W.P.(C) No.35356 of 2009

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 -------------------------AGAINST THE ORDER IN CMA 31/2009 AND 1. SREE BHAGAVATHY VILASOM N.S.S - KARAYOGAM NO.1594, POTHAPPALLY THEKKU KUMARAPURAM VILLAGE.REPRESENTED BY ITS SECRETARY ACHUTAN PILLAI. 2. GOPINATHAN PILLAI, PRESIDENT - S/O.RAMAN PILLAI, SREE BHAGAVATHY VILASOM N.S.S KARAYOGAM NO.1594, POTHAPPALLY THEKKU KUMARAPURAM VILLAGE. 3. ACHUTHAN PILLAI ,SECRETARY SREE BHAGAVATHY VILASOM N.S.S KARAYOGAM NO.1594, POTHAPPALLY THEKKU KUMARAPURAM VILLAGE, RESIDING AT PADMALAYAM, POTHAPPALLY MURI, KUMARAPURAM PO ## BY ADV. SRI.V.PHILIP MATHEWS 1. NAIR SERVICE SOCIETY, - N.S.S HEAD OFFICE, PERUNNA PO, CHANGANACHEERRY REPRESENTED BY ITS GENERAL SECRETARY. - N.S.S KARAYOGAM, N.S.S HEAD OFFICE, PERUNNA PO, CHANGANACHEERRY. 3. THE SECRETARY - N.S.S. KARAYOGAM UNION, KARTHIKAPALLY, 4. K.APPUKUTTAN PILLAI, MANOJ GARDENS POTHAPALLY SOUTH, KUMARAPURAM P.O. WPC 35356/09 5. K.RADHAKRISHNAN NAIR KARIPPOLIL KIZHAKKETHIL, ERIKAVU, KUMARAPURAM P.O. 6. RAMACHANDRAN NAIR, S/O. KUTTAPA PANICKER,VANAJA BHAVANAM KOKKARETHU HOUSE, POTHAPALLY SOUTH, KUMARAPURAM P.O. 7. GOPALAKRISHNA PILLAI S/O.MADHAVAN PILLAI, KANDATHIL HOUSE POTHAPALLY SOUTH,KUMARAPURAM P.O. ADV. SRI.T.MADHU FOR R6 & 7 SRI.B.K.RAJAGOPAL FOR R6 & 7 SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.SAJU.S.A THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON 11/01/2010 DELIVERED THE FOLLOWING: ## APPENDIX(WPC 35356/09) PETITIONERS' EXTS.: EXT.P1: COPYOF THE PLAINT IN O.S.NO.199/09. EXT.P2: COPY OF THE COMMUNICATION DATED 12.8.2009 SEND BY THE SECOND RESPONDENT. EXT.P3: COPY OF THE I.A.NO.1169 OF 2009 FILED BY THE PETITIONERS IN O.S.NO.199/09. EXT.P4: COPY OF OBJECTION FILED BY THIRD RESPONDENT TO I.A.NO.1169/09. EXT.P5: COPY OF THE OBJECTION FILED BY RESPONDENTS 4 AND 5 TO I.A.NO.1169/09. EXT.P6: COPY OF THE OBJECTION FILED BY RESPONDENTS 6 AND 7 TO I.A.NO.1169/09. EXT.P7: COPY OF THE ORDER DATED 26.9.09 PASSED BY THE MUNSIFF COURT, HARIPPAD IN I.A.NO.1169/09 IN O.S.NO.199/09. EXT.P8: COPY OF THE COMMON ORDER DATED 23.11.09 PASSED BY THE ADDITIONAL DISTRICT JUDGE-1, MAVELIKKARA IN CMA NO.31/09 AND CMA NO.33/09. EXT.P9: COPY OF THE BYELAW OF FIRST PETITIONER KARAYOGAM. ## **S.S. SATHEESACHANDRAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - - -** W.P.(C) No.35356 of 2009 **- - - - - - - - - - - - - - - - - - - - - - - - -** Dated: 11[th] January, 2010 ## **JUDGMENT** The Writ Petition is filed seeking mainly the following reliefs: 1. To issue a writ of certiorari or other appropriate writ order or direction order quashing Exhibit P8. 2. To issue appropriate directions for smooth conduct of election of office bearers of Sree Bagavathy Vilasom NSS Karayogam No.1594, Pothappally South, Kumarapuram P.O., Alappuzha under the supervision of an Advocate Commissioner appointed by this Hon'ble Court, within a time limit to be specified by this Hon'ble Court. 2. Petitioners are the plaintiffs in O.S.No.199 of 2009 on the file of the Munsiff Court, Haripad. Suit is one for a declaration that the proceedings of the second respondent taking over the administration of the first plaintiff Karayogam is illegal and also for an injunction restraining respondents 3 to 7 from obstructing the functioning of the Karayogam and seeking other reliefs. Respondents are the defendants in the suit. Second and third plaintiffs are stated to be the Secretary and President of the first plaintiff Karayogam. P1 is the copy of the plaint. Since the plaintiffs were not amenable to compound the mischiefs committed by defendants 6 and 7, previous Secretary and Treasurer of the first plaintiff Karayogam in the W.P.C.No.35356/09 - 2 - misappropriation of its funds forging documents, in respect of which a criminal case is now pending trial before the Magistrate Court, despite the influence exerted on them by the second and third defendants, the Registrar of the Karayogam and the Secretary of the Taluk Union of the Karthikapally Karayogam respectively, it is the case of the plaintiffs, the second and third defendants had issued some proceedings taking over the administration of the first plaintiff Karayogam. Such proceedings were issued in violation of the rules and regulations governing the first plaintiff and also without hearing the