K.P. Muhammed and others v. M. Abdurahiman (Regular Second Appeal Nos. 368/388 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** # **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** # **THURSDAY, THE 14TH DAY OF MARCH 2013/23RD PHALGUNA 1934** ## **RSA.No. 368 of 2011 ( )** **------------------------** **AGAINST THE JUDGMENT IN AS.24/2010 of PRL.SUB COURT, KOZHIKODE DATED 14-10-2010** **AGAINST THE JUDGMENT IN OS.537/2008 of PRL.MUNSIFF COURT-II,KOZHIKODE DATED 23-12-2009** ## **APPELLANT(S)/APPELLANT/RESPONDENT/DEFENDANTS:** **----------------------------------------------------------------------------------------** **1. K.P.MUHAMMED, S/O. MOIDEEN KOYA, DHANIYA, CHEVAYOOR AMSOM, DESOM CHEVAYOOR P.O., CALICUT-17.** **2. N.T.MOHAMMED ALI, S/O. N.T.MOHAMMED KUTTY, DAYA MANZIL, KATCHERIPADY VENGARA, MALAPPURAM-676 304.** **3. P.AHMED KOYA, S/O. ABDURAHIMAN KUTTY, 17/1057, AMAN, KASABA AMSOM DESOM, PUTHIYARA P.O., CALICUT-4.** **4. DR. C.P.ABOOBACKER, S/O. AYYAMED KUTTY, SHAMSUL KHAIR, POONGOTTUKULAM, TIRUR P.O. MALAPPURAM-676 101.** **5. K.M.FARIYA, D/O. ALIKOYA, PUTHENVEEDU P.O., CHALIYAM, CALICUT-673 301.** **6. V.THAHIRA, D/O. V.S.A.THANGAL, VARAYALIL HOUSE, AYENCHERY, VADAKARA TALUK KOZHIKODE.** **7. V.K.BAVA, S/O. ABDULLA KOYA HAJEE, KULANGARA HOUSE, FEROKE AMSOM DESOM, KOZHIKODE TALUK.** **8. K.ZEENATH, D/O. K.P.ABDUL KHADER, 22/1202, THIRUVANNUR, KOZHIKODE.** **...2** **-2-** ## **RSA.No. 368 of 2011 ( )** **9. K.M.MOHAMMED ZAHIR, S/O. AHMED KUTTY, 22/382, WOOD ROSE, THIRUVANNUR P.O. KOZHIKODE-673 029.** **10. PARAYARUKANDI SAIDUTTY, S/O. MOIDEEN, KOUSAR MANZIL, PUVATTUPARAMB P.O., CALICUT-673 008.** **11. ABDUL SALEEM C.C., S/O. KOYAN KUTTY S., BUNGALOW P.O., CHALIYAM, CALICUT-673 201.** **12. ABDU SHUKKUR THALATHIL, S/O. T.HUSSAIN, THALATHIL, NANJILATH, KODIYATHOOR P.O. MUKKAM, KOZHIKODE.** **BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.SUNIL JACOB JOSE** ## **RESPONDENT(S)/PLAINTIFF/RESPONDENT/RESPONDENT:** **--------------------------------------------------------------------------------------------** **M.ABDURAHIMAN, S/O. KUTTIYAMU, MALIYATHARAKKAL HOUSE, KODIYATHOOR P.O., MUKKAM CALICUT-673 602.** **BY ADVS. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2013, ALONG WITH FAO. 24/2011, FAO. 34/2011, RSA. 388/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ RSA Nos. 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011 -----------------------------------------Dated this the 14[th] day of March, 2013 ## **J U D G M E N T** RSA No.368/2011 is against the judgment in A.S. No. 24/2010 which was against the judgment in O.S. No.537/2008. That suit (O.S. No.537/2008) was filed by the plaintiff Mr.Abdul Rahiman for a declaration that the decision taken by the Registrar of Societies (General), Kozhikode on 4.4.2008 approving the list of members of the governing body consisting of defendants 1 to 5 and 7 to 12 shown therein, is illegal and improper on the ground that no valid election was held on 12.3.2008. The further relief sought for in that suit was for a declaration that the expulsion of the plaintiff (Mr. Abdul Rahiman) from the Executive Committee of Association for Welfare of the Handicapped (AWH) held on 24.6.2007 and the decision allegedly taken on that day and also the decision to remove ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-2-** the plaintiff from the General Body of AWH taken on 20.2.2008, are illegal and contrary to the bye-laws of AWH. It was also sought for, that there be a declaration that the plaintiff continues to be a member of the AWH and that the meetings alleged to have been held by defendants 1 to 5 and 7 to 12 on the basis of their alleged election to the governing body on 12.3.2008 are illegal, null and void. A subsequent relief of prohibitory injunction was also sought that defendants 1 to 5 and 7 and 12 be restrained from functioning as the office bearers of the governing body of AWH for the period 2008 – 2011. That suit was decreed by the trial court. The appeal filed against the said decree and judgment as A.S. No.24/2010 was dismissed by the lower appellate court. 2. R.S.A. No. 388/2011 is filed against the decree and judgment in A.S. No.32/2010 which was filed against the decree and judgment in O.S. No. 365/2009. This suit **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **==> picture [18 x 9] intentionally omitted <==** was filed by the Society (AWH), represented by its Secretary as the 1[st] plaintiff and the Secretary himself as the 2[nd] plaintiff against the President and four others as defendants, for injunction restraining the defendants from trespassing into the Head Office of the Association (AWH) or its institutions or from obstructing the newly elected office bearers from discharging their functions. A further relief of mandatory injunction was also claimed directing the defendants to hand over the entire files of the Association to the plaintiff. There was a claim for damages to the tune of Rs.68,000/- also in that suit. That suit was dismissed by the trial court. The appeal filed against the same as A.S. No.32/2010 was also dismissed. 3. O.S. No.368/2008 was filed by the Association for Welfare of the Handicapped represented by its Secretary, Dr.T.Mohammed as the 1[st] plaintiff and by Dr.T.Mohammed himself as the 2[nd] plaintiff and Dr.Kunhi Ahamed Kutty as **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-4-** the 3[rd] plaintiff. That suit was filed for a declaration that the defendants 1 to 5 and 7 to 12 shown therein are illegally elected office bearers and that the Executive committee elected on 24.3.2008 is an illegally elected Committee. Consequential reliefs were also claimed in that suit. A decree was passed by the trial court in that case to the effect that the elections to the Executive Committee of AWH alleged to have been held on 12.3.2008 and 24.3.2008 by the rival groups are invalid. The decision taken, ordering expulsion of three members – Dr.Fakrudeen, Dr.Ayisha Kalliyath and Dr.Abdul Rahiman from the Executive Committee on 24.6.2007 was declared invalid. The expulsion of those three members from the General Body of AWH was also declared invalid. Admission of 21 members into the General Body of AWH done by the alleged Executive