VIRUDHUNAGAR HINDU NADARGAL DHARMA PARIBALANA SABAI & ORS. versus TUTICORIN EDUCATIONAL SOCIETY & ORS. on 3 October 2019

SUPREME COURT REPORTS

[2019] 13 S.C.R.

AVIRUDHUNAGAR HINDU NADARGALDHARMA PARIBALANA SABAI & ORS.

v.

TUTICORIN EDUCATIONAL SOCIETY & ORS.

B

(Civil Appeal No. 7764 of 2019)

OCTOBER 03, 2019

[R. F. NARIMAN AND V. RAMASUBRAMANIAN, JJ.]

Constitution of India:C

Art.227 – Jurisdiction under – Scope of – Thoughavailability of a remedy of appeal may not always be a bar forexercise of supervisory jurisdiction of High Court – But in civilproceedings under CPC, when the forum is civil court, availabilityof remedy under CPC, will deter the High Court from exercisingDits power of superintendence under Art.227 – In the present case,since specific remedy of appeal was available to the party, HighCourt should not have entertained the revision u/Art. 227.

Injunction:

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Interim injunction in a civil suit – Restraining interaliatherespondent-Secretary of the respondent-Society from functioningas Secretary – Challenged in revision petition – High Court allowedthe petition setting aside the injunction order holding that the samewas passed in haste – Appeal to Supreme Court – Held: High CourtFhad overlooked the fact that the respondent-Secretary having beeninjuncted from acting as a Secretary of the respondent-Society,could not have filed revision petition on behalf of the respondent-Society – High Court was also wrong in holding that the order waspassed in haste – Injunction order was passed after duly hearingGthe opposite party – Order XXXIX r.3A of CPC also mandatesdisposal of injunction application within 30 days – Therefore,impugned order set aside – Advocate Commissioner appointed toconvene the ‘General Body’ as well as ‘Executive Committee’meeting for the election of Office Bearers – Code of CivilProcedure, 1908 – Or. XXXIX r.3A.

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Allowing the appeal, the Court

HELD: 1. Primarily the High Court went wrong inoverlooking the fact that there was already an appeal underOrder XLI, Rule 1(r) of CPC, at the instance of the fifthdefendant in the suit (third respondent), as against the very sameorder of injunction and, therefore, there was no justification forinvoking the supervisory jurisdiction under Article 227. [Para11] [639-H; 640-A]

2. The High Court ought to have seen that when a remedyof appeal under Section 104(1)(i) read with Order XLIII, Rule1(r) of CPC was directly available, the respondents 1 and 2 oughtto have taken recourse to the same. It is true that the availabilityof a remedy of appeal may not always be a bar for the exerciseof supervisory jurisdiction of the High Court. But courts shouldalways bear in mind a distinction between (i) cases where suchalternative remedy is available before Civil Courts in terms ofthe provisions of CPC and (ii) cases where such alternativeremedy is available under special enactments and/or statutoryrules and the fora provided therein happen to be quasi-judicialauthorities and tribunals. In respect of cases falling under thefirst category, which may involve suits and other proceedingsbefore civil courts, the availability of an appellate remedy interms of the provisions of CPC, may have to be construed as anear total bar. Otherwise, there is a danger that someone maychallenge in a revision under Article 227, even a decree passedin a suit, on the same grounds on which the respondents 1 and2 invoked the jurisdiction of the High court. “orders of civil courtstand on different footing from the orders of authorities or Tribunalsor courts other than judicial/civil courts. Therefore wherever theproceedings are under CPC and the forum is the Civil Court,the availability of a remedy under the CPC, will deter the HighCourt, not merely as a measure of self imposed restriction, butas a matter of discipline and prudence, from exercising its powerof superintendence under the Constitution. Hence, the HighCourt ought not to have entertained the revision under Article227 especially in a case where a specific remedy of appeal isprovided under the Code of Civil Procedure itself. [Paras 12,13 and 14] [640-B-G; 641-A-B]

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A3. Another aspect that was overlooked by the High Courtwas that the second respondent was already restrained by theSub-Court, from functioning as the Secretary of the firstrespondent society. It is seen from the records that the civilrevision was filed before the High court by the first respondentBsociety as well the second respondent. The second respondentwas not only the second petitioner in the Civil Revision Petitionfiled before the High Court, but he also sought to represent thefirst respondent-Society as its Secretary, before the High courtin the Civil Revision. On the date on which the first respondent-Society filed the Civil Revision before the High court, the secondCrespondent was not the secretary and could not have acted onbehalf of the society. This aspect was also overlooked by theHigh Court. [Paras 15 and 16] [641-C-D; G-H]

