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Judgment
Srinivasan, J.—This Revision Petition is against an order passed by the Principal District Judge, Tirunelveli in I.A. No. 516 of 1990 in O.S.
No. 33 of 1988. The application was filed by the petitioners herein for a declaration that the election of 34 members to the Administrative council
of the third respondent Sangam as per the interim report of the Commissioner dated 19-3-1990 and the election of Office Bearers on 30-3-1990
were null and void and for an order declaring that the petitioners were entitled to discharge the duties of the President and Secretary of the Sangam
respectively.
The third respondent Sangam is a registered society under the Tamil Nadu Societies Registration Act. The administration of the Sangam is
governed by a scheme framed in O.S. No. 13 of 1942 on the file of Sub Court, Tirunelveli which came into force on 1-9-1943. Admittedly, the
Sangam is having about 50,000 members as on date. The members of the Sangam are persons aged above 18 and belonging to the community of
Dakshina Mara Nadars comprising of Hindus and Christians and persons following any religion except Mahpmmedamiam, who have their homes
in the territory situated within the boundaries of Vaiper river in the North, the Western Ghats on the West, the Bay of Bengal on the East, and the
Indian Ocean on the South, having subscribed to the application for membership. The Sangam has laudable aims and objects for the general
welfare of the community as such. Every member of the Sangam shall be liable to pay an annual minimum subscription or life subscription as
prescribed. All persons who are in the list of members on the 31st of March, every year, shall be placed in the list of, voters maintained in the head
Office of the Sangam which shall be located within the limits of Tirunelveli Municipality in Tirunelveli District under the Scheme. It is only such
persons who are in the list of Voters who shall be entitled to vote or take part in the general elections. A member, whose subscription is in arrears
for three months prior to the date of preparation of List of Voters, shall be excluded from the list. For the purpose of efficient administration of the
Sangam, the area is divided into seven regional groups viz., Madurai group, Virudhunagar Group, Koilpatti Group, Tirunelveli Group, Tuticorin
Group, Thisayanvilai Group and Tiruchendur Group. The members of the regional groups shall elect an administrative council consisting of 51
members from among those whose names are in the list of voters and having any of the qualifications set out in the scheme. The qualification is the
payment of any tax to the Municipality. Union or to the Government or to any Zamindar or Inamdar or any rent under the Estates Abolition Act or
Mahamai of Rs. 5 per year. ''Mahamai'' is defined in the scheme as to mean and include'' the collection of money from the traders belonging to the
community at such rates as the administrative council shall fix"". ''Trader'' is defined to mean and include ''any person belonging to the community
who carries on trade as a profession inside or outside the area and pays a ''Mahamai'' of not less than Rs. 5 per year. The Scheme also prescribes
the disqualifications for membership in the Administrative council. For the purpose of this case, the only relevant disqualification is being the arrears
of subscription or of Mahamai for one year. Out of the 51 members of the Administrative council, 17 are to be elected by the trader members and
the remaining to be elected by each regional group specified in the Scheme. The details thereof are not necessary for the purpose of this case. The
Administrative council shall elect an Executive Committee from among themselves consisting of 11 members inclusive of a President, Vice
President, Secretary and Assistant Secretary. The members of the Administrative Council shall hold office for a period of three years commencing
from the date of election. However, they shall continue in office after the expiry of the term of their office until another Council is constituted by
election.
The General Body of the Sangam in its meeting dated 28-12-1945 held at Tirunelveli framed certain by-laws, one of them relating to the Trader
Members. As per the said by law, a person in order to become a trader member, shall be a trader by profession and he shall pay a total Mahamai
of not less than Rs. 5 per year at the rate prescribed by the Administrative Council and in accordance with the rules. In a meeting held on 28-2-
1953 at Tuticorin, the General Body framed certain bye-laws. One of them is to the effect that all persons who are in the list of members on the
31st day of March, every year shall be included in the List of voters maintained by the Head Office of the Sangam. Only such persons who paid
subscription continuously for a period of three years and persons who paid life subscription shall be entitled to take part in the general election and
vote.
The petitioners herein filed O.S. No. 33 of 1988 on the file of Sub Court, Tirunelveli against respondents 1 to 3 herein for declaring that they
were duly elected President and secretary respectively of the Sangam and for consequential injunction restraining defendants 1 and 2 and their men
etc., from interfering in any manner with the discharge of duties of the plaintiffs as President and Secretary of the Sangam. The suit ended in a
compromise and a, decree was passed on 6-9-1989. The relevant terms of the decree are as follows:
That the Election for the Administrative council of the 3rd Defendant Sangam consisting of 51 members be conducted on or before 23-12-
1989.
