K. Sundararajan vs The Educational Society and Others

Ratnam, J.—This civil revision petition at the instance of a third party to the proceedings has been preferred with leave of court against the

order passed in I.A. 534 of 1982 in O.S. 1675 of 1981, District Munsif''s court, Tirunelveli. The circumstances under which the civil revision

petition has come up before this Court may be briefly stated as under : The second respondent herein, who is a member of the first respondent

society, instituted O.S.1675 of 1981, District Munsif''s Court, Tirunelveli, impleading the first and third respondents herein, as defendants, praying

for a declaration that the entire proceedings of an election scheduled to be held on 20th December, 1981, was null and void and also for a

consequential injunction restraining respondents 1 and 3 from conducting the election on 20th December, 1981, or on any other subsequent day

prior to the disposal of the suit and for other incidental reliefs. In I.A. 2125 of 1981, the second respondent herein prayed for an order of

temporary injunction restraining the respondents 1 and 3 herein from in any manner conducting the election on 20th December, 1981 or on any

other subsequent date till the disposal of the suit. On 18th December, 1981, the learned District Munsif, Tirunelveli, being prima facie satisfied that

the documents filed disclosed non-receipt of ballot papers and as it was apprehended that a fair election may not be held, granted an ad interim

injunction and directed notice returnable by 23rd December, 1981. An appeal against this ex parte order of ad interim injunction in I.A. No. 2125

of 1981 in O.S. 1675 of 1981, was filed in C.M.A. 46 of 1981 before the District Judge, Tirunelveli, at the instance of a third party one A.L.

Subramaniam, who and two others, had got themselves impleaded as respondents 3 to 5 in I.A. 2125 of 1981 by orders in I.A. 2126 of 1981,

2127 of 1981 and 2129 of 1981, respectively and who complained of prejudice and injury to him as a result of the order of interim injunction. The

learned District Judge, Tirunelveli, who dealt with the appeal was of the view that the circumstances did not warrant the granting of an ex parte

interim injunction and in that view, set aside the order of interim injunction passed in I.A. 2125 of 1981 and allowed. C.M.A. 46 of 1981, on 19th

December, 1981 dismissing I.A. 2125 of 1981. In as much as the order of interim injunction granted by the learned District Munsif, Tirunelveli, in

I.A. 2125 of 1981 was set aside, the election to the first respondent society was held as scheduled on 20th December, 1981, and out of the six

ordinary members elected to the managing committee, the petitioner was one. Against the order passed by the learned District Judge, Tirunelveli, in

C.M.A. 46 of 1981, the second respondent herein preferred C.R.P. 4627 of 1981, contending that in view of a decision of a Division Bench of

this Court in Abdul Shukoor Sahib v. Umachander AIR 1976 Mad. 350 = 89 L.W. 330 no appeal would lie against an ex parte order of interim

injunction and therefore, the order passed by the learned District Judge, Tirunelveli entertaining and allowing such an appeal in C.M.A. 46 of 1981,

should be set aside. By an order dated 15th February, 1982, upholding the objection raised by the second respondent herein regarding the non-

maintainability of the appeal in C.M.A. 46 of 1981 before the District Judge, Tirunelveli, C.R.P. 4627 of 1981 was allowed. While doing so, this

Court directed the court below to pass orders expeditiously in the application for injunction bearing in mind the provisions under O. 39, R.3-A,

C.P.C., to the effect that every endeavour should be made to pass such orders within 30 days from the date of grant of injunction. Thereafter I.A.

1573 of 1982 was filed by one A.L. Subramaniam, third defendant in the suit, under O. 39, R. 4 C.P.C. for discharging the ad interim injunction

order passed in I.A.2125 of 1981. In another application in I.A.1574 of 1982, Thiru A.L. Subramaniam prayed for the grant of a temporary

injunction restraining the first respondent society and its men from adding any new member to the existing voters'' list and for granting an interim

injunction to that effect. The first respondent society in its turn filed I.A. 534 of 1982, praying for a modification of the order passed in I.A. 2125

of 1981 permitting it to conduct the election in accordance with the by-laws of the society. All these applications viz, I.A. 2125 of 1981, 1573 of

1982, 1574 of 1982 and 534 of 1982, were dealt with by a common order by the learned District Munsif, Tirunelveli, as common questions arose

for adjudication therein. Dealing with I.A.2125 of 1981 the learned District Munsif, Tirunelveli, accepted that the elections had taken place on 20th

December, 1981, as scheduled, but in as much as in C.R.P. 4627 of 1981 this Court has held that the election would be a nullity, it would be

unnecessary to further continue the order of injunction and therefore, held the interim injunction granted already deserved to be vacated.

