Telangana High Court
Mohammed Imtiyazuddin vs M.A Nayeem Khan on 14 June, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL Nos.79, 84, 224, 225, 226
& 227 OF 2024
COMMON JUDGMENT:
The parties, in the impugned Order in all these Civil Miscellaneous Appeals are one and the same, therefore, these Civil Miscellaneous Appeals are being disposed of by way of this Common Judgment.
02. The Civil Miscellaneous Appeal No.79 of 2024 is filed under Order XLIII Rule I of the Code of Civil Procedure (for short hereinafter referred as 'CPC') by appellants- defendant Nos.2 to 10 against respondents-plaintiffs and defendant No.1, aggrieved by Common Order dated 03.01.2024 in I.A.Nos.2015, 2016 of 2023 in C.M.A.No.119 of 2023 and I.A.No.2014 of 2023 in C.M.A.No.120 of 2023 (for short hereinafter referred as 'impugned Order') passed by the learned II Additional Chief Judge, City Civil Court, Hyderabad (for short hereinafter referred as 'learned Chief Judge') wherein Injunction application vide I.A.No.2016 of 2023 was allowed and sought for setting aside the injunction order.
2
03. The Civil Miscellaneous Appeal No.84 of 2024 is filed under Order XLIII Rule I of the CPC by appellants- defendant Nos.2 to 10 against respondents-plaintiffs and defendant No.1, aggrieved by the impugned Order passed by the learned Chief Judge wherein Injunction application vide I.A.No.2014 of 2023 was allowed and sought for setting aside the injunction order.
04. The Civil Miscellaneous Appeal No.224 of 2024 is filed under Order XLIII Rule I of the CPC by appellant- defendant No.1 against respondents-defendant Nos.7 to 10 and plaintiffs, aggrieved by the impugned Order passed by the learned Chief Judge wherein Injunction application vide I.A.No.2014 of 2023 was allowed and sought for adjudication of said injunction application.
05. The Civil Miscellaneous Appeal No.225 of 2024 is filed under Order XLIII Rule I of the CPC by appellant- defendant No.1 against respondents-defendant Nos.2 to 6 and plaintiffs, aggrieved by the impugned Order passed by the learned Chief Judge wherein Injunction application 3 vide I.A.No.2014 of 2023 was allowed and sought for adjudication of said injunction application.
06. The Civil Miscellaneous Appeal No.226 of 2024 is filed under Order XLIII Rule I of the CPC by appellant- defendant No.1 against respondents-defendant Nos.2 to 6 and plaintiffs, aggrieved by the impugned Order passed by the learned Chief Judge wherein Injunction application vide I.A.No.2016 of 2023 was allowed and sought for adjudication of said injunction application.
07. The Civil Miscellaneous Appeal No.227 of 2024 is filed under Order XLIII Rule I of the CPC by appellant- defendant No.1 against respondents-defendant Nos.7 to 10 and plaintiffs, aggrieved by the impugned Order passed by the learned Chief Judge wherein Injunction application vide I.A.No.2016 of 2023 was allowed and sought for adjudication of said injunction application.
08. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned Chief Judge.
4
09. Originally, plaintiffs-society filed O.S.No.4545 of 2023 before the learned IX Junior Civil Judge, City Civil Court, Hyderabad seeking to declare defendant Nos.2 to 10 are not members of plaintiffs-society and also sought for perpetual injunction restraining defendants therein from interfering with decisions, resolutions and other affairs of plaintiffs-society. During the pendency of the above suit, the learned IX Junior Civil Judge, City Civil Court, Hyderabad granted exparte ad-interim injunction vide Orders dated 13.09.2023 passed in I.A.No.1102 of 2023 in O.S.No.4545 of 2023. During the course of adjudication of the above suit, the learned IX Junior Civil Judge, City Civil Court, Hyderabad, on hearing both sides, came to a conclusion that it has no jurisdiction to try suit in O.S.No.4545 of 2023 and accordingly, returned the plaint under Order VII Rule 11 of the CPC vide Order dated 22.11.2023. Consequently, exparte ad-interim injunction granted vide Orders dated 13.09.2023 passed in I.A.No.1102 of 2023 in O.S.No.4545 of 2023, was vacated vide Orders dated 22.11.2023 passed in I.A.No.1102 of 2023. While, returning the plaint it was observed that 5 Section 23 of the Telangana Societies Registration Act, 2001 is applicable with respect to dispute regarding management of plaintiffs-society and the said application can be proceeded with under provisions of the Arbitration and Conciliation Act, 1996 or may file an application in the District Court concerned.
