HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION No.4839 of 2016
20-01-2017
The Zonal Secretary, Secunderabad and another Petitioners
K.Mallikarjuna Rao and 52 others .Respondents
Counsel for the petitioners:Sri Vijaysen Reddy
Counsel for the respondents:Sri Vijay
<GIST:
>HEAD NOTE:
? Cases referred
1. 2015 (5) ALD 1
2. 2001 (5) ALD 705 (FB)
3. 2003 (3) ALD 153
4. 2002 (6) ALT 268
5. AIR 2004 AP 310
6. (2011) 13 SCC 774
7. 2001 (8) SCC 509
8. AIR 1989 SC 193
9. AIR 2010 SC 3221
10. 2001 (1) ALD (1) SC
11. Laws(Dlh)-2013-12-9
12. AIR 1952 SC 64
13. AIR 1978 SC 851
14. 2000 (8) SCC 216
15. (2004) 4 SCC 697
16. (2010) 8 SCC 329
17. (2015) 5 SCC 423 (LB)
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION No.4839 of 2016
ORDER:
The respondent Nos.1 and 2 in S.O.P.No.365 of 2016 on the
file of I Additional Chief Judge, City Civil Court, Hyderabad,
impugning the docket order dated 22.09.2016 in I.A.No.1638 of
2016, maintained the revision.
2. The original petition is filed by the two petitioners by
name K.Mallikarjuna Rao and S.Devender against as many as 53
respondents under Section 23 of Andhra Pradesh Societies
Registration Act, 2001 (for short the Act), for the reliefs of
declaration and perpetual injunction viz.,
a) Declaring the electorate, nominated by respondent
Nos.1 & 2, during the period 2013-16 i.e.,
respondents 4 to 53 as incompetent electorate,
having nominated by the respondents 1 & 2 by
fraudulent means, for the elections for the tenure
2016-19 to be held at South Central Railway Zone,
for the Zonal Executive Committee of All India S.C.
& S.T. Railway Employees Association,
Secunderabad Zone, SCR, Secunderabad, as per the
notification dated 16.09.2016.
b) Declaring the Election Notification dated
16.09.2016 vide reference No.A1/SCT/REA/ZEC-
09/2016 issued by the respondents 1 & 2 to elect
the Zonal Executive Committee of SCR Zone,
Secunderabad, for the tenure 2016-19 by the
respondents 4 to 53, as illegal, improper, irregular,
arbitrary, null and void non-est in the eye of law
and contrary to the Amended Bye-laws of the All
India SC/ST Railway Employees Association as
amended by the Central Executive Committee on
27.02.2004 and duly circulated by letter dated
30.08.2005 of Railway Board, New Delhi.
c) For the grant of a perpetual injunction restraining
the respondents 1 & 2 from proceeding with the
election process under the Notification dated
16.09.2016 vide No.AI/SCT/REA/ZEC-09/2016, for
the elections for the tenure 2016-19 to be held at
South Central Railway Zone, for the Zonal Executive
Committee of All India S.C. and S.T. Railway
Employees Association, Secunderabad Zone, SCR,
Secunderabad.
d) To award costs of the petition, and incidental
expenses in favour of the petitioners and against the
respondents, and
e) To pass such other and further relief/s as this
Honble Court deems fit and proper in the
circumstances of the case and in the interest of
justice.
3. The petition averments show that it is the claim of the
petitioners that All India (Nation wide) Scheduled Castes and
Scheduled Tribes Railway Employees Association (for short the
Association) for the welfare of SC/ST railway employees is
registered under the Act, 1860 (old Act) with registration
No.S/1517, which was recognized by Railway Board vide
proceedings dated 27.07.1974, which has to act as per the bye
laws amended on 27.02.2004 and as per the communications of
the railway board by letter dated 30.08.2005, that the functional
system of the organization is in 4 tier viz., the Central Executive
Committee at Central Level, Zonal Executive Committee at Zonal
Level, Divisional Executive Committee at Divisional Level and
Branch Executive Committee at Branch Level within the Divisional
level railways and the committees being elected through delegate
system for Central, Zonal and internal levels and by direct election
by its members at Branch level and the tenure of the governing
body respectively is for 3 years from the date of election and on
circulation of office bearers list by the administration in order to
extend the facilities as mentioned in Paras 12 to 14 of Part II of the
bye laws. The election notification shall be given 21 days before
the date of election to all members besides endorsing a copy of the
notification date to the railway authorities to know process of the
election and to relieve the staff to exercise the right of vote by
availing leave, after list of voters notified along with the notification
duly assigned by outgoing President and Secretary and last date of
filing nomination shall be 7 days before election and final list of
contestant be displayed 4 days before election and after withdrawal
if any on checking and scrutiny and if any objection raised to
consider and examine one day before date of election and for no
objection on the date of election can be considered. The election of
the Branch Executive Committee that is President, Secretary and
Treasurer be by raising hands or through secret ballot and the
Branch Executive Committee elected members will elect the office
bearers of Divisional Executive Committee as delegates and the
Divisional Executive Committee members will elect the Zonal
Executive Committee along with extra divisional units like
workshop and extra units and extra divisions attached to the head
quarters and under the control of zonal railway and the Central
Executive Committee will be elected by the elected zonal office
bearers and other production units and other office bearers of
construction, organization as delegates.
4. The election notification issued by respondent Nos.1 and 2
viz., Zonal Secretary and Zonal President on 16.09.2016 stating
the election for Zonal Executive Committee (for short ZEC) of SCR
Zone, Secunderabad that to be held on 08.10.2016 at Rail Mahal
Function Hall, Guntur, to elect 5 posts of said committee viz.,
Zonal President, Working President, Zonal Secretary, Additional
Secretary and Zonal Treasurer for the reason tenure of existing
ZEC was going to complete in October 2016. The Zonal Executive
Committee of SCR Zone with ulterior motive of not conducting
elections much less democratically at the Branch level or
Divisional level or Workshop Executive Level and they are
nominating their own candidates without following election
procedure and they in turn or automatically electing ZEC and
thereby making entire election procedure a farce. Said notification
of election for the tenure of 2016-2019 issued on 16.09.2016 is
illegal and same is issued calling upon persons not competent to
vote who are respondent Nos.4 to 53 as if electorate, who are no
other than illegally nominated persons by respondent Nos.1 and 2
to their whims being their henchmen for they were not elected as
per election procedure as contemplated by bye laws and thereby
not eligible to participate and vote in the Zonal election as
delegates and alleged election procedure is playing fraud on the
members of the SC/ST railway employees association.
5. The Chairman railway board has also time and again
issued circulars to eliminate the illegality and ill practices among
SC/ST railway employees to bring transparency in the matter for
its proper functioning as per bye laws vide letter No.93 dated
16.06.1994 and 10.01.1995, letter No.2005 dated 11.07.2007,
letter No.2013 dated 22.07.2013, letter No.2015 dated 29.10.2015
and letter No.2015 dated 17.11.2015 based on complaints made to
the Railway Administration on the ill practices in the association
functioning and despite 3rd respondent did not take action against
respondent Nos.1 and 2, to gain monitory benefits, portfolio, office
accommodation, telephone connection and furniture etc., and
misappropriation of funds by respondent Nos.1 and 2 and when
questioned by treasurers not allowed to participate in the
management and there is no auditing of funds during the tenure of
respondent Nos.1 and 2. It is also averred that total electorate
consists of 76 delegates of which 20 have been elected following
procedure prescribed by bye laws as detailed in annexure-I and the
remaining are the illegally nominated persons by respondent Nos.1
and 2 contra to the bye laws and procedure and the said illegal
delegates 53 in number are detailed in annexure-II and there is
cause of action and the claim is within limitation and the
petitioners are entitled to the reliefs.