That the Election of Office Bearers be conducted on or before 7-1-1990.
That Thiru C.S. Kumaraguruparan, Advocate-Commissioner has been appointed as Election Officer to conduct the election. (Necessary
Warrant was issued to the Commissioner to this effect).
That the present office bearers and Committee headed by Thiru Shanmugasundara Pandia Nadar and Thiru M.S. Arunachala Nadar be and are
at liberty to continue in office till the new office bearers assume office and (a) That all those who are members as per the records of the Sangam
upto 15-10-1989 be and are at liberty to vote.
... ... ...
That all civil cases filed by the two parties to this compromise against each other and against the Sangam pending in different courts be
withdrawn as not pressed."" The other clauses of the decree are not relevant for the purpose of this case.
The Commissioner appointed by Clause 3 of the decree prepared to hold the elections as provided for after taking directions from the Sub
Court, Tirunelveli. Publications were made in the newspapers announcing the election programme. As per the said programme, nomination were to
be filed on 14th, and 15th of March, 1990, the scrutiny to be held on 16th March, 1990, the withdrawal of nominations to be made on or before
17-3-1990 and the elections were to be held on 25-3-1990.
On 7-3-1990, one Ramachandran filed a suit in O.S. No. 233 of 1990 on the file of the Subordinate Judge, Madurai for a declaration that the
collection of application forms made by the Commissioner was not in accordance with the directions contained in the compromise decree or the
bye-laws of the Sangam and the election should not be proceeded with further. He applied for injunction till the disposal of the suit in I.A. No. 121
of 1990. An order of interim injunction was made on 7-3-1990 and the matter posted to 22-3-1990. The Commissioner was made the third
defendant in that suit and the only respondent in the application for injunction. On 14-3-1990, a publication was made in the newspapers that an
order of injunction had been granted by the Subordinate Judge, Madurai restraining the holding of election by the Advocate-Commissioner.
In the meanwhile, on 9-3-1990, the Commissioner submitted his first interim report to the court of Additional Subordinate Judge of Tirunelveli.
In that report, he stated that on 2-3-1990 the petitioners herein produced a list of trader members containing 278 names and on 6-3-1990 a
register containing the minutes of a meeting of the Administrative Council held on 14-10-1989 enabling the members to pay their subscription for
the previous three or four years at one stretch at a flat rate of Rs. 5 per year. A reference was also made to the production of Day Book and
Ledger showing payment by all the said 278 persons. The report proceeded to discuss whether the said 278 persons were entitled to vote as
trader members and concluded that they were not eligible to do so. The Commissioner stated in the report that he rejected the claim of all the 278
persons. The report considered the applications of seven other persons to be included in the list of trader members and upheld their claim.
Ultimately, it was stated in the report that no election could be held to the constituency of trader members as there were only seven members in the
list, whereas 17 persons had to be elected for the said constituency. The Commissioner stated that he had done every preparation for holding the
election on 25-3-1990 for the remaining 34 seats in the Administrative Council. On 12-3-1990 the Commissioner prepared a memo referring to
the receipt of documents under Order 39, Rule 3-A of the CPC from one Chellathurai, Advocate, Madurai, and containing a prayer for directions
as to what he should do if an order of injunction was received by him after the receipt of nomination papers. Another memo was prepared on the
same day referring to the receipt of a copy of the plaint in O.S. No. 233 of 1990, Sub Court, Madurai and the engagement of one K.
Gopalakrishnan, Advocate, Xo appear in the suit and contest the interlocutory application. There was a prayer for permission to incur expenses for
the purpose of contesting the said suit. These memos were served on counsel appearing for the parties. But they do not seem to have been filed in
court. Learned Counsel for the petitioner asserted that the Commissioner did not file the memos in court and got the directions of the court. There
is nothing on record to show that the memos, were actually filed in court. At any rate, it is not in dispute that the directions of Sub Court,
Tirunelveli, were not obtained by the Commissioner after he become aware of the order of injunction made by Sub Court, Madurai. 8. I have
already referred to the suit filed by Ramachandran in the Sub Court, Madurai. A member of the Sangam named M. Subbiah filed a suit in the Sub
Court, Tenkasi for a similar relief as prayed for by Ramachandran. That suit was numbered as O.S. No. 28 of 1990 and interim injunction was
sought by the plaintiff in I.A. No. 258 of 1990. After receipt of notice in the said suit, the Commissioner entered appearance and filed a counter.
