J.K. Choudhury and Others vs Hem Chandra Chakravarty and Others

Sarjoo Prosad, C.J.—This application in revision is directed against an order dated 23-5-1955 passed by the learned Subordinate Judge of Upper Assam Districts at Silchar affirming the order of the learned Sadar Munsiff. It arises out of an application for injunction filed by the plaintiffs-opposite parties claiming to restrain the defendants from functioning as members of the Governing Body of the Guru Charan College, Silchar.

The learned Munsiff granted the injunction prayed for restraining the defendants from working as such and from transacting any business in that capacity until the decision of Title Suit No. 88 of 1955 pending in his Court and this order was maintained by the learned Subordinate Judge on appeal.

The facts relevant to the case are that there is a College called the Guru Charan College in the town of Silchar in the district of Cachar which is managed by a governing body consisting of 16 members. Petitioner 1, J.K. Choudhury is the Principal of the College and petitioner 2 Haripada Bhattacharjee is the Vice Principal, they being ex officio members of the Governing Body.

Two other petitioners Dilip Kumar Chakraborty and Amal Kumar Gupta are the Professors of the College and members of the Governing Body, having been elected by the teaching staff of the College, as such. Petitioner 5, Satindra Mohan Deb purports to be a nominee of one of the donors; the other five petitioners Upendra Sankar Datta, Rukmini Kumar Das, Mrs. Jyotsna Chanda, B.M. Gupta and Pares Chandra Chaudhuri are co-opted members of the governing body.

These are the ten petitioners in this application before me. Opposite parties Hem Chandra Chakraborty and Gouri Sankar Roy are nominees of the Government of Assam, while opposite parties Moinul Haque Choudhury and Ashutosh Datta are nominees of the Gauhati University on the governing body of the institution. Opposite'' party No. 6 Nagendra Chandra Syam purports to have been nominated as a member of the governing body by a donor. The Cachar Club Ltd., opposite party No. 4 and Dalitrum Agarwala opposite party No. 5 are other donor members of the Governing Body.

This Governing Body appears to have been newly constituted and there is a question about the legality of the co-option of the five members of the Governing Body as also about the valid nomination of Satindra Mohan Deb petitioner No. 5. Under the rules governing the constitution, Government was requested to send the names of its nominees on the governing body aforesaid; and originally by the letter dated 30-7-54 the Assistant Director of Public Instruction, Assam, with the approval of the Government sent the names of Mrs. Jyotsna Chanda and Hem Chandra Chakraborty as its nominees. On 25-3-1955 the Gauhati University also, as required by rules, sent the names of its nominees as already indicated above.

The Principal, who is also the ex-officio Secretary of the governing body, then issued notices to the members of the governing body to co-opt at a meeting held for the purpose five other members as required by the rules, so as to complete the strength of the governing body and 14-4-1955 was accordingly fixed for that purpose. Before this date, however, it appears that the Government changed its mind as to the nominations already made and suggested the names of Hem Chandra Chakraborty and Gouri Sankar Roy.

It would thus appear that the name of Mrs. Jyotsna Chanda was dropped from the names of nominees subsequently suggested by the Government. The notice of the meeting was duly sent to Gouri Shankar Roy, the opposite party No. 3 as well, on 9-4-1955 which appears to have been received by him on 11-4-1955; but the said meeting appears to have been attended by all the other members of the governing body, except Gouri Sankar Roy.

It was at this meeting that the five other petitioners were co-opted as members of the governing body. Gouri Sankar Roy had objected to the meeting on that date because he appears to have been engaged in some Local Board election.'' There were also some technical objections raised by opposite parties Nos. 1, 2 and 5, but the objections were overruled.

Opposite parties Hem Chandra Chakraborty, Moinul Haque Chaudhuri and Gouri Sankar Roy then instituted on 27-4-1955 the Title Suit in question in the Court of the Sadar Munsiff at Silchar making the petitioners, as also the other opposite party, defendants to the suit.

In the suit in question they claimed a declaration that the co-opted members of the governing body were not validly co-opted and their inclusion as such was illegal and ultra vires and thus the governing body was not properly constituted. They also challenged the nomination of petitioner No. 5 and prayed for an injunction restraining all these members from working as members of the governing body of the institution.

The grounds suggested for the reliefs, in. substance, are that the date fixed for the meeting of the governing body was inconvenient to one of the plaintiffs Gouri Sankar Roy and that the Cachar Club Ltd. which appears to have nominated the petitioner Satindra Mohan Deb a member of the governing body, was not a donor of the institution and eligible as such to nominate a member It has also been suggested that the notice given for the purpose of holding the meeting was not a valid notice, because it was not served 7 clear days before the holding of the meeting.

The allegations contained in the plaint have been controverted in the petition filed before me. But it is not at present necessary for me to go into the merits of the case. The learned Subordinate Judge when disposing of the appeal came to the conclusion that there was some prima facie case. For the present, therefore I do not propose to question the propriety of that finding. I have already indicated the substance of the allegations made in the plaint.

If I had to deal with the matter as an original Court, I would have found it very difficult to accept the position that there was a prima facie case made out for the purpose of supporting an application for injunction under Order 39 Rule 2, Civil P.C. But I am dealing with the matter in revision and I do not propose to disturb that finding for the present.

The question even then is whether the plaintiffs opposite parties have made out a case for injunction under Order 39 Rule 2. The case admittedly does not fall under Rule 1 at all of that Order. Rule 2 of the Order says that in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of.

