Virudhunagar Hindu Nadargal Dharma Paribalana Sabai & Ors. vs Tuticorin Educational Society & Ors.

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7764 OF 2019 (@ Special Leave Petition (C) No.26055 of 2018)

Virudhunagar Hindu Nadargal Dharma Paribalana Sabai & Ors. ... Appellants Versus

Tuticorin Educational Society & Ors. ... Respondents

J U D G M E N T

V. Ramasubramanian

1. Leave granted.

Signature Not Verified 2. Digitally signed by R NATARAJAN

Aggrieved by an order of the High Court passed Date: 2019.10.03 18:59:17 IST Reason:

under Article 227 of the Constitution, vacating an

interim order of injunction granted by the trial 2

Court, the plaintiffs have come up with this appeal.

3. We have heard Mr. R. Anand Padmanabhan, learned

counsel for the appellants and Mr. Vijay Hansaria,

learned Senior Counsel for the respondent Nos. 1 &

2.

4. The appellants herein filed a suit O. S. No.

145 of 2018 on the file of Principal District

Munsif, at Thoothukudi praying (i) for a declaration

that the notice issued by the sixth defendant

(second respondent in this appeal) convening the

General Body Meeting of the first respondent–Society

at 5 P.M. and the Executive Committee meeting at

5:30 P.M. on the same day namely 05.05.2018 was

illegal; (ii) for a decree of permanent injunction

restraining the defendant Nos. 5 & 6 from convening

the meetings of the General Body and the Executive

Committee of the first respondent–society; (iii) for

a declaration that the appointment of the fifth

defendant (third respondent in this appeal) as

patron for life of the first defendant­Society was 3

unlawful; (iv) for a permanent injunction

restraining the sixth defendant (second respondent

in the appeal) from acting as the Secretary of the

first defendant­Society and (v) for the appointment

of a Commissioner to receive the list of members and

to conduct free and fair election of office bearers

of the first defendant­Society.

5. Along with the suit, the appellants/plaintiffs

moved an Interlocutory Application i.e. I. A. No.

386 of 2018 seeking an interim order of injunction

restraining the respondents from convening the

meetings of the general Body and the Executive

Committee on 5.5.2018. It appears that the

appellants/plaintiffs also moved one more

Interlocutory Application i.e. Interlocutory

Application No.387 of 2018 seeking an injunction

restraining the defendant nos. 5 & 6 from acting

respectively as Patron and the Secretary.

6. It appears that the suit was filed on

23.04.2018 and the application for interim 4

injunction was moved on 24.04.2018. The Contesting

defendants filed a counter affidavit on the very

next day namely 25.04.2018 along with 19 documents.

7. Therefore, after hearing both sides, the trial

Court passed an order on 26.04.2018 allowing

Interlocutory Application No.386 of 2018 and

injuncting the defendants from proceeding with the

Meeting of the General Body and the Executive

Committee as scheduled on 5.5.2018. It is relevant

to note that the trial Court not only took note of

the pleadings on both sides but also took note of 12

documents filed by the plaintiffs and 19 documents

filed along with the counter affidavits of the

defendants.

8. As against the order of the trial court

granting injunction, the fifth defendant in the suit

(the third respondent in this appeal) who was

claiming to be the Patron for life, filed a Regular

Appeal in C.M.A No.1 of 2018 on the file of the Sub­

Court at Thothukudi under Order XLIII Rule 1(r) of 5 the Code of Civil Procedure. But the respondent

nos.1 & 2 herein who were the defendant Nos.1 & 6

respectively, instead of filing a Regular Appeal,

filed a Civil Revision in C.R.P.(MD) (PD) No.1084 of

2018 on the file of the Madurai Bench of the Madras

High Court, under Article 227 of the Constitution of

India.

9. Despite objections to the maintainability of

the revision on the ground of availability of an

appellate remedy under the Code, the High Court

allowed the Civil Revision Petition and set aside

the order of injunction granted by the trial Court.

It is against the said order that the plaintiffs

have come up with the above appeal.

10. The objection to the maintainability of the

revision was sought to be overcome by the High Court

on the basis of a few decisions which revolved

around the supervisory jurisdiction of the High

Court to keep the subordinate courts within the

bounds of law. Then the High Court found fault with 6

the trial Court for taking up the application for

injunction filed on 24.04.2018, for hearing on

25.04.2018 and passing an order on 26.4.2018. This,

in the opinion of the High Court, was a case of

justice being hurried and consequently getting

buried. Therefore, the High Court allowed the

revision and set aside the order of injunction.

11. Primarily the High Court, in our view, went

wrong in overlooking the fact that there was already

an appeal in C.M.A. No. 1 of 2018 filed before the

Sub­Court at Tuticorin under Order XLI, Rule 1 (r)

of the Code, at the instance of the fifth defendant

in the suit (third respondent herein), as against

the very same order of injunction and, therefore,

there was no justification for invoking the

supervisory jurisdiction under Article 227.

