Punjab-Haryana High Court
Indian Medical Association Haryana ... vs Dr. Kamal Gupta And Ors. on 8 February, 1995
Equivalent citations: (1996)112PLR125
JUDGMENT N.K. Kapoor, J.
1. This revision petition is against the order of the Court below whereby petitioners No. 1 and 2 have been restrained from handing over the charge to petitioner No. 3 who had been elected as President of the Indian Medical Association, Haryana State Branch, till the disposal of the suit.
2. Briefly put, pursuance to the election programme for the State President and its Vice President, petitioner No. 3 Dr. Ved Beniwal and respondent Dr. Kamal Gupta filed their nomination for the President of the association. Dr. Ved Beniwal was elected President on 11.9.1994. The plaintiff challenged the election of the President and Vice President on the ground of fraud, forgery and cheating. According to him, he had, in fact, received the highest number of votes who had been defeated on account of the alleged fraud and cheating etc. According to the plaintiff, elections for Karnal Branch were held at Karnal on 21.8.1994 and all the 99 votes were cast in his favour. However, defendants No. 1 and 2 in connivance with defendant No. 3 prepared a forged ballot paper showing that all the 99 votes had been cast in favour of Dr. Ved Beniwal. Similarly, at Palwal though all the 26 votes were cast in favour of the plaintiff but the same had been rejected at the time of counting of votes as defendant No. 3 managed to interpolate on the ballot paper the figure of 2 against the name of Dr. Ved Beniwal. For the aforesaid averments reliance was placed upon the certificate issued by the Secretary of the Palwal Branch dated 24.9.1994.
3. Defendants put in appearance pursuance to the notice issued by the Court, filed written reply to the interim injunction application as well as written statement in the suit. The claim was resisted on a number of grounds, namely, that the suit is premature; that the civil Court at Hissar has no jurisdiction; that the plaintiff has no cause of action and so the suit is not maintainable. On merits, it was stated that defendant No. 3 was duly elected as President of the Association having defeated the plaintiff by 107 votes. Specifically denying the assertion made by the plaintiff that all the 99 votes at Karnal and 26 votes at Palwal were cast in favour of the plaintiff with the further assertion that all the votes cast at the aforesaid two places were in favour of the contesting defendant. Allegations of fraud, forgery have been merely levelled to prevent the defendant from taking charge of the office of the President. Allegations with regard to collusion with defendants No. 1 and 2 were also denied. The trial Court relying upon the letter from the President, Karnal Branch, Dr. R.C. Mittal, formed a prima facie view that all the 99 votes were cast in favour of Dr.Kamal Gupta. Similarly, the trial Court found substance in the contention of the plaintiff that all the 26 votes were cast in favour of Dr. Kamal Gupta. The trial Court proceeded on the premises that since there were only 26 members according to ballot total of such members comes to 28, this too supports the plea of plaintiff. The objection raised by the defendant that the plaintiff had already submitted a representation before the authorities and before the same could be decided, chose to approach the Court were simply brushed aside and so passed a restrained order preventing defendant No. 1 and 2 from handing over the charge and defendants No. 3 to 5 from assuming the charge till the disposal of the suit.
4. The lower appellate Court after noticing the factual aspects i.e. as per election result Dr. Ved Beniwal secured 735 votes followed by 628 votes secured by Kamal Gupta and Dr. K.D. Sharma polled 584 votes; again placed reliance upon the certificate given by Dr. R.C. Mittal, President of the Karnal Unit, and affidavit of Dr. S.C. Singal and Dr. Ramesh Aggarwal. Besides it, the Court relied upon the photo-stat copy of ballot paper bearing Code 04 showing that all the 99 votes were secured by Dr. Kamal Gupta. At the instance of the plaintiff, the Court summoned the postal department of the Post Office at Gurgaon and Karnal and so formed an opinion that some mischief had been played during the process of election and so found no ground to interfere in the discretion exercised by the trial Court restraining defendant No. 3 from assuming the office of the President. As regards the election of Vice President of the State Branch pertaining to defendants No. 4 and 5, the lower appellate Court found no justification to restrain them from functioning as Vice President of the State Branch. Accordingly, the impugned order of the trial Court was reversed qua defendant No. 4 and 5.
5. Before the matter could be examined on the date fixed, learned counsel for the respondent put in appearance and made a prayer that the matter be heard on the next date as he intended to contest the same. Accordingly the matter was taken up on 2.2.1995.
