{"id":143647,"date":"2010-03-08T00:00:00","date_gmt":"2010-03-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-t-yadeendradas-vs-the-chowa-educational-society-on-8-march-2010"},"modified":"2016-12-16T15:37:22","modified_gmt":"2016-12-16T10:07:22","slug":"c-t-yadeendradas-vs-the-chowa-educational-society-on-8-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-t-yadeendradas-vs-the-chowa-educational-society-on-8-march-2010","title":{"rendered":"C.T.Yadeendradas vs The Chowa Educational Society on 8 March, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
C.T.Yadeendradas vs The Chowa Educational Society on 8 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 20997 of 2009(O)\n\n\n1. C.T.YADEENDRADAS, S\/O.C.K.RAGHAVAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE CHOWA EDUCATIONAL SOCIETY,\n                       ...       Respondent\n\n2. T.K.SUKUMARAN, S\/O.T.K.KUNHIKANNAN,\n\n3. K.A.LAKSHMANAN, S\/O.POKKAN,\n\n                For Respondent  :SRI.GRASHIOUS KURIAKOSE\n\nThe Hon'ble MR. Justice S.S.SATHEESACHANDRAN\n\n Dated :08\/03\/2010\n\n O R D E R\n          S.S. SATHEESACHANDRAN, J.\n       = = = = = = = = = = = = = = = = =\n            W.P.(C)No.20997 of 2009\n       = = = = = = = = = = = = = = = = =\n      Dated this the 8th day of March, 2010.\n\n                   JUDGMENT\n<\/pre>\n
        The writ petition is filed seeking the<\/p>\n
following reliefs:\n<\/p>\n
    i)    Set aside Exhibit P1 order and<\/p>\n
          restore Exhibit P2 order;<\/p>\n<\/blockquote>\n
    ii)   To   make   such   other  writ   or<\/p>\n
          order, which the Hon’ble High<\/p>\n
          Court fo Kerala deems fit in<\/p>\n
          the circumstances of the case.<\/p><\/blockquote>\n
        2. Plaintiff in O.S.No.305\/08 on the<\/p>\n
file of the Principal Munsiff’s Court, Kannur<\/p>\n
is the writ petitioner.      Challenge raised in<\/p>\n
the writ petition is against Ext.P1 judgment<\/p>\n
rendered  by   the     learned   Sub    Judge in<\/p>\n
C.M.A.No.23\/08 by which Ext.P2 order passed by<\/p>\n
the  learned   Munsiff    in   the  interlocutory<\/p>\n
application  for    injunction    moved   by the<\/p>\n
plaintiff directing for an interim arrangement<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 2::\n<\/p>\n
for the administration of a society, subject<\/p>\n
matter involved in the suit, till a proper<\/p>\n
election selecting its managing committee was<\/p>\n
set aside allowing the appeal.\n<\/p>\n
        3. The dispute involved relate to a<\/p>\n
society viz., Chovva Educational Society which<\/p>\n
is in management of two schools, an aided<\/p>\n
higher secondary school, and an unaided high<\/p>\n
school and upper primary school.     Plaintiff<\/p>\n
claiming to be a member of the above society<\/p>\n
laid  the  suit  seeking   a declaration  that<\/p>\n
defendants 2 to 10 who continue to administer<\/p>\n
the affairs of the society even after the term<\/p>\n
of their management is over, have no further<\/p>\n
right to continue in management, and for a<\/p>\n
permanent prohibitory injunction restraining<\/p>\n
them from holding any election on the basis of<\/p>\n
a notice already issued by the 3rd defendant.<\/p>\n
The plaintiff also canvassed for appointment<\/p>\n
of  an  advocate   commissioner to  hold   the<\/p>\n
election of the governing body of the 1st<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                      :: 3::\n<\/p>\n
defendant society after preparation of a roll<\/p>\n
of its genuine members.     Ext.P3 is the copy of<\/p>\n
the plaint.\n<\/p>\n
        4. With the suit the plaintiff moved<\/p>\n
an application for an interim injunction to<\/p>\n
restrain   the    defendants\/respondents     from<\/p>\n
acting as the governing body members of the<\/p>\n
society until they are duly elected, and also<\/p>\n
from holding election on the basis of the<\/p>\n
notice already issued by the 3rd defendant.<\/p>\n
Ext.P4 is the copy of that application.       The<\/p>\n
3rd defendant filed a counter against Ext.P4<\/p>\n
application  on    his   behalf   and  also   for<\/p>\n
defendants 1 and 2 as well, controverting and<\/p>\n
disputing  the  averments     sworn  to  by   the<\/p>\n
plaintiff in support of his application for<\/p>\n
the   discretionary    relief    of   injunction.<\/p>\n
Ext.P5 is the copy of that counter affidavit.<\/p>\n
A counter statement was filed by respondents<\/p>\n
4, 5, 7 and 8 also to Ext.P4 application, in<\/p>\n
which supporting the allegations raised by the<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 4::\n<\/p>\n
plaintiff  they    requested  for  passing   of<\/p>\n
appropriate   orders    in  that   application.<\/p>\n
Ext.P6 is the copy of that counter statement<\/p>\n
filed by the above defendants.\n<\/p>\n
        5. The learned Munsiff, after hearing<\/p>\n
the   counsel   on   both   sides   on   Ext.P4<\/p>\n
application, on the basis of the submissions<\/p>\n
made  by  both  sides   appointed  an  advocate<\/p>\n
commissioner as observer for conducting the<\/p>\n
election to the society.   The election process<\/p>\n
