OP(C) No.1131 of 2020; The S.N.D.P. Sakha Yogam No.862 (Neeleeswaram West) and others vs Subin Kumar V.S and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942** ## **OP(C).No.1131 OF 2020** **AGAINST THE JUDGMENT IN CMA 8/2020 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR** **AGAINST THE JUDGMENT IN OS 181/2020 OF MUNSIFF COURT,ALUVA** ## **NAME AND ADDRESS OF THE PETITIONER/APPELLANTS/PLAINTIFFS:-** - **1 THE S.N.D.P. SAKHA YOGAM NO.862 (NEELEESWARAM WEST) AN UNINCORPORATED ASSOCIATION OF PERSONS REPRESENTED BY PLAINTIFFS 2 AND 3.** - **2 K.J.AGITH AGED 49 YEARS** - **S/O.JAYADEVAN, KALAPURAKKAL, NEELEESWARAM P.O., KALADY, PIN - 683 574.** - **3 SIVAN KUTTAPPAN AGED 50 YEARS** - **S/O.KUTTAPPAN, KOCHATHI HOUSE, NEELEESWARAM P.O., KALADY, PIN - 683 574.** **BY ADVS.** **SRI.K.JAGADEESCHANDRAN NAIR SRI.J.KRISHNAKUMAR** ## **NAME AND ADDRESS OF THE RESPONDNETS/RESPONDENTS/DEFENDANTS:** - **1 SUBIN KUMAR.V.S AGED ABOUT 40 YEARS, S/O.SUBRAMANIAN, VELLAYIKODATH HOUSE, MANIKYAMANGALAM P.O., KALADY, PIN - 683 574.** - **2 KUNNATHUNADU SNDP UNION AN UNINCORPORATED ASSOCIATION OF PERSONS REPRESENTED BY DEFENDANTS 3 TO 5.** - **3 SAJITH NARAYANAN AGED ABOUT 56 YEARS, S/O.NARAYANAN, PULIYILAKAD HOUSE, KOODALAPPAD, KOOVAPPADY P.O., PIN - 683 544 CONVENER ADMINISTRATIVE COMMITTEE.** - **4 KARNAN K.K.** **OP(C).No.1131 OF 2020** **2** **AGED ABOUT 65 YEARS, S/O.KRISHNANKUTTY, KURAVANPADATH HOUSE, OKKAL P.O., PIN - 683 550, (CHAIRMAN, ADMINISTRATIVE COMMITTEE, KUNNATHUNADU SNDP UNION).** **5** **M.A.RAJU** **AGED ABOUT 69 YEARS, S/O.AITHAKUNJU, MURIKAL HOUSE, RAMAMANGALSAM P.O., THAMMANIMATTAM, RAMAMANGALAM P.O., ERNAKULAM, PIN - 686 663 (MEMBER, ADMINISTRATIVE COMMITTEE, KUNNATHUNADU SNDP UNION).** **R1-5 BY ADV. SRI.M.R.ANISON R1-5 BY ADV. SMT.V.BHARGAVI (PANANGAD) R1-5 BY ADV. SMT.P.A.RINUSA** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25-09-2020, THE COURT ON 01-10-2020 DELIVERED THE FOLLOWING:** **OP(C).No.1131 OF 2020** **3** ## **R. NARAYANA PISHARADI, J** **---------------------------------------------------O.P (C) No. 1131 of 2020** **-----------------------------------------------------** Dated this the 1[st] day of October, 2020 ## **JUDGMENT** The petitioners are the plaintiffs and the respondents are the defendants in the suit O.S. No.181/2020 on the file of the Munsiff's Court, Aluva. 2. The first plaintiff in the suit is an unregistered association of persons by name “the S.N.D.P. Sakha Yogam No.862” (hereinafter referred to as 'the Sakha Yogam'). The second plaintiff is the secretary and the third plaintiff is an elected committee member of the first plaintiff Sakha Yogam. 3. The first defendant in the suit is the President of the first plaintiff Sakha Yogam. The second defendant is the Kunnathunadu S.N.D.P. Union (hereinafter referred to as 'the Union') and it is represented in the suit by defendants 3 to 5, who are the Convener, Chairman and a member of the Administrative Committee of the Union. 4. The suit is instituted for granting a decree of declaration that the right of management of all the properties owned by the Sakha **OP(C).No.1131 OF 2020** **4** Yogam and the High School and the Higher Secondary School situated in those properties vests with the Sakha Yogam and that the defendants have got no right to interfere with the said right of management and also a decree of prohibitory injunction restraining the defendants from interfering with the said right. 5. The crux of the averments in the plaint can be stated as follows: The S.N.D.P. Yogam is a company registered in the year 1903 for religious and charitable purposes. Sakha Yogams and Unions were organised at the village and taluk levels to co-ordinate the activities of the S.N.D.P. Yogam. The Sakha Yogams and the Unions have got separate and independent existence. The assets and liabilities of the S.N.D.P. Yogam and the assets and liabilities of the Sakha Yogam and the Unions are different. There is no valid legal relationship with the S.N.D.P. Yogam and the Sakha Yogam and the Union. The first plaintiff Sakha Yogam is affiliated to the second defendant Union but there is no legal relationship between them. When the office of the manager of the High School and the Higher Secondary School owned by the first plaintiff Sakha Yogam became vacant, the first defendant was asked to hold the charge of the manager temporarily. He is acting in collusion with the other defendants to take over the management of the schools from the Sakha Yogam. The Union issued notice to the second plaintiff **OP(C).No.1131 OF 2020** **5** to get custody of the records and papers and proposed to take action against him. The schools belong to the Sakha Yogam. The defendants have no authority to take over the management of the Sakha Yogam and its properties. The notice issued by the Union to the second plaintiff on 13.05.2020 is without any authority. 