Committee headed by PW1 Dr.Kunh Ahammed Kutty in the meeting alleged to have been held on 26.11.2007 was also **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-5-** declared as invalid. The trial court in that suit held that as on 1.4.2008 AWH was having 41 legally enrolled members. A commissioner was appointed by the court for supervising the General Body meeting of the members of the AWH and for the election of Executive members consisting of 13 members including the office bearers. It was further held that the General Body meeting and election shall be conducted strictly in accordance with the provisions of Ext.A5 bye-laws after giving notices to all the aforesaid 41 members. It was further directed that the Commissioner appointed by the court shall act as the Returning Officer in the election. The entire process of election was directed to be completed within two months from the date of judgment. That part of the decree was treated as a preliminary decree. 4. Appeal A.S. No.23/2010 filed against the decree and judgment in that suit (O.S. No.368/2008) was setaside and the appeal was allowed in part; the finding of the trial **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-6-** court that the election is to be conducted by the Executive Committee of AWH was confirmed. But the finding of the trial court regarding the number of valid members of AWH was set aside and the suit was remanded to the trial court for taking a decision afresh regarding the number of valid members giving both sides opportunity to adduce evidence regarding that aspect. Additional parties, if any, sought for were also allowed to be impleaded. The cross objection filed in A.S. No.23/2010 was dismissed. Hence, against the dismissal of the cross objection and the order of remand passed by the trial court and challenging the direction issued by that court, the two FAOs - 24/2011 and 34/2011 have been filed. 5. Two other suits; O.S.No.187/2008 and O.S.No.226/2008 were also tried along with other three suits, namely; O.S.Nos.365/2008, 537/2008 and 368/2008. Those two suits, O.S.Nos.187/2008 and 226/2008 were **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-7-** dismissed as per the common judgment passed by the trial court. The plaintiffs therein filed appeal as A.S.No.30/2010 against the decree and judgment in O.S.No.187/2008. A.S.No.31/2010 was the appeal filed against the decree and judgment in O.S.No.226/2008. Both those appeals were dismissed. No second appeal has been filed challenging the judgments in those two suits confirmed by the appellate court. Both sides would submit that the decision in those two suits have no bearing on the appeals which are now pending consideration in this Court. 6. Association for Welfare of Handicapped hereinafter referred to "AWH" is the Society registered under the Societies Act. It was formed for the purpose of helping the physically handicapped persons. That Society (AWH) is running about 32 educational institutions including an Engineering College. It has got assets worth several crores of rupees. It is getting huge amount as donation or ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-8-** otherwise from foreign countries and elsewhere. The dispute is between two factions, one faction headed by the former President and other faction headed by the former Secretary and so the courts below also dealt with, for convenience, stating that the dispute is between the President's faction and the Secretary's faction. 7. There is a concurrent finding of fact that the decision taken to expel three members - Dr. Abdul Rahiman, Dr. Fakrudheen and Dr. Aysha Kalliyath is illegal. Referring to Ext.A5 bye-law it was held by the courts below that their expulsion was unauthorised and illegal. Clause 9 of Ext.A5 states that the Executive Committee shall expel any member who is absent 'without any cause' for more than three meetings consecutively. Aforesaid three persons were stated to have been expelled on the ground that they did not attend three consecutive meetings. But the words "without any cause" occurring in clause 9 was omitted to be ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **==> picture [18 x 9] intentionally omitted <==** taken note of by the committee. Those three persons who were removed on different occasion were not given any notice and they were thus denied the opportunity to state the reasons for their absence. There was violation of natural justice as well. Since clause 9 itself stipulates as to the necessity of issuing notice so as to enable them to explain, to find whether their absence was without any cause or not, the courts below were perfectly justified in holding that the decision taken by the committee expelling those three persons is illegal and thus a declaration was rightly given that the expulsion of those three members is illegal and inconsequential and as such the courts below were perfectly justified in allowing them to continue to be the members of the Executive Committee. The decision on that issue was rendered by the courts below based on the pleading and evidence and by correctly interpreting the relevant clause in Ext.A5 bye-law and applying the correct ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-10-** principles of law, it is argued. 8. It is argued by the learned counsel for the respondents that the jurisdiction of a civil court is limited as it cannot sit as a court of appeal from the decisions of such body. But it can set aside the order of such a body if the said body acts without jurisdiction or does not act in good faith or acts in violation of principles of natural justice. It was so held by the Supreme Court in **T.P. Daver v. Lodge Victoria No. 363, S.C. Belgaum and Others - - AIR 1963 SC 1144** . It is pointed out that the decision of the Apex Court in **Daver's (cited supra)** was not followed by the Apex court in **D. Dwarakanatha Reddy v. Chaitanya Bharathi Educational Society and Others - AIR 2007 SC 1794** since the controversy in that case did not relate to expulsion of a member. The question therein was whether the appellants therein can be said to have been legally admitted as promoter - members. It is argued by **-11-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** the