has already been set on with publication of<\/p>\n
notice,   as  contended    by  the   contesting<\/p>\n
respondents 1 to 3, was taken due note by the<\/p>\n
court in appointing an advocate commissioner<\/p>\n
as   observer   for    the   election.      The<\/p>\n
commissioner was directed to observe strictly<\/p>\n
the  rules  and  regulations  of   the  society<\/p>\n
granting him liberty to seek police aid for<\/p>\n
smooth conducting of the election.   Ext.P7 is<\/p>\n
the  copy   of  that   order.    The   advocate<\/p>\n
commissioner appointed as observer filed two<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 5::\n<\/p>\n
reports before the court which indicated of<\/p>\n
irregularities in the conduct of the election<\/p>\n
including shifting the venue for the election<\/p>\n
on the date notified for conducting of such<\/p>\n
election.   After those reports were filed<\/p>\n
before  the   court   Ext.P4   application for<\/p>\n
injunction   was     again    taken   up   for<\/p>\n
consideration.  At the time of hearing of that<\/p>\n
petition, contesting defendants 2 and 3 with<\/p>\n
the  latter  representing    the  1st defendant<\/p>\n
society  also  in   the   suit  contended that<\/p>\n
election in accordance with the rules and<\/p>\n
regulations of the society were conducted in a<\/p>\n
lawful manner and new office bearers had been<\/p>\n
duly elected to administer the society.    The<\/p>\n
learned  Munsiff,   considering  the  materials<\/p>\n
produced, including the two reports of the<\/p>\n
advocate  commissioner,    and also  the  rival<\/p>\n
submissions made by both sides, came to the<\/p>\n
conclusion that the election conducted was not<\/p>\n
proper and the election process was carried<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 6::\n<\/p>\n
out  in  violation   of  the  rules  and  norms<\/p>\n
applicable to a fair election.    In that view<\/p>\n
of the matter, taking note of the facts and<\/p>\n
circumstances of the case it was held that the<\/p>\n
plaintiff has made a prima facie case for the<\/p>\n
discretionary    relief    claimed    in    his<\/p>\n
application. Ext.P4 application was allowed<\/p>\n
restraining  defendants    2   and  3   by  an<\/p>\n
injunction from acting as the governing body<\/p>\n
members of the 1st defendant society until they<\/p>\n
are duly elected in a lawful election.   Taking<\/p>\n
note that the 1st defendant is an educational<\/p>\n
society,  the   learned   Munsiff  also  passed<\/p>\n
orders    for    interim     arrangement    for<\/p>\n
administering the society directing the 4th<\/p>\n
respondent,  the   Manager  to  administer  the<\/p>\n
management of the society till proper election<\/p>\n
is conducted.   The 4th defendant was directed<\/p>\n
to obtain sanction from the court for all<\/p>\n
actions being taken to manage the affairs of<\/p>\n
the  society  except    the   routine  matters.<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 7::\n<\/p>\n
Defendants 2 and 3 were directed to hand over<\/p>\n
the records to the 4th defendant, who was put<\/p>\n
in management of the society by the interim<\/p>\n
arrangement made under Ext.P2 order.<\/p>\n
        6. Ext.P2 order was challenged by the<\/p>\n
3rd  defendant    preferring   an  appeal  as<\/p>\n
C.M.A.No.23\/08    before    the  Sub    Court,<\/p>\n
Thalassery.   The learned Sub Judge, after<\/p>\n
hearing both sides, reversed Ext.P2 order and<\/p>\n
dismissed Ext.P4 application of the plaintiff<\/p>\n
holding that the validity of the election<\/p>\n
conducted   by   the    advocate  commissioner<\/p>\n
appointed by the court was not required to be<\/p>\n
considered in disposing of Ext.P4 application.<\/p>\n
The elected members were not heard and they<\/p>\n
were not even made parties in the suit or<\/p>\n
proceedings of Ext.P4 application was another<\/p>\n
reason which weighed with the learned Sub<\/p>\n
Judge to interfere with Ext.P2 order of the<\/p>\n
learned Munsiff. While passing Ext.P2 order,<\/p>\n
the learned Munsiff has not given any reason<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 8::\n<\/p>\n
why the 4th defendant was chosen to administer<\/p>\n
the society by way of an interim arrangement<\/p>\n
when  plaintiff    had  sought   an  injunction<\/p>\n
against  that  defendant   as  well  in  Ext.P4<\/p>\n
application also, to     some extent persuaded<\/p>\n
the learned Sub Judge to interfere with Ext.P2<\/p>\n
order passed by the learned Munsiff.    Setting<\/p>\n
aside Ext.P2 order and allowing the appeal,<\/p>\n
the learned Sub Judge directed the parties to<\/p>\n
maintain  status   quo  on  the  basis of   the<\/p>\n
election conducted on 23.6.2008 until further<\/p>\n
orders  are  passed   by   the court  over  the<\/p>\n
validity of election after hearing all the<\/p>\n
parties.   The  appellate    court  in   Ext.P1<\/p>\n
judgment expressed the view that the judgment<\/p>\n
will  not   preclude   the   court below  from<\/p>\n
considering the question of validity of the<\/p>\n
election conducted on 23.6.2008 on a separate<\/p>\n