The application was heard by Sub Court, - Tenkasi on 12-3-1990 and orders were reserved. That fact was also not brought to the notice of the
Sub Court, Tirunelveli by the Commissioner. The Sub Court, Tenkasi allowed the application on 22-3-1990 and passed an order of injunction
restraining the Commissioner from holding an election to the administrative council of the Sangam till the preparation of the Voters list as per
compromise decree in O.S. No. 33 of 1988 and publication there of.
In spite of the above proceedings and orders of Court, the Commissioner proceeded hastily to receive nominations as per the original
programme of election. It is seen from his second report dated 19-3-1990 filed in Sub Court, Tirunelveli that some of the nominations were
withdrawn and ultimately 34 members were declared elected as unopposed. Obviouslysuch declaration was made as soon as the time for
withdrawal of nominations on 17-3-1990 came to an end. At any rate, by the report dated 19-3-1990, the Commissioner informed thecourt that
election of 34 members in the Administrative Council had been duly completed and that the election of Office-bearers would be conducted on 30-
3-1990 as notified already,
Even before filing the report dated 19-3-1990, the Commissioner had engaged a counsel at Madras to file an application for transfer of the
suits O.S.Nos.233 of 1990 Sub Court, Madurai and 28 of 1990 Sub Court, Tenkasi to the file of Sub Court, Tirunelveli. The affidavit filed in
support of the applications for transfer was sworn to by the Commissioner on 15-3-1990. The applications were actually filed in this Court on 19-
3-1990 on which date the Commissioner had filed the second report in Sub Court, Tirunelveli to the effect that the election was already
completed. In the affidavit filed in support of the applications for transfer, the Commissioner had admitted that an order of injunction was passed
by Sub Court, Madurai, restraining him from holding the election and expressed an apprehension that a similar order would be passed by Sub
Court, Tenkasi. He stated that as he was acting under the directions given by the Subordinate Judge, Tirunelveli, he would not be in a position to
obey the conflicting directions given by any other court of equal jurisdiction. He had also prayed for interim suspension of the order of injunction
granted by Sub Court, Madurai. The applications for transfer were taken on file as Tr.C.M.P. Nos. 4598 and 4690 of 1990 and ultimately
dismissed by this Court on 9-5-1990.
Yet another suit was filed by one Muthu Nadar, another member of the Sangam in O.S. No. 313 of 1990, Sub Court, Madurai on 29-4-
1990. An application for injunction restraining the Commissioner from holding the elections to the Administrative Council and the Office-bearers
was made in I.A. No. 177 of 1990. The Court ordered interim injunction and notice on that day itself. The order of injunction was published in the
newspapers on 30-3-1990. However, the election of the office bearer was held on 30-3-1990 and the Commissioner filed his third report to that
effect in Sub Court, Tirunelveli on the very same date.
On 12-4-1990 the petitioners filed objections to the reports of the Commissioner and also an application to declare the election of 34
members to office-bearers to the Administrative Council an� the election of Office-bearers as null and void and that the petitioners are entitled to
discharge the duties of the President and Secretary of the Sangam respectively. That application was numbered as I.A. No. 292 of 1990 on the file
of Additional Subordinate Judge. Later, it was transferred to the file of the Principal District Judge and numbered as I.A. No. 516 of 1990.
Respondents 1 to 3 herein were the only respondents in the said application. Though the Commissioner was not a party CO nominee, he filed a
report in court on 17-4-1990 setting out certain matters relevant for the disposal of the application. The District Judge by his order dated 26-7-
1990 dismissed the application, It is that order which is challenged in this revision petition.
Learned Counsel for the petitioners raises two contentions. The first is that the election held by the Commissioner is null and void as it was in
violation of the order of injunction made by Sub Court, Madurai, in I.A. No. 121 of 1990 in O.S. No. 233 of 1990. Secondly, it is urged that the
Commissioner was in error in rejecting the claim of the 278 persons as trader members.
