Ramesh Gupta vs Dinanath Mahajan and Others

V.K. Jain, J.

I As 8967/2011 (u/o 39 R 1 & 2 Code of Civil Procedure) & 10787/2011 (Under Section 151 CPC )

The Plaintiff claims to be General Secretary of Defendant No. 3 Akhil Bharatiya Mahajan Shiromani. The case of the Plaintiff is that he was duly elected as General Secretary of Defendant No. 3-Sabha in the elections held on 30th May 2010. This is also the case of the Plaintiff that Defendant No. 1 Sh. Dinanath Mahajan, who at present is the President of Defendant No. 3 has nominated defendant No. 2 as the General Secretary of Defendant No. 3, in contravention of the constitution of the Sabha and despite the Plaintiff having already been elected as its General Secretary in the conference of Sabha held on 30th May 2010. The Plaintiff has, therefore, sought an injunction restraining Defendant No. 2 from holding himself out as the General Secretary of Defendant No. 3 and has also sought an injunction restraining Defendant No. 1 from appointing any person as General Secretary of Defendant No. 3.

The suit has been contested by the Defendants. The plead taken by the Defendants is that the Plaintiff was nominated as General Secretary of Defendant No. 3 by the previous President Mr. Vinay Mitter Mahajan, whose term came to an end on 28th April 2011 and the appointment of the Plaintiff as General Secretary therefore also came to an end with the tenure of Mr. Vinay Mitter Mahajan. It is also the case of the Defendants that the alleged elections of the Plaintiff in the conference held on 30th May 2010 has already been challenged by them in a civil suit, which is pending in District Court Saket. The learned Counsel for the Defendants further states that the Defendants have also filed a contempt petition in FAO 406/2008.

A perusal of the constitution of Defendant No. 3 filed by the Defendant would show that as per Clause 19, the General Secretary has to be elected in an open session of the conference and if a unanimous election is not possible in that event the President is empowered to nominate the General Secretary of his choice. Admittedly, Defendant No. 2 has not been elected as General Secretary of Defendant No. 3 in an open session of the conference. No such claim has been made by the Defendants. The constitution of Defendant No. 3 does not empower the President to nominate the General Secretary of his choice without first making an attempt for a unanimous election in an open session of the conference. He can nominate a person of his choice as a General Secretary only in the event of a unanimous election not being possible in the open session of the conference. Therefore, nomination of Defendant No. 2 is prima facie illegal and in contravention of the constitution of Defendant No. 3.

Coming to the case of the Plaintiff, a perusal of the resolution passed at the open session of the conference held on 30th May 2010 which purports to be signed by Vinay Mitter Mahajan, the then President of Defendant No. 5 Mr. Jangi Lal Mahajan, Chairman Reception Committee would show that as many as 355 members attended the session in which the Plaintiff was elected as General Secretary of Defendant No. 3. Admittedly, Defendant No. 1 Dinanath Mahajan had also attended the aforesaid session of the conference. The election of the Plaintiff as General Secretary in the session held on 30th May 2010 has not been declared illegal or unconstitutional by any Court of law. Prima facie there is no material before the Court from which it may be inferred that the election of the Plaintiff as General Secretary in the session held on 30th May 2010 was illegal or unconstitutional. Therefore, prima facie the Plaintiff is entitled to continue to function as General Secretary of Defendant No. 3 till the next conference. Of course it would be open to the competent person to hold the next conference as and when deemed appropriate in accordance with the constitution of Defendant No. 3.

The learned Counsel for the Defendants has led me through the award dated 28th April 2008 given by Hon''ble Mr. Justice R.C. Chopra, who was appointed as the Arbitrator/Court Commissioner vide order dated 29th August 2007 passed in RFA(OS) 48/2007, the order dated 19th August 2008 passed by the learned Single Judge of this Court in OMP No. 293/2008 and OMP No. 403/2008, order dated 24th March 2009 passed by a Division Bench of this Court in FAO(OS) 405/2008 and the order dated 29th April 2010 passed by this Court on CM 7961/2010 in FAO(OS) 406/2008. She has also led me through the compromise application which has been filed in FAO(OS) No. 406/2008. A perusal of these documents would show that there was dispute with respect to the right of 399 life members to participate in the elections. The Division Bench was of the view that the election should be held by permitting all the members including those 399 members to participate in the elections, though the votes cast by them were to be kept separate and were not to be counted or opened until further orders and the result was to be complied on the basis of the votes cast by other members after excluding those 399 members and was to be produced before the Court. Mr. Rajiv Bansal, Advocate was appointed to initiate the process of holding elections, fix the election schedule, hold elections and thereafter file a result. However before Mr. Rajiv Bansal could hold elections, the matter was settled and it was agreed that Mr. Vinay Mitter Mahajan would be the President for one year and thereafter Mr. Dinanath Mahajan would take over as the President of Defendant No. 3. It would thus be seen that as far as election of General Secretary is concerned that was not the subject matter of the aforesaid litigation. Hence, reliance on these all the aforesaid record is misplaced, as far as dispute involved in the present suit is concerned.

For the reasons given in the preceding paragraphs, Defendant No. 2 is restrained from holding out or functioning as the General Secretary of Defendant No. 3 and Defendant No. 1 is restrained from appointing any person as the General Secretary of Defendant No. 3 except in accordance with the Clause 19 of the Constitution as discussed earlier in this order. It is made clear that till the procedure prescribed in Clause 19 is adopted, the Plaintiff would be entitled to continue as the General Secretary of Defendant No. 3. Of course he would continue only till the next session of the conference. It is made clear that the Plaintiff will function as the General Secretary of Defendant No. 3 strictly in accordance with the constitution of Defendant No. 3 and will perform all his obligations qua the President in terms of the provisions of the constitution of Sabha. Defendant No. 1 will also act strictly in accordance with the constitution of Defendant No. 3 and will give due recognition to the role and functions of the General Secretary as stipulated in the constitution.

The applications stand disposed of.

CS (OS) 1345/2011

Replication can be filed within four weeks.

The parties to appear before the Joint Registrar on 7th September 2011 for admission denial of documents.

The matter be listed before Court on 13th January 2012 for framing of issues.