petition filed by any of the parties or even<\/p>\n
without petition, if the court finds that<\/p>\n
question of validity of the election has to be<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 9::\n<\/p>\n
determined in the suit.       Ext.P1 judgement<\/p>\n
would also show that in case such an enquiry<\/p>\n
on the validity of the election is taken up,<\/p>\n
then the court has to give notice and hear<\/p>\n
also  the  elected   members  in  the  election<\/p>\n
already held.   Ext.P1 judgment with the above<\/p>\n
directions and observations reversing Ext.P2<\/p>\n
order of the learned Munsiff and dismissing of<\/p>\n
Ext.P4  application   of   the   plaintiff,  is<\/p>\n
challenged in the writ petition.<\/p>\n
        7. I heard the counsel on both sides.<\/p>\n
The  learned   counsel    for  the   petitioner<\/p>\n
[hereinafter referred to as ‘the plaintiff’]<\/p>\n
assailed  Ext.P1   judgment   rendered  by  the<\/p>\n
learned Sub Judge mainly on the ground that<\/p>\n
the   appellate   Judge    had  exercised  his<\/p>\n
jurisdiction improperly in substituting his<\/p>\n
views over that of the learned Munsiff on<\/p>\n
erroneous  conclusions   drawn  which  are  not<\/p>\n
supported  by   the   materials,  nor   by the<\/p>\n
principles of law applicable in disposing of<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 10::\n<\/p>\n
an application for interim injunction.      The<\/p>\n
appellate court has exercised its discretion<\/p>\n
to take a divergent view from that of the<\/p>\n
learned Munsiff for the sole reason that the<\/p>\n
validity of the election was not a question<\/p>\n
emerging for consideration in the disposal of<\/p>\n
the interlocutory application, according to<\/p>\n
the counsel. The election was conducted under<\/p>\n
the  auspices   of  an    advocate  commissioner<\/p>\n
appointed by the court and in fact there was a<\/p>\n
postponement  of   the   consideration  of  the<\/p>\n
injunction  application     in   view   of  the<\/p>\n
submissions  made   by    both  sides  that  an<\/p>\n
election can be conducted by appointing a<\/p>\n
commissioner as an observer to elect a new<\/p>\n
management  committee    for  administering the<\/p>\n
society,  according     to  the   counsel.  The<\/p>\n
election process has already commenced issuing<\/p>\n
a notice to convene the general body of the<\/p>\n
society  also   weighed    with  the  court  in<\/p>\n
postponing the consideration of the injunction<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 11::\n<\/p>\n
application  and    passing   of  Ext.P7   order<\/p>\n
appointing   an    advocate    commissioner   as<\/p>\n
observer to conduct the election.    Inviting my<\/p>\n
attention to Ext.P7 order, the learned counsel<\/p>\n
submitted that such an order was passed after<\/p>\n
hearing   both   sides     on   the   injunction<\/p>\n
application.  By    the    appointment  of   the<\/p>\n
advocate commissioner to conduct the election,<\/p>\n
according to the counsel. The court has only<\/p>\n
relegated the consideration of the injunction<\/p>\n
application to a later stage.    The term of the<\/p>\n
officer bearers of the 1st defendant society<\/p>\n
had expired long ago and despite a decree<\/p>\n
passed in a previous suit for conducting a<\/p>\n
fresh election, no such election was conducted<\/p>\n
even after 1= years of passing of such decree<\/p>\n
was also taken note of by the court, according<\/p>\n
to the counsel, in passing Ext.P7 application.<\/p>\n
When the election was directed to be conducted<\/p>\n
by  appointing  an   advocate   commissioner  as<\/p>\n
observer in the light of the suit filed and<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 12::\n<\/p>\n
also  after  hearing    both   sides over  the<\/p>\n
discretionary relief applied for under Ext.P4<\/p>\n
application,  it   is  the  submission of  the<\/p>\n
learned counsel, the validity of the election<\/p>\n
can be assailed if the election had been<\/p>\n
irregularly and improperly conducted in the<\/p>\n
very same suit and even at the stage of<\/p>\n
consideration   of   the    pending  injunction<\/p>\n
application in which the court had passed<\/p>\n
Ext.P7.  The  two   reports   of  the  advocate<\/p>\n
commissioner appointed as observer to conduct<\/p>\n
the  election,   according    to  the  counsel,<\/p>\n
clearly  demonstrate   that  the  election  was<\/p>\n
conducted in a most irregular and haphazard<\/p>\n
manner in changing the venue on the date of<\/p>\n
the  election  and   not   even furnishing the<\/p>\n
relevant registers and voters’ list to the<\/p>\n
advocate commissioner even on his demand.   The<\/p>\n
court has ordered in Ext.P7 order permitting<\/p>\n
the commissioner to seek police assistance to<\/p>\n
conduct the election is highlighted by the<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 13::\n<\/p>\n
counsel,  with    reference   to   the   reports<\/p>\n
submitted  by   the  commissioner   before   the<\/p>\n
court, as to the irregularities in conducting<\/p>\n
the election.      A fraud on the court was<\/p>\n