Learned Counsel for the third respondent raised a preliminary objection as to the maintainability of the application in the court below as well as
this revision petition in this Court According to learned Counsel for the third respondent, the application in the court below was vitiated by non-
joinder of necessary parties, viz., the Commissioner and the newly elected members of the Administrative Council. According to him, the
application before the court below to declare the election as null and void was akin to an election petition under the Representation of People Act,
the Panchayats Act or the District Municipalities Act and without impleading the successful candidates, the petition was wholly unsustainable. It
was argued that the impleading of the Commissioner as a party to the Revision Petition would not improve the situation and the non-joinder of the
successful candidates in the revision petition would be sufficient to dismiss the same as not maintainable. On the merits, learned Counsel for the
third respondent contended that the Commissioner was entitled to ignore the order of injunction granted by Sub Court, Madurai as it was null and
void. According to him, the election was being held in pursuance of the terms of the compromise decree and in accordance with the directions
given by the Sub Court, Tirunelveli, and no member of the Sangam was entitled to approach any other Court for injunction and the entire
proceeding was mala fide and an abuse of process of court. He has also stated that the proceedings in the other courts were really engineered by
the petitioners herein, who are keen on clinging on to the office as long as possible. Learned Counsel for the third respondent also submitted that
the Commissioner was right in rejecting the claim made by the 278 members as trader members. Thus, learned Counsel contended that the order
of the court below is unassailable in having accepted the contention put forward by the respondents.
In support of the preliminary objection learned Counsel for the third respondent drew my attention to the provisions of Order 1, Rule 3 and
Rule 9 of the Code of Civil Procedure, the Representation of the People Act, the District Municipalities Act and the Panchayats Act. According to
him, the principle contained in the provisions of the special enactments would apply to the present case and without impleading the successful
candidates, the election cannot be challenged.
He relied on the judgment of the Federal Court in AIR 1941 16 (Federal Court) It was held in that case that a person would be a necessary
party if he ought to have been joined and in whose absence no effective decree can be passed at all. Reference was made to the judgment of a Full
Bench of the Allahabad High Court in Benaras Bank v. Bhagwan Das ILR 1946 All. 971 : 1954 A.L.J. 402 : 1946 A.L.W. (H.C.) 569 : 1946
A.L.W.R. (H.C.) 603 : 229 I.C. 123 : 1947 R.D. 32 : AIR 1947 All. 18. Two tests were prescribed in that case to find out whether a person is a
necessary party to a proceeding: (1) There must be a right to some relief against such party in respect of the matter involved in the proceedings in
question and (2) it should not be possible to pass an effective decree in the absence of such a party. The said ruling of the Allahabad High Court
was approved by the Supreme Court in Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain and
Others, . It was pointed out that all persons should be joined as defendants against whom any right to relief is alleged to exist, provided that such
rights arise in respect of the same act or transaction or series of acts or transactions and the case is one where a common question of law or fact
would arise.
The judgment of the Supreme Court in Krishan Chander Vs. Ram Lal, was referred to. It was held therein that when the validity of an election
was challenged on ground of corrupt practice of some candidates, the requirement of impleading those candidates as parties to the petition could
not be dispensed with and the issue whether necessary parties were impleaded had to be tried as a preliminary issue.
My attention is drawn to the judgments in Dwijendra Lal Sen Gupta Vs. Harekrishna Konar, and K.T. Kosalram Vs. Dr. Santhosham and
Others, , in which it was held that a returning Officer in election would be a proper party, though not necessary party to a proceeding to set aside
the election. Reliance was also placed on the dictum of the Supreme Court in Shri Udhav Singh Vs. Madhav Rao Scindia, , that the provisions in
Section 82(b) of the Representation of the People Act as regards joinder of parties were peremptory and the principle behind the same was that
no party shall be condemned without being heard. Learned Counsel also referred to the judgment of a Division Bench of the Court in A.
Ramachandra Pillai v. Valliammal (died) 100 L.W. 486 in which it was held that the non-joinder of all sharers to a partition suit would be fatal to
the same.
None of the rulings referred to above would apply to the facts of this case. The election of 34 members to the Administrative Council in this
case is not challenged on the basis of any allegation made as against the successful candidates. It is not as if the election is said to be vitiated by any
omission or commission on the part of the successful candidates. The only ground on which the election is challenged is that it was held in violation
of an order of a competent court granting an injunction restraining the holding of the same. The Court is not concerned in this case as to what
happened at the election, whether anything illegal or irregular took place at the time of election. The question goes to the root of the matter that the
holding of the election was itself illegal as a competent court had prohibited the same by an order of injunction. The court should refuse to
recognise the election and the result thereof. The petitioners do not seek to set aside the election. On the other hand, they are seeking a declaration
that the election is null and void. The successful candidates will have no independent defence to the application. The only defence that could be put
forward has been advanced by not only the Commissioner but also the third respondent. Learned Counsel for the petitioners submits that when the
Sangam is a party represented by the person who under the scheme is entitled to represent it, there is no necessity to implead as parties any other
member of the Sangam, whether such member is a successful candidate in the election or not. I see considerable force in the said argument, though
it is not necessary for me to rest my conclusion on the same. If the test prescribed by Allahabad Full Bench and approved by the Supreme Court is
applied to this case, it is clear that it is possible to pass an effective order in the absence of the successful candidates.