There is no case of any breach of contract here; and I have not been able to see from the judgment of the two Courts below that any apprehension of injury has been established necessitating the grant of injunction. The learned Munsiff in dealing with the matter appears to have completely overlooked this relevant provision of law. One reason which he gives for grant of the injunction is that the Secretary of the College fixed the date of the meeting concerned on 14-4-55 at 9 A.M. He points out that the meeting was an important one as it was going to elect the members of the newly constituted Governing Body of the College. He says:

It was a known fact to defendant 1, the Secretary of the College that the Local Board election was going to be held on 18-4-55 and he ought not to have convened such an important meeting of the college knowing full well that the service of some of the members might not be available on that date.

In the first place, it means prejudging the allegations in the plaint. Assuming that the date! of the meeting was inconvenient to a particular member, there is prima facie nothing to justify the assumption that the meeting should not have been held on that particular day. There may be very good reasons for the Principal to hold the meeting on the date in question in order to have a properly constituted governing body.

From Annexure B to the affidavit in reply filed by petitioner 10, Paresh Chandra Chaudhury, which is a copy of a memorandum issued by the Government of Assam in the Education Department, it appears that as early as in July, 1954 the Government had requested the Secretaries of the various colleges to take necessary action for reconstitution of their governing bodies. One of the colleges mentioned therein is the Gurucharan College, Silchar.

Now, on the facts stated in the petition it appears that although the names of the nominees of the Government of Assam were received on 30-7-1954, the names of the nominees of the Gauhati University were not received until 25-3-1955, and thereafter the petitioner 1, who is the Secretary of the Governing Body and the Principal of the institution, proceeded to fix an early date for the meeting of those members of the governing body who were already there in order to co-opt the other members as required by the rules.

Prima facie there does not appear to be any reason why the Secretary should have further delayed the meeting for electing the co-opted members. We actually find in this case that the meeting was attended by all the members, except one. If a particular member had too many activities in hand, he could not thereby hold up the meeting and incommode the other members concerned. The presence of Mr. Gouri Sankar Roy was not so indispensable in fact or in law as to compel the Governing Body to meet according to his convenience.

The constitution of the Governing Body had to take place inspite of the fact that one or the other member was absent. It seems to me therefore that the observations made by the learned Munsiff are entirely beside the point at least for the purpose of deciding the question of injunction. The other reason given by the learned Munsiff is that the plaintiffs had challenged the legality of the service of notice, and the nomination of the petitioner Satindra Mohan Deb.

This again had entirely a bearing on the merits of the case. On behalf of the defendants, it has been argued that there was no rule under which it was obligatory to give 7 days'' notice. In the circumstances of this case, it has been submitted by them that the notice given was quite adequate even in respect of the member whose nomination was received from Government as late as on 8-4-1955.

The notice could not have been issued to Gouri Sankar Roy earlier and the said notice was duly received by him. Therefore, there was hardly anything to suggest that in convening the meeting there was any undue haste. Even if it were so, there is nothing else in the judgment of the learned Munsiff to justify the grant of injunction. He has not at all considered whether by allowing the Governing Body as constituted to function any irreparable injury was likely to ensue to the plaintiffs in the suit.

The learned Subordinate Judge appears to assume that if the Governing Body so constituted is allowed to function and transact business affecting important matters relating to the college, it would somewhat prejudicially affect the interest of the plaintiffs who are members nominated by the Government and the University and for these reasons he thinks that an ad interim injunction would be justified. In my opinion, the reasons given are quite inadequate to grant an ad interim injunction in a case of this nature.

The learned Subordinate Judge apparently has taken no notice of the inconvenience which would result from restraining the Governing, Body from functioning altogether. Nothing has been suggested against any one of the members co-opted, personally. The only complaint is that one of the members was not a valid nominee of the Cachar Club Ltd. which was not a donor. So far as the other members go, there is no complaint against them except that they were elected at a meeting which was not properly convened.

I wonder how on such a slender foundation the functioning of the governing body could be altogether stopped when there was no allegation against the individuals concerned. Even if it is ultimately held that these co-opted members were not validly elected,--a possibility somewhat too remote--even then there is nothing to indicate that by allowing them to function as such during the pendency of the suit the cause of the institution would be seriously prejudiced. No case to that effect has been made out by the plaintiffs at all.

The other members of the governing body are either ex officio members of the institution or persons nominated by the Govt. and the University. They can always keep a check upon the co-opted members if they wanted to do anything prejudicial to the institution even assuming that those members were not properly elected. It is the function of the governing body to transact all business in connection with the institution and control the budget and the disbursements.

All these functions would be stultified if the governing body was not allowed to function even as it is. As I have said, there is no clear finding in either of the two judgments of the Courts below that there was any injury likely to be caused to the plaintiffs. Indeed there is no definite allegation either. In such a case an order of injunction restraining the defendants to function was absolutely uncalled for. On the contrary, the balance of convenience was entirely in favour of the defendants and the interest of the institution demands that the Governing Body should continue to function.

It is suggested that probably some unauthorised expenditure may be incurred by the present governing body in the name of the institution. As I have said, there are already a number of persons there who are expected to control the co-opted members. Even as against the co-opted members there is not a word of complaint.

In fact, one of the members co-opted had been originally nominated by the Government itself. The suggestion is therefore quite unfounded. In the absence of any finding of injury being caused to the plaintiffs, there was absolutely no, legal warrant for the issue of an injunction against the petitioners.

The learned Subordinate Judge therefore acted illegally and with material irregularity in granting the injunction prayed for, and the order, in my opinion, cannot be sustained. The application must therefore be allowed and the order of injunction set aside. The plaintiffs-opposite parties should pay the costs of this application to the petitioners; hearing fee Rs. 50/-.