6. The plaintiffs filed an application as I.A. No. 1/2020 in the trial court for granting an order of temporary injunction restraining the defendants from interfering in any manner with the right of management of the Sakha Yogam and its properties and the schools situated in the properties owned by it. 7. The first respondent/first defendant filed objection to the application for temporary injunction raising mainly the following contentions: The Sakha Yogams and Unions are organizations registered with the S.N.D.P. Yogam. The Union is the supervisory body of the Sakha Yogam. A complaint against the second plaintiff, who is the Secretary of the first plaintiff Sakha Yogam, was received on 13.03.2020 by the Administrative Committee of the Union. The Union issued a notice to the second plaintiff seeking his explanation on the complaint. The reply given by him was not satisfactory. The Union was satisfied that the administration of the Sakha Yogam had come to a halt. Therefore, a letter was sent to the Genreal Secretary of the **OP(C).No.1131 OF 2020** **6** S.N.D.P. Yogam on 09.05.2020 for taking over the management of Sakha Yogam by the Union. However, the second plaintiff continued his unilateral activities and therefore, the Union suspended his responsibilities on 13.05.2020 and directed him to hand over all records of the Sakha Yogam in his possession to the Union. But, the second defendant fabricated documents and withdrew money from the bank account of the Sakha Yogam. Then, the third defendant filed a complaint against the second plaintiff in the police. A case was registered against the second plaintiff on the basis of that complaint. The suit is filed with a view to escape from the penal action against the second plaintiff. The control and supervision of the Sakha Yogam are vested with the Union as per the regulations. 8. The second plaintiff filed a reply affidavit refuting the allegations made against him in the objection filed by the first defendant. 9. As per Ext.P5 order, the trial court dismissed the application for temporary injunction filed by the plaintiffs. 10. The plaintiffs filed appeal as C.M.A. No. 8/2020 challenging Ext.P5 order passed by the trial court. The appellate court, as per Ext.P6 judgment, dismissed the appeal. **OP(C).No.1131 OF 2020** **7** 11. This original petition is filed by the plantiffs under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P5 order and Ext.P6 judgment. 12. Heard the learned counsel for the petitioners and also the respondents. 13. The cause of action for the suit alleged in the plaint is the issuance of the notice dated 13.05.2020 by the Union to the second plaintiff, who is the Secretary of the first plaintiff Sakha Yogam. Learned counsel for the respondents had made available a copy of the aforesaid notice for perusal of this Court. This notice contains a direction that the second plaintiff shall not take any decision with regard to the affairs of the Sakha Yogam without the knowledge and consent of the Union. As per this notice, the second plainitff was also directed to hand over all records relating to Sakha Yogam in his possession to the Union. 14. The notice dated 13.05.2020 issued by the Union to the second plaintiff is only with regard to the action taken by the Union against the Secretary of the Sakha Yogam. This notice does not indicate any attempt made by the Union to take over the management of the properties or the schools owned by the Sakha Yogam. 15. Learned counsel for the petitioners contended that the **OP(C).No.1131 OF 2020** **8** notice dated 13.05.2020 issued by the Union to the second plaintiff is without any authority. 16. Clause 19 of the bye-laws of the Sakha Yogam provides that the Secretary of the Union has the authority to control all actions or activities of the Secretary of the Sakha Yogam and to make report on such activities to the Head Office. Therefore, even as per the byelaws of the Sakha Yogam, the Secretary of the Union has got authority to exercise control over the activities of the Secretary of the Sakha Yogam. 