It is worthwhile at this stage to refer to the ruling of a Full Bench of this Court in Century Flour Mills Ltd. Vs. S. Suppiah and Others, , relied
on by learned Counsel for the petitioners: In that case a meeting was held in violation of the Court''s order and the parties approached the High
Court and prayed for relief on the ground that what has happened at the meeting, would be destructive of their stand point. The Full Bench held
that the Court was bound to put the parties back is the same position as they stood prior to the holding of the meeting. The relevant observations
of the Full Bench are as follows:
In our opinion, the inherent powers of this Court u/s 151, C.P.C. are wide and are not subject to any limitation. Where in violation of a stay
order or injunction against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and
not allow the perpetration of the wrong doing. In our view, the inherent power will not only be available in such a case, but it is bound to be
exercised in that manner in the interests of justice. Even apart from Section 151, we should observe that as a matter of judicial policy, the court
should guard against itself, being stultified in circumstances like this by holding that it is powerless to unto a wrong done in disobedience of the
Court''s orders. But, in this case it is not necessary to go to that extent as we hold that the power is available u/s 151, C.P.C. 10. Mr.
Panchapakesa Iyer, for the respondent however contends that our view, as indicated above, would prevail only as between the parties in Court,
but when third parties have acquired rights by reason of something happening though it is in contravention or in disobedience of the order of court,
the legal position would be different. He says that, since the resolutions had been passed at the meeting on 14-9-1974, which had vested rights in
third parties, it would be beyond the power of this Court to make an order, which will have the effect of affecting or interfering with or setting aside
such rights in third parties. In our opinion, the question of third parties rights being affected does not arise in the context. We are concerned with a
meeting which had been prohibited and not with what happened at the meeting. If the meeting held was in violation of the Court''s order and the
parties affected approach this Court and ask for relief on the ground that what happened at the meeting would be destructive of their stand-point;
this Court on a consideration of the entire circumstances and facts will have to put back the parties in the same position as they stood prior to the
holding of the meeting. That is not to say that, in doing so, the court interferes with third parties'' rights. All that this Court would do in such
circumstances is that, since the meeting was prohibited, but all the same it was held, in violation of the order of this court, it would refuse to
recognise the holding of the meeting as a legal one.
The judgment of the Full Bench fully applies to he facts of the present case.
There is no substance in the contention that the Commissioner should have been made a party to the proceedings in the Court below. The
Commissioner being an officer of Court acting under the directions of the court, is bound to appear and place before the court the relevant facts
pertaining to the application. It is not necessary to make him eo nominee a party to the application. As stated already, the Commissioner was
awareof the application and he filed a report on 17-4-1990 setting out the relevant matter in the court below. In so far as this revision is
concerned, the Commissioner has been impleaded as a party. Hence, I overrule the preliminary objection raised by learned Counsel for the third
respondent and hold that the application in the court below and this revision petition are maintainable and not vitiated in any manner by the non-
joinder of the successful candidates in the election or the Commissioner who held the election.
The contention that the order of injunction made by the Subordinate Judge, Madurai in I.A. No. 121 of 1990 in O.S. No. 233 of 1990 was
not binding on the Commissioner is, to say the least, preposterous. It cannot be and it has not been disputed that the Court of Subordinate Judge,
Madurai had jurisdiction to entertain the subject matter of the said suit. The only contention urged by learned Counsel for the third respondent is
that the court ought not to have granted injunction in view of the facts and circumstances of the case. According to him, the action was mala fide
and engineered by the petitioners herein. Learned Counsel submitted that the order of injunction was granted in violation of the settled principles of
law and was ex facie illegal and consequently void.