learned counsel for the respondents relying upon the decision in **St. Philomina Sadhujana Samajam v. Mathew** - **1974 KLT 731;** that the disputed meetings do not disclose that expulsion of certain members from the committee or admission of others as committee members was taken as item in the agenda and so it was not legal or proper for the general body to have taken the decision to expel the three persons including the plaintiff in O.S. No.357/2008. It is also argued that if in the agenda of the general body meeting the admission of new members was not an item for discussion and decision, then certainly, the decision taken in such meetings cannot be valid. It was held in the aforesaid decision as to “what is special business” depends upon the regulations and the body concerned; the true test would appear to be the construction, an absent member would put upon the notice, for, the nature of the business, may, largely determine ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **==> picture [26 x 9] intentionally omitted <==** whether such member shall absent himself from the meeting or not. In that case it was held that it was not legal or proper for the general body to have taken the decision to expel the plaintiff at the meeting because by the agenda that was not a subject which could be decided in that meeting and also because the plaintiff was not given opportunity to meet the case against him for expulsion from the society and hence the decision was declared as void. The decision in **Kodiyathur Panchath v. District Panchayath Officer, Calicut - 1977 KLT 80.** has also been relied upon by the learned counsel for the respondents in support of his submission that resolution could be validly moved only if the subject matter has been included in the notice of business and in the absence of a notice they lost the above right and it is open to them to challenge the decision taken in such a meeting. Considering all these aspects the courts below were justified in holding that the **-13-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** decision taken in the meetings expelling the three members including the plaintiff in O.S. No.537/2008 is illegal and as such I find that no substantial question of law is involved in R.S.A. No. 358/2011 and R.S.A. No.388/2011. 9. The only other matter which deserves consideration is the correctness or otherwise of the order of remand passed by the lower appellate court as against the decree and judgment passed by the trial Court in O.S. 316/2008. Though no relief of election was claimed by the parties to the suit, either the President's faction or the Secretary's faction, the learned Munsiff found that there would be a total vacuum if no direction is issued regarding an election to be conducted in the matter. Even the term of office of the earlier Committee Members stood expired. That apart, the courts below found so many vitiating circumstances to hold that Ext.B2, the minutes book was not maintained properly. Suspicion loomed large on the ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-14-** face of the record, even according to the courts below. A properly elected committee is absolutely necessary for the management of the affairs of AWH which runs about 32 educational institutions and also other institutions. Because AWH is having assets worth crores of rupees and crores of rupees is received as contributions, donations or otherwise, the trial court found that an elected committee is to be at the helm of affairs. The trial court ordered that an election be conducted and for that purpose an Advocate Commissioner was appointed to supervise the election as Observer. Though, that was partly confirmed by the appellate court, that court remanded the suit to decide as to who are the actual valid members. Hence, the two F.A.Os have been filed. 10. The following substantial questions of law are framed :- ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-15-** - (i) Whether the courts below were justified in ordering election to the Executive Committee of a Society by appointing a Commissioner for that purpose when both parties had objected to the same and when no such relief was claimed by any of the parties to the suit ? - (ii) Whether the court can direct a cause of action not arising from the pleadings of the parties, not contemplated by either party to the suit and not prayed for by either party to the suit ? - (iii) Whether the directions issued by the courts below would come within the words "general or other relief" occurring in Order VII Rule 7 of CPC ? - (iv) When the parties did not pray for a remand, was the lower appellate court justified in ordering remand ? **-16-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** 11. It was held by the Apex Court in **Firm Sriniwas Ram Kumar v. Mahabir Prasad and Others - AIR 1951** **SC 177** thus: "But it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material". The decision of the Orissa High Court in **Manugobinda** **v. Brajabandu Misra - AIR 1986 Orissa 281** has also been relied upon in this connection. That was a suit for declaration of exclusive title, confirmation of possession and permanent injunction. The question relates to title of both the parties. Evidence had been let in by both parties. It ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-17-** was held that the mere technicality that the issue was not expressed in the pleadings in suit would be of formal nature and should not be allowed to preclude the court from granting the relief. In **Bhagawati Prasad v. Chandra Maul** **- AIR 1966 SC 735** it was held: "There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the claim on a ground which is entirely new". Following the decisions in **Bay Berry Apartments Pvt. Ltd. and Anr. v. Shobha and Ors - 2006 (10) SCALE 596 - and State Brassware Corporation Ltd. and Anr. v. Udai Narain Pandey - (2006) 1 SCC 479** - it was held by the Apex Court in **Shivakumar Sharma v.** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-18-** ## **Santhosh Kumari - AIR 2008 SC 171** - "Exercise of equity jurisdiction is always subject to the provisions of law. If exercise of equity jurisdiction would violate the express provisions contained in law, the same cannot be done. Equity jurisdiction can be exercised only when no law operates in the field.” It was further held: “Grant of such a relief in the teeth of express provisions of the statute to the contrary is not permissible. On equitable consideration court cannot ignore or overlook the provisions of the statute. Equity must yield to law". 12. The decision in **Lavu Sri Krishna Rao and Ors** **v. Dr. Moturi Nagendra Rao - AIR 2007 Andhra** **Pradesh 25** has also been relied upon in this connection to contend that when a larger relief is prayed for and the ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-19-** claim for the same is not duly established but when the evidence justifies grant of smaller relief, granting of such smaller relief is permissible but under the guise of Order VII Rule 7 C.P.C. a relief larger than the one claimed by the plaintiff in the suit cannot be granted. The decision in **Gulabrao Balwantrao Shinde and others v. Chhabibai** **Shinde and others - AIR 2003 SC 160** was also cited, where it was held that Court cannot make out a new case not pleaded. However as has been stated earlier it depends upon the facts of each case. Here, in fact no prejudice would be caused if the welfare of AWH is the real concern of the true warring groups. As has been said by the learned Munsiff, there would be a stalemate and there would be no elected body to manage and administer AWH and so the contention that it was beyond the pleadings, that directions regarding election were issued by the courts below, cannot be accepted. The lower appellate court has ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-20-** considered the other aspects; namely, as to the actual members who should be declared to be valid members so as to enable them to exercise their right of franchise. Hence, actually no prejudice would be caused to both sides. 13. It was held by the Apex Court in **U.P. State Brassware Corporation Ltd. v. Udai Narain Pandey - -** **AIR 2006 SC 586** : "40. It is one thing to say that the court interprets a provision of a statute and lays down a law, but it is another thing to say that the courts although exercise plenary jurisdiction will have no discretionary power at all in the matter of moulding the relief or otherwise give any such reliefs, as the parties may be found to be entitled to in equity and justice. If that be so, the court's function as court of justice would be totally impaired. Discretionary jurisdiction in a court need not be **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-21-** conferred always by a statute. 41. Order VII Rule 7 of the Code of Civil Procedure confers power upon the court to mould relief in a given situation. The provisions of the Code of Civil Procedure are applicable to the proceedings under the Industrial Disputes Act. Section 11-A of the Industrial Disputes Act empowers the Labour Court, Tribunal and National Tribunal to give appropriate relief in a case of discharge or dismissal of workmen". 14. It was also held by the Hon'ble Supreme Court in ## **Rameshwar v. Jot Ram - AIR 1976 SC 49** : "The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action. Second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-22-** of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varies or reshaped in the light of updated facts". In the aforesaid decision the Hon'ble Supreme Court considered the power of the Court to mould the relief as provided under Order VII Rule 7 C.P.C. The oft quoted decision of the Supreme Court in **Pasupuleti Venkateswarlu v. The Motor & General Traders - AIR** **1975 SC 1409** , has also been relied upon in this connection, where it was held as follows: _“_ It is basic to our **procedural/processual** jurisprudence that the right to relief must be judged to exist as on the date a suitor **-23-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice - subject, of course to the absence of other dis entitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances **-24-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the preposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed". 15. It is vehemently argued by the learned counsel for the respondent that the lower appellate court is not justified in holding that the trial court has jurisdiction to order an election to be conducted invoking the power under Order VII Rule 7 of C.P.C. It is pointed out that no such relief **-25-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** was sought for by either of the parties. Though the Court can mould the relief the Court cannot grant a relief which was never contemplated or sought for by the parties. It is further argued that the lower appellate Court also committed the same error in proceeding as if the election is a lesser relief coming within Order VII Rule 7 when infact it is a distinct and separate relief unconnected and inconsistent with the relief prayed for in the suit and so according to the learned counsel it cannot be charactersied as a lesser relief than what was claimed. According to the respondents, it is in fact a wider or larger relief, for which there was no foundation in the pleadings. It is true that both sides did not want an election to be conducted. Both of them were aiming at the administration or control of AWH and for that purpose they were not so eager or anxious to have an election conducted in the manner suggested by the Court. It is also true that both sides did ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-26-** not seek relief of fresh election so as to handover the administration of AWH to such a committee. It would appear that both sides are not happy with the order passed by the trial court to conduct election in the manner directed by that Court. 16. It is argued by the learned counsel for the appellants in F.A.O. 34/2011 that the ordinary Civil Court has no jurisdiction to travel beyond the pleadings and find out a new case not contemplated or canvassed by the parties. Since no issue was framed and the parties did not adduce evidence pertaining to the same, it cannot be said that the trial court could mould the relief to suit the situation. It is also argued that the civil Court cannot interfere with the internal management of the Society, ordering conduct of election since that was the function of the Executive Committee and/or of the general body of that society and so long as that was not done, it was not ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-27-** proper on the part of the trial court to order conduct of election. 