4. The observation of the High Court that the trial Courtproceeded in great haste, appears to be uncharitable. OrderDXXXIX Rule 3A of CPC itself mandates the disposal of anapplication for injunction within 30 days, whenever an injunctionwas granted without notice to the opposite party. In the presentcase, the trial Court, without granting an ex-parte order ofinjunction, chose to allow the opposite parties to file counterEaffidavit(s) along with documents and then heard the oppositeparties before allowing the application for injunction. Finding theline of demarcation between speedy disposal and hurrieddispatch, with mathematical precision, is not possible. In anycase, even if the High Court was convinced that the trial Courthad proceeded hastily, the High Court could have only remandedFthe matter back. But the High Court allowed the application forinjunction without recording any finding on merits. In fact theorder of the Trial Court deals with the rival contentions and isone passed on merits after due consideration of the pleadingsand documents. The High Court did not even deal with theGmatter on merits to over turn the decision of the Trial Court.Therefore, the order of the High Court is liable to be set asideand the order of the Trial Court is liable to be restored. [Paras17 and 18] [642-A-E]

5. It is brought to the notice of the Court that after theHHigh Court allowed the Civil Revision petition by its order dated 28.08.2018, the second respondent proceeded with the meetingof the General Body and the Executive Committee on25.09.2018 and also conducted elections. Notice was orderedand the interim order of the status quo was passed in the abovespecial leave petition only on 8.10.2018. Normally, in the abovecircumstances, the appeal could have been held having becomeinfructuous. But in the present case every meeting of theGeneral Body and every attempt at holding elections to the firstrespondent-Society have created a series of litigation beforethree different fora namely (i) the Civil Courts (ii) the Registrarof Societies (iii) the High court (in Writ Petitions arising out oforders of the Registrar of Societies). Therefore, the only wayto bring to an end all the litigations between the parties beforevarious fora would be to set aside the impugned order and theelections held pursuant thereto and to appoint an AdvocateCommissioner to convene the General Body as well as theExecutive Committee for the election of office bearers.Accordingly, the order of the High court as well as the electionspurportedly held pursuant to the order of the High Court areset aside. [Paras 19, 20 and 21] [642-F-H; 644-C-E]

Venkatasubbiah Naidu v. S. Chellappan & Ors. (2000)7 SCC 695 : [2000] 3 Suppl. SCR 303 ;Radhey Shyam v. Chhabi Nath (2015) 5 SCC 423 : [2015] 3SCR 197 – relied on.

Surya Dev Rai v. Ram Chander Rai(2003) 6 SCC

675 : [2003] 2 Suppl. SCR 290 – stood overruled.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7764of 2019.

From the Judgment and Order dated 21.08.2018 of the MaduraiBench of the High Court of Madras in C.R.P. No. 1084 of 2018.

R. Anand Padmanabhan, K. Selvaraj, Aravind C., ShashiBhushan Kumar, Advs. for the Appellants.

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AVijay Hansaria, Sr. Adv., Ashok Mathur, R. Kannan, T. AntonyA., Advs. for the Respondents.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN

B1. Leave granted.

2. Aggrieved by an order of the High Court passed under Article227 of the Constitution, vacating an interim order of injunction grantedby the trial Court, the plaintiffs have come up with this appeal.

3. We have heard Mr. R. Anand Padmanabhan, learned counselCfor the appellants and Mr. Vijay Hansaria, learned Senior Counsel forthe respondent Nos. 1 & 2.

4. The appellants herein filed a suit O. S. No. 145 of 2018 onthe file of Principal District Munsif, at Thoothukudi praying (i) for aDdeclaration that the notice issued by the sixth defendant (secondrespondent in this appeal) convening the General Body Meeting of thefirst respondent–Society at 5 P.M. and the Executive Committeemeeting at 5:30 P.M. on the same day namely 05.05.2018 was illegal;(ii) for a decree of permanent injunction restraining the defendant Nos.5 & 6 from convening the meetings of the General Body and theEExecutive Committee of the first respondent–society; (iii) for adeclaration that the appointment of the fifth defendant (third respondentin this appeal) as patron for life of the first defendant-Society wasunlawful; (iv) for a permanent injunction restraining the sixth defendant(second respondent in the appeal) from acting as the Secretary of theFfirst defendant-Society and (v) for the appointment of a Commissionerto receive the list of members and to conduct free and fair election ofoffice bearers of the first defendant-Society.

5. Along with the suit, the appellants/plaintiffs moved anInterlocutory Application i.e. I. A. No. 386 of 2018 seeking an interimGorder of injunction restraining the respondents from convening themeetings of the general Body and the Executive Committee on 5.5.2018.It appears that the appellants/plaintiffs also moved one moreInterlocutory Application i.e. Interlocutory Application No.387 of 2018seeking an injunction restraining the defendant nos. 5 & 6 from actingHrespectively as Patron and the Secretary.

v. TUTICORIN EDUCATIONAL SOCIETY [V. RAMASUBRAMANIAN]

6. It appears that the suit was filed on 23.04.2018 and theapplication for interim injunction was moved on 24.04.2018. TheContesting defendants filed a counter affidavit on the very next daynamely 25.04.2018 along with 19 documents.

7. Therefore, after hearing both sides, the trial Court passed anorder on 26.04.2018 allowing Interlocutory Application No.386 of 2018and injuncting the defendants from proceeding with the Meeting of theGeneral Body and the Executive Committee as scheduled on 5.5.2018.It is relevant to note that the trial Court not only took note of thepleadings on both sides but also took note of 12 documents filed by theplaintiffs and 19 documents filed along with the counter affidavits ofthe defendants.

8. As against the order of the trial court granting injunction, thefifth defendant in the suit (the third respondent in this appeal) who wasclaiming to be the Patron for life, filed a Regular Appeal in C.M.A No.1of 2018 on the file of the Sub-Court at Thothukudi under Order XLIIIRule 1(r) of the Code of Civil Procedure. But the respondent nos.1 &2 herein who were the defendant Nos.1 & 6 respectively, instead offiling a Regular Appeal, filed a Civil Revision in C.R.P.(MD) (PD)No.1084 of 2018 on the file of the Madurai Bench of the Madras HighCourt, under Article 227 of the Constitution of India.

9. Despite objections to the maintainability of the revision on theground of availability of an appellate remedy under the Code, the HighCourt allowed the Civil Revision Petition and set aside the order ofinjunction granted by the trial Court. It is against the said order thatthe plaintiffs have come up with the above appeal.

10. The objection to the maintainability of the revision was soughtto be overcome by the High Court on the basis of a few decisions whichrevolved around the supervisory jurisdiction of the High Court to keepthe subordinate courts within the bounds of law. Then the High Courtfound fault with the trial Court for taking up the application for injunctionfiled on 24.04.2018, for hearing on 25.04.2018 and passing an order on26.4.2018. This, in the opinion of the High Court, was a case of justicebeing hurried and consequently getting buried. Therefore, the High Courtallowed the revision and set aside the order of injunction.

11. Primarily the High Court, in our view, went wrong inoverlooking the fact that there was already an appeal in C.M.A. No. 1

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Aof 2018 filed before the Sub-Court at Tuticorin under Order XLI, Rule1 (r) of the Code, at the instance of the fifth defendant in the suit (thirdrespondent herein), as against the very same order of injunction and,therefore, there was no justification for invoking the supervisoryjurisdiction under Article 227.

B12. Secondly, the High Court ought to have seen that when aremedy of appeal under section 104 (1)(i) read with Order XLIII, Rule1 (r) of the Code of Civil Procedure, 1908, was directly available, therespondents 1 and 2 ought to have taken recourse to the same. It istrue that the availability of a remedy of appeal may not always be aCbar for the exercise of supervisory jurisdiction of the High Court. InA. Venkatasubbiah Naidu Vs. S. Chellappan & Ors.[1], this Court heldthat “though no hurdle can be put against the exercise of theConstitutional powers of the High Court, it is a well recognizedprinciple which gained judicial recognition that the High Courtshould direct the party to avail himself of such remedies before heDresorts to a Constitutional remedy”.

13. But courts should always bear in mind a distinction between(i) cases where such alternative remedy is available before Civil Courtsin terms of the provisions of Code of Civil procedure and (ii) caseswhere such alternative remedy is available under special enactmentsEand/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under thefirst category, which may involve suits and other proceedings beforecivil courts, the availability of an appellate remedy in terms of theprovisions of CPC, may have to be construed as a near total bar.FOtherwise, there is a danger that someone may challenge in a revisionunder Article 227, even a decree passed in a suit, on the same groundson which the respondents 1 and 2 invoked the jurisdiction of the Highcourt. This is why, a 3 member Bench of this court, while overrulingthe decision in Surya Dev Rai vs. Ram Chander Rai[2], pointed out inGRadhey Shyam Vs. Chhabi Nath[3] that “orders of civil court standon different footing from the orders of authorities or Tribunals orcourts other than judicial/civil courts.