committed in conducting of the election as<\/p>\n
disclosed by the reports of the commissioner<\/p>\n
was   overlooked   by    the   appellate   court<\/p>\n
according to the counsel, in interfering with<\/p>\n
Ext.P2 order of the learned Munsiff on the<\/p>\n
reasoning that the validity of the election<\/p>\n
was not the subject matter of the suit or the<\/p>\n
injunction application and any dispute over<\/p>\n
the  election  required    has to  be   agitated<\/p>\n
independently with notice to the persons who<\/p>\n
have  been  elected    to   the  committee   for<\/p>\n
management of the society.    Maintainability of<\/p>\n
the appeal preferred by the 3rd defendant<\/p>\n
giving  rise  to   Ext.P1   judgment  was   also<\/p>\n
impeached by the learned counsel contending<\/p>\n
that the society, the 1st defendant, was not<\/p>\n
made a party in such appeal against Ext.P2<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 14::\n<\/p>\n
order passed by the learned Munsiff, which is<\/p>\n
binding on that society and its members.     In<\/p>\n
the absence of the 1st defendant society in<\/p>\n
the appeal, according to the counsel, it was a<\/p>\n
fractured appeal and Ext.P1 decision, wherein<\/p>\n
the society was not a party, cannot bind the<\/p>\n
society or its members.      Reference was also<\/p>\n
made to Ext.P10 order passed by the appellate<\/p>\n
court on the stay petition moved by the 3rd<\/p>\n
defendant in his appeal wherein, according to<\/p>\n
the counsel, after considering meticulously<\/p>\n
all aspects involved in the case that relief<\/p>\n
canvassed was declined.     Though the findings<\/p>\n
made   by   the    appellate    court  in   the<\/p>\n
interlocutory application for stay have no<\/p>\n
decisive force, in Ext.P1 judgment rendered by<\/p>\n
the appellate court later the sound reasonings<\/p>\n
given in Ext.P10 order have been given a goby<\/p>\n
and not even taken note of while interfering<\/p>\n
with Ext.P2 order of the learned Munsiff,<\/p>\n
submits the counsel.    Reliance has been placed<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 15::\n<\/p>\n
by the counsel in Sally Prakash & ors. v. 1st<\/p>\n
Additional District Judge {AIR 2002 Allahabad<\/p>\n
198} to contend that the directions and orders<\/p>\n
issued by the court by the learned Munsiff in<\/p>\n
Ext.P2 order are in effect passed in exercise<\/p>\n
of his jurisdiction under Section 151 of the<\/p>\n
Code of Civil Procedure taking note of the<\/p>\n
irregularities    in the election conducted,<\/p>\n
which was held under the supervision of the<\/p>\n
court  by  the   appointment   of  an  advocate<\/p>\n
commissioner as observer and any challenge<\/p>\n
against such order cannot be maintained by way<\/p>\n
of an appeal, but only by way of a revision<\/p>\n
before this court, if there was sufficient<\/p>\n
ground to challenge the order by that course.<\/p>\n
To buttress the argument that the learned Sub<\/p>\n
Judge   in   appeal     had   overstepped   his<\/p>\n
jurisdiction in interfering with Ext.P2 order<\/p>\n
by supplementing different views from that of<\/p>\n
the  learned  Munsiff    without examining  and<\/p>\n
holding that the views formed in Ext.P2 order<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 16::\n<\/p>\n
are improper on the facts involved and under<\/p>\n
law, the learned counsel has relied on U.P.Co-<\/p>\n
operative Federation Ltd. v. Sunder Bros.,<\/p>\n
Delhi  {AIR   1967  SC   249}. Ext.P1  judgment<\/p>\n
rendered by the appellate court is liable to<\/p>\n
be reversed and Ext.P2 order by the learned<\/p>\n
Munsiff has to be restored, is the submission<\/p>\n
of  the   learned   counsel,  contending   that<\/p>\n
otherwise justice would be a casualty since by<\/p>\n
Ext.P1 judgment the fraud committed on the<\/p>\n
court by the defendants in the conducting the<\/p>\n
election is recognized and given effect to.<\/p>\n
        8. The learned counsel for the 3rd<\/p>\n
respondent\/4th    defendant    supported    the<\/p>\n
submissions made by the learned counsel for<\/p>\n
the plaintiffs.\n<\/p>\n
        9. Per contra, the learned counsel<\/p>\n
appearing for the 3rd respondent inviting my<\/p>\n
attention to the memorandum of association of<\/p>\n
the 1st defendant society contended that the<\/p>\n
society has been established for administering<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 17::\n<\/p>\n
education institutions and any direction or<\/p>\n
order by the court without sufficient cause<\/p>\n
would prejudice and cause serious injury to<\/p>\n
the interest of the society in administering<\/p>\n
the schools where the interests of a good<\/p>\n
number of students are involved.      Even the<\/p>\n
commissioner  appointed     by  the  court  has<\/p>\n
reported that the election was conducted in a<\/p>\n
fair manner, and the allegations imputing that<\/p>\n
it was irregularly conducted, according to the<\/p>\n
counsel, are unworthy of any merit.         The<\/p>\n
conduct  of   the   4th   respondent, who   was<\/p>\n