Learned Counsel placed reliance on the observations of a Full Bench of this Court in Seeni Chettiar v. Santhanatham Chettiar and Ors. I.L.R
20 Mad. 58 It was held in that case that a Court would refuse an injunction when the conduct of the party seeking injunction had led to the state of
things that occasioned the application and that a person who sought equity should do equity. The Court pointed out that a person who came to
Court seeking ah injunction should do so with clean hands and should be able to satisfy the Court that his own acts and dealings in the matter had
been fair and honest and free from any taint of fraud or illegality. Reliance is also placed on Basheshar Nath v. Moga Municipality AIR 1940 Lah.
69 laying down a similar proposition.
Learned Counsel referred to the decision in Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others, , in which it
was held that a prohibitory injunction cannot be granted by a Court with a view to restraining any person from instituting or prosecuting any
proceeding subject to one exception indicated in larger public interest viz., a superior Court could injunct a person from instituting or prosecuting
an action in a subordinate court with a view to regulating the proceedings in subordinate courts. It was pointed out by the Supreme Court that u/s
41(b) of the Specific Relief Act a Court is precluded from granting injunction restraining a person from instituting or prosecuting a proceeding in a
court of co-ordinated jurisdiction or superior jurisdiction. Strong reliance is placed on the judgment of the Karnataka High Court in Mohamed
Ameer v. Hafeez Khan AIR 1990 Kar 32, in which it was held that an order made by a civil Court restraining the defendant from executing all
order of eviction obtained under the provisions of the Karnataka Rent Control Act was illegal and without jurisdiction.
None of the eases referred to above has any bearing on the present case. The first two cases did not deal with the jurisdiction of the Court.
They were concerned only with the principles and circumstances under which a court could exercise its discretionary jurisdiction to grant the
equitable relief of injunction. The cases before the Supreme Court and the Karnataka High Court dealt with the statutory bar u/s 41(b) of the
Specific Relief Act. Therefore, they will have no application to the present case. In this case, the order of injunction was made by a competent
Court restraining the Commissioner from holding the election. The order did not prevent the Commissioner from instituting any proceeding in any
civil Court. The only course open to the Commissioner was to approach the said Court to vacate the order of injunction after placing before it all
the facts and circumstances of the case. So long as there is no lack of jurisdiction in the court, the order is valid until it is set aside and it can never
be treated as null and void even if the order can be said to be unwarranted or unjustified. The Commissioner was certainly not entitled to ignore the
order and proceed to hold the election.
My attention is drawn by learned Counsel for the petitioners to the judgment of a Division Bench in Nalla Senapathi Sarkarai Manradiar. Vs.
Sri Ambal Mills (P) Ltd. and Others, . The Bench held that even if there was want to territorial or pecuniary jurisdiction in a court, any order
passed by that court would still be binding on the parties thereto. It was held that if the lack of jurisdiction did not go to the root of the power of
the court, the order would be binding on the parties and it should be strictly obeyed. As pointed out already, there is absolutely no objection to the
competence of the Subordinate Judge, Madurai to entertain the suit O.S. No. 233 of 1990 and grant reliefs therein. This aspect of the matter was
stressed by this Court while dismissing Transfer C.M.P. Nos. 4598 and 4690 of 1990. Hence, the election of the 34 members to the
Administrative Council is wholly illegal and null and void.
The next question which is to be decided is whether the Commissioner is right in rejecting the claim made by the 278 persons as traders. The
court below as well as the Commissioner had taken the view that they were not entitled to take part in the election as they were admittedly in
arrears with regard to the payment of ''Mahamai'' for more than one year. Reliance has been placed by the Commissioner as well as District Judge
on Rule 6(d) which was introduced by the Resolution dated 28-2-1953. A reading of the rule clearly shows that it has no applicability whatever to
the question before me. The Rule speaks only of arrears in payment of subscription. That has nothing to do with the arrears in payment of
''Mahamai'' It is clear from the scheme that ''Mahamai'' is entirely different from subscription. A ''Mahamai'' is generally a donation for charity on a
fixed percentage. Vide State of Madras v. S.S.M. Paripalana Sangam AIR 1982 Mad. 48. It can never be equated to or identified with
subscription. However, learned Counsel, who appears for the Advocate-Commissioner tried to argue that for the purpose of the rule in question,
the word ''subscription'' would also include ''Mahamai'' and it would only mean any payment to be made by a member whether he is a trader or a
non-trader. I do not agree. When the scheme has taken care to use different expressions ''Mahamai'' and ''subscription'', it cannot be contended
that for the purpose of Rule 6(d) subscription would include ''Mahamai'' In fact the scheme provides in Clause 5(m) that the Sangam is entitled to
impose and collect (1) ''Mahamai'' (2) Thandal, (3) Hundies, (4) Subscriptions and (5) Contributions from the members of the community and also
to secure donations and other income. Thus, a clear distinction is maintained between ''Mahamai'' and ''subscription''. Throughout, the rules make a
distinction between ''subscription'' and ''Mahamai'' There is no question of any confusion between the two. Even in the rule providing for
disqualification of membership of the Administrative Council, there is a specific clause, viz., Clause No. 9 which uses both the words ''subscription''
and ''Mahamai''. That rule shows that if a person is in arrears of subscription or of ''Mahamai'' for one year, then he will be disqualified from being
a member of the Administrative Council. Therefore/there is no basis, for accepting the contention that for the purpose of Rule 6(d) subscription
would include ''Mahamai''. The Court below is clearly in error in taking the view that Rule 6(d) would apply to the present case.