1 (2000) 7 SCC 695

2 (2003) 6 SCC 675H3 (2015) 5 SCC 423

14. Therefore wherever the proceedings are under the code ofCivil Procedure and the forum is the Civil Court, the availability of aremedy under the CPC, will deter the High Court, not merely as ameasure of self imposed restriction, but as a matter of discipline andprudence, from exercising its power of superintendence under theConstitution. Hence, the High Court ought not to have entertained therevision under Article 227 especially in a case where a specific remedyof appeal is provided under the Code of Civil Procedure itself.

15. Another aspect that was overlooked by the High Court wasthat the second respondent herein namely Shri A. Rajendran wasalready restrained by the Sub-Court, from functioning as the Secretaryof the first respondent society. It is seen from the records that the civilrevision was filed before the High court by the first respondent societyas well the second respondent herein. The second respondent hereinwas not only the second petitioner in the Civil Revision Petition filedbefore the High Court, but he also sought to represent the firstrespondent-Society as its Secretary, before the High court in the CivilRevision.

16. But in a connected Civil Miscellaneous Appeal No.7 of 2018filed by the appellants herein (plaintiffs in the suit), the Sub-Court,Thoothukudi passed an order dated 22.04.2018 restraining the secondrespondent herein for acting as the Secretary of the first respondent-Society. This appeal arose out of the dismissal by the trial court, of aninterlocutory application I.A.No. 387 of 2018 filed by the appellantsherein for restraining the second respondent herein from acting as theSecretary and another person from acting as the Patron. The trial Courtdismissed I.A.No.387 of 2018, but the plaintiffs filed an appeal in CivilMisc. Appeal No.7 of 2018. The same was allowed by an order dated22.04.2018 by the Sub-court, Thoothukudi unseating the secondrespondent as the Secretary. Though the second respondent has claimedin his rejoinder, that the order passed in C. M. A. No. 7 of 2018 waschallenged in a revision in CRP (MD) No. 1295 of 2019 and an orderof status quo was obtained, from the Madurai Bench of the MadrasHigh Court, the same happened after more than a year. Therefore, onthe date on which the first respondent-Society filed the Civil RevisionCRP (MD) No. 1084 of 2018 before the high court, the secondrespondent herein was not the secretary and could not have acted onbehalf of the society. This aspect was also overlooked by the HighCourt.

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A17. The observation of the High Court that the trial Courtproceeded in great haste, appears to be uncharitable. It is true that theapplication for injunction was moved on 24.4.2018 but the respondentnos. 1 & 2 were very vigilant, if not overzealous and, hence, they notonly filed a counter affidavit to the application for injunction on25.04.2018, but also filed 19 documents. They also advancedBarguments, only after considering which the trial Court passed an orderon 26.4.2018.

18. Order XXXIX Rule 3A of the Code of Civil Procedure itselfmandates the disposal of an application for injunction within 30 days,whenever an injunction was granted without notice to the opposite party.CIn this case, the trial Court, without granting an ex-parte order ofinjunction, chose to allow the opposite parties to file counter affidavit(s)along with documents and then heard the opposite parties beforeallowing the application for injunction. Finding the line of demarcationbetween speedy disposal and hurried dispatch, with mathematicalDprecision, is not possible. In any case, even if the High Court wasconvinced that the trial Court had proceeded hastily, the High Courtcould have only remanded the matter back. But the High Court allowedthe application for injunction without recording any finding on merits.In fact the order of the Trial Court deals with the rival contentions andis one passed on merits after due consideration of the pleadings andEdocuments. The High Court unfortunately did not even deal with thematter on merits to over turn the decision of the Trial Court. Therefore,the order of the High Court is liable to be set aside and the order ofthe Trial Court is liable to be restored.

19. But it is brought to our notice that after the High CourtFallowed the Civil Revision petition by its order dated 28.08.2018, thesecond respondent herein proceeded with the meeting of the GeneralBody and the Executive Committee on 25.09.2018 and also conductedelections. Notice was ordered and the interim order of the status quowas passed in the above special leave petition only on 8.10.2018. Hence,Git was sought to be contended that the above appeal has virtually becomeinfructuous.

