JUDGMENT
1. These four appeals arise out of the interlocutory orders passed by the
Court below in two suits.
2. M.F.A. No. 469/95 and M.F.A. No. 470/95 are filed against the order passed on I. A. No. IV, by defendants Nos. 1 and 2 in O.S. No. 518/95. This is an application under Order 39, Rule 2A of the C.P.C. alleging violation of the order in — No. 1 therein.
3. M.F.A. No. 471/95 is filed against the orderpased on I.A. No. 1 in O.S. No. 848/95, by defendant No. I therein.
4. M.F.A. No. 472/95 is filed by defendants Nos. 1 and 2 against the order passed on I.A. No, III filed in O.S. No. 518/95.
5. The facts leading to the above appeals as alleged by the plaintiff is as follows:
The 1st defendant in the suit “The Karnataka State Government Employees’ Association” is an Association registered under the Karnataka Societies Registration Act. It has its own rules and bye-laws to govern its affairs. On 29-10-1994, the elected President of the Association tendered his resignation. His term of office was to expire with 1997. According to the plaintiffs in the suit, the filling up of the Office of the President should be in accordance with Rule 14(A) of the Rules and by virtue of the Rule 14A(2), the election of the President cannot be held at any place other than Bangalore. The 1st defendant in the suit has issued notice on 9-1-1995 to hold the meeting to elect the President on 22-1-1995 at Shimoga. Therefore, the plaintiffs who are members of the Central Working Committee filed the suit O.S. No. 518/95 seeking to cancel the calendar of events for the election to the Office of the President scheduled to be held on 22-1-1995 at Shimoga. Along with the suit, I.A. No. 1 was moved seeking temporary injunction restraining the defendants from holding the election to the Office of the President. On 21-1-1995, temporary injunction was granted by the VI Additional City Civil Judge, Bangalore City. According to the plaintiffs, the order was served on 22-1-1995 on the defendants in the suit. It is alleged that despite serving of the order, the election was held and the incumbent General Secretary of the 1st defendant Association in the suit, namely, Sri. K.
Sippegowcia, was elected as President. Therefore, they filed I.A. No. IV under Order 39, Rule 2A of the C.P.C. for proceeding against the defendants for taking action for disobeying the orders in 1. A. No. I. The 2nd defendant in the suit was the Acting President, who, according to the plaintiffs, conducted the election in violation of the interim order. He was also proceeded under Rule 2A of Order 39. I.A. No. III was filed in O.S. No. 58/95 by the plaintiffs to restrain the 1st defendant who is elected as the President of the Association on 22-1-1995 in alleged violation of the order dated 21-1-1995 in I.A. No. I in O. S. No. 518/95 from functioning as the President.
6. The defence contention, inter alia, was that on the tendering the resignation by the elected President, the vacancy was filled by directing the 2nd defendant, an elected Vice-President of the Association, to discharge the duties of the President, that the Central Working Committee of the 1st defendant Association met on 18-12-1994 and resolved to hold its next meeting on 22-1-1995, that the Central Working Committee can convene its meeting any where in the State, that due notice dated 9-1-1995 of the meeting was served on all the members of the Central Working Committee including the plaintiffs, that the agenda thereof showed that the meeting was convened to fill the Office of the President of the Association for the unexpired period invoking the provision of Rule 9(iv) of the Rules. It being not a regular election of the President as contemplated under Rule 14(A) of the Rules, there is no violation of the injunction order.
7. Over ruling the contention of the defendants, the Court below has passed an order to detain defendants Nos. 1 and 2 in Civil Prison for a period of one month for violation of the interim order. I.A. No. III was filed in the suit by the plaintiff restraining the newly elected President from exercising his functions as President. This I.A. was also granted.
8. After the election was held, another member of the Association filed O.S. No. 848/95 seeking for a declaration that the election of the President held on 22-1-1995 is
invalid and that the plaintiff therein has been elected as the Ad hoc President at the meeting of the Association held on 23-1-1995. He moved — No. I therein to restrain the President elected at the meeting held on 22-1-1995, i.e., Sri. K. Sipplegowda who was the General Secretary of the 1st defendant Association in O.S. No.848/95 from exercising his functions as President. The prayer therein was also granted. This order is the subject-matter of appeal in M.F.A. Number 472/95.
