JUDGMENT
K.M. Mohamed Shafi, J.
1. The order passed by the Vacation Court, Ernakulam in I.A. No. 1224 of 2001 in the unnumbered O.S./2001 dated 18.5.2001 is under challenge in this revision petition. The I.A. was filed for temporary injunction restraining the respondents from interfering with the right of franchise of the petitioners in the election of the first respondent association alleging that the respondents are trying to obstruct petitioners 2 to 4 from representing the first petitioner and participating in the election of the first respondent association which is to be held in the second week to May 2001. The Vacation Court, after hearing both sides, allowed the petition restraining the respondents by temporary injunction from interfering with the exercise of the petitioner’s right as nominated members of the first respondent association and from obstructing them from participating in the election and exercising their franchise in the election of the first respondent association proposed to be held in the second week of May 2001 for the year 2001-2002 to 2004-2005, overruling the contentions raised by the respondents that the first petitioner association is not recognised and affiliated to the first respondent association and they have not complied with the rules and regulations of first respondent and violated the provisions of R.6 of the bye-laws of the first respondent association. Hence the respondents have preferred the appeal before this Court.
2. The counsel for the appellants submitted that the impugned order is a final order passed by the vacation court which is illegal and unsustainable being without jurisdiction. S.19(2) of the Kerala Civil Courts act empowers the District Judge nominated as the Vacation Judge of the District Court to make provisional orders on urgent matters and such orders, except in matters to be presented in the District Court, shall remain in force until such matter has been heard and decided by the Court having jurisdiction. Therefore the counsel for the appellant submitted that by the impugned order, the vacation court has disposed of the application itself by passing a final order and therefore the order passed by the vacation court is illegal being without jurisdiction.
3. It is contended by the counsel for the respondent that the impugned order is only a provisional order passed by the vacation court though it is passed after hearing both sides. The counsel for the respondent submitted that the vacation court passed the impugned order on a very urgent matter regarding selection to the first appellant, association and the impugned order is passed permitting the respondents to participate in the election as otherwise the very suit and the petition filed by the respondents would have become infructuous with regard to the right of the respondents to participate in the election. On going through the impugned order passed by the vacation court, it is clear that the order passed by the vacation court is only a provisional order permitting the respondents to participate in the election of the first appellant to be held in the second week of May. Therefore the contention raised by the revision petitioner that the impugned order is a final order passed by the vacation court and therefore it is without jurisdiction under S.19(2) of the Kerala Civil Courts Act is not sustainable. Merely because of the fact that the I.A. filed by the respondents before the vacation court is disposed of by the impugned order, it will not lose its character as a provisional order passed in the suit.
4. The appellant has contended that the first appellant Badminton association is registered under the Kerala Act 12 of 1955 and is governed by its bye-laws, rules and regulations. Membership to the association is open to District association, which is recognized and affiliated to the first appellant and the affiliation will be given only if the association satisfied its rules and regulations. According to them, the first respondent/district association has not satisfied the requirements of the rules and regulations of the first appellant and it has violated rule 6 and therefore it is not entitled to be affiliated to the first appellant.
5. The counsel for the respondent submitted that the question whether the first respondent/District association has complied with the rules and regulations or violated R.6 of the bye-laws of the first appellant or it has forfeited its right to be an affiliated member of the first respondent or whether it is a bogus association as contended by the appellants are all matters to be decided in the suit and all those contentions are liable to be established by the appellants by evidence before the trial court and therefore by merely raising such a contention in the above I.A, the respondents cannot be prevented from exercising their right of franchise in the election of the first appellant association. It is clear that the question whether the respondents have violated the provisions of the bye-laws or they have forfeited the affiliation or whether the first respondent is only a bogus association are matters to be established in evidence at the stage of trial of the suit and those matters cannot be decided either in the petition filed before the vacation court or in the appeal preferred against the provisional order passed by the vacation court. Therefore this contention raised by the revision petitioner is also not sustainable.
6. The appellants have contended that the earlier suit 1115 of 1999 filed by the same plaintiffs was dismissed for default and therefore the above suit is barred under O.II R.2 of the C.P.C. It is contended by the respondents that in the earlier suit for declaration and injunction the cause of action was entirely different and the cause of action in the present suit arose subsequently and the prayers made in the two suits being entirely different the question of bar of the present suit under O.II R.2 of the C.P.C. does not arise. It is also submitted by the respondents that the earlier suit dismissed for default is already restored to file by the trial court and it is pending disposal. Considering the contentions raised in the earlier suit as well as in the present suit, the contention that the above suit is barred under O.II R.2 of the C.P.C. due to the earlier suit in O.S. 1115 of 1999 is also not sustainable.
7. The counsel for the respondents submitted that the election to the first appellant association is already over and the appellants have filed O.S. 938 of 2001 before the trial court contending that no proper and valid election was conducted and to set aside the election and the same is pending disposal. The question whether election is already held and the election is challenged by the appellants in separate proceedings before the appropriate forum is not a matter for consideration by this court in this CMA.
8. It is vehemently contended by the respondents that the above appeal preferred against the provisional order passed by the vacation court under S.19(2) of the Kerala Civil Courts Act is not sustainable since the order passed by the District Judge under S.19(2) of the Kerala Civil Courts Act as the Vacation Judge, should be deemed to be an order passed by the concerned trial court and appeal against such order will lie only to the District Court. It is clear from S.19(2) that the provisional orders passed by the vacation court shall except on matters to be presented to the District Court itself shall be an order passed by the court having jurisdiction. Therefore it is clear that the provisional orders passed by the vacation court should be challenged before the concerned appellate court to which appeals will lie from the court having jurisdiction which has to try and dispose of the matters after the summer recess. Therefore, the above appeal preferred by the appellants before this Court, challenging the provisional order passed under S.19(2) of the Civil Courts Act is not sustainable.
9. It is clear from the impugned order that the vacation court passed an order permitting the respondents to take part in the election to the first appellant association scheduled to be held in the second week of last May. It is submitted that the election is already over though the same is challenged by the respondents before the trial court. Therefore a direction to the appellants to file the appeal before the appropriate competent court in this case will be futile exercise. Therefore this appeal is dismissed. But the trial court is directed to expedite the trial and dispose of the suit on merits in accordance with law after giving opportunity to adduce evidence. The appellants can raise all their contentions before the trial court.