20. In normal circumstances, we would have agreed. But this isa case where every meeting of the General Body and every attemptat holding elections to the first respondent-Society seem to have createdHa series of litigation before three different fora namely (i) the Civil Courts) (ii) the Registrar of Societies (iii) the High court (in WritPetitions arising out of orders of the Registrar of Societies). This canbe seen from the following table:

S.No Events which triggered Nature of the Forum Status the litigation litigation where filed1. Notice convening the Suit in O.S. Sub-Court, Despite undertaking General Body and No.79 of 2015 Tuticorin. to the Court, the BExecutive Committee on meetings were held 21.03.2015. and office bearers elected2. By proceeding dated Writ Petition Madurai Pending 27.03.2015, second (MD) No.3869 of Bench of the respondent was appointed 2016 Madras High as Secretary of the College Court. CCommittee of the College run by the first respondent-Society. This was by virtue of the elections held on 21.03.2015. 3. Form Nos.6 and 7 in terms A writ petition in Madurai Pending of the Tamil Nadu Society WP (MD) Bench of the Registration Act and the No.19710 of Madras High DRules framed thereunder 2015 filed, Court. were filed by the newly challenging the elected office bearers with rejection. the Registrar of Societies, for recording the names of the new set of officer bearers. But the Registrar Erejected these forms on 24.04.2015. 4. Elections held on A suit O.S No.21 District Suit pending 21.03.2015 of 2016 was filed Munsiff by the present Court at appellant No.1 Tuticorin. for a declaration Fthat the election allegedly held on 21.03.2015 was null and void and for a permanent injunction G5. The newly elected office A writ petition in Madurai Pending bearers sought to amend WP (MD) Bench of the the bye laws. The No.13144 of Madras High amendment was rejected 2016 filed Court. by the District Registrar. challenging the order of the District Registrar. H

A6. A fresh notice dated A suit O.S. District Suit pending 10.06.2017 issued No.195 of 2017 Munsiff convening the meetings of seeking a Court, the General Body and the declaration that Tuticorin Executive Committee on the notices were 8.07.2017. null and void and for a permanent injunction filed Bby the appellant No.1 7. By a paper publication A suit O.S. District pending dated 12.04.2018, the No.145 of 2018 Munshif, Second respondent (out of which the Tuticorin convened the meetings of present appeal the General Body and the arises) was filed Executive Committee on for the reliefs C5.05.2018 stated (supra)

21. Therefore, we are of the view that the only way to bring toan end all the litigations between the parties before various fora is toset aside the impugned order and the elections held pursuant theretoand to appoint an Advocate Commissioner to convene the General BodyDas well as the Executive Committee for the election of office bearers.Accordingly, the appeal is allowed, the order of the high court as wellas the elections purportedly held pursuant to the order of the High Courtare set aside. Smt. S. SORNALATHA, Advocate, No.1, 1[st] Street,Chidambara Nagar, Thoothukkudi-628 008, is appointed asECommissioner with a mandate to do the following:

(i) Within two weeks of receipt of a copy of this order, theAdvocate Commissioner shall address letters to thesponsoring bodies/Societies of the first respondent society,for nominating members to the General Body and theFExecutive Committee of the first respondent-Society, as perthe bye-laws.

(ii) Within one week of receipt of the letter from the AdvocateCommissioner, the sponsoring bodies shall send a list ofmembers nominated by them to the General Body/ExecutiveGCommittee of the first respondent society

(iii) Within four weeks of receipt of the nominations, theAdvocate Commissioner shall convene a meeting of theGeneral Body and the meeting of the Executive CommitteeHand hold elections in accordance with the bye –laws.

VIRUDHUNAGAR HINDU NADARGAL DHARMA PARIBALANA SABAIv. TUTICORIN EDUCATIONAL SOCIETY [V. RAMASUBRAMANIAN]

(iv) After holding elections, the Advocate Commissioner shallensure that form Nos. 6 and 7 are registered with theRegistrar of Societies so that the registration of such formsdo not become the subject matter of any litigation at theinstance of the rival groups.

(v) The Advocate Commissioner shall be paid, by the firstrespondent society, a remuneration of Rs. 1,00,000/- apartfrom the reimbursement of the expenses incurred by her.

(vi) Till the elections are held and results declared, the Advocatecommissioner shall discharge the duties of the Secretary ofthe first Respondent-Society.

Kalpana K. Tripathy

Appeal allowed

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