9. The Office of the President of the Association is filled up by means of election, the procedure for which is laid down under Rule 14A. Rule 14A(i) provides that such election shall be held once in four years meaning that the Officer elected in accordance with the said rule may hold office for four years. It impliedly excludes any bye-election as well. The electoral college to elect is the State Council. The power to ‘elect’ the President thus exclusively vests with the State Council.
10. It may be noted that as per the rule, on the resignation of the incumbent President, any one of the Vice Presidents may be authorised by the President to exercise the powers and duties of the President. This is by virtue of Rule 17, In this case, it is seen that a meeting of the Central Working Committee was convened on 18-12-1994 and accepted the resignation tendered by the President. Therein, the following decision was taken.
(Vernacular matter is omitted)
In accordance with the decision, the 2nd defendant in O.S. No. 518/95 was directed to exercise the functions of the President. At the relevant time the 2nd defendant was admittedly the Vice President of the Association. Therefore, the nomination of the President in the meeting held on 18-12-1994 could have been only under Rule 17 of the Rules. On that day the next meeting of the Central Working Committee was fixed to be held on 22-1-1995. It is pertinent to note that the body that met on 18-12-1994 is the Central Working Committee and not the State Council. The question that also arises is, whether this meeting
convened on 22-1-1995 was so convened to elect the President of the Association in a regular manner.
11. The resultant point that therefore arises in these appeals is, whether the interim order in I.A. No. I has been violated by the defendants in O.S. No. 518/95. Admittedly, the said order was served at 10.30 A.M. on the General Secretary of the Association at Shimoga before the Central Working Committee was to commence its meeting. The order served reads as follows:
“This suit is filed for a decree praying for cancellation of the calendar of events published for the election of the President on 22-1-1995.
2. An application is filed under O. 39, Rr. 1 and 2, C.P.C. praying for the grant of an order of temporary injunction restraining the defendants from holding election for the Office of the President on 22-1-1995.
3. Affidavit of first plaintiff is filed in support of the application stating that it is proposed to hold the election at Shimoga on 22-1-1995 though R. 14(2) provides for convening the meeting at Bangalore only.
4. Sub-r (2) of R. 14 of the Karnataka State Government Employees Association (Constitution and Administration) Rules, 1989, reads as follows:
“The elections to the State Council members in Bangalore City and election of office bearers of the Central Association shall be held at Bangalore and the elections to the committees of the branches shall be held at the Headquarters of the respective branches.”
The above rule clearly states that the election shall be held at Bangalore and in view of the same it cannot be said that the election can be held in any place other than Bangalore.
In the abovesaid circumstances, notice on I.A. 1 is dispensed with and ad interim order of temporary injunction restraining the defendants from holding the election at Shimoga is granted till the next hearing date.
Issue suit summons and notice on I.A. 1 to
the defendants to show cause as to why the TI granted should not be made absolute, returnable by 6-2-1995.
Plaintiff to comply with the provisions of O. 39, R. 3(b) CPC by 23-1-1995.
Sd/-
(Y.S. Venkata Rao)
VI Addl. CCJ, Bangalore.
21-1-1995.”
This order was passed by the Court below on 21-1-1995 at Bangalore, i.e., on the eve of the meeting being held. Even though the plaintiffs admittedly had notice of the meeting on 18-12-1994 itself and the detailed agenda and venue of the meeting on 9-1-1995, they filed the suit on 21-1-1995 only. (The plaintiffs had participated at the meeting of the Central Working Committee which met on 18-12-1994 which decided to hold the next meeting on 22-1-1995). The defendants in the suit are:
1. The Karnataka State Government
Employees Association, Cubbon Park,
Bangalore, represented by its General
Secretary, K. Sippegowda.
2. M.D. Nanaiah,
In-charge President,
Karnataka State Government
Employees Association,
Cubbon Park, Bangalore.”
12. It may be noted that Rule 14A provides for the election of the members of the State Council as well as the Office Bearers of the Association. Rule 14A(i) states that the election to the State Council members and the Executive Members shall be held once in four years. Rule 14A (3) states that the Central Working Committee shall appoint a Returning Officer to hold the election of the President and Treasurer of the Central Association. Rule 16 (viii) states that the term of the Office of the President thus elected shall be four years. This is made further clear by Rule 9 (iv) which states that the President shall be elected once in four years. It means, the Office-Bearers thus to be elected at the election visualised under Rule 14A (2) can hold the office only for four years. (We should at once notice that the only office-
bearers to be elected by the State Council is the President and the Treasurer (vide Rule 9(iv). The rest of the Office-Bearers are appointed by the President).