10. Aggrieved by the above finding of returning the plaint and also vacation of interim order, two Civil Miscellaneous Appeals vide CMA Nos.119 and 120 of 2023 are preferred before the learned Chief Judge. CMA No.119 of 2023 is filed challenging Order dated 22.11.2023 passed in O.S.No.4545 of 2023 i.e., docket proceeding returning plaint. Along with CMA No.119 of 2023 two Interlocutory Applications vide I.A.No.2015 of 2023 and I.A.No.2016 of 2023. I.A.No.2015 of 2023 was filed seeking stay of operation of Order dated 22.11.2023 in I.A.No.1102 of 2023 in O.S.No.4545 of 2023 passed by learned IX Junior Civil Judge, City Civil Court, Hyderabad. Another I.A.No.2016 of 2023 in CMA No.119 of 2023 filed seeking injunction restraining respondents therein and their agents 6 from interfering in the decisions, resolutions etc., and not to disturb, disrupt, occupy, dispossess plaintiffs-society and its security from premises or any other part matters connected thereof. CMA No.120 of 2023 was filed challenging Order dated 22.11.2023 passed in I.A.No.1102 of 2023 in O.S.No.4545 of 2023 wherein stay was vacated. Along with C.M.A.No.120 of 2023 an Interlocutory Application vide I.A.No.2014 of 2023 seeking injunction restraining respondents therein from interfering in the decisions, resolutions etc., and not to disturb, disrupt, occupy, dispossess plaintiffs-society and its security from premises or any other part matters connected thereof.
11. The learned Chief Judge, after considering the entire material placed before it and on hearing both sides, allowed all the three Interlocutory Applications granting injunction pending disposal of the above two Civil Miscellaneous Appeals before the learned Chief Judge.
12. Aggrieved by the above, the respective parties have preferred the present six Civil Miscellaneous Appeals before this Court.
7
13. Heard learned respective counsel appearing for both sides and perused the record.
14. Now the point for consideration is:
Whether the impugned Order passed by the learned Chief Judge, is liable to be set aside?
POINT:
15. When these matters are taken up for hearing, the first and foremost contention raised is on the maintainability of these Civil Miscellaneous Appeals on the ground that whether 'CMAs on CMAs' is maintainable or not. It is pertinent to note here that all these Civil Miscellaneous Appeals are preferred challenging the impugned Order which was passed at a Interlocutory stage granting temporary relief till disposal of main Civil Miscellaneous Appeals before the learned Chief Judge. Therefore, it is clear that the impugned Order is passed at an interlocutory stage and it is undisputedly an Interlocutory Order.
16. In this context, it is relevant to extract provision of the Order XLIII of the CPC:
8
1. Appeal from orders.-- An appeal shall lie from the following orders under the provisions of section 104, namely:
(a) An order under rule 10 of Order VII returning a plaint to be presented to the proper Court 1[except where the procedure specified in rule 10A of Order VII has been followed]
(c) An order under rule 9 of order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit:
(d) An order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
(f) an order under rule 21 of Order XI;
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
1[ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (l) of rule 105 of that Order is appealable;]
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to 9 appeal) for an order to set aside the dismissal of a suit;
1[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person:]
(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of order )(XXVIII;
(r) an order under rule 1. rule 2 ' [rule 2A], rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1 or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 '[or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate court;
(w) an order under rule 4 of Order XLVII granting an application for review.
17. In Shyam Sel and Power Limited and another v. Shyam Steel Industries Limited 1 wherein the Honourable Supreme Court of India held that:
"It has been held that most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order XLIII Rule 1 CPC and would be 'judgments' within the meaning of the letters patent and, therefore, appealable."
1 CIVIL APPEAL NO. 1984 OF 2022 [Arising out of SLP(C) No. 4080 of 2022] 10
18. In the above authority, the Honourable Supreme Court of India has made it clear that most of the interlocutory orders clearly specified in clauses (a) to (w) of Order XLIII Rule 1 CPC would be 'judgments' within the meaning of the letters patent and therefore, appealable. In the present case on hand, the impugned Order was challenged by way of the present Civil Miscellaneous Appeals, which arose out of Order XXXIX Rule 1 and 2 of CPC in Civil Miscellaneous Appeal preferred before the learned Chief Judge. Therefore, in view of the settled principle of law laid down by the Honourable Supreme Court of India, impugned Order is appealable and these Civil Miscellaneous Appeals are maintainable before this Court.
19. Now coming to the grounds raised for setting aside the impugned Order, it is contended that the impugned Order is without recording findings on merits and that there is no consideration of material and essential requirements of injunction i.e., primafaice case, balance of convenience and irreparable loss and that there is 11 suppression of fact that O.P.No.10 of 2022 (New OOP.No.28 of 2022) and O.P.No.44 of 2022 were already filed and that the Registrar of Societies has refused to deal with the controversy between the parties and directed them to get the controversy resolved in a proper forum.
20. The reliefs sought for in the main suit i.e., O.S.No.4545 of 2023 filed before the learned IX Junior Civil Judge, City Civil Court, Hyderabad are:
i. To declare the defendant Nos.2 to 10
therein are not members, employees, as such no right, title, authority to act illegally by violating the decisions, rule, resolutions, terms, contracts and bye-laws of plaintiffs- society.
ii. Perpetual injunction restraining defendants, their agents, attorneys, workers, henchmen or anybody acting for or on their behalf from any way interfering in the decisions, resolutions, instructions, directions, working of staff, labour, Managing Committee, administration, Business Management, accounts, funds, affairs in Head-Office, branches, colleges, schools, laboratories, equipment, coaching centres, diagnostic centres by anyway disturbing disrupting, occupying, dispossessing plaintiffs-society its security from premises or any other part matters connected thereof, in the interest of Justice.12
iii. The cost of the suit be awarded. iv. And, pass such other relief or reliefs as the Court may deem fit and proper in the circumstances of the case in the interest of Justice.