17. It is pertinent to note that the trial Court could find that the decision taken in the Committee to expel three members was illegal. It was also found that the subsequent election conducted and the decision taken by the committee was invalid. So much so, it was found that there was no validly elected committee so as to administer the affairs of AWH. The contention that since there was no dispute regarding the Committee as stood in 2005 the Executive Committee elected in 2005 could have been entrusted with the administration of the society and there was no necessity to order election cannot be accepted in view of the special circumstances obtained in this case. The Civil courts would be perfectly justified in moulding relief in a given situation . The one which was available before the trial Court was a situation where the only alternative ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-28-** was to order election. Therefore, the contention that the trial Court had absolutely no jurisdiction to order election when both sides did not seek such a relief and when the suit was not filed seeking such a relief cannot be accepted in the peculiar circumstances of this case. 18. In the light of these decisions the attack mounted against the direction issued by the trial Court for the conduct of election cannot be sustained. The learned Munsiff has elaborately dealt with the facts of the case and came to the right conclusion that the Executive Committees of the rival groups are not a legally constituted one in accordance with the provisions of Ext.A5. It was also found that AWH is owning assets worth crores of rupees. It was further found by the learned Munsiff that it has got several immovable and movable properties and cash and so if further direction regarding the management of AWH is not given by the Court, the position would be that the rival ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-29-** groups will continue to fight taking law into their own hands which will result in total chaos and deterioration of the situation. These aspects were taken note of by the learned Munsiff to hold that in order to avoid the scramble for power to get at the management of the institution which has assets worth crores of rupees, the only solution is to have a properly elected committee and so for that purpose election should be conducted. It is true that both factions did not file the suit seeking a relief for the conduct of election. But when the suits filed by the parties had to be dismissed for the reasons stated earlier, there was no other alternative but to give a direction that an election should be conducted in the matter. The power conferred in Order VII Rule 7 was rightly invoked by the courts below. The lower appellate Court was perfectly justified in confirming the decision rendered by the learned Munsiff that an election should be conducted for the constitution of the Committee ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-30-** for the proper management of AWH. 19. The lower appellate court did not agree with the view taken by the trial Court with regard to the acceptability and genuineness of the entries in Ext. B2, the minutes book. In paragraph 32 of the trial court judgment it was observed by the learned Munsiff : "Suspicions loom large with regard to the entries in Ext. B2. From page No. 75 onwards, there is a glaring interpolation in the seal of AWH. DW1 or DW2 could not properly explain it. In these seals, two seals are impressed one over the other. It cannot be by any inadvertent error because similar over sealings are seen in the subsequent pages also. The explanation given by DW1 that it is only because of the impression due to excess ink is not at all satisfactory. Initially, the minutes were seen affixed or fastened to the **-31-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** pages. From 26-1-2007 onwards, the minutes are being handwritten. No proper explanation is given by the defendants for this change in the mode of recording the minutes. One more suspicion is regarding the pasting of minutes. Pasting is not seen in sequence. Page No. 47 contains the minutes of the meeting alleged to have been held on 8-12-2005. But page No. 49 is pertaining to the meeting held on 30-11-2005. Page No. 51 contains the minutes of the meeting on 3-12-2005. Page No. 55 and 57 contain different minutes of the same date. There is no explanation why two minutes are recorded for a single meeting. At page No. 63 while noting the number of members attended, it is initially typed as President and four other members and the word "four" is struck off and word five is seen written over it. DW1 **-32-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** or 2 have no explanation how this happened. Similar correction is seen in page No.65 also. Page Nos. 63, 65 and 67 contain the minutes of the same meeting held on 19-12-2005. Why three separate minutes are recorded for the single meeting is not explained. Learned counsel for the plaintiffs pointed out that Ext. B2 has been manipulated by changing the pages, renumbering the pages and pasting them. He also pointed out the plaster attached at the opening page of the book to contend that pages have been reshuffled in Ext.B2. From page No. 17onwards, the page numbers initially given are seen masked or shaded and new numbers have been given. Considering all these aspects, I am not inclined to fully rely on Ext. B2. As already stated by me, suspicion looms large regarding the correctness **-33-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** of all the entries in Ext. B2 though it cannot be said that Ext. B2 is manipulated or forged in its entirety". The lower appellate court has also pointed out some more instances depicting the manipulation and fabrication done with regard to Ext.B2, the minutes book. From page no. 17 onwards it was