17. Learned counsel for the petitioners contended that the Sakha Yogams and the Unions are not under the control of the S.N.D.P. Yogam. Learned counsel also contended that the Sakha Yogam and the Union are unregistered organizations which have got separate and independent existence. Learned counsel would also contend that the bye-laws of the Sakha Yogam, which are framed and approved by the S.N.D.P. Yogam, are not binding upon the Sakha Yogam. 18. Admittedly, the Sakha Yogam is an association of persons. An association of persons and its President or Secretary or other office-bearers can function only in accordance with some regulations or rules. The plea of the plaintiffs is that the bye-laws of the Sakha **OP(C).No.1131 OF 2020** **9** Yogam, which are framed and approved by the S.N.D.P. Yogam, are not binding on the first plaintiff Sakha Yogam or its office-bearers. It is also the plea of the plaintiffs that the first plaintiff Sakha Yogam has got no bye-laws approved by its general body. Then, how the management or administration of the first plaintiff Sakha Yogam is regulated?. The answer can be obtained from the averments in the plaint, which read as follows: “The so called bye-laws published are company's board resolutions which are published as the model bye-laws for adoption by the general meeting of sakha yogam and the union. The company has no statutory or legal authority to frame bye-laws for the management of sakha yogams and unions. But since none of the sakha yogams including the first plaintiff have yet passed it or prepared their own bye-laws for management for the purpose of convenience the board resolution of the company which are called the bye-laws of the Sakha Yogam are used and the union also using the union bye-law which are only board resolutions and not passed in the general meeting either of the Union or in the Sakha Yogam. These so called bye-laws are not in fact rules governing the activities of the union or the sakha yogam.” Therefore, it is admitted by the plaintiffs that the bye-laws framed by the S.N.D.P. Yogam are being followed by the first plaintiff Sakha **OP(C).No.1131 OF 2020** **10** Yogam as a matter or rule of convenience for governing its activities. 19. It is also admitted in the plaint itself that the first plaintiff Sakha Yogam is affiliated to the second defendant Union. The plea of the plaintiffs is that the affiliation is only for the purpose of social activities. What is the effect of such affiliation is a matter to be decided after adducing evidence in the suit. 20. Clause 6 of the bye-laws of the Sakha Yogam provides that the Sakha Yogam is bound by the rules of the S.N.D.P. Yogam and that it is a subsidiary unit under the S.N.D.P. Yogam. 21. Learned counsel for the petitioners contended that the S.N.D.P. Yogam, which is a company, has got no power to frame and approve the bye-laws of the Sakha Yogam. This is a matter which cannot be considered here because the S.N.D.P. Yogam is not a party to the suit. Further, as noticed earlier, the plaintiffs have admitted that the bye-laws framed by the S.N.D.P. Yogam are being followed by them as a matter of convenience. It is not only a matter of convenience but also a rule of necessity because no association of persons is expected to function without being controlled by any rules or regulations. 22. It is also significant that the plaintiffs have not sought any decree of declaration that the bye-laws framed and approved by the **OP(C).No.1131 OF 2020** **11** S.N.D.P. Yogam are not binding upon them. 23. Learned counsel for the petitioners invited the attention of this Court to the affidavits filed by the General Secretary of the S.N.D.P. Yogam (produced as Exts.P7 to P9 in the original petition) in some other cases before this Court in support of the contention that the Sakha Yogams and the Unions have got independent existence and that they have got not legal relationship with the S.N.D.P. Yogam. Learned counsel for the petitioners specifically invited the attention of this Court to the passage in Ext.P7 affidavit filed by the then General Secretary of the S.N.D.P. Yogam, in a company petition before this ## Court, which reads as follows: “The so-called branches of the S.N.D.P Yogam are not really branches in the eye of law. They have a separate existence, separate membership, separate assets, separate constitution and are independent financially of the S.N.D.P Yogam. Ever since the establishment of branches about 30 years ago the branches have never submitted their accounts to the S.N.D.P Yogam and it was never contemplated that they should do so.” 24. The petitioners have not produced any materials to show that this Court had acted upon the aforesaid averments in Ext.P7 affidavit or similar averments contained in Exts.P8 