13. The next point that may be now adverted to is, whether the meeting held on 22-1-1995 was a meeting in accordance with Rule 14A for the election of an Office-bearer of the Association. Rule 14A of the Rules contemplates detailed procedure for holding “the election of an office-bearers of the Association”. Rule 14A(3) contemplates appointing of a Returning Officer by the Central Working Committee to hold the election. The date of election of President/Treasurer should be fixed by the Central Working Committee under Rule 14A(8). Rule 14A(9) mandates the Returning Officer to publish the calendar of events one month in advance of the date of election. Rule 14A(10) stipulates the time frame for withdrawing the nomination papers.
14. We may notice from the minutes of the meeting of the Central Working Committee held on 18-12-1994 that the meeting scheduled to be held on 22-1-1995 (sic) not designated to be the meeting to ‘elect’ the President. Thus the decision to hold the meeting on 22-1-1995 is not the one coming within the ambit of Rule 14A(8) referred to above. Secondly, the meeting convened on 18-12-1994 did not appoint a Returning Officer to hold the election of the Officebearer. It is important to notice that the plaintiffs had attended the meeting of the Central Working Committee on 18-12-1994. Annexures-A, B and C notices produced along with the plaint also show that the meeting that was being convened on 22-1-1995 was the meeting of the Central Working Committee and not that of the Stale Council. It is very pertinent also to notice that the plaintiffs had full knowledge of all these facts and had clearly held back these materials from the notice of the Court while pleading in O.S. No. 518/95 and have on the contrary made incorrect averments in the plaint therein which has misled the Court as well.
15. We may also now advert to another material aspect at this stage. A perusal of the
Rules shows that the President or the Treasurer of the Association can either be elected by the State Council or appointed by the Central Working Committee. The election to their office is under Rule 14 A which we have earlier noticed. This is done by the State Council as a whole which is the electoral college to elect these office-bearers. The second contingency arises in the circumstance contemplated under Rule 9(iv). This rule provides that in the event of any vacancy of the office-bearers, the President shall fill up the vacancy of the office-bearers by appointment for the remaining term. In the case of vacancy in the Office of the President/ Treasurer, it shall be filled up by the Central Working Committee. The question then arises is as to how this power is to be exercised by the Central Working Committee.
16. Now, Rule 11 of the Rules govern the constitution of the Central Working Committee. Sub-rule (i) of Rule 11 of the Rules provides that the Central Working Committee shall function as an Executive Committee of the State Council and shall take such decision to conduct the affairs of the Association. Detailed provisions are made in Rule 11 regarding the power of the Central Working Committee. A perusal of Rule 11 shows that it is the “brain” of the Association. As noticed earlier, Rule 14A(3) confers power on the Central Working Committee to appoint Returning Officer to hold the election to the office-bearers. Rule I4A(8) empowers the Central Working.Committee to fix the date of such election.
17. It is in this background we have to examine Rule 9(iv) which reads as follows:
“….. In the event of resignation, disability or death of any office-bearer, shall be filled up by the President by appointment for remaining term. In the case of resignation, disability or death or relirment of a President or Treasurer, the Central Working Committee shall have powers to fill up the post amongst the members of the Central Working Committee.”
It provides that in the case of resignation,
disability or death or retirement of any officer, the President may fill up the same by appointment for the remaining term. If so, the power that the Central Working Committee may exercise in the event of a vacancy in the office of the President/Treasurer has also to he synonymous. Therefore, applying the maxim of “noscitur a sociis”, the Central Working Committee shall fill up the post of the President/Treasurer from amongst the members of Central Working Committee by appointment for the remaining period. It cannot be held that as far as the vacancies of other office-bearers are concerned, the President may fill the vacancies by appointment, but in so far as the Office of the President/ Treasurer is concerned, it shall be filled by election. It is to be noted that there is no power vested in the State Council to hold a bye-election to the office of the President/ Treasurer in case the President or Treasurer demits his office during the currency of his term. The only provision that is provided in the Rules is Rule 9(iv). It empowers the Central Working Committee to fill up the post from amongst the members of the Central Working Committee. The wording of Rule 9(iv) clearly disables the Central Working Committee from filling up the post of President/Treasurer by nominating a person outside the membership of the Central Working Committee. The area of choice of the candidate is also thus restricted. In contrast, if the election 11 to be held to the office under Rule 14A, any member of the State Council can aspire for the office. But Rule 9(iv) clearly takes away the right of the member of the State Council to be a candidate for the office of President/Treasurer that has fallen vacant. Hence, if the filling up of the vacancy is to be under Rule 9(iv) it cannot be by election but can be only by virtue of an appointment made by the Central Working Committee for the remaining term. Besides, it is also clear from the Rules that if and when a vacancy arises on the resignation of the President or Treasurer, the Central Working Committee alone can fill up the same by resorting to Rule 9(iv) and the State Council has no power to hold any election.