12. Secondly, the High Court ought to have seen that

when a remedy of appeal under section 104 (1)(i) read

with Order XLIII, Rule 1 (r) of the Code of Civil

Procedure, 1908, was directly available, the 7

respondents 1 and 2 ought to have taken recourse to the

same. It is true that the availability of a remedy of

appeal may not always be a bar for the exercise of

supervisory jurisdiction of the High Court. In A.

Venkatasubbiah Naidu Vs. S. Chellappan & Ors. 1, this

Court held that “though no hurdle can be put against

the exercise of the Constitutional powers of the High

Court, it is a well recognized principle which gained

judicial recognition that the High Court should direct

the party to avail himself of such remedies before he

resorts to a Constitutional remedy”.

13. But courts should always bear in mind a

distinction between (i) cases where such alternative

remedy is available before Civil Courts in terms of the

provisions of Code of Civil procedure and (ii) cases

where such alternative remedy is available under

special enactments and/or statutory rules and the fora

provided therein happen to be quasi­judicial

authorities and tribunals. In respect of cases falling

1 (2000) 7 SCC 695 8

under the first category, which may involve suits and

other proceedings before civil courts, the availability

of an appellate remedy in terms of the provisions of

CPC, may have to be construed as a near total bar.

Otherwise, there is a danger that someone may challenge

in a revision under Article 227, even a decree passed

in a suit, on the same grounds on which the respondents

1 and 2 invoked the jurisdiction of the High court.

This is why, a 3 member Bench of this court, while

overruling the decision in Surya Dev Rai vs. Ram

Chander Rai2, pointed out in Radhey Shyam Vs. Chhabi

Nath3 that “orders of civil court stand on different

footing from the orders of authorities or Tribunals or

courts other than judicial/civil courts.

14. Therefore wherever the proceedings are under the

code of Civil Procedure and the forum is the Civil

Court, the availability of a remedy under the CPC, will

deter the High Court, not merely as a measure of self

imposed restriction, but as a matter of discipline and

2 (2003) 6 SCC 675 3 (2015) 5 SCC 423 9

prudence, from exercising its power of superintendence

under the Constitution. Hence, the High Court ought not

to have entertained the revision under Article 227

especially in a case where a specific remedy of appeal

is provided under the Code of Civil Procedure itself.

15. Another aspect that was overlooked by the High

Court was that the second respondent herein namely Shri

A. Rajendran was already restrained by the Sub­Court,

from functioning as the Secretary of the first

respondent society. It is seen from the records that

the civil revision was filed before the High court by

the first respondent society as well the second

respondent herein. The second respondent herein was not

only the second petitioner in the Civil Revision

Petition filed before the High Court, but he also

sought to represent the first respondent­Society as its

Secretary, before the High court in the Civil Revision.

16. But in a connected Civil Miscellaneous Appeal No.7

of 2018 filed by the appellants herein (plaintiffs in

the suit), the Sub­Court, Thoothukudi passed an order 10

dated 22.04.2018 restraining the second respondent

herein for acting as the Secretary of the first

respondent­Society. This appeal arose out of the

dismissal by the trial court, of an interlocutory

application I.A.No. 387 of 2018 filed by the appellants

herein for restraining the second respondent herein

from acting as the Secretary and another person from

acting as the Patron. The trial Court dismissed

I.A.No.387 of 2018, but the plaintiffs filed an appeal

in Civil Misc. Appeal No.7 of 2018. The same was

allowed by an order dated 22.04.2018 by the Sub­court,

Thoothukudi unseating the second respondent as the

Secretary. Though the second respondent has claimed in

his rejoinder, that the order passed in C. M. A. No. 7

of 2018 was challenged in a revision in CRP (MD) No.

1295 of 2019 and an order of status quo was obtained,

from the Madurai Bench of the Madras High Court, the

same happened after more than a year. Therefore, on the

date on which the first respondent­Society filed the

Civil Revision CRP (MD) No. 1084 of 2018 before the 11

high court, the second respondent herein was not the

secretary and could not have acted on behalf of the

society. This aspect was also overlooked by the High

Court.

17. The observation of the High Court that the trial

Court proceeded in great haste, appears to be

uncharitable. It is true that the application for

injunction was moved on 24.4.2018 but the respondent

nos. 1 & 2 were very vigilant, if not overzealous and,

hence, they not only filed a counter affidavit to the

application for injunction on 25.04.2018, but also

filed 19 documents. They also advanced arguments, only

after considering which the trial Court passed an order

on 26.4.2018.

18. Order XXXIX Rule 3A of the Code of Civil Procedure

itself mandates the disposal of an application for

injunction within 30 days, whenever an injunction was

granted without notice to the opposite party. In this

case, the trial Court, without granting an ex­parte

order of injunction, chose to allow the opposite 12

parties to file counter affidavit(s) along with

documents and then heard the opposite parties before

allowing the application for injunction. Finding the

line of demarcation between speedy disposal and

hurried dispatch, with mathematical precision, is not

possible. In any case, even if the High Court was

convinced that the trial Court had proceeded hastily,

the High Court could have only remanded the matter

back. But the High Court allowed the application for

injunction without recording any finding on merits. In

fact the order of the Trial Court deals with the rival

contentions and is one passed on merits after due

consideration of the pleadings and documents. The High

Court unfortunately did not even deal with the matter

on merits to over turn the decision of the Trial

Court. Therefore, the order of the High Court is

liable to be set aside and the order of the Trial

Court is liable to be restored.