and P9 affidavits. Unless and until it is shown that this Court had acted upon such affidavits filed by the General Secretary of the S.N.D.P. Yogam, the aforesaid affidavits cannot be taken into consideration by this Court in **OP(C).No.1131 OF 2020** **12** deciding the merits of the application for temporary injunction filed by the plaintiffs especially when the S.N.D.P. Yogam is not a party to the present suit. 25. The petitioners have produced in this original petition Exts.P10 to P12 judgments /orders passed in some other cases. Neither the first plaintiff Sakha Yogam nor the second defendant Union was a party in the aforesaid cases. Therefore, the findings on facts made in those judgments/orders cannot be adopted or followed in the present case to decide the question whether the plaintiffs are entitled to get an order of temporary injunction. 26. Moreover, Ext.P10 judgment is rendered by this Court in a second appeal and it was a case relating to management of a school. Ext.P10 judgment would show that one of the Sakha Yogams, who was a party to that case, had framed its own rules. The situation in the present suit is not the same. 27. Ext.P11 is only a judgment of a Munsiff's Court. It is not known whether the findings made by the Munsiff's Court in that judgment had become final or not and whether any appeal had been preferred against the judgment and decree in that case. 28. Ext.P12 order has also got no application to the facts of the present case. In the case relating to Ext.P12, the Munsiff's Court had **OP(C).No.1131 OF 2020** **13** granted an order of temporary injunction and it was set aside by the appellate court after a long time. At the time of admission of the revision petition itself, this Court had stayed the judgment of the appellate court and it was only for a short period the order of injunction granted by the trial court was not in force. In such circumstances, as per Ext.P12 order, this Court had directed that the status quo at the time of institution of the suit shall be maintained by the parties therein. The situation in the present is different. This is a case in which the application for temporary injunction was dismissed by the trial court itself. 29. Learned counsel for the petitioners contended that, in order to establish a prima facie case, the plaintiffs need not show that they would win the suit after trial but it is only necessary to show that the plaintiffs have got a serious question to be tried. There can be no quarrel with this proposition. The decision of this Court in **Muhtukoya v. Muthukoya: 1988 (1) KLT 664,** which is cited by the learned counsel for the petitioners himself, holds as follows: “It is not every contention which is bona fide; it is not every question which is a serious question. Where can the court draw the line? There must be some material on record in support of the claim of legal right put forward by the person who seeks interlocutory relief of **OP(C).No.1131 OF 2020** **14** injunction; such material must, either by itself or in the light of material placed before the court by the opposite party, satisfy the court that it could, at that stage and under those circumstances act on it. This is precisely what can be comprehended by the expression 'prima facie case'.” (emphasis supplied). 30. In the instant case, the plaintiffs have sought a decree of declaration that the right of management of all the properties owned by the Sakha Yogam and the schools situated in the properties vests with the Sakha Yogam. However, the plaintiffs have also sought a decree of declaration that the Union has got no right to interfere with the management of the Sakha Yogam and its properties. The cause of action for the suit is the issuance of the notice dated 13.05.2020 by the Union to the second plaintiff. In view of Clause 19 of the bye-laws, which are admittedly being followed by the first plaintiff Sakha Yogam, the plaintiffs cannot contend that the Union has got no right to take action against the second plaintiff. Moreover, the first defendant in the suit is none other than the President of the first plaintiff Sakha Yogam. It is not explained how the plaintiffs can seek an injunction against the President of the Sakha Yogam restraining him from managing the affairs of the Sakha Yogam or its properties. In such circumstances, **OP(C).No.1131 OF 2020** **15** the plaintiffs have got no prima facie case to get an order of interim injunction against the defendants. 