Bellamkonda Venkatappaiah and others vs Kanakala Seetharamaiah and others

Chinnappa Reddy

Though promotion of the spirit of co-operation should dominante the activity of a Co-operative Society, it is seen from a number of Writ Petitions that have come up before this Court that quite a number of Co-operative Societies in the State are riddled with faction and the rival groups fully utilise (and abuse) the processes of the law to again their ends and to dominate the Societies. The present case is an illustration of such a Society. The Co-operative Sub Registrar who was appointed as Election Officer to conduct elections to the Managing Committee of the Tyalluru Panchayat Samithi Cotton Growers Co-operative Marketing Society Limited, Pedukurapadu announced the election programme and issued notices on 2-1-1975 convening a meeting of the General Body of the Society on 25-1-1975. Pursuant to the programme announced by the Election officer the seven petitioners and the thirteen others filed their nominations on 16-1-1975. The Election Officer, at the scrutiny held on 17-1-1975, rejected seven nominations as invalid. On 18-1-1975 six out of the remaining thirteen persons withdrew from the contest leaving the seven petitioners in the field. The seven petitioners would have been automatically declared elected on 23-1-1975. At that stage, the nine respondents W.P. No. 3434/1975 and some others filed W.P. No. 288/1975 on 23-1-1975 and obtained an order of interim stay of election from this Court. They did not choose to implead the petitioners as patties. On the same day they also filed O.S. No. 28/1975 in the District Munsif''s Court, Sattenapalli on the same allegations and obtained an interim injunction restraining the Election officer from conducting the election. The petitioners were not impleaded as parties to suit. Later the Petitioners got themselves impleaded as parties to the Writ Petition and the suit. A petition to vacate the order of interim stay was filed in the High Court and my brother Muktadar J., vacated the interim stay observing that the balance of convenience required that those who had been nominated should be returned unopposed. An application to vacate the interim injunction was also filed in the District Munsif''s Court. Despite the fact that the order of Muktadar I was brought to the notice of the learned District Munsif he did not immediately vacate the injunction. But after about three months, on 25-4-1975, he vacated the interim injunction holding that the suit itself was no maintainable. The respondents filed C.M.A. No. 18/1975 in the District Court, Guntur and asked for interim injunction but that petition was dismissed. After the injuction was vacated the Election Officer issued a notice dated 17-5-1975 convening a meeting of the General Body on 5-6-1975 to elect the Managing Committee. Once again two members of the Society Ch. Meeraiah and Syed Razzummia filed W.P. No. 3066/1975 on 26-5-1975 alleging that fifteen days clear notice of election was not given as contemplated by Rule 22 of the Rules. The Writ Petition was dismissed in limine on 27-5-1975. On 5-6-1975 the meeting of the General Body was held and the petitioners were declared duly elected to the Managing Committee. The 1st petitioner was elected President of the Society and the 3rd petitioner as the Vice-President. On 5-6-1975 itself respondents 1 to 9 in W.P No. 3434 of 1975 filed O.P. No. 5/1975 in the District Munsif''s Court, Sattenapalli u/s 61 (3) of the Andhra Pradesh Co-operative Societies Act, questioning the election on the ground that notices were not issued in accordance with the rules, etc. They also filed an application for a temporary injunction restraining the petitioners from functioning as Directors of the Society and permitting the previous Managing Committee to function as such pending disposal of the Original Petition. The petitioners contended that the District Munsif had no jurisdiction to grant a temporary injunction pending a proceeding under S. 61(3) of the Co-operative Societies Act. The learned District Munsif, however granted a temporary injuction holding that he had jurisdiction to do so under S. 62 (4) of the Act, He found that respondents 1 to 9 herein had established a prima facie case that fifteen days clear notice contemplated by the Rules had not been given. In order that the affairs of the Society might not be brought to a stand still the District Munsif observed that the Deputy Registrar of Co-operative Societies could extend the term of the previous Directors. W.P. No. 3434/1975 has been filed by the petitioners seeking a writ to quash the order of the District Munsif in I.A. No. 631/1975. On 24-6-1975 two others (respondents 1 and 2 in W.P. No. 3463/1975) filed O.P. No. 7/1975 in the District Munsif''s Court, Sattenapalli and obtained an exparte interim injunction in I.A. No. 777/1975 restraining the petitioners from functioning as Directors of the Society. W.P. No. 3463/1975 has been filed by the petitioners questioning the order passed by the District Munsif in I.A. No. 779/1975. Sri M. Ramaiah learned counsel for the petitioners submitted that Section 62 (4) of the Andhra Pradesh Co-operative Societies Act had no application at all since it dealt with the powers of the Registrar and not with the powers of the District Munsif deciding an election dispute. There can be no two opinions about it and it is a matter for regret and surprise that the learned District MUNSIF thought that he had jurisdiction to grant a temporary injunction u/s 62 (4) of the Act. It is true that originally it was the Registrar himself that was competent to decide election disputes and all others disputes touching the business of a society. In 1966 by an Amending Act provision was made for the decision of election disputes by the District Munsif Merely because the Registrar was previously competent to grant injunctions even in election disputes it does not follow that the District Munsif has any such power u/s 62 (4) of the Act which expressly refers to the Registrar only. This position is also conceded by Sri S. Dasaratharami Reddy, learned counsel for the respondent.

