that case. It is seen from Ext.P5 that the order was passed on 9.9.2016. Since the order was not complied with, the plaintiffs in that suit filed an application for implementing the order with police aid, that application is pending. It is at that time that the petitioner herein filed an application as IA.No.2909/2016 to implead him in the injunction application and also in the suit. That is pending. It is also seen from the averments in the petition itself that the petitioner himself as Secretary of the unit filed OS.No.467/2016 before the same court challenging Ext.P2 order whereby the plaintiffs in OS.No.360/2016 were appointed as adhoc committee and also sought for temporary injunction but interim injunction was not granted and it was posted to 11.11.2016 for objection and hearing. So under such circumstances, this court feels that it is not proper for this court to pass an interim order as prayed for in the petition. This court feels that the petition can be disposed of directing the court below to expedite the disposal of the impleading application and if any application has been filed by the petitioner before that court to keep the implementation of the injunction order pending, then that also can be considered by the court below and pass appropriate orders in that petition. Since the petitioner has already moved an application for impleading in the O.P.(C).No.2750 of 2016 6 same suit, this court feels that the dictum laid down in the decision reported in _**Varghese v. Fast Line Builders and**_ _**Developers Kerala Pvt.**_ (2013 (2) KLT SN 92 Case No.116) is not applicable to the facts of this case as the petitioner has already elected to implead himself in the suit and challenge that order. So the petition is disposed of as follows: The Munsiff, Kayamkulam is directed to expedite the disposal of IA.No.2069/2016 in OS.No.304/2016 pending before that court as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of this judgment. If the petitioner files an application for keeping interim injunction order in abeyance till the disposal of that application, the court below is directed to pass appropriate orders in that application also after hearing both sides. Registry is directed to communicate a copy of this judgment to the concerned court by phone immediately followed by Fax. ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl