IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20997 of 2009(O)
1. C.T.YADEENDRADAS, S/O.C.K.RAGHAVAN,
... Petitioner
Vs
1. THE CHOWA EDUCATIONAL SOCIETY,
... Respondent
2. T.K.SUKUMARAN, S/O.T.K.KUNHIKANNAN,
3. K.A.LAKSHMANAN, S/O.POKKAN,
For Respondent :SRI.GRASHIOUS KURIAKOSE
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :08/03/2010
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C)No.20997 of 2009
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Dated this the 8th day of March, 2010.
JUDGMENT
The writ petition is filed seeking the
following reliefs:
i) Set aside Exhibit P1 order and
restore Exhibit P2 order;
ii) To make such other writ or
order, which the Hon’ble High
Court fo Kerala deems fit in
the circumstances of the case.
2. Plaintiff in O.S.No.305/08 on the
file of the Principal Munsiff’s Court, Kannur
is the writ petitioner. Challenge raised in
the writ petition is against Ext.P1 judgment
rendered by the learned Sub Judge in
C.M.A.No.23/08 by which Ext.P2 order passed by
the learned Munsiff in the interlocutory
application for injunction moved by the
plaintiff directing for an interim arrangement
W.P.(C)No.20997 of 2009
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for the administration of a society, subject
matter involved in the suit, till a proper
election selecting its managing committee was
set aside allowing the appeal.
3. The dispute involved relate to a
society viz., Chovva Educational Society which
is in management of two schools, an aided
higher secondary school, and an unaided high
school and upper primary school. Plaintiff
claiming to be a member of the above society
laid the suit seeking a declaration that
defendants 2 to 10 who continue to administer
the affairs of the society even after the term
of their management is over, have no further
right to continue in management, and for a
permanent prohibitory injunction restraining
them from holding any election on the basis of
a notice already issued by the 3rd defendant.
The plaintiff also canvassed for appointment
of an advocate commissioner to hold the
election of the governing body of the 1st
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defendant society after preparation of a roll
of its genuine members. Ext.P3 is the copy of
the plaint.
4. With the suit the plaintiff moved
an application for an interim injunction to
restrain the defendants/respondents from
acting as the governing body members of the
society until they are duly elected, and also
from holding election on the basis of the
notice already issued by the 3rd defendant.
Ext.P4 is the copy of that application. The
3rd defendant filed a counter against Ext.P4
application on his behalf and also for
defendants 1 and 2 as well, controverting and
disputing the averments sworn to by the
plaintiff in support of his application for
the discretionary relief of injunction.
Ext.P5 is the copy of that counter affidavit.
A counter statement was filed by respondents
4, 5, 7 and 8 also to Ext.P4 application, in
which supporting the allegations raised by the
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plaintiff they requested for passing of
appropriate orders in that application.
Ext.P6 is the copy of that counter statement
filed by the above defendants.
5. The learned Munsiff, after hearing
the counsel on both sides on Ext.P4
application, on the basis of the submissions
made by both sides appointed an advocate
commissioner as observer for conducting the
election to the society. The election process
has already been set on with publication of
notice, as contended by the contesting
respondents 1 to 3, was taken due note by the
court in appointing an advocate commissioner
as observer for the election. The
commissioner was directed to observe strictly
the rules and regulations of the society
granting him liberty to seek police aid for
smooth conducting of the election. Ext.P7 is
the copy of that order. The advocate
commissioner appointed as observer filed two
W.P.(C)No.20997 of 2009
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reports before the court which indicated of
irregularities in the conduct of the election
including shifting the venue for the election
on the date notified for conducting of such
election. After those reports were filed
before the court Ext.P4 application for
injunction was again taken up for
consideration. At the time of hearing of that
petition, contesting defendants 2 and 3 with
the latter representing the 1st defendant
society also in the suit contended that
election in accordance with the rules and
regulations of the society were conducted in a
lawful manner and new office bearers had been
duly elected to administer the society. The
learned Munsiff, considering the materials
produced, including the two reports of the
advocate commissioner, and also the rival
submissions made by both sides, came to the
conclusion that the election conducted was not
proper and the election process was carried
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out in violation of the rules and norms
applicable to a fair election. In that view
of the matter, taking note of the facts and
circumstances of the case it was held that the
plaintiff has made a prima facie case for the
discretionary relief claimed in his
application. Ext.P4 application was allowed
restraining defendants 2 and 3 by an
injunction from acting as the governing body
members of the 1st defendant society until they
are duly elected in a lawful election. Taking
note that the 1st defendant is an educational
society, the learned Munsiff also passed
orders for interim arrangement for
administering the society directing the 4th
respondent, the Manager to administer the
management of the society till proper election
is conducted. The 4th defendant was directed
to obtain sanction from the court for all
actions being taken to manage the affairs of
the society except the routine matters.
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Defendants 2 and 3 were directed to hand over
the records to the 4th defendant, who was put
in management of the society by the interim
arrangement made under Ext.P2 order.
6. Ext.P2 order was challenged by the
3rd defendant preferring an appeal as
C.M.A.No.23/08 before the Sub Court,
Thalassery. The learned Sub Judge, after
hearing both sides, reversed Ext.P2 order and
dismissed Ext.P4 application of the plaintiff
holding that the validity of the election
conducted by the advocate commissioner
appointed by the court was not required to be
considered in disposing of Ext.P4 application.
The elected members were not heard and they
were not even made parties in the suit or
proceedings of Ext.P4 application was another
reason which weighed with the learned Sub
Judge to interfere with Ext.P2 order of the
learned Munsiff. While passing Ext.P2 order,
the learned Munsiff has not given any reason
W.P.(C)No.20997 of 2009
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why the 4th defendant was chosen to administer
the society by way of an interim arrangement
when plaintiff had sought an injunction
against that defendant as well in Ext.P4
application also, to some extent persuaded
the learned Sub Judge to interfere with Ext.P2
order passed by the learned Munsiff. Setting
aside Ext.P2 order and allowing the appeal,
the learned Sub Judge directed the parties to
maintain status quo on the basis of the
election conducted on 23.6.2008 until further
orders are passed by the court over the
validity of election after hearing all the
parties. The appellate court in Ext.P1
judgment expressed the view that the judgment
will not preclude the court below from
considering the question of validity of the
election conducted on 23.6.2008 on a separate
petition filed by any of the parties or even
without petition, if the court finds that
question of validity of the election has to be
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determined in the suit. Ext.P1 judgement
would also show that in case such an enquiry
on the validity of the election is taken up,
then the court has to give notice and hear
also the elected members in the election
already held. Ext.P1 judgment with the above
directions and observations reversing Ext.P2
order of the learned Munsiff and dismissing of
Ext.P4 application of the plaintiff, is
challenged in the writ petition.
7. I heard the counsel on both sides.
The learned counsel for the petitioner
[hereinafter referred to as ‘the plaintiff’]
assailed Ext.P1 judgment rendered by the
learned Sub Judge mainly on the ground that
the appellate Judge had exercised his
jurisdiction improperly in substituting his
views over that of the learned Munsiff on
erroneous conclusions drawn which are not
supported by the materials, nor by the
principles of law applicable in disposing of
W.P.(C)No.20997 of 2009
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an application for interim injunction. The
appellate court has exercised its discretion
to take a divergent view from that of the
learned Munsiff for the sole reason that the
validity of the election was not a question
emerging for consideration in the disposal of
the interlocutory application, according to
the counsel. The election was conducted under
the auspices of an advocate commissioner
appointed by the court and in fact there was a
postponement of the consideration of the
injunction application in view of the
submissions made by both sides that an
election can be conducted by appointing a
commissioner as an observer to elect a new
management committee for administering the
society, according to the counsel. The
election process has already commenced issuing
a notice to convene the general body of the
society also weighed with the court in
postponing the consideration of the injunction
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application and passing of Ext.P7 order
appointing an advocate commissioner as
observer to conduct the election. Inviting my
attention to Ext.P7 order, the learned counsel
submitted that such an order was passed after
hearing both sides on the injunction
application. By the appointment of the
advocate commissioner to conduct the election,
according to the counsel. The court has only
relegated the consideration of the injunction
application to a later stage. The term of the
officer bearers of the 1st defendant society
had expired long ago and despite a decree
passed in a previous suit for conducting a
fresh election, no such election was conducted
even after 1= years of passing of such decree
was also taken note of by the court, according
to the counsel, in passing Ext.P7 application.
When the election was directed to be conducted
by appointing an advocate commissioner as
observer in the light of the suit filed and
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also after hearing both sides over the
discretionary relief applied for under Ext.P4
application, it is the submission of the
learned counsel, the validity of the election
can be assailed if the election had been
irregularly and improperly conducted in the
very same suit and even at the stage of
consideration of the pending injunction
application in which the court had passed
Ext.P7. The two reports of the advocate
commissioner appointed as observer to conduct
the election, according to the counsel,
clearly demonstrate that the election was
conducted in a most irregular and haphazard
manner in changing the venue on the date of
the election and not even furnishing the
relevant registers and voters’ list to the
advocate commissioner even on his demand. The
court has ordered in Ext.P7 order permitting
the commissioner to seek police assistance to
conduct the election is highlighted by the
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counsel, with reference to the reports
submitted by the commissioner before the
court, as to the irregularities in conducting
the election. A fraud on the court was
committed in conducting of the election as
disclosed by the reports of the commissioner
was overlooked by the appellate court
according to the counsel, in interfering with
Ext.P2 order of the learned Munsiff on the
reasoning that the validity of the election
was not the subject matter of the suit or the
injunction application and any dispute over
the election required has to be agitated
independently with notice to the persons who
have been elected to the committee for
management of the society. Maintainability of
the appeal preferred by the 3rd defendant
giving rise to Ext.P1 judgment was also
impeached by the learned counsel contending
that the society, the 1st defendant, was not
made a party in such appeal against Ext.P2
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order passed by the learned Munsiff, which is
binding on that society and its members. In
the absence of the 1st defendant society in
the appeal, according to the counsel, it was a
fractured appeal and Ext.P1 decision, wherein
the society was not a party, cannot bind the
society or its members. Reference was also
made to Ext.P10 order passed by the appellate
court on the stay petition moved by the 3rd
defendant in his appeal wherein, according to
the counsel, after considering meticulously
all aspects involved in the case that relief
canvassed was declined. Though the findings
made by the appellate court in the
interlocutory application for stay have no
decisive force, in Ext.P1 judgment rendered by
the appellate court later the sound reasonings
given in Ext.P10 order have been given a goby
and not even taken note of while interfering
with Ext.P2 order of the learned Munsiff,
submits the counsel. Reliance has been placed
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by the counsel in Sally Prakash & ors. v. 1st
Additional District Judge {AIR 2002 Allahabad
198} to contend that the directions and orders
issued by the court by the learned Munsiff in
Ext.P2 order are in effect passed in exercise
of his jurisdiction under Section 151 of the
Code of Civil Procedure taking note of the
irregularities in the election conducted,
which was held under the supervision of the
court by the appointment of an advocate
commissioner as observer and any challenge
against such order cannot be maintained by way
of an appeal, but only by way of a revision
before this court, if there was sufficient
ground to challenge the order by that course.
To buttress the argument that the learned Sub
Judge in appeal had overstepped his
jurisdiction in interfering with Ext.P2 order
by supplementing different views from that of
the learned Munsiff without examining and
holding that the views formed in Ext.P2 order
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are improper on the facts involved and under
law, the learned counsel has relied on U.P.Co-
operative Federation Ltd. v. Sunder Bros.,
Delhi {AIR 1967 SC 249}. Ext.P1 judgment
rendered by the appellate court is liable to
be reversed and Ext.P2 order by the learned
Munsiff has to be restored, is the submission
of the learned counsel, contending that
otherwise justice would be a casualty since by
Ext.P1 judgment the fraud committed on the
court by the defendants in the conducting the
election is recognized and given effect to.
8. The learned counsel for the 3rd
respondent/4th defendant supported the
submissions made by the learned counsel for
the plaintiffs.
9. Per contra, the learned counsel
appearing for the 3rd respondent inviting my
attention to the memorandum of association of
the 1st defendant society contended that the
society has been established for administering
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education institutions and any direction or
order by the court without sufficient cause
would prejudice and cause serious injury to
the interest of the society in administering
the schools where the interests of a good
number of students are involved. Even the
commissioner appointed by the court has
reported that the election was conducted in a
fair manner, and the allegations imputing that
it was irregularly conducted, according to the
counsel, are unworthy of any merit. The
conduct of the 4th respondent, who was
appointed under Ext.P2 by the learned Munsiff
for management of the society as an interim
arrangement was not in the best interest of
the society, according to the counsel,
contending that soon after passing of Ext.P1
judgment,without authority he had drawn a sum
of Rs.2 lakhs from the funds of the society.
Plaintiff and the 4th defendant are acting hand
in glove and they are not interested in the
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welfare of the society is the submission of
the counsel. When the election process was
set in motion and notification was issued for
convening the general body, the plaintiff
rushed to the court and filed a suit and moved
the injunction application raising frivolous
allegations against the defendants. The
learned counsel inviting to the narrow scope
of interference in exercise of the supervisory
jurisdiction of this court under Article 227
of the Constitution of India submitted that
Ext.P1 judgment rendered by the learned Sub
Judge in appeal, as it does not suffer from
jurisdictional infirmity, does not call for
any modification in the extraordinary
jurisdiction of this court, and as the rights
of the parties are preserved including the
conduct of fresh election under that judgment,
according to the counsel, the writ petition is
only to be dismissed. Referring to Ext.P8
order of the court below, it is contended by
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the counsel that the interim report of the
commissioner with reference to the non-
production of the registers cannot be given
much significance when the commissioner has
been appointed only to oversee the election as
an observer. The commissioner, in the final
report, has stated that the election was
conducted in a fair manner, and the report of
that observer deserve acceptance, and all
other disputed questions involved in the case
have to be left open for adjudication after a
fair trial of the case, is the submission of
the counsel.
10. I have considered the rival
submissions of the counsel with reference to
Ext.P1 judgment of the learned Sub Judge and
Ext.P2 order of the learned Munsiff and other
exhibits produced in the writ petition. On
the facts presented and submissions made, the
solitary question that emerges for
consideration is whether the learned Sub Judge
W.P.(C)No.20997 of 2009
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was justified in interfering with Ext.p2 order
passed by the learned Munsiff for the reason
that the validity of the election was not a
dispute covered by the injunction application
and, further, the office bearers of the 1st
defendant society elected, have not been made
parties to the application for injunction and
the suit. Before adverting to that question,
it is necessary to refer to the challenges
raised by the plaintiff’s counsel that the
appeal itself against Ext.P2 order before the
learned Sub Judge was not maintainable require
to be dealt with. The argument was that the
exercise of the discretion by the trial judge
in the interlocutory application for
injunction cannot be interfered with by the
appellate court for the sole reason that a
different view is permissible and the orders
passed under Ext.P2 are, in effect, rendered
by the court in exercise of its jurisdiction
under Section 151 of the Code of Civil
W.P.(C)No.20997 of 2009
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Procedure from which a challenge by way of an
appeal is not maintainable. Though some
decisions are relied in support of the
proposition canvassed, I find, in the given
facts of the case, the maintainability of the
appeal preferred against Ext.P2 on the grounds
canvassed cannot be sustained. In the
interlocutory application the court has given
some additional relief which is not sought for
in the application and perhaps in exercise of
its inherent power taking note of what
transpired during the pendency of that
application by itself does not deprive the
affected party from challenging its
correctness by way of an appeal as directed by
the statute. The appellate court is fully
competent to re-appreciate the materials to
examine whether the discretion had been
correctly exercised by the inferior court in
granting or declining the relief of
injunction. True, that the findings entered
W.P.(C)No.20997 of 2009
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by the trial judge and also the discretion
exercised by him in granting or declining the
relief is not liable to be disturbed unless it
is shown that it suffered from some infirmity
warranting interference to advance the ends of
justice. That, of course, is a question to be
determined on a proper evaluation of the facts
and circumstances evolved and the materials
produced and also the entitlement of the party
who has applied for the discretion relief of
injunction. There was yet another challenge
from the learned counsel for the plaintiff
that the appeal was not maintainable for the
reason that it was a fractured appeal inasmuch
as the 1st defendant society was not made a
party in the appeal. That challenge deserve
to be taken note of only for holding as
meritless since the appeal was preferred by
the 3rd defendant who was the Secretary of the
society. In the suit, 1st defendant is shown
as represented by its president who had been
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impleaded as the 2nd defendant. Injunction was
sought against the 3rd defendant and other
office bearers in management of the society,
contending that their continuance as such is
illegal since their term had expired. When a
challenge is raised against an order passed in
the injunction application so filed providing
for an interim arrangement by another, 4th
defendant, over the affairs of the society,
the presence of the society in the appeal
against that order does not make any
significance when it continues to be
represented by one among the officer bearers
of the existing committee. The absence of the
society or other defendants in the application
for injunction in the appeal, can, in no way,
affect the maintainability of the appeal and
its disposal on merits. So much so, the
challenges raised by the learned counsel for
the plaintiff as to the maintainability of the
appeal which gave rise to Ext.P1 judgment and
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thus imputing that judgment as suffering from
serious infirmity cannot be entertained.
11. In exercise of the supervisory
jurisdiction vested with this court the
propriety and correctness of Ext.P1 judgment
rendered by the learned Sub Judge in an
interlocutory application in a pending suit is
examined caution has to be exercised to see
that none of the parties are prejudiced by any
observation over the disputed questions
pending for adjudication in the suit. Of
course, in examining the correctness of Ext.P2
judgment, it is open to this court to analyse
and examine the facts and circumstances of the
case present and the materials produced and
give definite findings on the issues involved,
but since what is considered is the merit of
an order passed in an interlocutory
application, I refrain from examining in depth
the allegations and counter allegations raised
by the parties which could be thrashed out by
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them in the trial of the suit. As indicated
earlier the one and only question that has to
be looked into is whether the learned Sub
Judge has exercised his jurisdiction properly
in interfering with Ext.P2 order passed by the
learned Munsiff directing for conducting of a
fresh election to the 1st defendant society
and till then for an interim arrangement of
the society by the 4th defendant.
Indisputably, in a previous suit, a decree had
been passed for conducting election to the
managing committee of the 1st defendant
society. The present suit was filed 1= years
after such a decree when no such election was
conducted by the present managing committee
whose term limited for a period of three years
had expired long ago. The managing committee
was continuing at the time of institution of
suit over a period of 8 years. In that
backdrop the suit was filed and injunction
application moved to restrain the present
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managing committee from acting as the
governing body members of the society till
they are duly elected in a lawful election and
also not to conduct election on the basis of
the notice already issued by the 3rd
defendant. Noticing the objections raised by
the contesting defendants, the court has
passed Ext.P7 order in the interlocutory
application for injunction. The court, taking
note that the election process has already
commenced, appointed an advocate commissioner
as observer for conducting the election. That
commissioner filed two reports before the
court. The learned counsel for the
petitioner/plaintiff has handed over to me the
copies of those reports. An interim report
filed by him would show that before the
election he had requested for verification of
the voters’ list and membership register. But
those records were not made available. The
final report would show that venue of the
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election fixed at the Guest House was changed
to another place, even without informing him.
The report would further show that the request
made by him to adjourn the election in view of
the confusion caused with the shifting of the
venue without notice to the members was
declined by the present office bearers of the
1st defendant society. It was under the above
circumstances, the learned Munsiff passed
Ext.P2 order for conducting a fresh election
and ordering for an interim arrangement of the
society by the 4th defendant till such
election is held. That order has been
interfered with by the learned Sub Judge
mainly for the reason that the election
dispute was not covered by the injunction
application and notice was not given to the
elected members and they were not heard before
passing Ext.P1 judgment.
12. The learned Sub Judge appears to
be under a misconception that in the
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interlocutory application for injunction, the
learned Munsiff had no competency to take note
of what transpired during the pendency of that
application and pass appropriate orders which
are required to uphold the majesty of the
court and also to advance the ends of justice.
Final orders in an injunction application,
after consideration and hearing the counsel on
both sides, was deferred by passing an interim
order on the submissions made before the court
that the election process has already
commenced. The court appointed an advocate
commissioner to supervise the election with
liberty to that officer to seek police aid, if
found essential for the smooth conduct of the
election. Ext.P7 is a copy of that order. I
do not find any merit in the submission made
by the counsel for the defendants that the
commissioner has been appointed only as an
observer and he has no other role. An officer
deputed by the court, the advocate
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commissioner to supervise the election, even
if he is termed as an ‘observer’ in the order
of the court, cannot be considered as a
spectator sent over for mutely witnessing what
transpired in the election. When authority is
given to that commissioner to seek police
assistance for the smooth conduct of election
that pre-supposes that he has to see that the
election is conducted in a fair manner. In
that context his demand in advance to inspect
the registers, voters’ list etc., which was
inevitable to see whether the election fixed
is conducted in a fair manner cannot be
considered as a demand made without
jurisdiction. As an observer appointed by the
court when the commissioner directed for
adjourning the election in view of the
confusion created by the shifting of the venue
of the election, compliance with that request
was warranted. Shifting of venue of election
by way of a notice, that too without informing
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the observer, advocate commissioner appointed
by the court, was made by the present office
bearers of the society who were conducting the
election is not disputed. Though it was
contended before me the shifting of the venue
of the election was not of any consequence as
later it was conducted at the place fixed
earlier, Guest House, but with a few minutes
delay, I find that the conclusion formed by
the learned Munsiff that there was
irregularity in the election conducted is
justified. The general body meeting for
election was not held at the venue at the time
fixed and the venue was shifted by way of a
notice issued earlier, but, without informing
all the members and even the observer
appointed by the court. In the same venue
meeting was held at a later point of time
after a batch of the members protested and
left the place, in effect, has affected the
validity and regularity of the election. Such
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being the facts presented, the learned Munsiff
was fully justified in holding that there was
irregularity in the conduct of the election
and a fresh election has to be conducted to
elect the office bearers of the 1st defendant
society. The court has also taken care to
appoint one among the defendants to manage the
affairs of the society as an interim
arrangement till fresh election is held.
Whatever be the grievance of the existing
office bearers over the interim arrangement
made they can move the court and seek for
appropriate orders thereof. In case the court
finds that the 4th defendant is disqualified
or otherwise not fit to be put in
management of the society, it is open to the
court to pass appropriate orders as are
necessary including his removal and entrusting
to a person or any other agency for protecting
the interest of the society. The learned Sub
Judge, while passing Ext.P1 judgment
W.P.(C)No.20997 of 2009
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interfering and annulling Ext.P2 order, has
lost sight of the fact that the election was
conducted under the supervision of an advocate
commissioner appointed by the court as an
interim measure taken by the court after
hearing the counsel on both sides on the
interlocutory application for injunction. The
final disposal of the injunction application
depended upon the outcome of the election
conducted the under the supervision of the
advocate commissioner and that being so, the
learned Munsiff was fully justified in passing
Ext.P2 order in the interlocutory application
including setting aside of the election
conducted under its supervision where it was
shown to have been irregularly and improperly
conducted. In passing Ext.P2 orders for the
removal of the office bearers of the society
the learned Munsiff was fully empowered to
pass such orders for entrusting the management
of the society to any other person as deemed
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fit and proper. Supervision of the election by
the advocate commissioner appointed by the
court under Ext.P7 in fact means conducting of
an election as controlled and supervised by
the court. When that be so no notice to the
elected members is required for setting aside
that election and ordering fresh election to
the society. Ext.P1 judgment passed by the
learned Sub Judge is liable to be set aside
and I do so. Ext.P2 order of the learned
Munsiff shall stand restored.
13. All other disputed questions
canvassed by the parties, needless to state,
have to be thrashed out in the suit, and they
are not germane for consideration for disposal
of this writ petition.
14. Parties are directed to appear
before the court below on 22.3.2010. The
learned Munsiff shall take necessary steps for
implementing the directions given in Ext.P2
order. He shall also take necessary steps for
W.P.(C)No.20997 of 2009
:: 34::
conducting the election of the 1st defendant
society under the supervision of an advocate
commissioner as expeditiously as possible in
accordance with the Rules. As indicated
earlier, it is open to the learned Munsiff to
pass appropriate orders in accordance with law
over the interim management of the 1st
defendant society.
The writ petition is allowed, subject
to the above directions.
Sd/-
(S.S. SATHEESACHANDRAN)
JUDGE
SK/-
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