appointed under Ext.P2 by the learned Munsiff<\/p>\n
for management of the society as an interim<\/p>\n
arrangement was not in the best interest of<\/p>\n
the  society,   according     to  the  counsel,<\/p>\n
contending that soon after passing of Ext.P1<\/p>\n
judgment,without authority he had drawn a sum<\/p>\n
of Rs.2 lakhs from the funds of the society.<\/p>\n
Plaintiff and the 4th defendant are acting hand<\/p>\n
in glove and they are not interested in the<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 18::\n<\/p>\n
welfare of the society is the submission of<\/p>\n
the counsel.   When the election process was<\/p>\n
set in motion and notification was issued for<\/p>\n
convening  the  general    body,  the plaintiff<\/p>\n
rushed to the court and filed a suit and moved<\/p>\n
the injunction application raising frivolous<\/p>\n
allegations  against    the  defendants.    The<\/p>\n
learned counsel inviting to the narrow scope<\/p>\n
of interference in exercise of the supervisory<\/p>\n
jurisdiction of this court under Article 227<\/p>\n
of the Constitution of India submitted that<\/p>\n
Ext.P1 judgment rendered by the learned Sub<\/p>\n
Judge in appeal, as it does not suffer from<\/p>\n
jurisdictional infirmity, does not call for<\/p>\n
any   modification     in   the    extraordinary<\/p>\n
jurisdiction of this court, and as the rights<\/p>\n
of the parties are preserved including the<\/p>\n
conduct of fresh election under that judgment,<\/p>\n
according to the counsel, the writ petition is<\/p>\n
only to be dismissed.       Referring to Ext.P8<\/p>\n
order of the court below, it is contended by<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 19::\n<\/p>\n
the counsel that the interim report of the<\/p>\n
commissioner  with   reference    to  the  non-<\/p>\n
production of the registers cannot be given<\/p>\n
much significance when the commissioner has<\/p>\n
been appointed only to oversee the election as<\/p>\n
an observer.   The commissioner, in the final<\/p>\n
report,  has  stated   that   the  election was<\/p>\n
conducted in a fair manner, and the report of<\/p>\n
that  observer  deserve    acceptance,  and all<\/p>\n
other disputed questions involved in the case<\/p>\n
have to be left open for adjudication after a<\/p>\n
fair trial of the case, is the submission of<\/p>\n
the counsel.\n<\/p>\n
        10.   I   have   considered  the   rival<\/p>\n
submissions of the counsel with reference to<\/p>\n
Ext.P1 judgment of the learned Sub Judge and<\/p>\n
Ext.P2 order of the learned Munsiff and other<\/p>\n
exhibits produced in the writ petition.      On<\/p>\n
the facts presented and submissions made, the<\/p>\n
solitary    question      that    emerges   for<\/p>\n
consideration is whether the learned Sub Judge<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 20::\n<\/p>\n
was justified in interfering with Ext.p2 order<\/p>\n
passed by the learned Munsiff for the reason<\/p>\n
that the validity of the election was not a<\/p>\n
dispute covered by the injunction application<\/p>\n
and, further, the office bearers of the 1st<\/p>\n
defendant society elected, have not been made<\/p>\n
parties to the application for injunction and<\/p>\n
the suit.  Before adverting to that question,<\/p>\n
it is necessary to refer to the challenges<\/p>\n
raised by the plaintiff’s counsel that the<\/p>\n
appeal itself against Ext.P2 order before the<\/p>\n
learned Sub Judge was not maintainable require<\/p>\n
to be dealt with.    The argument was that the<\/p>\n
exercise of the discretion by the trial judge<\/p>\n
in   the    interlocutory      application  for<\/p>\n
injunction cannot be interfered with by the<\/p>\n
appellate court for the sole reason that a<\/p>\n
different view is permissible and the orders<\/p>\n
passed under Ext.P2 are, in effect, rendered<\/p>\n
by the court in exercise of its jurisdiction<\/p>\n
under  Section  151   of    the  Code  of Civil<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 21::\n<\/p>\n
Procedure from which a challenge by way of an<\/p>\n
appeal  is  not  maintainable.      Though some<\/p>\n
decisions  are   relied    in  support  of the<\/p>\n
proposition canvassed, I find, in the given<\/p>\n
facts of the case, the maintainability of the<\/p>\n
appeal preferred against Ext.P2 on the grounds<\/p>\n
canvassed  cannot   be    sustained.    In the<\/p>\n
interlocutory application the court has given<\/p>\n
some additional relief which is not sought for<\/p>\n
in the application and perhaps in exercise of<\/p>\n
its  inherent   power   taking   note  of  what<\/p>\n
transpired  during    the   pendency   of  that<\/p>\n
application by itself does not deprive the<\/p>\n
affected    party    from     challenging   its<\/p>\n
correctness by way of an appeal as directed by<\/p>\n
the statute.    The appellate court is fully<\/p>\n
competent to re-appreciate the materials to<\/p>\n
examine  whether    the   discretion  had  been<\/p>\n
correctly exercised by the inferior court in<\/p>\n
granting   or   declining     the   relief   of<\/p>\n