Sri Dasaratharami Reddy, however, urged that the District Munsif was competent to grant a temporary injunction under the provisions of Order XXXIX Rules Order XXXIX Rule 1 and 2 and Section 151 C.P.C. read with S. 141 CPC. He argued that the District Munsif exercising jurisdiction under S. 61 (3) of the Co-operative Societies Act functioned as a Court and not as a person a designate and S. 141 CPC. enabled him to follow the procedure provided in the CPC in the proceeding under S. 61 (3) of the Co-operative Societies Act.

It is unnecessary to go into the question whether the District Munsif exercising jurisdiction under S. 61 (3) of the Co-operative Societies Act functions as a person a designata or as a Court. It is also unnecessary to decide the question whether the proceeding under S. 61 (3) is a suit or not I will assume for the purposes of this case that the District Munsif exercising jurisdiction under S. 61 (3) of the Co-operative Societies Act functions as a Court and that the proceeding is a suit. Even so, the question arises whether the provisions of Order XXXIX Rules 1 and 2 are applicable.

Order XXXIX Rule 1 enables a Court to grant a temporary injunction to restrain a defendant from wasting, damaging or alienating any property in dispute in a suit or removing or disposing of property with a view to defraud his creditors. It is obvious that it has no application Order XXXIX Rule 2 enables a court, in any suit for restraining the defendant from committing a breach of contract or other injury of any kind to grant a temporary injunction to restrain the defendant from committing a breach of contract or injury complained of or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. The proceeding under S. 61 (3) of the Co-operative Societies Act is clearly not a suit for restraining the defendants from committing a breach of contract. Can it be said it is a suit for retraining the defendants from committing other injury of any kind ? I do not see how an election dispute under S. 61 (3) of the Co-operative Societies Act can be equated to a suit for an injuction to restrain the defendant from committing an injury of any kind.

In Jagannath Pundlik and Others Vs. Sukhdeo Onkar Wankhede and Others, a Division Bench of the Bombay High Court held that the provisions of Order XXXIX Rule 2 could not be invoked to restrain a person elected to an office from functioning in the office since those questioning the election had no right to that office until elected and hence they could not be said to have suffered any injury in regard to that right. Referring to the provisions of Order XXXIX Rule 2, the learned Judges observed as follows:- The first, party cannot apply for there is no question of a contract. In order to bring the case within the second part the applicant must show some legal injury of some kind. In order to prove legal injury the applicant must establish that he has a legal right to do something and the opponent prevents him from the exercise of such right. Unless a right is alleged and/or shown to exist prima facie, there can be no question of any breach of that right. The question then is whether the applicant has a right to do that what he wants to prevent the defendant from doing-Respondent No. 6 applied u/s 15 of the Act to have election of the petitioners 2 and 3 were returned and respondent 7 applied to set aside the election of petitioner 1 and respondent No. 5 from ward 4. Respondent No. 6 was a voter while respondent No. 7 was a candidate at the election. Under the Act what is the right that each of them possesses ? Neither one nor the other is entitled to act as member of the Panchayat or vote at its meeting. In fact, until election of petitioners 1 and 5 is set aside, and he is declared elected he would have no right in respect of which injury is threatened to him. If he has no right there can be no injury to him at all. There is no explanation as to how the legitimate exercise of his right by petitioners and respondent No. 5 would cause the applicants any injury.

I agree with the observations of the learned Judges. I am, therefore, of the view that the provisions of Order XXXIX Rules 1 and 2 have no application. Nor can an injunction be issued under S. 151 CPC Sec. 151 CPC is not intended to confer additional powers on the Court. In the result, both the writ petitions are allowed with costs. Advocate''s fee Rs. 100/- in each.