JUDGMENT
S.N. Jha, C.J.
1. This civil revision arises from the order of 2nd Addl. District Judge, Jammu, dated 19-11-2004, in suit titled Purani Mandi Businessmen Association v. Om Parkash Shukla and Ors. Rejecting the petitioners’ applications for intervention.
2. The plaintiff’s, who figure as respondents 6 & 7 in the revision, filed suit for declaring notice dated 3-7-2004 to be null and void, and for permanent prohibitory injunction restraining the defendants from interfering with the functioning of the Association or holding the elections of the Association. The case of the plaintiffs, briefly, is that it is an association of shopkeepers of Purani Mandi area. As per the constitution of the Association, elections of office bearers are held every two years. Such election is to be conducted by President of the Association as Returning Officer or by the person nominated by General House of the Association. Defendant No. 1, Om Parkash Shukla, claiming to be the Election Commissioner under an authorization of the general body issued notice dated 3-7-2004 calling for elections of the Association on 17-07-2004. According to the plaintiffs, he has no right or authority under the Constitution or any resolution of the Association to conduct the elections.
3. On 14-07-2004 the court below while issuing notice to the defendants, by an interim order restrained them from holding the elections on 17-07-2004 or any subsequent date. Unfortunately, despite objections being filed on behalf of the defendants, final order in the injunction matter was not passed with the result that elections of the office bearers of the Association have not been held as yet. In the meantime, the petitioners herein filed application for intervention alleging that they too are bonafide members of the Association, having right to participate in the elections and, therefore, they should be allowed to intervene in the proceedings. The court below, by the impugned order, held that as they are not the President or the General Secretary of the Association, they cannot be allowed to intervene, and accordingly rejected the application.
4. Shri L.K. Sharma, learned counsel for the petitioners submitted that the fact that petitioners are members of the Association is not in dispute. Being members the petitioners cannot be denied permission to intervene in the proceedings. The ground on which the application has been rejected, namely, that they are not the President or General Secretary of the Association, is completely irrelevant.
5. On behalf of respondents 1 to 4 it was submitted that injunction was obtained on suppression of material facts. It was stated that the plaintiffs i.e Jang Bahadur and Rajinder Singh Jamwal had filed nominations as candidates for the post of President and General Secretary but suppressing this fact they instituted the suit challenging the election process. Unfortunately, despite protracted hearing in the injunction matter, the court below did not pass final order resulting in continuance of restraint order. On merit of the petitioners’ application, it was stated that there is distinction between intervention and addition. Whereas intervention is permissible in terms of Order 1 Rule 8-A of the Code of Civil Procedure on question of law alone, a person can be added as party under Order 1 Rule 10 of the Code if the court is satisfied that he is either a necessary or a proper party. Simply being members of the Association does not mean that they have right to either intervene in the proceedings or be added as party defendants for decision in the suit.
6. The question for consideration is whether the petitioners have made out a case for intervention either under Order 1 Rule 8-A or Order 1 Rule 10 of the Code of Civil Procedure. On plain reading of order 1 Rule 8-A it is manifest that a person or a body of persons can be permitted to intervene in the proceeding of the suit where court is satisfied that a question of law is substantially and directly in issue in the suit and it is in public interest to allow that person or body of persons to present his or their opinion on that question. No question of law in the instant case apparently arises to warrant intervention in terms of Rule 8-A. As regards addition in terms of Order 1 Rule 10, Sub-rule (2) provides that the court may at any stage of proceedings on or in that application direct addition of any person whether as plaintiff or defendant, “whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.” In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar, AIR 1963 SC 786, dwelling upon the scope of provisions of Order 1 Rule 10 of the Code the Supreme Court observed “a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings.” As members of the Association the petitioners may have right to participate in the elections but so far as instant suit is concerned, for effective and complete adjudication their presence does not seem to be necessary. The question/issues involved in the proceeding may be decided even in their absence and, therefore, they do not fulfill the requirement of Rule 10 of order 1 of the Code. In this view of the matter, the impugned order of the court below rejecting their application for intervention cannot be said to be erroneous.
7. Having held so, I would fall short if I do not express my disapproval of the manner in which the election process came to be stalled as the result of an interim order. There appears to be a dispute about tenure of the office bearers of the Association. According to the plaintiffs, the tenure is two years while according to the defendants the tenure of office bearers is of only one year. Even if the case of the plaintiffs in this regard is accepted, tenure of the office bearers expired in February, 2004. Though the tenure of the erstwhile President and General Secretary of the Association thus came to an end, yet, claiming to be holders of the said offices they filed the suit and obtained a restraint order and thereby, apparently, continued to function in their erstwhile capacity.
8. The court should have, as a matter of fact, refrained from passing any restraint order since it amounted to interference with the election process. Law on the point is settled that after commencement of the election process the court should stay its hands and not interfere with the process. Reference may be made to the leading case on the subject, namely, N.P. Ponnuswami v. The Returning Officer, AIR 1952 SC 64. The said decision has been followed unanimously in umpteen cases thereafter. It is true that the decisions have been rendered in the context of Article 329(b) of the Constitution of India or statutes containing similar provision but, in my view, same principle should govern non-statutory elections e.g. elections in private societies. The reason being that the result of election can always be challenged in accordance with the mechanism provided in the relevant rules or bye laws and, where no such mechanism is provided, by way of suit. It is settled principle that before issuing injunction the party applying for injunction should not only make out a prima facie case but also satisfy the court that it will suffer irreparable loss and injury in case injection is not granted and that balance of convenience also lies in its favour. Where the result of elections can be challenged in accordance with the mechanism of the rules/bye laws etc. or by a suit, it cannot be said that the person would suffer irreparable injury if elections are not stayed.
9. It is unfortunate that continuance of the restraint order has not only stalled the election process but also created uncertainties in the functioning of the Association. It is still more unfortunate that despite attempts of the defendants to get final order passed in the injunction matter, the court did not pass final order even after protracted hearing as is evident from the order-sheet.
10. Having made these observations, in view of the conclusion on merit of the case as above, the civil revision is dismissed as being devoid of merit.