Uttarakhand High Court
Sherwood Diocesan College vs Deputy Registrar Firms Societies And ... on 25 May, 2018
Equivalent citations: AIRONLINE 2018 UTR 366
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 619 of 2018
Sherwood Diocesan College Society
.....Petitioner
Versus
Deputy Registrar, Firms, Societies and Chits & Ors.
....Respondents
Mr. Arvind Vashishtha, Senior Advocate with Mr. Vivek Pathak, Advocate for
the petitioner
Mr. S.K. Mishra, Standing Counsel for the State-respondnet no.1
Mr. R.P. Nautiyal, Sr. Advocate with Ms. Varsha Sharma, Advocate for
respondent no.2
Mr. Aditya Singh, Advocate for respondent nos.3, 4 and 5
Hon'ble Lok Pal Singh, J.
Petitioner has approached this Court seeking the following relief, among others:
i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 28.02.2018 passed by District Judge, Nainital in Civil Revision No.16 of 2018 Sherwood Diocesan College Society Nainital through Chairman Bishop and another vs. Sherwood Diocesan College Society Nainital, Diocese of Agra through Secretary Amandeep Sandhu and others.
2. Brief facts of the case are that respondent no.3 filed a suit being Suit no.4 of 2018 against the petitioner and others for a decree of permanent injunction and declaration of the list of members of the Society, elected in the ordinary meeting for the year 2016-17, as valid. Suit was presented on 06.02.2018. In the suit, plaintiff moved application paper no.13-C for temporary injunction under Order 39 Rules 1 and 2 2 r/w Section 151 of The Code of Civil Procedure (for short, C.P.C.). On registration of suit, notices were issued to the respondents and 14.02.2018 was fixed. On 14.02.2018, D.G.C. appeared on behalf of defendant no.1 (respondent no.1 herein) and moved adjournment application. On behalf of defendant no.2 (respondent no.2 herein), Mr. Pulak Agarwal, Advocate appeared and moved application paper no.17-C under Order 39 Rules 1 and 2 r/w Section 151 of C.P.C. On the application paper no.13-C moved by the plaintiff, defendant no.2 made an endorsement that "Reserving the right to file objection, the application may be allowed till date fixed". Likewise, plaintiff also made an endorsement on the application paper no.17-C that "The plaintiff society shall not interfere in the peaceful working of Amandeep Sandhu merely as principle of Sherwood College looking to the welfare of college." Learned Civil Judge (S.D.), Nainital, on the adjournment application moved by defendant no.1 and also considering the fact that defendant no.3 is not present despite service, vide order dated 14.02.2018, adjourned the case and fixed the case for 06.03.2018 for hearing on the applications. Feeling aggrieved by order dated 14.02.2018 plaintiff/respondent no.3 preferred a revision in the court of District Judge, Nainital, which was registered as Civil Revision no.16 of 2018. In the revision, injunction application was also moved by the plaintiff. Revision was presented before the Incharge/District Judge, Nainital, on 27.02.2018, on which date, District Judge, admitted the revision and issued notices to the opposite parties and fixed 28.02.2018 for hearing. By order dated 27.02.2018, revisional court also summoned the lower court record 3 and directed the revisionist/plaintiff to take steps for service by both ways. Thereafter, the revision came up before the District Judge, Nainital, on 28.02.2018. There is no reference on record so as to show how steps were taken by the plaintiff to serve the opposite parties. It is also not proved on record how the respondents were served in revision. District Judge, Nainital, vide order dated 28.02.2018, passed order on the injunction application of the plaintiff/revisionist and restrained the defendants from holding any meeting and fixed 23.3.2018 for hearing. Operative portion of the order is as under:
^^mijksDr ifjizzs{; ;g vknsf"kr fd;k tkrk gS fd tc rd l{ke flfoy U;k;ky; ls mijksDr fookfnr fcUnq ij vafre :Ik ls ;g fuf.kZr ugha gks tkrs gSa] rc fd izR;FkhZx.k "ksjoqM dkyst esa fdlh izdkj dh dksbZ ehfVax ugha djk;sxh rFkk ;g Hkh vknsf"kr fd;k tkrk gS fd tc rd ekuuh; mPp U;k;ky; }kjk ikfjr fu.kZ; ds vuqlkj l{ke U;k;ky; ls bLk fcUnq ij fd dkSu lh lkslkbVh nksuksa Ldwyksa dk laPkkyu vFkok izca/ku djus ds fy;s vf/kdkfjrk j[krh gS] ;g r; ugha gks tkrk] rc rd 'ksjoqM Ldwy esa ;k vU;= 'kgjksa esa mijksDr "ksjoqM dkyst ds eSustesaV ds ckjss esa fdlh Hkh izdkj dh ehfVax lapkfyr djus ls fu;r frfFk rd fuf'k) fd;k tkrk gSA^^
3. Petitioner, who is neither party in the suit nor in the revision, has filed the present writ petition, being aggrieved by order dated 28.02.2018 passed by revisional court.