plaintiffs, and so much so, it is per se illegal is the case of the plaintiffs. P2 is the copy of the proceedings issued by the second defendant appointing an ad hoc committee for a period of one year to administer the first plaintiff Karayogam. With the suit, the plaintiffs moved an application for an interim injunction to restrain the defendants 3 to 7, who are also stated to be the members of the first plaintiff Karayogam from interfering with the administration of the Karayogam by the second and third plaintiffs and preventing them from discharging the functions as the President and the Secretary of the Karayogam. P3 is the copy of that application. P4, P5 and P6 are the objections filed by the defendants to P3 application. An ex parte W.P.C.No.35356/09 - 3 - order of injunction had been passed by the learned Munsiff in P3 application, which, after hearing both sides, was made absolute reserving the right of the second defendant, the Registrar of the Karayogam, to initiate proceedings against the petitioners after issuing them notice following the principles of natural justice. P7 is the copy of the order passed by the learned Munsiff. Two appeals as C.M.A.No.31 of 2009 and C.M.A.No.33 of 2009 were preferred, the former by the third defendant and the latter by defendants 4 and 7 jointly challenging the correctness of P7 order before the Additional District Court-I, Mavelikara. The learned Additional District Judge, after hearing both sides, allowed both the appeals and vacated P7 order of injunction passed in the suit by the learned Munsiff vide P8 common judgment. Challenge in the writ petition seeking the aforementioned reliefs is against P8 common judgment rendered in the two appeals, C.M.A.No.31 of 2009 and 33 of 2009 passed by the learned Additional District Judge, Mavelikara. 3. I heard the counsel on both sides. The main thrust of attack against Ext.P8 common judgment pressed into service by the learned counsel for the petitioners is that the learned District Judge went wrong in interfering with the discretionary relief of injunction granted W.P.C.No.35356/09 - 4 - by the learned Munsiff substituting its views and conclusions without entering a finding that the trial court has exercised its discretion in granting the equitable relief arbitrarily and capriciously or perversely or without scrutinising the settled principles of law and also the materials produced in the case. Reliance is placed by the learned counsel in **Laxmikant v. Patel v. Chetanbhat Shah** (2001 STPL(LE) 30565 SC) to contend that the discretion exercised by the trial court reasonably and judicial manner could not be interfered with by the appellate court unless it is satisfied that the exercise of discretion was improper and incorrect and the case was one falling within the exceptions covered permitting such interference. Reliance is also placed in **Seema Arshad Zaheer v. Municipal Corporation** [2006 (4) KLT 65 (SC) ] and **Wander Ltd. v. Antox India P. Ltd.** [1990 (Supp.) SCC 727] to contend that the appellate court would not be justified in interfering with the exercise of discretion under appeal solely for the reason that if it had considered the mater at the trial stage, it would have come to a conclusion different from that of the trial court. A different view is permissible on the materials placed and in the facts and circumstances of the case presented, according to the learned counsel, is not sufficient to enable the appellate court to W.P.C.No.35356/09 - 5 - interfere with the discretion exercised by the trial court in granting an equitable relief of injunction. The appellate court must be satisfied that the trial court went wrong in exercising that discretion to the extent that it had been exercised arbitrarily, capriciously or perversely ignoring the settled principles of law. Inviting my attention to the bye laws of the first plaintiff (Ext.P9), it is contended by the learned counsel that clause 63 of the bye laws which was relied by the learned District Judge, at any rate, does not empower the Registrar to proceed against the petitioners without affording them an opportunity of hearing and thus complying with the principles of natural justice. So much so, P8 common judgment rendered by the learned District Judge interfering with the discretionary