Consequently, I.A. 2125 of 1981 was dismissed and I.A. 1573 of 1982 was allowed. Adverting to I.A. 1574 of 1982, the court below found that

there was no material to establish that the first respondent society was attempting to add new members to the existing voters'' list and therefore,

there was no need to grant the relief of temporary injunction as prayed for therein. Considering I.A. 534 of 1982 filed by the first respondent

herein praying for modification of the order passed in I.A. 2125 of 1981, the learned District Munsif, Tirunelveli, permitted the first respondent

society to conduct the election subject to the rules and regulations without affecting the rights of franchise of the second respondent herein. It is the

correctness of the order so passed in I.A. 534 of 1982 that has been challenged in this civil revision petition by the petitioner who is a third party

after attaining leave to do so by an order of this Court dated 4th March, 1983, in C.M.P. No. 2680 of 1983.

The main contention of the learned counsel for the petitioner is that the petitioner had been duly elected as one of six elected members to the

managing committee at the elections held on 20th December, 1981, and his rights as such an elected member could not be negatived or interfered

with without hearing him and giving him a reasonable opportunity or putting forth his objections before deprivation of such rights. Referring to the

proceedings in C.R.P. 4627 of 1981, the learned counsel for the petitioner, pointed out that the petitioner was not a party therein and anything said

in the course of that proceeding with reference to the validity of the elections would not be binding on the petitioner and cannot operate to deprive

the petitioner of his rights as an elected member of the committee. He also invoked to his aid the principle that no act of court should prejudice a

party. The further submission of the learned counsel for the petitioner is that having dismissed I.A. 2125 of 1981 by the order dated 6th January,

1983, there was thereafter no question of modifying the order passed therein permitting the second respondent society to conduct the elections in

accordance with the by-laws of the society, as such a modification would have been necessary only if the order of injunction in I.A. 2125 of 1981

had to be continued. On the other hand, the learned counsel for respondents 1 and 3 submitted that the petitioner figured as an intervener in SLP

(Civil) No. 2237 of 1982, before the Supreme Court, preferred against the order passed by this Court in C.R.P. 4627 of 1981, and having regard

to the dismissal of that petition by the Supreme Court, the petitioner cannot be heard to contend that the election held on 20th December, 1981 is

not a nullity and therefore, the order passed by the court below directing the conduct of the election by the first respondent in accordance with it

rules and regulations cannot be taken exception to.

There is no dispute that as a consequence of the vacating of the interim injunction granted in I.A. 2125 of 1981 on 18th December, 1981, by

the learned District Munsif, Tirunelveli, by the appellate order dated 9th December, 1981, in C.M.A. 46 of 1981, District Court, Tirunelveli, the

election took place on 20th December, 1981, in which the petitioner and others were elected as members of the managing committee. The point

for consideration is whether the validity of that election had been pronounced upon by any authority competent to do so on a consideration of all

the relevant facts and materials connected therewith. No doubt, in the course of the order passed by this Court in C.R.P. No. 4267 of 1981, there

is an observation to the effect that the election held consequent to the passing of the order in C.M.A. 46 of 1981, District Court, Tirunelveli, is a

nullity. It is doubtful whether the petitioner would be bound by such a declaration as it is not in dispute that the petitioner was not a party to that

proceeding. That the election took place on 20th December, 1981 had been accepted by this Court, as otherwise, it was unnecessary for this

Court to declare such an election as a nullity. If, therefore, the election had taken place on 20th November, 1981, as there was no order of

injunction in force at that time when the elections took place and the petitioner had been elected to the committee of management as a result of the

order of the appellate court in C.M.A. 46 of 1981, then, it is undoubtedly clear that the petitioner would have rights as an elected representative in

the managing committee. Those rights could not be taken away from the petitioner by a declaration regarding the nullity of the elections in a

proceeding to which the petitioner was not a party. The Court below was there fore not quite in order in having proceeded to treat the elections

held on 20th December, 1981, as a nullity even in so far as the petitioner is concerned and in proceeding to give directions regarding further

elections. It is elementary that before rights of privileges secured by a person are taken away or even in any manner jeopardised, such a person

should be given a fair and reasonable opportunity of being heard. The declaration given in the course of the order in C.R.P. 4627 of 1981,

regarding the nullity of the elections held on 20th December, 1981, which undoubtedly very seriously interfered with the rights of the petitioner as

an elected member of the committee of management, in is absence as a party to those proceedings, violates ordinary principles of natural justice. It

must be remembered that the bone of contention in this Court in the course of C.R.P. 4627 of 1981 was regarding the maintainability of the appeal

in C.M.A. 46 of 1981 before the District Court, Tirunelveli. While holding that such an appeal ought not to have been entertained and allowed, this

