IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 530 of 2009()
1. V.R.BHASKARAN, S/O.ANANDAN NAMBIAR,
... Petitioner
2. N.RAJAN, S/O.KUNHIRAMAN,
3. K.RAVINDRAN, S/O.GOVINDAN NAMBIAR,
Vs
1. K.BALAKRISHNAN, S/O.KORAN,
... Respondent
2. AMERI PADMANABHAN, S/O.KANNAN,
3. THERUR EDUCATIONAL SOCIETY,
For Petitioner :SRI.K.V.PAVITHRAN
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :11/08/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No.530 of 2009
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Dated this the 11th day of August,2009
JUDGMENT
The plaintiffs in O.S.No.396 of 2001 on the file of the
Munsiff’s Court, Kuthuparamba are the appellants. The appeal
is directed against the judgment and decree in A.S.No.55 of
2006 on the file of the Sub Court, Thalassery. The suit was
dismissed and confirmed in appeal. Hence the second appeal.
The suit was filed for declaration that defendants 1 and 2 are
not competent to conduct the election to the office of the
governing body of Therur Educational Society. The parties
herein are hereinafter referred to as plaintiffs and defendants.
The plaintiffs are the members of the society.
2. It is the case of the plaintiff’s that the 3rd
defendant is the elected secretary of the Therur Educational
Society in the last election held. The defendants 1 and 2
disputed the contention of the plaintiffs that the 3rd defendant is
the secretary of the society. The election to the society is
proposed to be held on 14/10/2001. According to the
defendants 1 & 2 the election conducted before the expiry of
the term of office of the office bearers and therefore the
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contention of the plaintiff cannot be accepted. The plaintiff
contented that the proposed election scheduled to be held on
14/10/2001 is invalid for several reasons. The election
proposed is in violation of the provisions of bye-laws and
therefore the proposed election is illegal.
3. The trial court referred to Ext.A2, common
judgment in an earlier suit holding that there is no valid
election held on 4/1/1998 and therefore the election said to be
conducted on 4/1/1998 held to be illegal. The trial court held
that since the plaintiffs did not seek the intervention of the
court to conduct the free and fair election, the declaration that
the 1st and 2nd defendants are incompetent to conduct election
will not serve any purpose. Therefore, the suit was dismissed
holding that the plaintiffs are not entitled to the relief prayed
for in the suit. The plaintiffs filed first appeal and the
defendants 1 and 2 filed cross appeal. The appellate court
noted the fact that since there was no interim relief granted by
the trial court, the election was held as per schedule. The
tenure of the elected committee was 3 years. The appellate
court has noted that when the suit came up for trial the prayer
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has become infructuous. The earlier suit was also dismissed for
the reason that it has become infructuous by Ext.A2 judgment.
4. By the time when the trial of the suit
commenced, the suit itself has become infructuous because the
election was conducted. The elected committee was constituted
to administer the affairs of the society for the 3 years term.
When the trial commenced in 2006 the term has expired long
back. The appellate court also rightly noticed that the election
as per schedule was held on 14/10/2001. The elected committee
held office administration for 3 years from the date of taking
charge. Three year term is over by the time when the appellate
court considered the matter on merit. The appellate court
rightly observed that the suit has become infructuous.
5. This court has taken note of the above facts. In
fact the trial court should not have proceeded with the trial of
the suit having found that the election held as per schedule and
the term expired. Therefore, the consideration of the matter on
merits was unnecessary. The appellate court also should have
taken note of this fact and dismissed the appeal and the suit
finding that the suit has become infructuous. I am of the view
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that the both courts should not have entered a decision on
merit. In view of the said fact this court is not proposed to go
into the merits of the findings passed by the courts below. In
fact, the findings and reasonings recorded by the both courts
should have been avoided, since the suit has become
infructuous. The findings on issues also are unnecessary and
have no force. In the circumstances the appeal is devoid of
merit. The appeal is disposed of on the above said observations.
HARUN-UL-RASHID, JUDGE
skj.