4. This Court observes that the revisional court while passing the order dated 28.02.2018 has exceeded in its jurisdiction for the reasons, enumerating, firstly that against an order of adjournment, revision was not maintainable; secondly, when 06.03.2018 was fixed by the trial court for hearing on the interim relief 4 application, then what was the contingency to prefer revision just 2-3 days before the date fixed by the trial court.
5. Mr. Aditya Singh, learned counsel for respondent no.3 has raised an objection regarding maintainability of the writ petition and has submitted that the writ petition at the behest of a third party is not maintainable. It is true that the petitioner is not a party to the suit or revision, but if an order has been passed by the trial court, which ultimately affects the rights of the petitioner, he has every right to challenge such order. Otherwise also, assuming for a moment, if petitioner's rights are not affected by the order, this Court while exercising jurisdiction under Article 227 of Constitution of India, need not to examine the validity and veracity of the order passed by the subordinate court, on an application, and can entertain the writ petition suo moto.
6. Supervisory jurisdiction under Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the armed forces. It is well-settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path 5 of justice and removing any obstacles therein. Thus, without going into the controversy as to whether or not the petitioner has locus standii to file the present writ petition, this Court is inclined to entertain the writ petition suo moto. Thus, the objection raised by Mr. Aditya Singh, Advocate, is not maintainable.
7. Learned counsel for respondent no.3 has raised another argument that the trial court had failed to discharge its legal obligation by not granting interim order on the applications moved by the plaintiff as well as defendant no.3, more particularly, when both the parties were making prayer before the trial court that the interim injunction be passed till the next of listing, then in the interest of justice, interim relief application could have been decided without inviting objections from the parties. He submitted that it was these circumstances/contingency that accrued rights to the plaintiff to file revision, thus, the revision was very much maintainable.
8. The court is not supposed to pass interim order if the parties are agreed to that. The court has to see all the factors viz. whether the party is trying to play fraud upon the court; whether the case of interim relief of any party comes within all three corners -
prima facie case, balance of convenience, and irreparable loss. In my view, none of the parties before the trial court could make out a case for ex-parte injunction, thus there was no occasion for the trial court to pass interim order, however, in the interest of justice, case was adjourned and another date was fixed for hearing of the suit on merit. In view of this Court, 6 case was adjourned in the interest of justice as defendant could not appear despite service and a revision against an order of adjournment, which was not even an interlocutory order, is not maintainable. Thus, it is held that the revision was not maintainable against the order 14.02.2018, but the revisional court, instead of dismissing the revision as not maintainable, has taken the entire matter on its own hand and passed the order in exercising revisional jurisdiction, without providing opportunity of hearing to the parties. While exercising such jurisdiction, the revisional court has exceeded one step ahead as of the trial court and has taken out the suit in its own hand, which is not legally permissible. Thus, in view of this Court, revisional court, while passing the impugned order, has exceeded its jurisdiction and exercised the jurisdiction not vested in it. In such view of matter, impugned order is not sustainable in the eyes of law and is liable to be set aside.
9. For the reasons recorded above, writ petition is allowed. Impugned order dated 28.02.2018 passed by District Judge, Nainital in Civil Revision No.16 of 2018, is hereby set-aside. Matter is remanded to the trial court, which shall decide the interim relief applications filed by the respective parties, on its merit, after affording full opportunity of hearing to the parties. Trial court shall explore all possibilities to decide the interim relief applications and objections in accordance with law at the earliest. Unnecessary adjournment shall be avoided. Parties shall appear before the trial court on 30.05.2018.
710. In the facts and circumstances, parties shall bear their own costs.
(Lok Pal Singh, J.) 25.05.2018 Rajni