Court directed the trial Court to pass appropriate orders in the application for injunction and in that context, the observation was made that the

election held on 20th December, 1981 was a nullity. It is needless to say that it was an observation which was neither necessary nor relevant for

dealing with the question which arose for decision therein. An ex cathedra pronouncement regarding the legality or other wise of the elections held,

on 20th December, 1981 was not germane at all for the question considered by this Court in the course of C.R.P. 4627 of 1981 and that too

without the necessary materials therefor and in the absence of parties whose rights were vitally affected by such a declaration. It is, therefore clear

that the petitioner cannot be said to be bound by the declaration regarding the invalidity of the election in the course of the order in C.R.P. 4627 of

1981, as he was not a party to that proceeding and he had been condemned without being heard with reference to his rights as an elected member

of the managing committee.

It is also further seen that the question of modifying the order passed in I.A. 2125 of 1981, would arise only if the order therein passed earlier

had been allowed to stand, as otherwise, no question of modification at all would arise. In the course of the order of the Court below, the learned

District Munsif has stated that in view of the elections having taken place on 20th December, 1981 and the invalidity thereof as declared by this

Court in the course of C.R.P. 4627 of 1981, there was no need to continue the interim injunction granted earlier in I.A. 2125 of 1981. If the need

for continuing the order of injunction passed earlier was not there, and such an order granted earlier had been vacated, it is not known how there

could be any modification of such an order. The learned counsel for the petitioner is, therefore well founded in his contention that by the order

passed by the court below, the petitioner had been deprived of an opportunity to be heard in support of his rights secured as a result of his election

as a member of the managing committee, but that he had been deprived of those rights by relying upon proceedings to which he was not a party

and that in any even, having regard to the cancellation of the order of injunction passed in I.A. 2125 of 1981, no ground is made out for modifying

the order of injunction to permit the first respondent to conduct the elections in accordance with the rules. That leaves for consideration the

objection raised by the learned counsel for the respondents 1 and 3. In support of his contention that the petitioner had successfully intervened in

the proceedings before the Supreme Court, in SLP No. 2237 of 1982, no materials have at all been placed before this Court. The final order of

the Supreme Court, which would throw some light on this matter, had not been made available for scrutiny by this Court. In the absence therefore,

of the production of any material to show that the petitioner participated in the proceedings before the Supreme Court in SLP 2237 of 1982 and

had failed therein, it cannot be assumed that the petitioner did so and should therefore, be held bound by the order passed by this Court in C.R.P.

4627 of 1981, wherein the election held on 20th December, 1981, had been declared a nullity. In this connection, it is necessary to notice the

submission made by the learned counsel for the petitioner that there is a factual error in the contention urged by the learned counsel for the

respondents 1 and 3, in that the petitioner did not intervene at all but the proceedings before the Supreme Court were confined to the parties to the

civil revision petition before this Court In that event, the petitioner cannot at all be considered as a person who had participated in the proceedings

before the Supreme Court and in that sense bound by the order passed by this Court in C.R.P. 4627 of 1981. But on the facts and circumstances

of this case, it is clear that by the order passed by the court below in I.A. No. 534 of 1982, the rights secured by the petitioner as an elected

member of the managing committee are sought to be interfered with and taken away from him even without his being afforded a reasonable

opportunity of being heard before such deprivation of those rights and the reliance on the declaration in C.R.P. 4627 of 1981 of the nullity of the

election held on 20th December, 1981, cannot avail the first respondent herein to seek a direction that the order of injunction should be modified

so as to enable the first respondent to conduct the elections in according with the rules and regulations of the society. As noticed earlier, the

petitioner was not party at all to the proceedings in C.R.P. 4627 of 1981 before this Court and cannot therefore be held to be bound by anything

stated therein including the legality or validity of the elections held on 20th December, 1981. Under those circumstances, the order of the court

below passed in I.A.534 of 1982 modifying the order passed in I.A. 2125 of 1981 and permitting the first respondent herein to conduct the

elections in accordance with by-laws of the society cannot be sustained in so far as the petitioner is concerned. Consequently this civil revision

petition is allowed with costs.