injunction.  True, that the findings entered<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 22::\n<\/p>\n
by the trial judge and also the discretion<\/p>\n
exercised by him in granting or declining the<\/p>\n
relief is not liable to be disturbed unless it<\/p>\n
is shown that it suffered from some infirmity<\/p>\n
warranting interference to advance the ends of<\/p>\n
justice.  That, of course, is a question to be<\/p>\n
determined on a proper evaluation of the facts<\/p>\n
and circumstances evolved and the materials<\/p>\n
produced and also the entitlement of the party<\/p>\n
who has applied for the discretion relief of<\/p>\n
injunction.  There was yet another challenge<\/p>\n
from the learned counsel for the plaintiff<\/p>\n
that the appeal was not maintainable for the<\/p>\n
reason that it was a fractured appeal inasmuch<\/p>\n
as the 1st defendant society was not made a<\/p>\n
party in the appeal.     That challenge deserve<\/p>\n
to be taken note of only for holding as<\/p>\n
meritless since the appeal was preferred by<\/p>\n
the 3rd defendant who was the Secretary of the<\/p>\n
society.  In the suit, 1st defendant is shown<\/p>\n
as represented by its president who had been<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 23::\n<\/p>\n
impleaded as the 2nd defendant.   Injunction was<\/p>\n
sought against the 3rd defendant and other<\/p>\n
office bearers in management of the society,<\/p>\n
contending that their continuance as such is<\/p>\n
illegal since their term had expired.    When a<\/p>\n
challenge is raised against an order passed in<\/p>\n
the injunction application so filed providing<\/p>\n
for an interim arrangement by another, 4th<\/p>\n
defendant, over the affairs of the society,<\/p>\n
the presence of the society in the appeal<\/p>\n
against   that  order     does  not   make  any<\/p>\n
significance   when    it    continues   to   be<\/p>\n
represented by one among the officer bearers<\/p>\n
of the existing committee.    The absence of the<\/p>\n
society or other defendants in the application<\/p>\n
for injunction in the appeal, can, in no way,<\/p>\n
affect the maintainability of the appeal and<\/p>\n
its  disposal  on   merits.   So  much  so,  the<\/p>\n
challenges raised by the learned counsel for<\/p>\n
the plaintiff as to the maintainability of the<\/p>\n
appeal which gave rise to Ext.P1 judgment and<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 24::\n<\/p>\n
thus imputing that judgment as suffering from<\/p>\n
serious infirmity cannot be entertained.<\/p>\n
        11. In exercise of the supervisory<\/p>\n
jurisdiction  vested    with  this  court  the<\/p>\n
propriety and correctness of Ext.P1 judgment<\/p>\n
rendered  by  the   learned  Sub  Judge  in an<\/p>\n
interlocutory application in a pending suit is<\/p>\n
examined caution has to be exercised to see<\/p>\n
that none of the parties are prejudiced by any<\/p>\n
observation  over    the    disputed  questions<\/p>\n
pending  for  adjudication   in  the  suit. Of<\/p>\n
course, in examining the correctness of Ext.P2<\/p>\n
judgment, it is open to this court to analyse<\/p>\n
and examine the facts and circumstances of the<\/p>\n
case present and the materials produced and<\/p>\n
give definite findings on the issues involved,<\/p>\n
but since what is considered is the merit of<\/p>\n
an   order   passed     in   an   interlocutory<\/p>\n
application, I refrain from examining in depth<\/p>\n
the allegations and counter allegations raised<\/p>\n
by the parties which could be thrashed out by<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 25::\n<\/p>\n
them in the trial of the suit. As indicated<\/p>\n
earlier the one and only question that has to<\/p>\n
be looked into is whether the learned Sub<\/p>\n
Judge has exercised his jurisdiction properly<\/p>\n
in interfering with Ext.P2 order passed by the<\/p>\n
learned Munsiff directing for conducting of a<\/p>\n
fresh election to the 1st defendant society<\/p>\n
and till then for an interim arrangement of<\/p>\n
the   society     by    the    4th   defendant.<\/p>\n
Indisputably, in a previous suit, a decree had<\/p>\n
been passed for conducting election to the<\/p>\n
managing  committee    of   the  1st  defendant<\/p>\n
society.  The present suit was filed 1= years<\/p>\n
after such a decree when no such election was<\/p>\n
conducted by the present managing committee<\/p>\n
whose term limited for a period of three years<\/p>\n
had expired long ago.    The managing committee<\/p>\n
was continuing at the time of institution of<\/p>\n
suit over a period of 8 years.         In that<\/p>\n
backdrop the suit was filed and injunction<\/p>\n
application  moved   to   restrain the  present<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 26::\n<\/p>\n
managing   committee    from   acting   as  the<\/p>\n
governing body members of the society till<\/p>\n
they are duly elected in a lawful election and<\/p>\n
also not to conduct election on the basis of<\/p>\n
the  notice   already     issued  by   the  3rd<\/p>\n
defendant. Noticing the objections raised by<\/p>\n
the  contesting   defendants,   the  court   has<\/p>\n