6. Pending the main petition, the petitioners of the main
petition filed I.A.No.1638 of 2016 for temporary injunction
restraining the respondents to conduct elections until further
orders under Order 39 CPC and the learned XXVII Additional Chief
Judge (FAC) I Additional Chief Judge, City Civil Court,
Secunderabad, by the impugned docket order dated 22.09.2016
saying from hearing and in the presence of the counsel for the
petitioners and for no advocate represented respondents and from
hearing and perusal of the material showing the averments of
respondent Nos.1 and 2 are not conducting elections from the bye
laws though they are bound to mandatory procedure prescribed by
bye laws and election notification shall be given with stipulated
time in advance by endorsing a copy of the notification to the
railway authorities and to know process and to relieve the staff on
leave if any to cast their vote, pursuant to the notification dated
16.09.2016 to conduct election on 08.10.2016 through the illegally
nominated persons of respondent Nos.1 and 2 viz., respondent
Nos.4 to 53 to make the election process a farce and therefrom and
perusal of the material there is prima facie case, balance of
convenience in favour of the petitioners who will suffer irreparable
loss if respondent Nos.1 and 2 are allowed to conduct elections
pursuant to the impugned notification on 08.10.2016, thereby
granted ad interim injunction pending notice by posting the matter
to 14.10.2016 to take urgent notice from the ad interim exparte
order to comply with Order XXXIX Rule 3 CPC.
7. Impugning the same, present revision is maintained by
the Zonal Secretary and Zonal President who are respondent Nos.1
and 2 of the main petition and the interim injunction application,
against the main petition petitioner Nos.1 and 2 by showing other
respondents in short cause title with endorsement of not necessary
parties even arrayed as respondent Nos.3 to 53 and the grounds of
revision show that the impugned order is contrary to law,
erroneous for no cogent or convincing reasons in passing the
impugned exparte order which is liable to be set aside, thereby for
proper reasons ought to have given in dispensing notice and
passing exparte order, for no reasons given by passing the order as
an empty formality in simply saying perused documents without
reference to any of the documents which purportedly has
substance to support the case of the petitioners to pass the
impugned order by non application of the mind. Even contra to
the settled law of no election matter when election process initiated
ordinarily be stayed by grant of injunction and for Section 23 of the
Act gives limited jurisdiction to the Court with no powers of the
Civil Court to grant injunction and the remedy available if any is to
challenge the elections after elections are concluded and not to
interdict the election process after the notification issued and even
there is caveat No.224 of 2016 even lodged, no proper notice is
given before passing the interim order and having received the
caveat by the main petition petitioners they filed the petition
showing respondent Nos.1 and 2 to the main petition as Zonal
Secretary and Zonal President to overcome the possible objections
regarding caveat and the trial Court ought not to have been passed
the impugned order granting injunction against election process,
thereby the revision to be allowed setting aside the impugned
docket order.
8. The counter affidavit filed against the revision petition
relief, by the main petition petitioners, interim injunction
applicants who are respondent Nos.1 and 2 with the affidavit of
K.Mallikarjuna Rao with contentions that while seeking to read the
main petition averments as part and parcel of the affidavit
opposing the revision and supporting the injunction order passed
by the lower Court for interdicting the illegal conducting of the
elections.
9. Heard both sides and perused the material on record. The
propositions relied will be discussed by reference as per context in
the undergoing discussion.
10. This Court having admitted the CRP on 30.09.2016
passed interim order permitting the election process scheduled on
08.10.2016 however not to declare the result. The election
notification issued was on 16.09.2016. It contains the election
schedule of issue of notification forms with venue at Zonal Office
between 10 AM to 5 PM and during 16.09.2016 to 21.09.2016.
The last date for filing nominations is 24.09.2016. The last date
for raising objections is 26.09.2016. The finalization of objections
is on 27.09.2016. The scrutiny of nomination forms is on
28.09.2016. The withdrawal of nomination if any is on
29.09.2016. The display of final list of contestants with symbols is
on 30.09.2016. The date of election by voting through secret ballot
is from 9 AM to 12.30 Noon on 08.10.2016. The counting of votes
and declaration of results is on even date from 01.00 PM. The
election officer and assistant staff were nominated by railway
administration to conduct the elections as per the election
schedule. The Chief Personal Officer, issued letter dated
22.09.2016 nominating Sri K.Balraj, A.P.O./IR/Hqrs CPO office at
Rail Nilayam as the election officer to conduct the elections as per
request made by main petition respondent Nos.1 and 2.
11. From the above, the ad interim injunction granted by the
lower Court covered by the impugned order supra was on
22.09.2016 which is before expiry of time for filing nominations as
the last date of filing nominations is 24.09.2016 as referred supra.
Thus as per the pre-fixed election schedule supra the further
schedule supra could not be followed by the election officer. The
election officer in fact on 28.09.2016 also stated by his letter to the
effect that, in view of the injunction orders supra, the election
schedule could not be followed and thereby it is not possible to
conduct elections as scheduled on 08.10.2016.
12. As per the system to be followed by the association
election officer issues report declaring the persons elected and
thereupon Central Executive Committee shall address letter to
concerned railway authorities the list of elected representatives for
circulation and the administration will then issue circulating
letters. In the present case from said letter no election that could
be conducted by the election officer from the above on 08.10.2016.
Further there is no any report declaring list of elected candidates.
If at all to say any election conducted, even as per the interim
order passed in the revision, it is to decide therefrom ultimately
how it could be by following due procedure as per the prefixed
election schedule supra, leave about the very dispute on the
competency of the electorate impugned in the main petition that
also to decide. From averments of the outgoing president has been
held the post of president for the last 12 years on the post of
selected electorate and same persons issued election notification,
certified the electorate and elected employees unanimously making
a mockery of mandatory election procedure at various levels of
association. Some of which are even as subsequent events that are
no doubt required to be taken into consideration in deciding the
lis.
13. From the above, now come to the issue of competency to
pass the impugned interim order, the authority which is the
Tribunal undisputedly constituted under the Act, to decide the
main dispute under Section 23 of the Act. For there is no specific
provision in the Act for granting or not of interim relief, one shall
be guided by the general principles of CPC for grant of any
injunction equally to maintain any appeal against the ad interim
exparte injunction as also recently held by this Court in M/s.
Bharat Cricket Club rep. by its Secretary T. Shesh Narayan Vs.
The Hyderabad Cricket Association represented by its
President Sri Arshad Ayub and others in C.R.P.No.1443 of 2016
and batch by order dated 01.11.2016.
14. Coming to the very maintainability of the revision against
exparte injunction order, the learned counsel for the revision
petitioners who are the main petition respondent Nos.1 and 2
impugning the ad interim exparte injunction maintained the
revision placed reliance on a Single Judge expression of another
bench of this Court in A.P. Arya Vysya Mahasabha, Nizamabad
District Vs. Mutyapu Sudershan and Others . It was observed
therein that when exparte ad interim injunction order passed by
trial Court is by illegal exercise of discretion in fragrant violation of
the settled principles of law under Order XXXIX Rules 1 to 3 CPC
by dispensing notice where Court has to record reasons for it, the
revision petition under Article 227 of Constitution of India is
maintainable. There it is observed that without availing remedy
under bye-laws of the Arya Vysya Mahasabha, the election process
once started cannot be stopped by prohibitory injunction order as
there are remedies available under Rule 27 of the bye laws of the
Sabha to impugn. To apply that principle to the facts there is
nothing shown by the bye laws providing any alternative and
internal machinery even after election notification is issued for
conducting elections, to impugn the same without approaching any
Court of law and when there is need of obtaining any order of
injunction if at all there are any merits to the relief including for
interim exparte relief. The learned single Judge in Arya Vysya
supra observed further from G.V. Ranga Rao and Another Vs.
State Electricity Board Engineers Association , where at Para
31 the Full Bench of this Court held that from the discussions
made hereinbefore, there is no manner of doubt that no appeal is
maintainable in this Court under Order 43 Rule 1 CPC and there
cannot be any doubt that revision petition is maintainable. Same
was also referred in a later single judge bench expression in
Viswender Arya and Others Vs. Arya Pratinidhi Sabha and
Others . The learned single judge bench expression so referred
including the expression in Hyderabad Cricket Association,
Secunderabad vs. Cambridge Cricket Club and Others in
holding on maintainability of revision when the order passed by
the trial Court is by illegal exercise of discretion since prone to
jurisdiction under Article 227 of the Constitution. The learned
single Judge also referred a subsequent Division Bench expression
in Innovative Pharma Surgicals Vs. Pigeon Medical Devices
Private Limited and Others at Para 15 that in fact we have
never expressed any doubt as to the maintainability of appeal and
are of the view that the appeal against ad-interim injunction is
maintainable under Order 43 Rule 1 (r) CPC. The Division Bench
at Para 24 observed further that was referred by learned single
Judge in quoting at Para 16 that the immediate remedy that is
available to the opposite party in case of issuing temporary
injunction without issuing notice, is under the provisions of Order
39, Rule 4 C.P.C., which enables the Original Court to vary or set
aside or discharge the ex parte order. In the light of the above
provisions and also the legal propositions, no appeal lies, as a
matter of course, against an ex parte order, except in extraordinary
circumstances or the rarest of the rare cases, where the order is
perverse or biased or suffers from lack of jurisdiction, but it is not
the case of the petitioner.
15. From the above what is observed further by the learned
single Jude is that writ petition is maintainable as the ad-interim
exparte injunction granted is in illegal exercise of discretion by trial
Court in flagrant violation of settled principles of law and in saying
thereby Division Bench expression has no application directly to
that case on hand of Arya Vysya supra for there is bye law Rule
27 provided other machinery even after election process started.
The learned single Judge also referred in Arya Vysya supra, the
expression of the Apex Court in Supreme Court Association Vs.
B.D. Kaushik Para 60 that, since 1952 Court authoritatively laid
down that once election process is started, Court should not
ordinarily interfere with the said process by way of granting
injunction apart from the provisions of Order 39 Rules 1 and 2
read with Section 151 CPC, Court could not have ignored on the
effect of granting injunction. If the injunction granted had not
been stayed by this Court, office bearers of SCBA would have been
required to prepare a new voters list as if common amended rule is
in operation and the exercise undertaken by them for preparing
the existing voters list in the light of amended list 18 would have
been of no consequence. Thus the injunction claimed by
respondents/plaintiffs which had very wide repercussions on the
election, which were to be held in the year 2003, should not have
been granted by the learned Judge. The impugned order is liable
to be set aside on another ground that though suits not filed in a
representative capacity, injunction granted by Court restraining
appellants from implementing the resolution dated 18.02.2003 in
respect of all advocates and not for only the two advocates-
plaintiffs of O.S.Nos.100 & 101 of 2003 respectively. The learned
single Judge in Arya Vysya supra referred another expression of
the Apex Court in Sri Sant Sadguru Swami (MM) Sahakari
Dughda Utpadak Sanstha and Another Vs. State of
Maharashtra and Others where it was held that a breach of any
rule of seeking mandatory provision of the rules were not complied
with while preparing electorate roll, the same could be challenged
under the rule 81 (d) clause (4) of the Rules by means of election
petition.
16. It is needless to say from the very expression of the Apex
Court in Sri Sant Sadguru supra of there are specific rules in
preparing electorate rolls for any breach committed that can be
subject matter of election petition. In the case on hand there is
nothing shown of any specific rule with internal mechanism like in
Arya Vysya supra is in existence. It is needless to say there are no
precedents on facts for each case depends on own facts and even a
little change in the facts in applying principles may tilt the result
as per the settled expressions of the Apex Court laying down as law
of the land. Though it is the general principle as laid down under
the representation of the peoples Act and in extending to other
cases of election that election process once started, Courts cannot
ordinarily grant injunction interdicting the election process, the
Apex Courts expressions referred supra clearly say that Courts
cannot ordinarily interdict the election process, but did not say
Courts shall not at all interdict the election process. Thus though
Courts got power, however cannot be invoked in routine but for
there are exceptional circumstances and facts. So far as Kaushik
(SCBA) supra of the Supreme Court Bar Associations elections,
there the list prepared pursuant to the resolution of 2003 when
that was challenged by 2 members and not by all or in a
representative capacity for all what was observed is repercussions
of the list prepared after that resolution having taken a long ordeal
and it is not possible to prepare another list going back to that
prior stage of resolution that is the consequence to weigh in its
observation for not to interdict the election process. Thus the facts
of that case are entirely different from the facts of the case on
hand. Even the learned single Judge in Arya Vysya supra referred
the Division Bench expression which is subsequent to the Full
Bench expression in its saying appeal is maintainable and same is
the proper remedy. The Division Bench also stated that the
recourse as a rare case is to approach the appellate authority and
not at all to invoke the writ jurisdiction, but for applying in normal
course under Order 39 Rule 4 CPC if any except in a rare case by
appeal against the exparte interim injunction order. The impugned
order even must be shown from above single judge expression
referring to other propositions if at all to maintain revision under
Article 227 of the Constitution is a perverse or biased one or
suffers from inherent lack of jurisdiction. When such is not the
case on hand, the revision cannot be maintained but for at best to
file an appeal.
17. In this regard, it is necessary to say further that the ad
interim injunction granted and sought for is under Order 39 Rules
1 and 2 CPC. For granting such an injunction under order 39
Rule 1 and 2, what Rule 3 says is, before granting injunction
except where it appears to the Court that the object of granting
injunction would be defeated by delay to dispense with notice,
Court shall direct in all cases notice of the application to be given
to opposite party, and for dispense with notice for granting of ad-
interim exparte injunction, Court shall record reasons for its
opinion that the object of granting injunction would be defeated by
delay and compliance of sending to the opposite party immediately
after granting exparte injunction copy of application for injunction
with affidavit in support of the petition and copy of plaint and
copies of documents relied and affidavit stating said compliance. It
is not a case of such compliance is not made in the case on hand
so far as sending of copies of the ad-interim exparte injunction.
The only thing that to be considered therefrom is whether reasons
are recorded of the opinion of the Court if notice is ordered before
granting exparte injunction the object of granting injunction would
be defeated by delay. In this regard, it is necessary to mention
that pleadings are not the reproduction of law but for mention of
facts in brief and in understanding the pleadings once it conveys
the meaning required by law is enough for appreciation as in
understanding the pleadings, it is spirit from its reading for Court
cannot keep its commonsense in cold storage as per the expression
of the Apex Court in S.B.Noronal Vs Prem Kundi . The plaint
averments discussed supra with supporting affidavit averments
contain the case as per the trial Court made out and from the
impugned order not only heard but also perused the documents as
the plaint enclosures contain as many as 30 documents some of
which referred in the plaint as part of the plaint averments
including the bye laws and the process for conducting of the
elections, manner in which electorate prepared in its impugning of
there is no eligibility. When the order reflects the same in saying
there is making out of not only a prima facie case as one of the
pre-requisites but also balance of convenience in favour of the
petitioners/plaintiffs who will suffer irreparable loss unless the
process of election be interdicted that was already commenced
pursuant to the notification dated 16.09.2016 to held on
08.10.2016 in passing said order on 22.09.2016 in granting the
ad-interim injunction and in the meanwhile ordered to issue
urgent notice to the respondents by fixing date for further hearing
on 14.10.2016, which is no doubt subsequent to the date for
conducting of elections on 08.10.2016, but for to say the order is
silent as to the very purpose of the main relief being defeated if no
exparte interim order is passed. When the circumstances reflect
the same as unless the injunction order is being granted, election
process not only be completed to conclude on 08.10.2016 but also
as per the election schedule results being declared on same day
within no lapse of time after concluding from the time schedule
prefixed for the elections, it cannot be said the order impugned in
the revision is per se illegal from not reflecting the reasons in so
many words when impliedly included. The expression of the Apex
Court in Skyline Education Institute (India) Private Limited Vs.