seen that the machine printed numbers are shaded, erased or masked and new numbers are seen written . Such manifest manipulation done on the pages (which should have borne chronological numbers), would itself cast doubt on the genuineness of the same. That apart, the opening page in the Register is seen taped with the inner side of the cover which is seen to be done at the beginning and end portion of Ext. B2. Sri.B.G. Bhasker, the learned counsel appearing for the President's faction has pointed out that a perusal of Ext. B2 would make it clear that it was manipulated in such a way as to ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-34-** suit the convenience of the Secretary's faction. It is pointed out that in fact this book was rebound to make it appear that the subsequent minutes appearing on the different pages in it were correctly written up. Sri.Subramaniam, the learned counsel appearing for the appellants submits that the President did in fact participate in several meetings but he did not raise any objection regarding the decisions taken on the previous meetings. As usual the minutes of the last meeting would be read out in the next meeting and it would be accepted and that fact is usually recorded in the minutes and so the contention that the entries in Ext. B2 were subsequently created cannot be accepted at all, it is further argued. It is also pointed out that in the subsequent meetings and even in the meetings which are sought to be challenged by the President faction, the President had participated and signed and so the decisions taken in those meetings cannot be challenged at all. But **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-35-** the learned counsel for the President's faction would submit that a perusal of Ext. B2 would create serious doubt regarding the genuineness. During earlier days of the committee, print out of the minutes were seen taken and pasted on the book; subsequently the decisions were written in hand. It is not even seen chronologically entered. Page No. 47 of Ext. B2 contains the minutes relating to 8-12-2005. But at the same time page No. 49 shows the meeting held on 30-11-2005. It was pointed out that page No. 51 contains the minutes of the meeting held on 2- 12-2005 whereas page numbers 55 and 57 shows different minutes of the same date. 20. The learned counsel for the Secretary's faction would submit that though the decision was the same it pertains to different educational institutions and so in order to send copies of the minutes to the authorities concerned for getting sanction etc. it happened to be recorded as ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-36-** separate decisions. But that has been taken exception to by the learned counsel appearing for the President's faction, pointing out that what is required to be sent is the copy of the minutes of such meetings . One decision itself can carry in it the names of all the institutions in respect of which the decision was taken, it is argued. Whatever that be, both courts have after going through Ext. B2 found that it is not a properly maintained minutes book. I went through the minutes book in detail to find whether the findings entered by the courts below on that aspect is true. I have no hesitation to hold that the courts below are justified in holding that there is manifest manipulation in this book, Ext. B2. Not only that the machine printed numbers were erased and new numbers were noted on those pages. 21 It is seen that the book was affixed with seals of ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-37-** another institution and in order to cover up the seal another seal was affixed on the seal already affixed. But as pointed out by Sri. B.G. Bhasker, the learned counsel appearing for the President's faction, the seals affixed in so many pages are that of another institution. These are some of the indications to show that the book was manipulated or fabricated for the purpose of beguiling the authorities. Renumbering of the pages of the book as mentioned above and the plaster attached to the opening page of the book also would indicate that Ext. B2 was rebound. Therefore, since Ext. B2 depicts the manifest manipulation and fabrication, it would not be proper to place implicit reliance on the various entries in Ext. B2 to hold that proper meetings were conducted and that the proper decisions were taken on those respective dates the respondents contend. The lower appellate court was thus not inclined to accept the view taken by the trial Court. The learned ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-38-** Munsiff has found that he was not inclined to fully rely on Ext. B2 since suspicion looms large regarding the correctness of the entries in Ext. B2, but at the same time the learned Munsiff found that Ext. B2 cannot be held to be manipulated or forged in its entirety. But, since, on the face of the record it is seen to be manipulated and fabricated, it is not just or proper to rely on such a document, for otherwise, the court would be encouraging parties to create or manipulate documents and thrust it in court as if the courts are gullible to accept such documents. Therefore, the lower appellate court was justified in holding that Ext. B2 cannot be relied upon. 22. In this connection the learned counsel for the respondents has also relied upon the decision in **Madhu Sudan Chowdhri and others v. Mst. Chandrabati Chowdhri and Others - AIR 1917 PC 30** where it was held that when the evidence produced is false then the ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-39-** presumption is that the party on whose behalf the evidence had been prepared should be associated with the scheme of deceit which it was designed to carry out and such association should be regarded as an important element in determining whether the party's defence was honest and just. 23. The learned counsel for the respondents (President faction) would submit that besides the manipulations noted by the courts below, there are ever so many other manipulations in Ext.B2 minutes book. In page no. 65 it was printed; 'President and four other members' had participated in the meeting which was later corrected as 'President and five other members'. In page no.65 the minutes of the meeting held on 19.12.2005 is shown. In page no. 67 also the minutes of the same meeting is noted. Hence, these repetitions also, according to the learned counsel would support the case that Ext.B2 was **-40-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** manipulated. Of course, it is submitted by the learned counsel for the appellants that in the two resolutions, one was pertaining to the school at Pattambi while the other was pertaining to the school at Nadapuram. But it is seen that the 5th person's name was subsequently written up below the name 'T.Amina'. Not only that, the signature of V.Thahira in page no.65 is totally different from her signature found in page no. 67. In page no. 67 also originally it was printed as 'President and four other members. It was subsequently corrected as 'President and five other members'. Had it been correctly done and the two sheets pasted in the respective pages were two computer generated sheets, the subsequent correction would not have been there. In most of the meetings only five members, including the President, had attended the meeting. But it is submitted by the learned counsel for the appellants that in all those meetings the signature of the **-41-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** President- Dr.Kunhahamed Kutty is seen and so he cannot contend that the minutes seen affixed in those pages are untrue. 24. Though attempt was made by the appellants to contend that the 'over sealing' happened to occur because originally the seal of another institution was affixed, that also cannot be accepted in view of the fact that such a mistake cannot be there in all the pages. The further fact that machine printed numbers of the pages of Ext.B2 are seen changed from page no.17 onwards also casts serious doubt. It is difficult to hold that the over sealing was only because of the alleged mistake committed by the staff of AWH. If actually such seals were affixed in all the pages by mistake, then it eludes comprehension why such mistake did not occur in page no.90 where there was no over sealing at all. Though such seals were affixed in pages up to 97, where computer generated sheets are seen affixed, in page ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-42-** no.97 the seal affixed is totally different from the seals affixed in other pages. The two seals seen affixed in page no.97 is seen to be of the old seal used, as seen in pages 3 to 41. It is also argued by the learned counsel for the respondents that if the expulsion of three members as aforesaid is held to be invalid, then it must necessarily follow that the meeting held after the illegal expulsion of those members, are invalid in view of the fact that those three persons were not given notice of the meeting and also because the total number of the members participated in the meeting did not satisfy the quorum. Even if there was quorum, the fact remains that the three members, as aforesaid, were not given notice of the meetings. 25. It is pointed out that as per Clause - 8(a) of Ext.A5 bye-law right of co-option is only to the General Body Meeting and not for the Executive Committee. In other words, they can only co-opt ordinary members in the ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-43-** General Body whereas they have no right to fill up the Executive Committee by exercising the right of co-option and so, the co-option exercised by the Executive Committee to admit members to the Executive Committee cannot be accepted. A reading of Clause – 8(a) and 8(b) of Ext.A5 would make the position undoubtedly clear that the members to the Executive Committee cannot be co-opted. 26. Clause – 8(a) of Ext.A5 says; “General Body has got right to co-opt outside members who will abide with the aims and objects of the Association if necessary”. Clause 8 (b) only says “the interim vacancies in the Executive Committee shall be filled by way of nomination from the ordinary members”. It does not speak of co-option. 27. It was argued with vehemence that some of the decisions were taken at an undisputed point of time. For example it was pointed out that the admission of the members was validated as per the decisions taken on 14-5- ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-44-** 2006 and 26-1-2007. But the learned counsel for the President's faction would submit that though the dispute did not actually surface before 26-1-2007 the other group was making attempts to get at the management and administration of AWH and they were more eager and enthusiastic to create documents and it cannot be found that as on and prior to 26-1-2007 there was no dispute at all. That apart, it is not possible to hold that a proper meeting was held on 14-5-2006 and 26-1-2007. Simply because such minutes are seen incorporated in Ext. B2, the court cannot attach that much reliance on those entries. The view so taken by the lower appellate court also is found to be just and convincing. It was observed by the lower appellate court that all the members of the Executive Committee and the members of the general body consisting of 42 are not parties to the suit. Any decision on the acceptability of such persons as members of the Committee ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-45-** may be against the interest of other members who are not parties to the suit. Therefore, in order to have a proper adjudication regarding the number of the valid members of AWH a proper consideration should be had for which the persons who are not parties to the suit can also be brought on record; is the view taken by the lower appellate court. As said earlier, though it is for the plaintiff to decide as to whether other persons should be brought on record or not, in order to have a valid election, certainly the other members are also required to be made parties. It is seen that some of the other members were expelled from the committee and some persons were inducted in another meeting. A few persons were co-opted which is against the provisions of Ext. A5 bye-law. 28. It is not disputed that as on 28.3.2005 there were 21 members and in the General Body Meeting held on that date, 13 Executive Committee members