19. But it is brought to our notice that after the

High Court allowed the Civil Revision petition by its 13

order dated 28.08.2018, the second respondent herein

proceeded with the meeting of the General Body and the

Executive Committee on 25.09.2018 and also conducted

elections. Notice was ordered and the interim order of

the status quo was passed in the above special leave

petition only on 8.10.2018. Hence, it was sought to be

contended that the above appeal has virtually become

infructuous.

20. In normal circumstances, we would have agreed. But

this is a case where every meeting of the General Body

and every attempt at holding elections to the first

respondent­Society seem to have created a series of

litigation before three different fora namely (i) the

Civil Courts) (ii) the Registrar of Societies (iii)

the High court (in Writ Petitions arising out of orders

of the Registrar of Societies). This can be seen from

the following table:

S.N Events which Nature of Forum where Status o triggered the the filed 14

litigation litigation

1. Notice convening Suit in O.S. Sub­Court, Despite the General Body No.79 of Tuticorin. undertaking and Executive 2015 to the Committee on Court, the

21.03.2015. meetings were held and office bearers elected

2. By proceeding Writ Madurai Pending dated 27.03.2015, Petition Bench of the second respondent (MD) No.3869 Madras High was appointed as of 2016 Court.

Secretary of the College Committee of the College run by the first respondent­ Society. This was by virtue of the elections held on 21.03.2015.

3. Form Nos.6 and 7 A writ Madurai Pending in terms of the petition in Bench of the Tamil Nadu WP (MD) Madras High Society No.19710 of Court.

Registration Act 2015 filed, and the Rules challenging framed thereunder the were filed by the rejection. newly elected office bearers with the Registrar of Societies, for recording the names of the new set of officer bearers. But the Registrar rejected these forms on 24.04.2015. 4. Elections held on A suit O.S District Suit 15

21.03.2015 No.21 of Munsiff pending 2016 was Court at filed by the Tuticorin. present appellant No.1 for a declaration that the election allegedly held on 21.03.2015 was null and void and for a permanent injunction 5. The newly elected A writ Madurai Pending office bearers petition in Bench of the sought to amend WP (MD) Madras High the bye laws. No.13144 of Court. The amendment was 2016 filed rejected by the challenging District the order of Registrar. the District Registrar. 6. A fresh notice A suit O.S. District Suit dated 10.06.2017 No.195 of Munsiff pending issued convening 2017 seeking Court, the meetings of a Tuticorin the General Body declaration and the Executive that the Committee on notices were 8.07.2017. null and void and for a permanent injunction filed by the appellant No.1 7. By a paper A suit O.S. District pending publication dated No.145 of Munshif, 12.04.2018, the 2018 (out of Tuticorin Second respondent which the convened the present meetings of the appeal General Body and arises) was 16

the Executive filed for Committee on the reliefs 5.05.2018 stated (supra)

21. Therefore, we are of the view that the only way to

bring to an end all the litigations between the

parties before various fora is to set aside the

impugned order and the elections held pursuant thereto

and to appoint an Advocate Commissioner to convene the

General Body as well as the Executive Committee for

the election of office bearers. Accordingly, the

appeal is allowed, the order of the high court as well

as the elections purportedly held pursuant to the

order of the High Court are set aside. Smt. S.

SORNALATHA, Advocate, No.1, 1st Street, Chidambara

Nagar, Thoothukkudi­628 008, is appointed as

Commissioner with a mandate to do the following:

(i) Within two weeks of receipt of a copy of this

order, the Advocate Commissioner shall address letters

to the sponsoring bodies/Societies of the first

respondent society, for nominating members to the 17

General Body and the Executive Committee of the first

respondent­Society, as per the bye­laws.

(ii) Within one week of receipt of the letter from

the Advocate Commissioner, the sponsoring bodies shall

send a list of members nominated by them to the

General Body/Executive Committee of the first

respondent society

(iii) Within four weeks of receipt of the

nominations, the Advocate Commissioner shall convene a

meeting of the General Body and the meeting of the

Executive Committee and hold elections in accordance

with the bye –laws.

(iv) After holding elections, the Advocate

Commissioner shall ensure that form Nos. 6 and 7 are

registered with the Registrar of Societies so that the

registration of such forms do not become the subject

matter of any litigation at the instance of the rival

groups.

(v) The Advocate Commissioner shall be paid, by the

first respondent society, a remuneration of Rs. 18

1,00,000/­ apart from the reimbursement of the

expenses incurred by her.

(vi) Till the elections are held and results

declared, the Advocate commissioner shall discharge

the duties of the Secretary of the first Respondent­

Society

…………....................J/­ (Rohinton Fali Nariman)

………......................J/­ (V. Ramasubramanian) OCTOBER 03, 2019 NEW DELHI.