S.L. Vaswani and Another categorically holds that, when the trial
Court in exercise of its discretion granted interim injunction and
when a reading shows its action on the basis of objective
consideration of the material, appellate Court will be looth to
interfere. When such is the proposition, it is hardly difficult to set
aside the order by sitting in revision on that ground of the reasons
impliedly included referred supra are not expressed in so many
words reflects in the ad interim exparte injunction. Beyond that it
is not at all necessary to go into the other merits of the order as to
whether otherwise sustainable or not if impugned in appeal or by
seeking, on application to modify or set aside or vary. Thus from
the above the facts on hand, it hardly requires interference by
sitting in revision bypassing the appeal or other efficacious
remedies available from what is discussed supra, that too when
the Division Bench categorically stated that appeal lies against an
ad interim injunction, no doubt only in extraordinary
circumstances, for the ordinary recourse is to file application to
modify, vary or set aside under Order 39 Rule 4 CPC that is also
discussed by the learned single Judge in Arya Vysya supra. In fact
the Supreme Court in A. Venkata Subbaiah Naidu Vs.
S.Chellappan and Others also held that an ad-interim
injunction is prone to appeal. Once such is the case, the learned
single Judge in Arya Vysya supra even observed as no appeal
remedy is available, same is not sustainable not only from the
above expressions including of A.Venkata Subbaiah Naidu supra
but also the wording of Order 43 Rule clause (r) CPC of an appeal
shall lie from the following orders under the provisions of Section
104 CPC namely Clause (r) an order under rule 1, 2, 2-A, 4 or 10 of
Order 39 CPC. It is not in dispute of the ad-interim injunction
passed is under Order 39 Rules 1 and 2 CPC and the provision
clearly speaks appeal lies that what rightly observed by the
Division Bench also in Innovative supra and that what earlier
held also by the Apex Court in Venkata Subbaiah Naidu supra.
18. Contra to it learned counsel for the revision
respondents/plaintiffs relied on the Division Bench expression of
the Delhi High Court in Delhi Bar Association Vs. Delhi High
Court Bar Association where it is observed from Para 24, while
sitting against the order of the learned Single Judge, that the
learned single Judge was under a mistaken impression that under
no circumstances could an election be interfered with once election
has been set in motion. The Supreme Courts expressions in N.P.
Punnuswami Vs. The Returning Officer , Mohinder Singh Gill
Vs. The Chief Election Commissioner and Election
Commission of India Vs. Ashok Kumar and Others which all
involved elections either to the House of Parliament or to the House
of legislature of a State where the Article 329(b) of the Constitution
comes into play to a bar calling in question such an election except
by way of election petition under any law made by the appropriate
legislature. That Article is not involved in the elections to the office
bearers of the association for the bar association in question.
Nevertheless, as observed by this Court in Yatching Association
of India referring to Punnuswami supra, the principles of law
relating to elections of type mentioned in Article 329(b) have been
extended elections in general also, as in the case of election by
managing committee of a society as held in Sri Sant Sadguru
supra, for such elections as are outside the scope of Article 329(b),
Courts have as a rule of prudence generally adopt the hands off
approach during pendency of election process, but the absolute
bar imposed by Article 329(b) is not there and it is why in
B.D.Kaushik (SCBA) supra observed only that Court should not
ordinarily interfere with election process for the care and caution
to be exercised in interfering with election process.
19. In fact the Apex Court in Deoraj Vs. State of
Maharashtra observed that ordinarily, the rule of discretion
developed by experience, inasmuch as indulgence being shown at
an interim stage of proceedings before the competent Court or
Tribunal results in duplication of proceedings, while the main
matter is yet to be heard by the Court or Tribunal seized of the
hearing and competent to do so, valuable time and energy of the
superior Courts consumed in adjudicating upon a controversy, the
life of which is co-terminous with the life of the main matter itself
which is not before it, and there is duplication of pleadings and
documents which of necessity shall have to be placed on the record
as well. The rule of discretion is followed in practicing by way of
just self imposed not to sit against to interfere but for to take a
reasonable time in disposing by the Courts or Tribunals. It is
observed by leaving to decide by the Court or Tribunal, the matter
on merits an order of interim relief may or may not be reasoned
one but the factors of prima facie case, irreparable injury and
balance of convenience do work at the back of the one who passed
an order of interim nature. Ordinarily the Courts are inclined to
maintain status quo as obtaining on the date of commencement of
the proceedings. However, there are few cases which call for the
Courts leaning not in favour of maintaining status quo and still
lesser in percentage are the cases when an order tantamounting to
mandamus is issued even at an interim stage. There are matters
of significance and of moment posing themselves as moment of
truth. Such cases do cause dilemma and puts the wits of any
Judge to test. Situations emerge where granting of relief would
tantamount granting final relief itself and then there may be
converse cases where withholding interim relief tantamount
dismissal of the main petition itself; for, by the time of main matter
comes up for hearing there would be nothing left to be allowed as
the relief to the petitioner though all the findings may be in his
favour. In such cases the availability of very strong prima facie
case of a standard much higher than which prima facie case, the
considerations of balance of convenience and irreparable injury
forcefully tilting the balance of convenience totally in favour of the
applicant may persuade the Court to grant interim relief though it
amounts to granting final relief itself. Of Course, such would be
rare and exceptional cases. The Court would grant such interim
relief if satisfied that withholding of it would prick the conscience
of the Court and do violence to the sense of justice, resulting in
injustice being perpetuated throughout the hearing and at an end
the Court would not be able to vindicate the cause of justice.
Obviously such would be rare cases accompanied by compelling
circumstances, where the injury complained of is immediate and
pressing and would cause extreme hardship the conduct of the
parties shall also have to be seen and Court may put the parties on
such terms as may be prudent. In fact the division bench
expression of this Court referred supra also in tune to it though
not in so many terms. The recent expression of this Court in M/s.
Bharat Cricket Club supra and another recent expression past
division bench expression of this Court in M/s. Gharonda
Builders and Developers Limited and Another Vs. Smt.
Gayathri and Others in CRP.No.3999 of 2015 dated 11.08.2016 is
also made clear the scope of law in this regard.
20. Thus, there is no absolute rule that in an election
process once commenced, interdicting the same relief cannot be
granted, as it all depends upon the facts and circumstances of
each case from material on record and giving of detailed reasons is
not even necessary but application of mind of the Court to the
facts and circumstances is there or not alone mainly to consider
and that too by sitting in revision within its limited scope as per
the well settled expressions of the Apex Court in Shalini Shyam
Shetty Vs. Rajendra Shankar Patil quoted with approval in
Radhey Shyam and Another Vs. Chhabi Nath and Others .
21. Here coming back to the facts, when it is the complaint
of there is violation of bye laws in fixing election schedule and
process and leave about the other controversy as to the impugned
order otherwise survives or not to decide by maintaining appeal
since lies even shown as an exceptional case, if not availed remedy
in the ordinary course contemplated of filing application under
order 39 Rule 4 CPC, remedy is left open to invoke either way.
22. Because this Court while admitting the revision passed
the order of the process of the election shall go on and not to
declare the result, and from the counter affidavit in the revision
there is no time for completing the election process from the very
proceedings of the election officer, leave about how far election
properly conducted if at all or not is the matter to decide in the
event of filing of an appeal or injunction vacate petition to modify
or vary or set aside as the case may be.
23. Accordingly and in the result, by upholding the interim
order dated 30.09.2016 passed by this Court (subject to its
practical possibility that also left open to impugn if anything
shown done on its correctness ultimately in the main matter), the
revision is disposed of giving liberty to the revision petitioners to
approach either the trial Court by filing counter affidavit if not
already filed with prayer by application to vacate or modify the
interim injunction to decide on own merits under Order 39 Rule 4
CPC or to maintain appeal since otherwise maintainable as
discussed supra under Order 43 Rule 1 clause (r) CPC. Needless
to say, in the event of filing application under Order XXXIX Rule 4
CPC the trial Court shall decide as expeditiously as possible and in
the event of filing appeal without regard to limitation within one
week from the date of receipt of this order, the appellate Court
shall entertain for deciding on own merits as expeditiously as
possible.
Consequently, miscellaneous petitions, if any shall stand
closed. No costs.
