Madras High Court
H.H. Rijhwani vs N. Venkat Ramani And Either Others on 8 July, 1999
Equivalent citations: 1999(2)CTC13A, (1999)3MLJ750
ORDER
1. With the consent of the learned counsel appearing for either side in both the revision petitions, the revision petitions are taken up today for final disposal and they are disposed of.
2. Heard Mr.K. Alagirisami senior counsel appearing for the petitioner in both the revision petitions, Mr.M. Venkatachalapathy, Senior Counsel appearing for the first respondent in C.R.P.No. 1077 of 1999, Mr.K.V. Venkatapathi, Advocate General appearing for the 1st respondent in C.R.P.No. 1078 of 1999 and Mr.M.S. Ramesh appearing for the 3rd respondent the Returning Officer. Service of notice on other respondents is not complete. However, it is represented jointly that the revision itself could be disposed of, as it arises out of an interlocutory order passed pending the suit.
3. C.R.P.No. 1077 of 1999 has been preferred against the order dated 23.3.1999 made in I.A.No. 411 of 1999 in O.S.No. 493 of 1999 on the file of the District Munsif Court, Tiruchirapalli. In the said suit an injunction application has been instituted by the first respondent herein. In the suit, the plaintiff had prayed for the relief of permanent injunction restraining the defendants especially the defendants 3 to 8 their men, servants from in any manner acting as election officer or conducting or concluding the election on 9.4.1999 for various posts of Builders Association of India for the year 1999-2000 in any manner.
4. Pending the suit, the plaintiff filed I.A.No. 411 of 1999 in O.S.No. 493 of 1999 seeking the relief of temporary injunction restraining the respondents 3 to 8 therein from in any manner acting as election officer or conducting or concluding the election on 9.4.1999 for various posts of Builders Association of India, the first defendant for the year 1999-2000 in any manner till the disposal of the suit.
5. In the said injunction application I.A.No.411 of 1999 the learned District Munsif of Tiruchirapalli passed the following order:
"Heard. Documents perused Interim injunction granted till 8.4.1999. Notice by then. Order 39, R1(3) to be complied with." Initialed 23.3.1999
6. C.R.P.No.1078 of 1999 had been preferred by the very same revision petitioner, who had preferred C.R.P.No. 1077 of 1999 being aggrieved by the interlocutory order passed in O.S.No. 1756 of 1999 on the file of the XIV Assistant City Civil Court, Chennai. One T.N. Sathyamoorthy had instituted the suit O.S.No. 1756 of 1999 on the file of the XIV Asst. City Civil Court, Chennai seeking the relief of permanent injunction restraining the defendants 2 to 7 from proceeding with the process of election for 1999-2000 for the office bearers of the 1st defendant association and for mandatory injunction directing the first defendant to nominate a new Returning Officer by removing the second defendant as Returning Officer so as to commence the election process for 1999-2000 afresh for the election of Managing Committee members inclusive of the President.
7. Pending the suit in O.S.No. 1756 of 1999, the plaintiff therein filed I.A.No.4985 of 1999 seeking the relief of Ad interim injunction restraining the respondents 2 to 7 in the suit from proceeding with the election process for 1999-2000 for the office bearers of the first respondent Association during the pendency of the suit.
8. On 24.3.1999, the teamed XIV Assistant Judge, City Civil Court passed the following order:
"Heard. Documents 1 to 6 perused. I find prima facie in this case. The irregularities are to be rectified as it is alleged by the petitioner. Ad interim injunction granted till 12.4.1999. Order 39 Rule-3 of C.P.C. to be complied with. Notice by then."
9. Being aggrieved by the said two interim orders the present two revisions have been preferred by the very same petitioner invoking Article 227 of the Constitution. By separate orders, this Court, passed identical interim order, which reads thus:
"The petitioner seeks to suspend the order of interim injunction mainly on two grounds, that normally and ordinarily, election matters should not be interfered with which would cause great prejudice in the conduct of election. Order 39, Rule 3, C.P.C. provides for recording reasons for the order of interim injunction. In view of this, there is a patent error apparent on record, and therefore it is prayed that the operation of the interim order should be suspended to enable them to continue the election.