If Rule 6(d) is excluded from consideration, then the relevant rule is that introduced by the Resolution dated 28-12-1945. Under that Rule, a
person can become a trader member if he is a trader by profession and if he pays annual ''Mahamai'' of not less than Rs. 5 as prescribed by the
Executive Committee. What has happened in this case is that after the passing of the compromise decree on 6-9-1989, the 278 members had
approached the Administrative Council for accepting the arrears of ''Mahamai'' from them. A resolution was passed on 14-10-1989 by the
Administrative Council permitting those persons to pay the arrears of ''Mahamai'' along with the ''Mahamai'' payable for the current year and
declaring that only on such payment, they would be eligible to vote. As a matter of fact, they had paid the ''Mahamai'' even on 6-10-1989 and the
resolution was passed by the Administrative Council only after such payment was made. The said facts are available even in the first report filed by
the Advocate-Commissioner. He has referred to the fact that the parties had produced into Court the relevant Day Books and Ledgers as well as
the Minute Books. In paragraph 8 of his report, he referred to the production of the Minutes Book of the meeting held on 14-10-1989 and the
production of the Day Book and ledgers showing the payment by all the 278 members. In his report dated 17-4-1990, he has referred to the fact
in paragraph 14 thereof that the 278members had paid the ''Mahamai'' on 6-10-1989 and the following days. Thus, on the facts it is clear that all
the 278 members, who were held ineligible by the Advocate-Commissioner to take part in the election, had paid the arrears of ''Mahamai'' and got
the permission of the Administrative Council to vote in the election.
The Court below has taken the view that the Administrative Council had no jurisdiction to grant such permission and the Resolution passed on
14-10-1989 would have the effect of amending the bye-laws. There is absolutely no basis for the view, taken by the Court below. If the
Administrative Council permits the members to pay the arrears of ''Mahamai'' in one lump sum, it would only mean the delay in payment of the
''Mahamai'' is condoned by the Council. It would not have the effect of amending any bye-law. There is no bye-law as such to say that the traders
shall cease to be trader-members if they have not paid ''Mahamai'' for more than one year or consecutively for three years. The only requirement
under the Resolution of 1945 as seen already is that the trader should pay a ''Mahamai'' of not less than Rs. 5 per year as prescribed by the
Executive Committee. There is no rule or bye-law curtailing the powers of the Administrative Council disentitling it to condone the delay in
payment of ''Mahamai''. In this case, the Administrative Council was well within its jurisdiction in passing the Resolution dated 14-10-1989
accepting the lump sum payment of Mahamai made by the 278 members. Hence the Advocate-Commissioner as well as the court below were in
error in holding that the said 278 persons were not entitled to take part in the election.
The Advocate-Commissioner had himself accepted the eligibility of seven persons as trader members to take part in the election. Hence, the
seven persons recognised by the Commissioner and 278 persons who were rejected by the Commissioner would all be entitled to vote as traders
and election for the traders'' constituency for electing 17 members to the Administrative Council should be held.
The result of the above discussion is that the election held by the Commissioner of the 34 members to the Administrative Council is declared
void and a direction is issued to the court below to hold a fresh election through an Advocate-Commissioner.
Learned Counsel for the Advocate-Commissioner appearing in this Court submits that the present Advocate-Commissioner is very old and he
wants to be relieved from his responsibility. I accept the said statement and relieve the Advocate-Commissioner subject to his accountability for
the amounts collected by him.