relief of injunction granted by the learned Munsiff is liable to be set aside and P7 order of the learned Munsiff is to be restored is the submission of the learned counsel for the petitioners. On the other hand, learned counsel appearing for the respondents contended that the provisions of P9 bye laws empower the Registrar to take appropriate and necessary actions for the welfare of the first plaintiff Karayogam and as the term of second and third plaintiffs as the office bearers of the first plaintiff had already expired, even before the institution of the W.P.C.No.35356/09 - 6 - suit, at this stage, no interference with P8 common judgment is called for, especially where an ad hoc committee has been appointed to administer the affairs of the first plaintiff Karayogam. 4. The main relief canvassed in the suit is for a declaration that the proceedings issued by the second defendant appointing an ad hoc committee for the administration of the first plaintiff Karayogam is arbitrary and illegal and liable to be set aside. Plaintiffs have also sought for a decree of injunction to restrain the defendants 4 to 7 who are admittedly members of the first plaintiff Karayogam from carrying out any activities detrimental to the interest of the first plaintiff. P3 is the application for interim injunction filed by the plaintiffs, in which interim injunction is seen sought for to restrain the defendants 3 to 7 from interfering with the administering of the first plaintiff Karayogam by the second and third plaintiffs and also from doing any act detrimental to the interest of the first plaintiff. The learned Munsiff has passed P7 order allowing that application mainly for the reason that P2 proceedings issued by the second defendant appointing an ad hoc committee for administering the first plaintiff Karayogam had been issued without hearing the second and third plaintiffs, the elected office bearers of the first plaintiff Karayogam. W.P.C.No.35356/09 - 7 - Accorlding to the learned Munsiff, P2 order had been issued in violation of the principles of natural justice and so much so, the plaintiffs have made out an arguable case for the grant of the interim injunction. P7 order had been passed by the learned Munsiff reserving the right of the second defendant Registrar to initiate proceedings against the second and third plaintiffs after issuing notice to them following the principles of natural justice. The learned District Judge in the two appeals preferred against P7 order relying on **Sudheer v. Suseela** [2009(4) KLT 29 (FB) ] held that violations of the principles of natural justice ipso facto would not be a sufficient ground for quashing the decision of a competent authority. In the application for interim injunction, the plaintiffs have not impleaded the defendants 1 and 2 as counter petitioners despite the fact that the suit had been filed for a declaration to impeach the correctness of a proceeding issued by the second defendant, Registrar of the N.S.S.Karayogam, in appointing an ad hoc committee over the first plaintiff Karayogam also weighed with the appellate court to hold that the discretionary relief of injunction granted by the learned Munsiff in favour of the plaintiffs cannot be sustained. It was also noticed that P9 bye laws provided for an alternative efficacious remedy to the plaintiffs to W.P.C.No.35356/09 - 8 - prefer an appeal against the proceedings issued before the executive council against the decision of the second defendant and that was not pursued or exhausted by the plaintiffs and that being so, the appellate court held that the plaintiffs are not entitled to the equitable relief of injunction and P7 order passed by the learned Munsiff has to be vacated. 