_____________________________________
JUSTICE Dr. B.SIVA SANKARA RAO
Date: 20.01.2017
CIVIL REVISION PETITION No.4839 of 2016
20-01-2017
The Zonal Secretary, Secunderabad and another Petitioners
K.Mallikarjuna Rao and 52 others .Respondents
Counsel for the petitioners:Sri Vijaysen Reddy
Counsel for the respondents:Sri Vijay
<GIST:
>HEAD NOTE:
? Cases referred
1. 2015 (5) ALD 1
2. 2001 (5) ALD 705 (FB)
3. 2003 (3) ALD 153
4. 2002 (6) ALT 268
5. AIR 2004 AP 310
6. (2011) 13 SCC 774
7. 2001 (8) SCC 509
8. AIR 1989 SC 193
9. AIR 2010 SC 3221
10. 2001 (1) ALD (1) SC
11. Laws(Dlh)-2013-12-9
12. AIR 1952 SC 64
13. AIR 1978 SC 851
14. 2000 (8) SCC 216
15. (2004) 4 SCC 697
16. (2010) 8 SCC 329
17. (2015) 5 SCC 423 (LB)
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION No.4839 of 2016
ORDER:
The respondent Nos.1 and 2 in S.O.P.No.365 of 2016 on the
file of I Additional Chief Judge, City Civil Court, Hyderabad,
impugning the docket order dated 22.09.2016 in I.A.No.1638 of
2016, maintained the revision.
2. The original petition is filed by the two petitioners by
name K.Mallikarjuna Rao and S.Devender against as many as 53
respondents under Section 23 of Andhra Pradesh Societies
Registration Act, 2001 (for short the Act), for the reliefs of
declaration and perpetual injunction viz.,
a) Declaring the electorate, nominated by respondent
Nos.1 & 2, during the period 2013-16 i.e.,
respondents 4 to 53 as incompetent electorate,
having nominated by the respondents 1 & 2 by
fraudulent means, for the elections for the tenure
2016-19 to be held at South Central Railway Zone,
for the Zonal Executive Committee of All India S.C.
& S.T. Railway Employees Association,
Secunderabad Zone, SCR, Secunderabad, as per the
notification dated 16.09.2016.
b) Declaring the Election Notification dated
16.09.2016 vide reference No.A1/SCT/REA/ZEC-
09/2016 issued by the respondents 1 & 2 to elect
the Zonal Executive Committee of SCR Zone,
Secunderabad, for the tenure 2016-19 by the
respondents 4 to 53, as illegal, improper, irregular,
arbitrary, null and void non-est in the eye of law
and contrary to the Amended Bye-laws of the All
India SC/ST Railway Employees Association as
amended by the Central Executive Committee on
27.02.2004 and duly circulated by letter dated
30.08.2005 of Railway Board, New Delhi.
c) For the grant of a perpetual injunction restraining
the respondents 1 & 2 from proceeding with the
election process under the Notification dated
16.09.2016 vide No.AI/SCT/REA/ZEC-09/2016, for
the elections for the tenure 2016-19 to be held at
South Central Railway Zone, for the Zonal Executive
Committee of All India S.C. and S.T. Railway
Employees Association, Secunderabad Zone, SCR,
Secunderabad.
d) To award costs of the petition, and incidental
expenses in favour of the petitioners and against the
respondents, and
e) To pass such other and further relief/s as this
Honble Court deems fit and proper in the
circumstances of the case and in the interest of
justice.
3. The petition averments show that it is the claim of the
petitioners that All India (Nation wide) Scheduled Castes and
Scheduled Tribes Railway Employees Association (for short the
Association) for the welfare of SC/ST railway employees is
registered under the Act, 1860 (old Act) with registration
No.S/1517, which was recognized by Railway Board vide
proceedings dated 27.07.1974, which has to act as per the bye
laws amended on 27.02.2004 and as per the communications of
the railway board by letter dated 30.08.2005, that the functional
system of the organization is in 4 tier viz., the Central Executive
Committee at Central Level, Zonal Executive Committee at Zonal
Level, Divisional Executive Committee at Divisional Level and
Branch Executive Committee at Branch Level within the Divisional
level railways and the committees being elected through delegate
system for Central, Zonal and internal levels and by direct election
by its members at Branch level and the tenure of the governing
body respectively is for 3 years from the date of election and on
circulation of office bearers list by the administration in order to
extend the facilities as mentioned in Paras 12 to 14 of Part II of the
bye laws. The election notification shall be given 21 days before
the date of election to all members besides endorsing a copy of the
notification date to the railway authorities to know process of the
election and to relieve the staff to exercise the right of vote by
availing leave, after list of voters notified along with the notification
duly assigned by outgoing President and Secretary and last date of
filing nomination shall be 7 days before election and final list of
contestant be displayed 4 days before election and after withdrawal
if any on checking and scrutiny and if any objection raised to
consider and examine one day before date of election and for no
objection on the date of election can be considered. The election of
the Branch Executive Committee that is President, Secretary and
Treasurer be by raising hands or through secret ballot and the
Branch Executive Committee elected members will elect the office
bearers of Divisional Executive Committee as delegates and the
Divisional Executive Committee members will elect the Zonal
Executive Committee along with extra divisional units like
workshop and extra units and extra divisions attached to the head
quarters and under the control of zonal railway and the Central
Executive Committee will be elected by the elected zonal office
bearers and other production units and other office bearers of
construction, organization as delegates.
4. The election notification issued by respondent Nos.1 and 2
viz., Zonal Secretary and Zonal President on 16.09.2016 stating
the election for Zonal Executive Committee (for short ZEC) of SCR
Zone, Secunderabad that to be held on 08.10.2016 at Rail Mahal
Function Hall, Guntur, to elect 5 posts of said committee viz.,
Zonal President, Working President, Zonal Secretary, Additional
Secretary and Zonal Treasurer for the reason tenure of existing
ZEC was going to complete in October 2016. The Zonal Executive
Committee of SCR Zone with ulterior motive of not conducting
elections much less democratically at the Branch level or
Divisional level or Workshop Executive Level and they are
nominating their own candidates without following election
procedure and they in turn or automatically electing ZEC and
thereby making entire election procedure a farce. Said notification
of election for the tenure of 2016-2019 issued on 16.09.2016 is
illegal and same is issued calling upon persons not competent to
vote who are respondent Nos.4 to 53 as if electorate, who are no
other than illegally nominated persons by respondent Nos.1 and 2
to their whims being their henchmen for they were not elected as
per election procedure as contemplated by bye laws and thereby
not eligible to participate and vote in the Zonal election as
delegates and alleged election procedure is playing fraud on the
members of the SC/ST railway employees association.
5. The Chairman railway board has also time and again
issued circulars to eliminate the illegality and ill practices among
SC/ST railway employees to bring transparency in the matter for
its proper functioning as per bye laws vide letter No.93 dated
16.06.1994 and 10.01.1995, letter No.2005 dated 11.07.2007,
letter No.2013 dated 22.07.2013, letter No.2015 dated 29.10.2015
and letter No.2015 dated 17.11.2015 based on complaints made to
the Railway Administration on the ill practices in the association
functioning and despite 3rd respondent did not take action against
respondent Nos.1 and 2, to gain monitory benefits, portfolio, office
accommodation, telephone connection and furniture etc., and
misappropriation of funds by respondent Nos.1 and 2 and when
questioned by treasurers not allowed to participate in the
management and there is no auditing of funds during the tenure of
respondent Nos.1 and 2. It is also averred that total electorate
consists of 76 delegates of which 20 have been elected following
procedure prescribed by bye laws as detailed in annexure-I and the
remaining are the illegally nominated persons by respondent Nos.1
and 2 contra to the bye laws and procedure and the said illegal
delegates 53 in number are detailed in annexure-II and there is
cause of action and the claim is within limitation and the
petitioners are entitled to the reliefs.
6. Pending the main petition, the petitioners of the main
petition filed I.A.No.1638 of 2016 for temporary injunction
restraining the respondents to conduct elections until further
orders under Order 39 CPC and the learned XXVII Additional Chief
Judge (FAC) I Additional Chief Judge, City Civil Court,
Secunderabad, by the impugned docket order dated 22.09.2016
saying from hearing and in the presence of the counsel for the
petitioners and for no advocate represented respondents and from
hearing and perusal of the material showing the averments of
respondent Nos.1 and 2 are not conducting elections from the bye
laws though they are bound to mandatory procedure prescribed by
bye laws and election notification shall be given with stipulated
time in advance by endorsing a copy of the notification to the
railway authorities and to know process and to relieve the staff on
leave if any to cast their vote, pursuant to the notification dated
16.09.2016 to conduct election on 08.10.2016 through the illegally
nominated persons of respondent Nos.1 and 2 viz., respondent
Nos.4 to 53 to make the election process a farce and therefrom and
perusal of the material there is prima facie case, balance of
convenience in favour of the petitioners who will suffer irreparable
loss if respondent Nos.1 and 2 are allowed to conduct elections
pursuant to the impugned notification on 08.10.2016, thereby
granted ad interim injunction pending notice by posting the matter
to 14.10.2016 to take urgent notice from the ad interim exparte
order to comply with Order XXXIX Rule 3 CPC.
7. Impugning the same, present revision is maintained by
the Zonal Secretary and Zonal President who are respondent Nos.1
and 2 of the main petition and the interim injunction application,
against the main petition petitioner Nos.1 and 2 by showing other
respondents in short cause title with endorsement of not necessary
parties even arrayed as respondent Nos.3 to 53 and the grounds of
revision show that the impugned order is contrary to law,
erroneous for no cogent or convincing reasons in passing the
impugned exparte order which is liable to be set aside, thereby for
proper reasons ought to have given in dispensing notice and
passing exparte order, for no reasons given by passing the order as
an empty formality in simply saying perused documents without
reference to any of the documents which purportedly has
substance to support the case of the petitioners to pass the
impugned order by non application of the mind. Even contra to
the settled law of no election matter when election process initiated
ordinarily be stayed by grant of injunction and for Section 23 of the
Act gives limited jurisdiction to the Court with no powers of the
Civil Court to grant injunction and the remedy available if any is to
challenge the elections after elections are concluded and not to
interdict the election process after the notification issued and even
there is caveat No.224 of 2016 even lodged, no proper notice is
given before passing the interim order and having received the
caveat by the main petition petitioners they filed the petition
showing respondent Nos.1 and 2 to the main petition as Zonal
Secretary and Zonal President to overcome the possible objections
regarding caveat and the trial Court ought not to have been passed
the impugned order granting injunction against election process,
thereby the revision to be allowed setting aside the impugned
docket order.
8. The counter affidavit filed against the revision petition
relief, by the main petition petitioners, interim injunction
applicants who are respondent Nos.1 and 2 with the affidavit of
K.Mallikarjuna Rao with contentions that while seeking to read the
main petition averments as part and parcel of the affidavit
opposing the revision and supporting the injunction order passed
by the lower Court for interdicting the illegal conducting of the
elections.
9. Heard both sides and perused the material on record. The
propositions relied will be discussed by reference as per context in
the undergoing discussion.
10. This Court having admitted the CRP on 30.09.2016
passed interim order permitting the election process scheduled on
08.10.2016 however not to declare the result. The election
notification issued was on 16.09.2016. It contains the election
schedule of issue of notification forms with venue at Zonal Office
between 10 AM to 5 PM and during 16.09.2016 to 21.09.2016.
The last date for filing nominations is 24.09.2016. The last date
for raising objections is 26.09.2016. The finalization of objections
is on 27.09.2016. The scrutiny of nomination forms is on
28.09.2016. The withdrawal of nomination if any is on
29.09.2016. The display of final list of contestants with symbols is
on 30.09.2016. The date of election by voting through secret ballot
is from 9 AM to 12.30 Noon on 08.10.2016. The counting of votes
and declaration of results is on even date from 01.00 PM. The
election officer and assistant staff were nominated by railway
administration to conduct the elections as per the election
schedule. The Chief Personal Officer, issued letter dated
22.09.2016 nominating Sri K.Balraj, A.P.O./IR/Hqrs CPO office at
Rail Nilayam as the election officer to conduct the elections as per
request made by main petition respondent Nos.1 and 2.
11. From the above, the ad interim injunction granted by the
lower Court covered by the impugned order supra was on
22.09.2016 which is before expiry of time for filing nominations as
the last date of filing nominations is 24.09.2016 as referred supra.
Thus as per the pre-fixed election schedule supra the further
schedule supra could not be followed by the election officer. The
election officer in fact on 28.09.2016 also stated by his letter to the
effect that, in view of the injunction orders supra, the election
schedule could not be followed and thereby it is not possible to
conduct elections as scheduled on 08.10.2016.
12. As per the system to be followed by the association
election officer issues report declaring the persons elected and
thereupon Central Executive Committee shall address letter to
concerned railway authorities the list of elected representatives for
circulation and the administration will then issue circulating
letters. In the present case from said letter no election that could
be conducted by the election officer from the above on 08.10.2016.
Further there is no any report declaring list of elected candidates.
If at all to say any election conducted, even as per the interim
order passed in the revision, it is to decide therefrom ultimately
how it could be by following due procedure as per the prefixed
election schedule supra, leave about the very dispute on the
competency of the electorate impugned in the main petition that
also to decide. From averments of the outgoing president has been
held the post of president for the last 12 years on the post of
selected electorate and same persons issued election notification,
certified the electorate and elected employees unanimously making
a mockery of mandatory election procedure at various levels of
association. Some of which are even as subsequent events that are
no doubt required to be taken into consideration in deciding the
lis.
13. From the above, now come to the issue of competency to
pass the impugned interim order, the authority which is the
Tribunal undisputedly constituted under the Act, to decide the
main dispute under Section 23 of the Act. For there is no specific
provision in the Act for granting or not of interim relief, one shall
be guided by the general principles of CPC for grant of any
injunction equally to maintain any appeal against the ad interim
exparte injunction as also recently held by this Court in M/s.
Bharat Cricket Club rep. by its Secretary T. Shesh Narayan Vs.
The Hyderabad Cricket Association represented by its
President Sri Arshad Ayub and others in C.R.P.No.1443 of 2016
and batch by order dated 01.11.2016.
14. Coming to the very maintainability of the revision against
exparte injunction order, the learned counsel for the revision
petitioners who are the main petition respondent Nos.1 and 2
impugning the ad interim exparte injunction maintained the
revision placed reliance on a Single Judge expression of another
bench of this Court in A.P. Arya Vysya Mahasabha, Nizamabad
District Vs. Mutyapu Sudershan and Others . It was observed
therein that when exparte ad interim injunction order passed by
trial Court is by illegal exercise of discretion in fragrant violation of
the settled principles of law under Order XXXIX Rules 1 to 3 CPC
by dispensing notice where Court has to record reasons for it, the
revision petition under Article 227 of Constitution of India is
maintainable. There it is observed that without availing remedy
under bye-laws of the Arya Vysya Mahasabha, the election process
once started cannot be stopped by prohibitory injunction order as
there are remedies available under Rule 27 of the bye laws of the
Sabha to impugn. To apply that principle to the facts there is
nothing shown by the bye laws providing any alternative and
internal machinery even after election notification is issued for
conducting elections, to impugn the same without approaching any
Court of law and when there is need of obtaining any order of
injunction if at all there are any merits to the relief including for
interim exparte relief. The learned single Judge in Arya Vysya
supra observed further from G.V. Ranga Rao and Another Vs.