2. Considering the facts and circumstances of the case, prima facie I am satisfied with the submissions made by the learned senior counsel. Therefore, the interim order passed by the Court below in I.A.No. 411 of 1999 in O.S.No. 493 of 1999 dated 23.3.1999 is suspended. However, while the counting of votes is permitted the results of the election should not be declared or announced and the counting is subject to the final orders in the C.M.Ps.
3. Notice is ordered to the respondents through Speed Post returnable by 15.4.1999."
10. The returning officer has filed an affidavit stating that the election had been conducted, but the results have not been declared.
11. Mr.K. Alagirisamy, Senior Counsel appearing for the petitioner in both the revision petitions contends that the order passed by the two courts below are vitiated and that they have not recorded the reasons nor they have applied their mind before granting interim orders of injunction and that they failed to comply with the provisions of Order 39, Rule 1 and 3 and therefore the orders are vitiated.
12. It was nextly contended by the learned counsel that once election process starts there shall be no interference with the election process by any Court and if a party aggrieved by any of the illegalities or irregularities has to take appropriate action or institute action to set aside the election based upon such irregularities or illegalities and no order of injunction could be granted. The learned counsel for the petitioner relied upon the decision of the Apex Court reported in Shiv Kumar Chadha v. Municipal Corporation of Delhi and others, , and the decision of this Court in A. Chinnarajan v. N.S. Subbaiyah and others, .
13. The first contention raised by the learned counsel for the petitioner is well founded. As regards the second contention, it is fairly stated that it is a general proposition and no reliance is placed on any authority except referring to the provisions of the Representations of the People Act or the provisions relating to local bodies where there is a statutory bar which disables the Civil Court from granting interim orders or injunction to restrain holding of election. This contention is not being challenged by the respondents herein as it is basic principle that elections should not normally be interdicted.
14. Mr.M. Venkatachalapathy, Senior Counsel appearing for the respondents in C.R.P.No. 1077 of 1999 vehemently contends that the plaintiff in the suit O.S.No. 493 of 1999, who is the petitioner in LA. No. 411 of 1999 had made out a prime facie case. Mr. M. Venkatachalapathy, Senior Counsel also points out that there is no valid elections notification and there are no valid nominations as well and there are number of illegalities or irregularities with respect to the notifications issued.
15. It was further contended by Mr. M. Venkatachalapathy that the very returning officer is a candidate for one of the elections and for number of posts the same candidate has offered himself as a candidate, which is not permissible under the bye laws of the Builders Association or other circulars. It is the specific case of Mr. M, Venkatachalapathy that the illegalities stare at the election process and therefore the Court below is well justified in granting interim orders. It was also emphasised by Mr. Venkatachalapathy that the illegalities go to the very root of the election process as well as appointment of the very returning officer and therefore, there is every justification for the court below in granting injunction or interim orders and this Court will not interfere with such an order in exercise of jurisdiction under Article 227 of the Constitution.
16. Mr. K.V. Venkatapathy, Learned Advocate General appearing for the 1st respondent in C.R.P.No. 1078 of 1999 points out that the Court below had found a prima facie case and therefore granted injunction. In other respects the learned Advocate General adopts the arguments of Mr.M. Venkatachalapathy, Senior Counsel.
17. The learned Advocate General contended that this Court will not interfere with the orders passed on merits under Article 227 of the Constitution. It was also further contended by Mr.K.V. Venkatapathy, learned Advocate General that even if the order is set aside the present status quo has to be maintained and the Court below may be directed to go into the matter within the time that may be fixed by this Court as any other direction or deviation will result in serious and irreparable loss. The balance of convenience also according to the Advocate General is in favour of the plaintiff in both the suits.