21. During the course of adjudication, the learned IX Junior Civil Judge, City Civil Court, Hyderabad has considered the aspect of Jurisdiction, on hearing both sides, came to a conclusion that it has no jurisdiction to try the suit in O.S.No.4545 of 2023 and returned the plaint under order VII Rule 11 of the CPC vide Orders dated 22.11.2023 passed in O.S.No.4545 of 2023. While returning so, exparte ad-interim injunction granted vide Orders dated 13.09.2023 passed in I.A.No.1102 of 2023 in O.S.No.4545 of 2023, was vacated vide Orders dated 22.11.2023 passed in I.A.No.1102 of 2023.
22. It is pertinent to mention here that the learned IX Junior Civil Judge, City Civil Court, Hyderabad has not given any finding on the crucial aspect that whether defendants Nos.2 to 6 therein are members of plaintiffs- society or not. Whether the learned IX Junior Civil Judge, City Civil Court, Hyderabad is having jurisdiction or not, 13 whether the defendants are the members of plaintiffs- society or not, whether defendants therein are interfering with the activities of plaintiffs-society or not, are the crucial aspects that need to be adjudicated in the Civil Miscellaneous Appeal Nos.119 and 120 of 2023 pending before the learned Chief Judge. It is to be noted that the aspect whether the learned IX Junior Civil Judge, City Civil Court, Hyderabad has jurisdiction to entertain suit or not, goes to the root of the case, it has to be adjudicated by framing a preliminary issue, but that exercise was not done by learned IX Junior Civil Judge, City Civil Court, Hyderabad. Since the parties have preferred cross appeals before this Court against the impugned Common Order, the learned Chief Judge needs to pass a detailed order with regard to above mentioned aspects. Till such period, to protect the interest of the parties, the learned Chief Judge has to pass some interim orders, in the interest of Justice. If impugned Order is not passed, the purpose of filing the suit or appeals would be defeated. Moreover, it would lead to multiplicity of proceedings.
14
23. As seen from the record, plaintiffs-society by name Muslim Education, Social and Cultural Organization (for short 'MESCO') is an organization rising as and when required to the needs of the community, undertaking various activities from time to time. MESCO is registered under the Societies Registration Act with a strength of 150 qualified MBBS Doctors and intellectuals as the Managing Committee consists of the President, Vice-President, Secretary, Joint Secretary, Treasurer and 5 elected members. Society has Audit Department to audit the accounts upto 2021. Society established a Diagnostic Center-cum-Training Centre which is recognized by the Consulate of Saudi Arabia, Mumbai to examine the persons intending to proceed to Saudi Arabia for jobs, Haj Umra and other activities. That generated funds and subsequently MESCO was recognized by all GCC countries. Society has schools, colleges, medical services diagnostic centers besides teaching and non-teaching staff which provided employment to 500 people.
15
24. The learned IX Junior Civil Judge, City Civil Court, Hyderabad without giving any finding over membership of defendants, in question, returned suit claiming that it has no jurisdiction to deal with the suit, on its own motion, without any application from either parties. Initially, learned IX Junior Civil Judge, City Civil Court, Hyderabad has granted ad-interim injunction and thereafter returned the plaint by observing that Section 23 of the Telangana Societies Registration Act, 2001 applies to the facts of the case. Though defendants therein relied upon certain documents, those documents were not considered by the learned IX Junior Civil Judge, City Civil Court, Hyderabad as well as learned Chief Judge. Perhaps, the said documents will be considered in the main appeals before the learned Chief Judge.
25. A perusal of the grounds raised in these appeals are not appearing to be substantial to set aside the impugned Order which is an interim temporary injunction order passed in a Civil Miscellaneous Appeals, in the 16 interest of Justice only to protect the interest of both parties as well as Society.
26. In view of the above facts and circumstances, viewed from any angle, this Court is of the opinion that the impugned Order passed by the learned Chief Judge, which is only an interim temporary injunction order to protect the interest of both parties as well as cause of society, till disposal of the main Civil Miscellaneous Appeals pending before it. It is brought to the notice of this Court that the main Civil Miscellaneous Appeals are at the stage of arguments before the learned Chief Judge. Therefore, this Court is not inclined to interfere with the impugned Order passed by the learned Chief Judge and accordingly, all these Civil Miscellaneous Appeals are liable to be dismissed.
27. Accordingly, all the Civil Miscellaneous Appeals are dismissed. The learned Chief Judge is hereby directed to dispose of the main Civil Miscellaneous Appeals vide CMA Nos.119 and 120 of 2023 as expeditiously as possible, preferably within a period of one month from the 17 date of receipt of copy of this Common Judgment, independently, in accordance with law. It is made clear that the learned Chief Judge shall not be influenced by any of the observations made in this Common Judgment while deciding the above Civil Miscellaneous Appeals. There shall be no order as to costs.
As a sequel, pending Miscellaneous applications, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 14-JUN-2024 KHRM