18. It may be noted that the meeting held
on 18-12-1994 had resolved to hold the adjourned meeting on 22-1-1995. To this decision, the plaintiffs were also a party. The following is the text of the resolution:
(Vernacular matter is omitted….. Ed.)
19. Thus from what is stated above, it can be seen that when the Central Working Committee exercises its powers under Rule 9(iv) and fills up the vacancy in the office of President/Treasurer, it is not conducting an election to the said office, but it is exercising its prerogative power conferred under the said rule and appointing the said officers choosing the incumbent from among the members of the Central Working Committee alone. ,
20. Now the question that remains to be considered is as to whether it was legal on the part of the Central Working Committee to have met on 22-1-1995 and filled up the office of the President at the meeting even after the service of the order in O.S. No. 518/95. As noticed earlier, Rule 9(iv) expressly confers power on the Central Working Committee to fill up the vacancy in the office of the President. The State Council has no power at all to hold any bye-election in the event of a vacancy of the office-bearers caused by the contingencies referred to in Rule 9(iv). This power having been conferred exclusively with the Central Working Committee under Rule 9 (iv), it should be held that there is no power vested in the State Council to hold any bye-election to the office of the President/ Treasurer. Besides, there are no rules enabling the State Council to delegate to the Central Working Committee the power to elect the President. Therefore, the meeting held on 22-1-1995 of the Central Working Committee was not for the election of the President against the vacancy in accordance with Rule 14 A. but to appoint a member to the office of the President for the remaining term of the office of the President under Rule 9(iv).
21. As urged by Shri Sundaraswamy, learned counsel for the plaintiff-respondents, the Central Working Committee is nothing but the Executive Committee of the 1st defendant and any order restraining the 1st defendant from holding the election to the office of the President will bind the Central
Working Committee as well. They will be guilty of disobedience of the order as much as the 1st defendant (See AIR 1966 Mad 33) (sic). But the business transacted by the Central Working Committee was not “election to the office of the President”. As noticed earlier, the election to the office of President can be conducted only in accordance with Rule HA of the Rules. The Central Working Committee was meeting on 22-1-1995 to “appoint the President from amongst its members for the remaining period” in exercise of its powers under Rule 9(iv). It was, therefore, not an election meeting as referred to in the order of the Court in. I.A. No. I.
22. We will now examine whether the order passed by the Court below in I.A. No. I is capable of being interpreted as one forbiding the 1st defendant from filling up the office of the President altogether at the meeting held on 22-1-1995. The main prayer in the suit was:
“Cancelling the calendar of events published and issued by the defendants announcing the date of election of the President on 22-1-1995 since it is held against Rule 14(2) of and cost of award.”
23. The prayer in I.A. No. 1 was for an “order of T.I. restraining the defendants from hoiding election to the office of the President on 22-1-1995 at Shimoga pending disposal of the suit”. The prayer made is rather vague in view of the various rules noted earlier. The temporary injunction granted related to the exercise of the power by the 1st defendant under Rule 14A to hold election to the office of the President. The Central Working Committee of the 1st defendant had not appointed any Returning Officer to hold the election as contemplated under Rule 14A(3). The Central Working Committee had not fixed the date of election as contemplated under Rule 14A(8). No calendar of events has been published at all as contemplated under Rule 14A(9). The plaintiffs were highlighting an election being held illegally. They never referred to the factum of the Central Working Committee exercising its power under Rule 9(iv). A reference to the order shows, this was not even in their contemplation and
they appeared to be anxious to rest rain the 1st defendant from holding the election to the office under Rule 14A. Hence, since the prayer in the plaint, the averments in the I.A. all related to an election being held in accordance with Rule 14A. one cannot say that the Central Working Committee acted in violation of the order of the Court while it appointed the President for the remaining period of the term under Rule 9(iv) of the Rules.