passed  Ext.P7  order    in  the   interlocutory<\/p>\n
application for injunction.    The court, taking<\/p>\n
note that the election process has already<\/p>\n
commenced, appointed an advocate commissioner<\/p>\n
as observer for conducting the election. That<\/p>\n
commissioner  filed   two   reports before   the<\/p>\n
court.      The   learned    counsel   for  the<\/p>\n
petitioner\/plaintiff has handed over to me the<\/p>\n
copies of those reports.      An interim report<\/p>\n
filed  by  him  would    show  that  before  the<\/p>\n
election he had requested for verification of<\/p>\n
the voters’ list and membership register.    But<\/p>\n
those records were not made available.       The<\/p>\n
final report would show that venue of the<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 27::\n<\/p>\n
election fixed at the Guest House was changed<\/p>\n
to another place, even without informing him.<\/p>\n
The report would further show that the request<\/p>\n
made by him to adjourn the election in view of<\/p>\n
the confusion caused with the shifting of the<\/p>\n
venue  without  notice    to  the  members was<\/p>\n
declined by the present office bearers of the<\/p>\n
1st defendant society. It was under the above<\/p>\n
circumstances,  the    learned  Munsiff  passed<\/p>\n
Ext.P2 order for conducting a fresh election<\/p>\n
and ordering for an interim arrangement of the<\/p>\n
society  by  the    4th   defendant  till such<\/p>\n
election  is  held.      That  order  has been<\/p>\n
interfered  with   by  the  learned  Sub  Judge<\/p>\n
mainly  for  the   reason   that  the  election<\/p>\n
dispute was not covered by the injunction<\/p>\n
application and notice was not given to the<\/p>\n
elected members and they were not heard before<\/p>\n
passing Ext.P1 judgment.\n<\/p>\n
        12. The learned Sub Judge appears to<\/p>\n
be  under   a   misconception    that  in  the<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 28::\n<\/p>\n
interlocutory application for injunction, the<\/p>\n
learned Munsiff had no competency to take note<\/p>\n
of what transpired during the pendency of that<\/p>\n
application and pass appropriate orders which<\/p>\n
are required to uphold the majesty of the<\/p>\n
court and also to advance the ends of justice.<\/p>\n
Final orders in an injunction application,<\/p>\n
after consideration and hearing the counsel on<\/p>\n
both sides, was deferred by passing an interim<\/p>\n
order on the submissions made before the court<\/p>\n
that   the  election     process has   already<\/p>\n
commenced.   The court appointed an advocate<\/p>\n
commissioner to supervise the election with<\/p>\n
liberty to that officer to seek police aid, if<\/p>\n
found essential for the smooth conduct of the<\/p>\n
election.  Ext.P7 is a copy of that order.  I<\/p>\n
do not find any merit in the submission made<\/p>\n
by the counsel for the defendants that the<\/p>\n
commissioner has been appointed only as an<\/p>\n
observer and he has no other role.  An officer<\/p>\n
deputed   by    the     court,  the   advocate<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 29::\n<\/p>\n
commissioner to supervise the election, even<\/p>\n
if he is termed as an ‘observer’ in the order<\/p>\n
of  the  court,  cannot    be considered as   a<\/p>\n
spectator sent over for mutely witnessing what<\/p>\n
transpired in the election.   When authority is<\/p>\n
given to that commissioner to seek police<\/p>\n
assistance for the smooth conduct of election<\/p>\n
that pre-supposes that he has to see that the<\/p>\n
election is conducted in a fair manner.      In<\/p>\n
that context his demand in advance to inspect<\/p>\n
the registers, voters’ list etc., which was<\/p>\n
inevitable to see whether the election fixed<\/p>\n
is  conducted  in   a   fair manner  cannot  be<\/p>\n
considered   as    a    demand  made    without<\/p>\n
jurisdiction. As an observer appointed by the<\/p>\n
court  when  the    commissioner directed   for<\/p>\n
adjourning  the    election  in  view  of   the<\/p>\n
confusion created by the shifting of the venue<\/p>\n
of the election, compliance with that request<\/p>\n
was warranted.  Shifting of venue of election<\/p>\n
by way of a notice, that too without informing<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 30::\n<\/p>\n
the observer, advocate commissioner appointed<\/p>\n
by the court, was made by the present office<\/p>\n
bearers of the society who were conducting the<\/p>\n
election is not disputed.        Though it was<\/p>\n
contended before me the shifting of the venue<\/p>\n
of the election was not of any consequence as<\/p>\n
later it was conducted at the place fixed<\/p>\n
earlier, Guest House, but with a few minutes<\/p>\n
delay, I find that the conclusion formed by<\/p>\n
the   learned    Munsiff     that   there   was<\/p>\n
irregularity  in   the   election conducted  is<\/p>\n
justified.  The    general   body  meeting  for<\/p>\n
election was not held at the venue at the time<\/p>\n
fixed and the venue was shifted by way of a<\/p>\n