18. In reply to the said contention, Mr.K. Alagirisamy, senior Counsel contends that it is always well open to the plaintiffs in both the suits to seek to set aside the election as and when results are declared as in the present case election has been completed and counting has also been concluded by the returning officer and what remains only declaration of results. It is emphasised by Mr. Alagirisamy, learned senior counsel that it is well open to the petitioner to challenge the declaration of results in respect of the individual candidates or other office bearers whose election is vitiated by one or more of the grounds which the plaintiffs in both the suits have highlighted.
19. I have already extracted the orders passed by the two Courts below while narrating the facts. In my considered view, the orders passed by the Court below in both the interlocutory applications are not in conformity with Order 39, Rule 1 and 3 and there is no doubt that they have failed to apply their mind and they have miserably failed to record the reasons, which prevailed them to grant interim orders, in this respect.
20. Mr. Alagirisamy, learned senior counsel appearing for the petitioner is well supported by the decision of the Apex Court in Shiv Kumar Chadha v. Municipal Corporation of Delhi and others, as well as the decision of this Court in Chinnarajan v. N.S. Subbaiyah, Subramani, J. after analysing the entire case law in Chinnarajan v. N.S. Subbaiyah, held thus:
It has come to our notice that in spite of the aforesaid statutory requirement, the courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no hearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the Proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.
The imperative nature of the proviso has to be judged in the contest of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said "the court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite-party". The proviso was introduced to provide a condition, where court proposes to grant an injunction without giving notice of the application to the opposite-party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising the right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to his of being heard, must satisfy the court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions, it has been held that they are required to be complied with but noncompliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 30. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Para 3 will be surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor and Nasir Ahgmed v. Emperor. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Land Act in the case of Ri. Famachandra Koshav Adke v. Govind Jati Chavare.
As such whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed." (Italics supplied) The said decision was followed in Mergan Stanlev Mutual Fund v. Kartick Das, , the principles under which an ex parte order of injunction could be granted were laid down, and the guidelines were also given. That para reads thus;
"As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are:
(a) whether irreparable or serious mischief will ensue to the plaintiff;
(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;
(d) the court will consider whether the plaintiff had acquiesced for some time and in such circumstances it will not grant ex parte injunction;
(e) the court would ex parte a party applying for ex parte injunction to show utmost good faith in making the application.
(f) even if granted, the ex parte injunction would be for a limited period of time.
(g) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court".
21. In the light of the above pronouncement of the Apex Court as well as the decision of this Court in Chinnarajan v. N.S. subbaiyah, the orders impugned in both the revision petitioners are liable to be interfered and they are liable to be set aside. Accordingly, the two revision petitions are allowed and the interim orders passed in I.A.No. 411 of 1999 in O.S.NO. 493 of 1999 on 23.3.1999 on the file of the District Munsif Court Tiruchirapalli and the interim order dated 24.3.1999 passed in I.A.No. 4985 of 1999 in O.S.No. 1756 of 1999 on the file of the XIV Assistant Judge, City Civil Court are set aside.
22. This Court has already extracted the interim order passed on 7.4.1999. In terms of the interim order, the Returning Officer had proceeded with the election, polling has been completed and counting has also been concluded. The declaration of results is withheld in the light of the directions issued by this Court. The Builders Association of India is an all India based association, which has got 60 chapters through out India. The election is for various offices of all India level and in all about 58 office bearers are to be elected.
23. It is not the contention of the counsel for the plaintiffs in both the suits that the entirety of the election is vitiated, what is contended is that the returning officer himself is a candidate and that one and the same person is contesting for more than one office which is not permissible. This was the contingency or position on the date when they filed a suit and it is only in respect of a limited few and not in respect of all the offices which are to be filled up by the election. As already pointed out pre paid ballots have been despatched to the members, who have sent back the ballots to the returning officer.