I have already referred to the filing of the three suits O.S. No. 233 of 1990 on the file of the Sub Court, Madurai, O.S. No. 28 of 1990 on the
file of the Sub Court, Tenkasi and O.S. No. 313 of l990 on the file of the Sub Court, Madurai. Interests of justice require that all the three suits
should be disposed of by the Court which is seized of the matter in O.S. No. 33 of 1988. All the three suits are directed against the election to be
held by the Advocate-Commissioner pursuant to the direction contained in the compromise decree. It is only proper that the Court, which has
passed the compromise decree should be approached for all directions with regard to the matter of election. It is very unfortunate that the
members of the Sangam have chosen to approach different courts at different places for orders of injunction restraining the election. They could
have very well approached the Additional Sub Court, Tirunelveli if they were aggrieved by the acts of the Advocate-Commissioner and sought
appropriate directions to the Commissioner. Unfortunately when the applications for transfer of two of the suits were filed by the Advocate-
Commissioner in this Court, they were dismissed. I am of the view that it is proper in the interests of justice to transfer the three suits referred to
above to a court in Tirunelveli to be disposed of by the same Judge who will be in charge of the proceedings in O.S. No. 33 of 1988. It is agreed
by all the parties that all these proceedings may be heard and disposed of by the First Additional District Judge, Tirunelveli. In exercise of my
power u/s 24 of the Code of Civil Procedure, suo motu I transfer the above three suits and the proceedings in O.S. No. 33 of 1988 to the First
Additional District Judge, Tirunelveli. He will hear all the mattes together.
I am told that the orders of injunction made in I.A. No. 121 of l990 by the Sub Court, Maduraiand in I.A. No. 177 of 1990 by the same
Court are not in force as they have been subsequently vacated. But, the order of injunction granted in I.A. No. 258 of 1990 in O.S. No. 28 of
1990 is said to be in force. The order made by the Subordinate Judge, Tenkasi is only to the effect that the election by the Advocate-
Commissioner should not be held unless and until he complies with the directions contained in the compromise decree. The order clearly says that
after preparing a Voters'' List in accordance with the compromise decree, the Commissioner can proceed to hold election. Hence, there will be no
difficulty in holding the election by the Advocate-Commissioner after the voter''s list is prepared in accordance with the directions contained in the
compromise decree. 35. The First Additional District Judge, Tirunelveli is directed to appoint a fresh Advocate Commissioner who will hold the
elections in accordance with the compromise decree dated 6-9-1989 in O.S. No. 33 of 1988. The First Additional District Judge, shall give
appropriate directions to the newly appointed Advocate-Commissioner in the matter of preparation of Voters List and holding the election. The
first Additional District Judge shall decide after hearing the parties as to who were the members eligible to vote as on 15.10.1989. It is only such
persons who will be permitted to take part in the election. With reference to the 285 trader members whose eligibility to vote has been upheld by
this Order, there is no question of any fresh consideration by the first Additional District Judge, Tirunelveli. The election shall be held as early as
possible and preferably on or before 31st January, 1991.
It is made clear that the members of the Sangam must approach only the first Additional District Judge, Tirunelveli for any direction with regard
to the election to be held by the Advocate-Commissioner. If any member is aggrieved by any action of the Commissioner, he should approach
only that court and heshould not file any proceedings in any other court. The Sangam which is the third respondent herein shall make a publication
it any one or two Tamil dailies having circulation in the entire area between Madurai and Kanyakumari informing the members of this direction and
instruct them that they shall approach only the first Additional District Judge, Tirunelveli for appropriate reliefs as and when required. I direct the
Sangam to mention also in the newspaper publication that if after such publication any member of the Sangam institutes any proceedings in any
court other than the Court at Tirunelveli relating to the matter of this election, he shall be liable for Contempt of Court.
It is stated that the newly elected 34 members of the Administrative Council have taken charge of the management after the election. They shall
hand over the management back to the petitioners herein who are entitled according to Clause 4 of the compromise decree to continue in office till
the new Office bearers assume office, on or befcJre 31st October, 1990.
It is brought to my notice that a suit in O.S. No. 91 of 1976 is pending on the file of the Principal Subordinate Judge, Tirunelveli for amending
the scheme decree passed in O.S. No. 13 of 1942. As it is a very old suit, the Principal Subordinate Judge, Tirunelveli is directed to dispose of the
same as early as possible and preferably on or before 28-2-1991.
In the result, the civil revision petition is allowed on the above terms. The parties do bear their respective costs.