notice issued earlier, but, without informing<\/p>\n
all  the   members   and    even  the  observer<\/p>\n
appointed by the court. In the same venue<\/p>\n
meeting was held at a later point of time<\/p>\n
after a batch of the members protested and<\/p>\n
left the place, in effect, has affected the<\/p>\n
validity and regularity of the election.   Such<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 31::\n<\/p>\n
being the facts presented, the learned Munsiff<\/p>\n
was fully justified in holding that there was<\/p>\n
irregularity in the conduct of the election<\/p>\n
and a fresh election has to be conducted to<\/p>\n
elect the office bearers of the 1st defendant<\/p>\n
society.   The court has also taken care to<\/p>\n
appoint one among the defendants to manage the<\/p>\n
affairs   of  the    society   as  an   interim<\/p>\n
arrangement  till   fresh   election  is  held.<\/p>\n
Whatever be the grievance of the existing<\/p>\n
office bearers over the interim arrangement<\/p>\n
made they can move the court and seek for<\/p>\n
appropriate orders thereof. In case the court<\/p>\n
finds that the 4th defendant is disqualified<\/p>\n
or    otherwise     not   fit to  be  put    in<\/p>\n
management of the society, it is open to the<\/p>\n
court  to  pass   appropriate   orders  as are<\/p>\n
necessary including his removal and entrusting<\/p>\n
to a person or any other agency for protecting<\/p>\n
the interest of the society. The learned Sub<\/p>\n
Judge,   while     passing   Ext.P1    judgment<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 32::\n<\/p>\n
interfering and annulling Ext.P2 order, has<\/p>\n
lost sight of the fact that the election was<\/p>\n
conducted under the supervision of an advocate<\/p>\n
commissioner appointed by the court as an<\/p>\n
interim  measure   taken   by the court after<\/p>\n
hearing the counsel on both sides on the<\/p>\n
interlocutory application for injunction. The<\/p>\n
final disposal of the injunction application<\/p>\n
depended upon the outcome of the election<\/p>\n
conducted the under the supervision of the<\/p>\n
advocate commissioner and that being so, the<\/p>\n
learned Munsiff was fully justified in passing<\/p>\n
Ext.P2 order in the interlocutory application<\/p>\n
including  setting   aside   of  the  election<\/p>\n
conducted under its supervision where it was<\/p>\n
shown to have been irregularly and improperly<\/p>\n
conducted. In passing Ext.P2 orders for the<\/p>\n
removal of the office bearers of the society<\/p>\n
the learned Munsiff was fully empowered to<\/p>\n
pass such orders for entrusting the management<\/p>\n
of the society to any other person as deemed<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 33::\n<\/p>\n
fit and proper. Supervision of the election by<\/p>\n
the advocate commissioner appointed by the<\/p>\n
court under Ext.P7 in fact means conducting of<\/p>\n
an election as controlled and supervised by<\/p>\n
the court.  When that be so no notice to the<\/p>\n
elected members is required for setting aside<\/p>\n
that election and ordering fresh election to<\/p>\n
the society.   Ext.P1 judgment passed by the<\/p>\n
learned Sub Judge is liable to be set aside<\/p>\n
and I do so.     Ext.P2 order of the learned<\/p>\n
Munsiff shall stand restored.\n<\/p>\n
        13.   All   other   disputed questions<\/p>\n
canvassed by the parties, needless to state,<\/p>\n
have to be thrashed out in the suit, and they<\/p>\n
are not germane for consideration for disposal<\/p>\n
of this writ petition.\n<\/p>\n
        14. Parties are directed to appear<\/p>\n
before the court below on 22.3.2010.       The<\/p>\n
learned Munsiff shall take necessary steps for<\/p>\n
implementing the directions given in Ext.P2<\/p>\n
order.  He shall also take necessary steps for<\/p>\n
W.P.(C)No.20997 of 2009<\/p>\n
                     :: 34::\n<\/p>\n
conducting the election of the 1st defendant<\/p>\n
society under the supervision of an advocate<\/p>\n
commissioner as expeditiously as possible in<\/p>\n
accordance  with    the   Rules.  As  indicated<\/p>\n
earlier, it is open to the learned Munsiff to<\/p>\n
pass appropriate orders in accordance with law<\/p>\n
over  the   interim   management   of the  1st<\/p>\n
defendant society.\n<\/p>\n
        The writ petition is allowed, subject<\/p>\n
to the above directions.\n<\/p>\n
                                  Sd\/-\n<\/p>\n
                       (S.S. SATHEESACHANDRAN)
\n                                 JUDGE
\nSK\/-\n<\/p>\n
             \/\/true copy\/\/<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court C.T.Yadeendradas vs The Chowa Educational Society on 8 March, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-143647","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nC.T.Yadeendradas vs The Chowa Educational Society on 8 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/c-t-yadeendradas-vs-the-chowa-educational-society-on-8-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"C.T.Yadeendradas vs The Chowa Educational Society on 8 March, 2010 - 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