31. When a party fails to prove prima facie case, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all. When a party fails to prove prima facie case, it is not open to the Court to grant injunction in his favour, even if he has made out a case that balance of convenience is in his favour and that he would suffer irreparable loss and injury in case not granting injunction (See **Kashi Math** **Samsthan v. Srimad Sudhindra Thirtha Swamy : A.I.R 2010 SC 296** ). 32. When two courts concurrently rejected the application for injunction, it would not be open for the third court to interfere with the said concurrent findings until and unless it is brought to the notice of the third court that such findings are perverse or arbitrary [See **ECE Industries Limited v. S.P.Real Estate Developers : (2009) 12 SCC 776** ]. 33. When the subordinate courts have assumed jurisdiction which they do not have or have failed to exercise jurisdiction which they do have or when the jurisdiction though available, it is being exercised by the court in a manner not permitted by law and failure of **OP(C).No.1131 OF 2020** **16** justice or grave injustice has occasioned thereby, this Court may step in to exercise its supervisory jurisdiction under Article 227 of the Constitution. While exercising the said jurisdiction, this Court has a limited role to play. It is not the function of this Court, while exercising its supervisory jurisdiction, to enter into the disputed questions on facts. When the orders passed by the courts below are not perverse or when it is not shown that the courts below have neglected or failed to take into consideration the relevant facts, intereference by this Court in exercise of its jurisdiction under Article 227 of the Constitution is not warranted. In exercising the supervisory power, the High Court does not act as an appellate court and it cannot review or re-weigh the evidence upon which the determination of the inferior court purports to be based or to correct errors of law in the decision. 34. After considering the documents produced by the parties and other facts and circumstances of the case, the trial court as well as the appellate court has taken the view that the plaintiffs have got no prima facie case to get an order of interim injunction against the defendants. The courts below have taken a reasonable view of the matter. The impugned orders cannot be found to be grossly erroneous or perverse or palpably wrong. In such situation, I find no **OP(C).No.1131 OF 2020** **17** sufficient ground to interfere with the orders passed by the courts below. The original petition is liable to be dismissed. Consequently, the original petition is dismissed. **R. NARAYANA PISHARADI JUDGE** lsn **OP(C).No.1131 OF 2020** **18** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLAINT O.S.NO.181/2020, ON THE FILE OF MUNSIFF COURT, ALUVA DATED 25/5/2020.** **EXHIBIT P2 THE TRUE COPY OF APPLICATION FOR TEMPORARY INJUNCTION I.A.1/2020 IN O.S.NO.181/2020, ON THE FILE OF MUNSIFF COURT, ALUVA DATED 25/5/2020.** **EXHIBIT P3 TRUE COPY OF THE OBJECTION TO I.A.1/2020 IN O.S.NO.181/2020 FILED BY RESPONDENTS DATED 1/6/2020. EXHIBIT P4 THE TRUE COPY OF REPLY AFFIDAVIT FILED BY THE PLAINTIFFS I.A.1/2020 IN O.S.NO.181/2020, ON THE FILE OF MUNSIFF'S COURT, ALUVA DATED 8/6/2020. EXHIBIT P5 COPY OF ORDER IN I.A.1/2020 IN O.S.NO.181/2020, ON THE FILE OF MUNSIFF'S COURT, ALUVA DATED 12/6/2020. EXHIBIT P6 TRUE COPY OF ORDER IN C.M.A.8/2020 OF ADDITIONAL DISTRICT JUDGE, NORTH PARAVUR DATED 16/7/2020. EXHIBIT P7 TRUE COPY OF COUNTER AFFIDAVIT CONTAINING ADMISSIONS BY THE S.N.D.P.YOGAM ABOUT THE TRUE FACTUAL POSITION OF THE RELATIONSHIP IF ANY, OF THE S.N.D.P.SAKHA YOGAM SO CALLED AND UNIONS, AND THEIR ASSETS IN C.P.18/1957. EXHIBIT P8 TRUE COPY OF COUNTER AFFIDAVIT CONTAINING ADMISSIONS BY THE S.N.D.P.YOGAM ABOUT THE TRUE FACTUAL POSITION OF THE INTENSE RELATIONSHIP IF ANY, OF THE S.N.D.P.SAKHA YOGAM SO CALLED AND UNIONS, AND THEIR ASSETS IN C.P.33/2007. EXHIBIT P9 TRUE COPY OF COUNTER AFFIDAVIT CONTAINING ADMISSIONS BY THE S.N.D.P.YOGAM ABOUT THE TRUE FACTUAL POSITION OF THE INTENSE RELATIONSHIP IF ANY, OF THE S.N.D.P.SAKHA YOGAM SO CALLED AND UNIONS AND THEIR** **OP(C).No.1131 OF 2020** **19** ||**ASSETS IN C.P.18/2008.**| |---|---| |**EXHIBIT P10**|**TRUE COPY OF JUDGMENT IN S.A.987/1970 OF**| ||**HIGH COURT OF KERALA DATED 2/4/1974.**| |**EXHIBIT P11**|**TRUE COPY OF FINAL JUDGMENT IN O.S.435/1975**| ||**ON THE FILE OF MUNSIFF'S COURT,**| ||**PATHANAMTHITTA DATED 21/8/1978.**| |**EXHIBIT P12**|**TRUE COPY OF JUDGMENT IN C.R.P.3227/2001 OF**| ||**HIGH COURT OF KERALA DATED 30/7/2003.**| |RESPONDENTS EXHIBITS|NIL| TRUE COPY LSN P.A TO JUDGE