24. Though it is pointed out by Mr. Venkatachalapathy, Senior Counsel as well as Mr. K.V. Venkatapathy, Advocate General appearing for the first respondents in both the revision petitions that some of the members have not forwarded their ballot papers nothing prevented the individuals from forwarding the ballot papers as there was no orders of injunction in this respect.
25. It is also brought to the notice of this Court by Mr. K. Alagirisamy as well as the counsel for the returning officer that the returning officer had withdrawn his candidature and as such mere is no illegality in the election process or holding of election. It is also brought to the notice of the Court that the two nominations filed by a candidate in one or two cases have already been withdrawn and they have confined themselves to one office. These matters cannot be gone into at this stage.
26. As being all India body where it is essential that the entire affairs of the body has to be carried on by the elected officers, it would be in the interest of the Association that an elected body is permitted and allowed to cany on the affairs of the Association. It is not as if the Builders Association is a regional one or with few members, but it is an all India body which has members through out India. It is also brought to the notice of the Court by the returning officer that the plaintiffs in both the suits have polled votes, which would enable them to be declared, however subject to ultimate declaration by the returning officer. All these aspects are noted and material points are pointed out only for the purpose of further directions, which this Court intends to issue. There is no justification to withhold the elected body from discharging its functions of the Association.
27. As already stated not only the election process but also polling and counting had been concluded, hence it would be in fairness to allow the returning officer to declare the result and thereafter it is open to the plaintiffs in both the suits or any other third party to seek for setting aside the results or any other relief in respect of one or more of the candidates elected or declared elected. Such a course alone would be in the interest of every one concerned.
28. Normally, this Court will not be inclined to give further direction. But taking into consideration of the peculiar circumstances and the fact that the Association is an All India Association, this Court in order to render substantial justice in exercise of its inherent jurisdiction is issuing further directions as held by the Apex Court in I.C. & I.C. v. Grapco Industrial Ltd., .
29. In the circumstances, while setting aside the order and remitting back the applications to the Court below, this Court modifies the earlier direction issued in these revision petitions on 7.4.1999 and further direct the returning officer to declare results.
30. It is open to both the plaintiffs to amend the very plaint and relief prayed for in both the suits and also to take up such other appropriate applications for other interim orders or directions as may be open to them in law.
31. Mere declaration of results under the orders of this Court would not mean that there is no illegality in the election so far conducted or counting or acceptance of nominations whatsoever and every process of it or acceptance of nominations or other illegality could be challenged in any suit by the plaintiffs in both the suits or by any other third party.
32. In the result,
(i) the order passed by the District Munsif Court, Tiruchirapalli in LA. No. 411 of 1999 in O.S.No. 493 of 1999 on 23.3.1999 is set aside and the matter is remitted back to the Court below for fresh disposal according to law.
(ii) the order dated 24.3.1999 made in I.A.No. 4985 of 1999 in O.S.NO. 1756 of 1999 on the file of the XIV Assistant Judge, City Civil Court, Madras is set aside and the application is remitted back to the court below for fresh disposal.
(iii) the parties shall bear their respective costs in these revision petitions.
(iv) Pursuant to the earlier order passed by this Court in the revision petition further direction is issued to the returning officer to declare the election results and communicate the declaration of results to all concerned and the elected body shall discharge all its functions but subject to the ultimate decision in the suits or other proceedings.
(v) It is open to the plaintiff in O.S.No. 493 of 1999 on the file of the District Munsif Court, Tiruchirapalli and in O.S.No. 1756 of 1999 on the file of the XIV Assistant Judge, City Civil Court, Madras to take out appropriate application for amendment of the plaint and also seek amendment of the interlocutory application as may be open to them and as may be warranted consequent to the directions issued by this Court to declare the election results.
33. C.M.P.Nos. 5891, 5892, 5794 and 5804 of 1999 shall stand closed.