24. May be, what the plaintiffs had in contemplation was the filling up of the office of the President. But the plaintiffs did not make this prayer explicit and implead the Central Working Committee a party to the suit. The averments were vague resulting in the order also being vague. There is no express order restraining the defendants from filling up the office of the President in any manner. As long as the 1st defendant was not holding an election to the office of President at Shimoga on 22-1-1995 under Rule 14A. its Executive Committee was well within iis right to exercise its power under Rule 9(iv). It cannot be said that there is any disobedience of the order passed by the Court in I.A. No. I in O.S. No. 518/95 by defendants Nos. 1 and 2 in the suit.
25. A proceeding under Rule 2A of Order 39 is a serious matter. The Court is empowered to order to lake away the liberty of an individual and order detention of the person who violates the order in Civil Prison This power is penal in nature. ]f so. the burden is heavily on the person who alleges disobedience to prove the ingredients of the offence beyond reasonable doubt. An order under Rule 2 A can not be passed on suspicion or as a matter of course. There should be clear proof that the order to be obeyed was clear, unambiguous and with full knowledge of the content of the order it was disobeyed. In the instant case, the plaintiffs wanted the 1st defendant not to hold election to the office of the President at Shimoga on 22-1-1995 contrary to Rule 14A. This was the content of the interim order as well. As the Executive Committee of the 1st defendant Central Working Committee which was meeting on
22-1-1995 was not holding election to the office of the President, it cannot be ruled that the defendants violated the order of the Court passed in I.A. No. I.
26. While dealing with a proceeding under Rule 2A , it may not be out of place if the Court also adverts to the circumstances whether the plaintiffs had approached the Court bona fide and with clean hands before securing and secured the order of injunction whose violation is complained of. This is more so where the violation complained of is an ex parte order and it is shown to the Court that the order is susceptible of different meaning and is ambiguous. If the alleged contemner shows to the Court that besides the order being not clear there was absolute want of good faith on the part of the plaintiff while securing the ex parte order and that what he has done is lawful, then the Court may refrain form exercising its power under Rule 2 A, as it may amount to enabling the plaintiff to take advantage of his own wrong. In this case, there is total want of good faith on the part of the plaintiffs. The suit O.S.No. 518/95 was instituted in Bangalore seeking to injunct a meeting being held at Shimoga on 22-1-1995. Going by the averments in the plaint, the meeting is described as an election meeting. It implies that large number of persons would have assembled at Shimoga to participate at the alleged election and all arrangements would have been completed in this behalf. The documents produced along with the suit show that admittedly the plaintiffs had notice of the proposed meeting at Shimoga as early as on 18-12-1994 and of the agenda of the meeting at least on 9-1-1995. Despite this, the plaintiffs have chosen to approach the Court only on the previous day, i.e, 21-1-1995 which falls on a Saturday. The plaintiffs have not set out any convincing reason for the “late arrival” in the Court except a bald averment that they had represented the matter to the 1st defendant. The Courts should be slow in passing interim orders ex parte in such a situation. For, if an interim order is granted and the event scheduled to be held on 22-1-1995 is prevented, and if ultimately the suit is discovered to be frivolous, the Court will not be
in a position to undo the harm and hardship caused. The aggrieved party does not get any time to appear before the Court and to bring Jo the notice of the Court the true facts of the case and prevent any miscarriage of justice. Jn such a situation, the Court should satisfy that there was no undue delay on the part of the plaintiff and that the plaintiff has moved the Court at the earliest instance. If these circumstances do not exist, the Courts should not ordinarily pass any ex parte orders.
27. In the result, I.As. Nos. III and IV in O.S. No. 518/95 are dismissed. As far as the I.A. No. III in O.S. No. 518/95 is concerned, proper parties are not made party to the I.A. as well. I.A. No. I in O.S. No. 848/95 is also dismissed, as the President was validly appointed by the Central Working Committee of the 1st defendant on 22-1-1995. All the appeals are hence allowed. There will be no order as to costs.
28. Appeals allowed.