5. At the time of hearing, it was not disputed before me that the second defendant, Registrar of the Karayogam, has competency and authority under P9 bye laws as provided under clause 55 thereunder to appoint any person or a committee for a specified period to preserve and protect the interest of the Karayogam in the event of problems cropping up affecting the administration of the Karayogam till such a situation is resolved. The case of the petitioners/plaintiffs is that the action taken by the second defendant in appointing an ad hoc committee vide P2 order was malafide and it was done without notice to them, and hence, it has to be declared as illegal. Whether principles of natural justice have to be complied with in passing such orders taking over administration of a Karayogam by appointing an ad hoc committee it is reasonable to presume that such action depend upon the emergency of the situation with regard W.P.C.No.35356/09 - 9 - to the seriousness of the problems affecting the administration of the Karayogam. Where P9 bye laws do not stipulate issuing of a notice in exercise of the authority vested with the Registrar of the N.S.S.Karayogam for appointing a person or ad hoc committee to administer a Karayogam where the situation demands such action, it is not possible to form a view that such appointment of an ad hoc committee to manage a Karayogam can be done only after hearing the existing office bearers of the Karayogam. The reasoning taken by the learned District Judge that the nonimpleadment of the first and second defendants in the interlocutory application for injunction, though the suit itself has been filed to challenge P2 order of the second defendant in appointing an ad hoc committee, to reach a conclusion that the plaintiffs are not entitled to the discretionary relief of injunction, in the given facts of the case, cannot at all be found fault with. The term of the second and third plaintiffs as office bearers of the first plaintiff Karayogam had expired even before P2 proceedings were passed by the second defendant. When that be the situation, I find no interference with P8 judgment passed by the learned District Judge vacating P7 order passed by the learned Munsiff is called for. Taking note of the facts and circumstances W.P.C.No.35356/09 - 10 - presented in the case, for the limited purpose of considering the discretionary relief applied for, I find that the learned District Judge has interfered with P7 order passed by the learned Munsiff on valid and sound grounds and it was not an irregular exercise or jurisdiction interfering with the discretionary relief granted by the inferior court. Merely because the learned Munsiff has passed P7 order granting an interim injunction as applied for, it does not follow that the merit of that order cannot be examined with reference to the materials tendered by both sides on the relief of injunction claimed by one party against other. Evidently, the discretionary relief of injunction has been granted by the learned Munsiff vide P7 order overlooking the vital circumstances that the term of the second and third plaintiffs as office bearers of that Karayogam was already over, P9 bye laws does not mandate the second defendant, the Registrar of the N.S.S.karayogam, vested indisputably with authority to appoint a person or ad hoc committee over a Karayogam to issue any notice for taking any such action, the nonimpleadment of the first and second defendants in the application for injunction denied opportunity to those defendants to meet the challenges against P2 proceedings and that any order passed in the application for injunction without hearing W.P.C.No.35356/09 - 11 - them is not proper and correct etc. So much so, the decisions relied by the learned counsel, which are referred to earlier, that the learned District Judge has improperly interfered with the discretionary relief of injunction granted by the learned Munsiff vide P7 order are thoroughly inapplicable to the facts of the case. I find that P8 judgment passed by the learned District Judge vacating P7 order is proper, valid and correct and no interference with that judgment is called for invoking the supervisory jurisdiction vested with this court. 6. I make it clear that none of the observations made in P7 order by the learned Munsiff, P8 judgment by the learned District Judge or by this court under this judgment shall have any bearing or influence in the trial and disposal of the suit. Learned Munsiff is directed to dispose the suit untrammelled by the observations made in P7 order, P8 judgment and also the present judgment passed by this court, as expeditiously as possible, after affording reasonable opportunity to both sides to lead evidence in support of their respective cases. Writ Petition lacks merit, and it is dismissed. srd ## **S.S. SATHEESACHANDRAN, JUDGE** W.P.C.No.35356/09 - 12 -