State Electricity Board Engineers Association , where at Para
31 the Full Bench of this Court held that from the discussions
made hereinbefore, there is no manner of doubt that no appeal is
maintainable in this Court under Order 43 Rule 1 CPC and there
cannot be any doubt that revision petition is maintainable. Same
was also referred in a later single judge bench expression in
Viswender Arya and Others Vs. Arya Pratinidhi Sabha and
Others . The learned single judge bench expression so referred
including the expression in Hyderabad Cricket Association,
Secunderabad vs. Cambridge Cricket Club and Others in
holding on maintainability of revision when the order passed by
the trial Court is by illegal exercise of discretion since prone to
jurisdiction under Article 227 of the Constitution. The learned
single Judge also referred a subsequent Division Bench expression
in Innovative Pharma Surgicals Vs. Pigeon Medical Devices
Private Limited and Others at Para 15 that in fact we have
never expressed any doubt as to the maintainability of appeal and
are of the view that the appeal against ad-interim injunction is
maintainable under Order 43 Rule 1 (r) CPC. The Division Bench
at Para 24 observed further that was referred by learned single
Judge in quoting at Para 16 that the immediate remedy that is
available to the opposite party in case of issuing temporary
injunction without issuing notice, is under the provisions of Order
39, Rule 4 C.P.C., which enables the Original Court to vary or set
aside or discharge the ex parte order. In the light of the above
provisions and also the legal propositions, no appeal lies, as a
matter of course, against an ex parte order, except in extraordinary
circumstances or the rarest of the rare cases, where the order is
perverse or biased or suffers from lack of jurisdiction, but it is not
the case of the petitioner.
15. From the above what is observed further by the learned
single Jude is that writ petition is maintainable as the ad-interim
exparte injunction granted is in illegal exercise of discretion by trial
Court in flagrant violation of settled principles of law and in saying
thereby Division Bench expression has no application directly to
that case on hand of Arya Vysya supra for there is bye law Rule
27 provided other machinery even after election process started.
The learned single Judge also referred in Arya Vysya supra, the
expression of the Apex Court in Supreme Court Association Vs.
B.D. Kaushik Para 60 that, since 1952 Court authoritatively laid
down that once election process is started, Court should not
ordinarily interfere with the said process by way of granting
injunction apart from the provisions of Order 39 Rules 1 and 2
read with Section 151 CPC, Court could not have ignored on the
effect of granting injunction. If the injunction granted had not
been stayed by this Court, office bearers of SCBA would have been
required to prepare a new voters list as if common amended rule is
in operation and the exercise undertaken by them for preparing
the existing voters list in the light of amended list 18 would have
been of no consequence. Thus the injunction claimed by
respondents/plaintiffs which had very wide repercussions on the
election, which were to be held in the year 2003, should not have
been granted by the learned Judge. The impugned order is liable
to be set aside on another ground that though suits not filed in a
representative capacity, injunction granted by Court restraining
appellants from implementing the resolution dated 18.02.2003 in
respect of all advocates and not for only the two advocates-
plaintiffs of O.S.Nos.100 & 101 of 2003 respectively. The learned
single Judge in Arya Vysya supra referred another expression of
the Apex Court in Sri Sant Sadguru Swami (MM) Sahakari
Dughda Utpadak Sanstha and Another Vs. State of
Maharashtra and Others where it was held that a breach of any
rule of seeking mandatory provision of the rules were not complied
with while preparing electorate roll, the same could be challenged
under the rule 81 (d) clause (4) of the Rules by means of election
petition.
16. It is needless to say from the very expression of the Apex
Court in Sri Sant Sadguru supra of there are specific rules in
preparing electorate rolls for any breach committed that can be
subject matter of election petition. In the case on hand there is
nothing shown of any specific rule with internal mechanism like in
Arya Vysya supra is in existence. It is needless to say there are no
precedents on facts for each case depends on own facts and even a
little change in the facts in applying principles may tilt the result
as per the settled expressions of the Apex Court laying down as law
of the land. Though it is the general principle as laid down under
the representation of the peoples Act and in extending to other
cases of election that election process once started, Courts cannot
ordinarily grant injunction interdicting the election process, the
Apex Courts expressions referred supra clearly say that Courts
cannot ordinarily interdict the election process, but did not say
Courts shall not at all interdict the election process. Thus though
Courts got power, however cannot be invoked in routine but for
there are exceptional circumstances and facts. So far as Kaushik
(SCBA) supra of the Supreme Court Bar Associations elections,
there the list prepared pursuant to the resolution of 2003 when
that was challenged by 2 members and not by all or in a
representative capacity for all what was observed is repercussions
of the list prepared after that resolution having taken a long ordeal
and it is not possible to prepare another list going back to that
prior stage of resolution that is the consequence to weigh in its
observation for not to interdict the election process. Thus the facts
of that case are entirely different from the facts of the case on
hand. Even the learned single Judge in Arya Vysya supra referred
the Division Bench expression which is subsequent to the Full
Bench expression in its saying appeal is maintainable and same is
the proper remedy. The Division Bench also stated that the
recourse as a rare case is to approach the appellate authority and
not at all to invoke the writ jurisdiction, but for applying in normal
course under Order 39 Rule 4 CPC if any except in a rare case by
appeal against the exparte interim injunction order. The impugned
order even must be shown from above single judge expression
referring to other propositions if at all to maintain revision under
Article 227 of the Constitution is a perverse or biased one or
suffers from inherent lack of jurisdiction. When such is not the
case on hand, the revision cannot be maintained but for at best to
file an appeal.
17. In this regard, it is necessary to say further that the ad
interim injunction granted and sought for is under Order 39 Rules
1 and 2 CPC. For granting such an injunction under order 39
Rule 1 and 2, what Rule 3 says is, before granting injunction
except where it appears to the Court that the object of granting
injunction would be defeated by delay to dispense with notice,
Court shall direct in all cases notice of the application to be given
to opposite party, and for dispense with notice for granting of ad-
interim exparte injunction, Court shall record reasons for its
opinion that the object of granting injunction would be defeated by
delay and compliance of sending to the opposite party immediately
after granting exparte injunction copy of application for injunction
with affidavit in support of the petition and copy of plaint and
copies of documents relied and affidavit stating said compliance. It
is not a case of such compliance is not made in the case on hand
so far as sending of copies of the ad-interim exparte injunction.
The only thing that to be considered therefrom is whether reasons
are recorded of the opinion of the Court if notice is ordered before
granting exparte injunction the object of granting injunction would
be defeated by delay. In this regard, it is necessary to mention
that pleadings are not the reproduction of law but for mention of
facts in brief and in understanding the pleadings once it conveys
the meaning required by law is enough for appreciation as in
understanding the pleadings, it is spirit from its reading for Court
cannot keep its commonsense in cold storage as per the expression
of the Apex Court in S.B.Noronal Vs Prem Kundi . The plaint
averments discussed supra with supporting affidavit averments
contain the case as per the trial Court made out and from the
impugned order not only heard but also perused the documents as
the plaint enclosures contain as many as 30 documents some of
which referred in the plaint as part of the plaint averments
including the bye laws and the process for conducting of the
elections, manner in which electorate prepared in its impugning of
there is no eligibility. When the order reflects the same in saying
there is making out of not only a prima facie case as one of the
pre-requisites but also balance of convenience in favour of the
petitioners/plaintiffs who will suffer irreparable loss unless the
process of election be interdicted that was already commenced
pursuant to the notification dated 16.09.2016 to held on
08.10.2016 in passing said order on 22.09.2016 in granting the
ad-interim injunction and in the meanwhile ordered to issue
urgent notice to the respondents by fixing date for further hearing
on 14.10.2016, which is no doubt subsequent to the date for
conducting of elections on 08.10.2016, but for to say the order is
silent as to the very purpose of the main relief being defeated if no
exparte interim order is passed. When the circumstances reflect
the same as unless the injunction order is being granted, election
process not only be completed to conclude on 08.10.2016 but also
as per the election schedule results being declared on same day
within no lapse of time after concluding from the time schedule
prefixed for the elections, it cannot be said the order impugned in
the revision is per se illegal from not reflecting the reasons in so
many words when impliedly included. The expression of the Apex
Court in Skyline Education Institute (India) Private Limited Vs.