were elected. Out **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-46-** of them, in the President faction including the President there were 7 members while in the Secretary Faction including the Secretary, there were only 6 members. It is argued on behalf of the respondents that since there was no dispute regarding the committee which was there in existence in 2005 as mentioned above, that committee can be restored and the administration can be handed over to them so that all further action can be done in the meetings that might be convened by them. But that course is not acceptable to the other group since according to them other members were admitted to the General Body and also to the Executive Committee and that was done with the approval of the President. Including the members which were stated to have been illegally admitted it is stated that there were 42 members. However, I find that it is not proper to hand over management of AWH to any such committee in view of the fact that the directions issued by the lower appellate **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** **-47-** court for deciding the actual number of members of AWH and the manner in which the election has to be conducted appears to be more reasonable and acceptable. 29. It is true, whether an election should be conducted or not was not in the realm of thought at the time when the suits were being tried. The parties did not think of adducing evidence regarding the validity of the membership. Unless a decision regarding the number of valid members of AWH is taken before the election is ordered to be conducted, it would be giving room for further dispute and on that ground itself the election subsequently conducted is likely to be challenged. Therefore, in order to have a proper election there should be a proper membership register which should be beyond any pale of doubt. In order to arrive at a proper conclusion regarding the same, both parties may have to be given opportunities to adduce further evidence in the matter. So ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-48-** much so, the lower appellate court was justified in ordering remand of the suit O.S. 368/2008. In the peculiar nature and circumstances of the case and in view of the fact that a proper Committee to manage AWH is required for the reasons stated earlier, I find that the order of remand of O.S. 368/2008 to the trial Court passed by the lower appellate Court is well justified. 30. From the arguments addressed by both sides it would appear that both parties are not happy about the management of AWH by the Receiver appointed by the Court. It was only because of the scramble for power and management, the Receiver had to be appointed by this Court. The parties did not think of putting their heads together to resolve the dispute. So long as that is not done, the Receiver has to manage the affairs of AWH. It is vehemently argued by the learned counsel that since the President and other Committee members are not there, in ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-49-** the day to day management of AWH, the institution (AWH) is not getting sufficient donation, collection and contribution etc. and that the income has dwindled down and so in order to see that the AWH gets such collections, contributions etc. as it had received earlier, the administration should be handed over to a Committee. Since both sides do not agree to have such a committee it is not proper to issue any direction regarding the Receivership. 31. While disposing C.R.P. No.331/2010 filed by the Association for Welfare of the Handicapped, represented by its Secretary and others, it was observed by this court: “The petitioners were willing to have three persons, whom they named can act as Receivers, but the respondent was not agreeable to that course. Then it was suggested that three persons from either side would be suggested **-50-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** with a court receiver for supervision. This suggestion was made with the hope that the affairs of the institutions could be carried on smoothly. It was felt by this court that imposition of a stranger as a Receiver may cause difficulties for the smooth functioning of the Association. Unfortunately the respondents in these writ petitions are not amenable to any of those suggestions. They are adamant that the Executive Committee, whose election has been found invalid should continue and nobody else shall be appointed even as Receiver to take charge of the office.” It was because of the stalemate created and scramble for possession, ultimately the Receiver was appointed by this court. It was observed by this Court in paragraph 21 of the Order: “In order to resolve the present **-51-** ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** stalemate and scramble for possession and power, the only option available to this court is to appoint a Receiver to manage the affairs of the Association. Since the respondents are not willing to accept any of the members of the Association as a Receiver except themselves, an outsider has to be appointed as the Receiver.” Therefore, though it is contended that due to the management of AWH by the Receiver, the income, donation etc became dwindled and that the AWH was not functioning properly, I find no reason to interfere with the functioning of the Receiver as it stands now. The Receiver appointed by this Court should continue until further orders. 32. It was also argued that no party before the lower appellate court submitted that the matter is to be remanded and so the lower appellate court was not justified in ordering remand. As the lower appellate court concurred with the ## **R.S.A. Nos: 368 & 388 of 2011 & FAO Nos. 24 & 34 of 2011** ## **-52-** view taken by the trial court that election to the Committee should be conducted and as the lower appellate court found that there should be an adjudication as to the valid members, I find that the appellate court has exercised the appellate jurisdiction correctly ordering remand of the suit to the trial court. In the result, both RSAs are dismissed. Both FAOs are also dismissed. Sd/N.K.BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge ani/jjj