S.L. Vaswani and Another categorically holds that, when the trial
Court in exercise of its discretion granted interim injunction and
when a reading shows its action on the basis of objective
consideration of the material, appellate Court will be looth to
interfere. When such is the proposition, it is hardly difficult to set
aside the order by sitting in revision on that ground of the reasons
impliedly included referred supra are not expressed in so many
words reflects in the ad interim exparte injunction. Beyond that it
is not at all necessary to go into the other merits of the order as to
whether otherwise sustainable or not if impugned in appeal or by
seeking, on application to modify or set aside or vary. Thus from
the above the facts on hand, it hardly requires interference by
sitting in revision bypassing the appeal or other efficacious
remedies available from what is discussed supra, that too when
the Division Bench categorically stated that appeal lies against an
ad interim injunction, no doubt only in extraordinary
circumstances, for the ordinary recourse is to file application to
modify, vary or set aside under Order 39 Rule 4 CPC that is also
discussed by the learned single Judge in Arya Vysya supra. In fact
the Supreme Court in A. Venkata Subbaiah Naidu Vs.
S.Chellappan and Others also held that an ad-interim
injunction is prone to appeal. Once such is the case, the learned
single Judge in Arya Vysya supra even observed as no appeal
remedy is available, same is not sustainable not only from the
above expressions including of A.Venkata Subbaiah Naidu supra
but also the wording of Order 43 Rule clause (r) CPC of an appeal
shall lie from the following orders under the provisions of Section
104 CPC namely Clause (r) an order under rule 1, 2, 2-A, 4 or 10 of
Order 39 CPC. It is not in dispute of the ad-interim injunction
passed is under Order 39 Rules 1 and 2 CPC and the provision
clearly speaks appeal lies that what rightly observed by the
Division Bench also in Innovative supra and that what earlier
held also by the Apex Court in Venkata Subbaiah Naidu supra.
18. Contra to it learned counsel for the revision
respondents/plaintiffs relied on the Division Bench expression of
the Delhi High Court in Delhi Bar Association Vs. Delhi High
Court Bar Association where it is observed from Para 24, while
sitting against the order of the learned Single Judge, that the
learned single Judge was under a mistaken impression that under
no circumstances could an election be interfered with once election
has been set in motion. The Supreme Courts expressions in N.P.
Punnuswami Vs. The Returning Officer , Mohinder Singh Gill
Vs. The Chief Election Commissioner and Election
Commission of India Vs. Ashok Kumar and Others which all
involved elections either to the House of Parliament or to the House
of legislature of a State where the Article 329(b) of the Constitution
comes into play to a bar calling in question such an election except
by way of election petition under any law made by the appropriate
legislature. That Article is not involved in the elections to the office
bearers of the association for the bar association in question.
Nevertheless, as observed by this Court in Yatching Association
of India referring to Punnuswami supra, the principles of law
relating to elections of type mentioned in Article 329(b) have been
extended elections in general also, as in the case of election by
managing committee of a society as held in Sri Sant Sadguru
supra, for such elections as are outside the scope of Article 329(b),
Courts have as a rule of prudence generally adopt the hands off
approach during pendency of election process, but the absolute
bar imposed by Article 329(b) is not there and it is why in
B.D.Kaushik (SCBA) supra observed only that Court should not
ordinarily interfere with election process for the care and caution
to be exercised in interfering with election process.
19. In fact the Apex Court in Deoraj Vs. State of
Maharashtra observed that ordinarily, the rule of discretion
developed by experience, inasmuch as indulgence being shown at
an interim stage of proceedings before the competent Court or
Tribunal results in duplication of proceedings, while the main
matter is yet to be heard by the Court or Tribunal seized of the
hearing and competent to do so, valuable time and energy of the
superior Courts consumed in adjudicating upon a controversy, the
life of which is co-terminous with the life of the main matter itself
which is not before it, and there is duplication of pleadings and
documents which of necessity shall have to be placed on the record
as well. The rule of discretion is followed in practicing by way of
just self imposed not to sit against to interfere but for to take a
reasonable time in disposing by the Courts or Tribunals. It is
observed by leaving to decide by the Court or Tribunal, the matter
on merits an order of interim relief may or may not be reasoned
one but the factors of prima facie case, irreparable injury and
balance of convenience do work at the back of the one who passed
an order of interim nature. Ordinarily the Courts are inclined to
maintain status quo as obtaining on the date of commencement of
the proceedings. However, there are few cases which call for the
Courts leaning not in favour of maintaining status quo and still
lesser in percentage are the cases when an order tantamounting to
mandamus is issued even at an interim stage. There are matters
of significance and of moment posing themselves as moment of
truth. Such cases do cause dilemma and puts the wits of any
Judge to test. Situations emerge where granting of relief would
tantamount granting final relief itself and then there may be
converse cases where withholding interim relief tantamount
dismissal of the main petition itself; for, by the time of main matter
comes up for hearing there would be nothing left to be allowed as
the relief to the petitioner though all the findings may be in his
favour. In such cases the availability of very strong prima facie
case of a standard much higher than which prima facie case, the
considerations of balance of convenience and irreparable injury
forcefully tilting the balance of convenience totally in favour of the
applicant may persuade the Court to grant interim relief though it
amounts to granting final relief itself. Of Course, such would be
rare and exceptional cases. The Court would grant such interim
relief if satisfied that withholding of it would prick the conscience
of the Court and do violence to the sense of justice, resulting in
injustice being perpetuated throughout the hearing and at an end
the Court would not be able to vindicate the cause of justice.
Obviously such would be rare cases accompanied by compelling
circumstances, where the injury complained of is immediate and
pressing and would cause extreme hardship the conduct of the
parties shall also have to be seen and Court may put the parties on
such terms as may be prudent. In fact the division bench
expression of this Court referred supra also in tune to it though
not in so many terms. The recent expression of this Court in M/s.
Bharat Cricket Club supra and another recent expression past
division bench expression of this Court in M/s. Gharonda
Builders and Developers Limited and Another Vs. Smt.
Gayathri and Others in CRP.No.3999 of 2015 dated 11.08.2016 is
also made clear the scope of law in this regard.
20. Thus, there is no absolute rule that in an election
process once commenced, interdicting the same relief cannot be
granted, as it all depends upon the facts and circumstances of
each case from material on record and giving of detailed reasons is
not even necessary but application of mind of the Court to the
facts and circumstances is there or not alone mainly to consider
and that too by sitting in revision within its limited scope as per
the well settled expressions of the Apex Court in Shalini Shyam
Shetty Vs. Rajendra Shankar Patil quoted with approval in
Radhey Shyam and Another Vs. Chhabi Nath and Others .
21. Here coming back to the facts, when it is the complaint
of there is violation of bye laws in fixing election schedule and
process and leave about the other controversy as to the impugned
order otherwise survives or not to decide by maintaining appeal
since lies even shown as an exceptional case, if not availed remedy
in the ordinary course contemplated of filing application under
order 39 Rule 4 CPC, remedy is left open to invoke either way.
22. Because this Court while admitting the revision passed
the order of the process of the election shall go on and not to
declare the result, and from the counter affidavit in the revision
there is no time for completing the election process from the very
proceedings of the election officer, leave about how far election
properly conducted if at all or not is the matter to decide in the
event of filing of an appeal or injunction vacate petition to modify
or vary or set aside as the case may be.
23. Accordingly and in the result, by upholding the interim
order dated 30.09.2016 passed by this Court (subject to its
practical possibility that also left open to impugn if anything
shown done on its correctness ultimately in the main matter), the
revision is disposed of giving liberty to the revision petitioners to
approach either the trial Court by filing counter affidavit if not
already filed with prayer by application to vacate or modify the
interim injunction to decide on own merits under Order 39 Rule 4
CPC or to maintain appeal since otherwise maintainable as
discussed supra under Order 43 Rule 1 clause (r) CPC. Needless
to say, in the event of filing application under Order XXXIX Rule 4
CPC the trial Court shall decide as expeditiously as possible and in
the event of filing appeal without regard to limitation within one
week from the date of receipt of this order, the appellate Court
shall entertain for deciding on own merits as expeditiously as
possible.
Consequently, miscellaneous petitions, if any shall stand
closed. No costs.
_____________________________________
JUSTICE Dr. B.SIVA SANKARA RAO
Date: 20.01.2017
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