6. The first submission made by the learned counsel for the petitioners is that the Indian Medical Association, Haryana State Branch, is a registered Society having its headquarters at New Delhi. It has its own Memorandum, Rules and Bye-Laws. As per Bye-law 40(b) in case of election dispute, an Election Tribunal is to decide the same. The election disputes at State/Territorial levels are required to be decided by the Election Tribunal comprised of the President of the IMA and two immediate Past Presidents of the IMA. In case, any of the parties is not satisfied with the Tribunal at State/Territorial level, it may appeal to the President of the Association, who if he feels that a prima facie case for appeal exists, will refer it to a Tribunal as provided in Rule 40(a). The decision of the Tribunal is final and binding on all concerned. Sub rule (v) of Rule 40(b) further provides that no election shall be called in question except by an election petition presented to the President, IMA. According to the learned counsel for the petitioner, the respondent-appellant did file an election petition which, however, was dismissed by the Tribunal. Though an appeal had been provided under the Rules, the respondent did not avail of the remedy. As a matter of fact, the present suit has been filed during the pendency of the election petition i.e. on 29.9.1994 where his election petition/representation was dismissed on 2.10.1994. Thus, in view of the alternative remedy which the respondent-plaintiff, admittedly, availed, the present suit was not maintainable in law and so was liable to be dismissed. This present objection raised by the petitioner has been simply side-tracked by the Courts below.
7. It was next contended by the learned counsel for the petitioners that the grant of injunction amounts to decreeing of the suit of the plaintiff. Elaborating the counsel urged that challenge to the election is on the ground of fraud, forgery and cheating etc. for which evidence is yet to be adduced by the parties. To conclude on the basis of a photo copy of a ballot paper or on the sworn testimony of few interested persons, in the instant case, affidavit by president of the Karnal Unit or for that matter affidavit by one or two other voters, cannot be construed to be conclusive. At best it can be taken to be a piece of evidence and so could not be made basis to prevent a duly elected incumbent to hold the charge of the office. Both the Courts have erred in law in not keeping in view the well laid down principles especially with regard to the election matter that neither the election process nor the person elected pursuance to such election is in any manner restrained till the matter is finally decided. Reliance was placed upon the decision of the Delhi High Court in case reported as Delhi Cloth and General Mills Co. Ltd. Delhi and Anr. v. Dharam Singh, A.I.R. 1981 Delhi 157 and Mukhtiar Singh v. Jai Singh, 1990(1) All India Land Laws Reporter 299. Lastly, it was submitted that the operation of the impugned order if not stayed will deprive the petitioner of his legitimate right to hold the office which tern is only for one year.
8. Learned counsel for the respondents in support of the impugned order read in extenso the observations of the Courts below and placed much reliance upon the affidavit of the President of the Karnal Unit supported by affidavit of the voters as well as to the observation made by the lower appellate Court as regards despatching of the ballot paper and their reception in the Head Office at Gurgaon. According to the counsel, Karnal Unit had 104 members out of which 99 came present who cast their votes in favour of Dr. Kamal Gupta. A photocopy of the ballot paper showing that Dr. Kamal Gupta secured 99 votes was shown. This way both the Courts rightly formed a prima facie view in favour of the case set up by the respondents. Otherwise too, non grant of injunction would amount to denying the relief as by prolonging the trial, the petitioner (defendant) would have completed his tenure which is for one year only. In any case as both the Courts have exercised the discretion, the matter is not amenable to the revisional jurisdiction of this Court. Similarly, the counsel highlighted the alleged forgery committed with regard to votes polled at Palwal. According to the counsel, all the votes at Palwal too had been cast in favour of the plaintiff/respondent but on account of interpolation in the ballot paper wherein two votes have been shown to have been cast to Dr. Ved Beniwal ballot papers as such were rejected at the time of scrutiny. Had this not been done, the plaintiff would have been declared duly elected.
9. I have heard learned counsel for the parties at a considerable time and perused the material referred to by them during their submissions. Admittedly, as per election result declared. Dr. Ved Beniwal polled 735 votes followed by 628 votes secured by Dr. Kamal Gupta and 584 votes by Dr. K.D. Sharma for the office of President and so Dr. Ved Beniwal was declared to be President of the Haryana unit. Feeling dissatisfied with the election result, respondent in the first instance filed an election petition/representation before the authorities in terms of bye-laws/Rules and before the same could be decided by the Tribunal chose to approach the civil Court for declaration and injunction. Basis of the suit is alleged fraud, cheating, forgery etc. stated to have been committed by the office holders of the Association in collusion with Dr. Ved Beniwal. These serious allegations have yet to be enquired into by the Courts below. For seeking interim injunction restraining Dr. Ved Beniwal from assuming office of the Presidentship of the Association, reliance has primarily been placed upon the affidavit of President of the Karnal unit accompanied by the affidavit of two voters in support of the contention that all the 99 members who attended the general meeting on 21.8.1994 cast their votes in favour of Dr. Kamal Gupta. Similarly, for the contention that all the 26 votes at Palwal were cast in favour of Dr. Kamal Gupta, support was sought from the affidavit adduced in evidence. Both the Courts have relied upon these affidavits to form a prima facie view.
10. The approach of the Courts below is faulty. By relying upon these affidavits, the Courts below have almost decided in favour of the plaintiff giving a relief that might or might have not been granted at the time of passing of the decree. Such a recourse is highly impermissible in the context of the present case. Both the Courts below lost sight of the fact that election was held to the office of the President as well as Vice President of the Haryana Unit wherein Dr. Ved Beniwal as well as respondent were candidates for the office of the President. As per election result declared, Dr. Ved Beniwal defeated Dr. Kamal Gupta by 107 votes. Prima facie to hold that some fraud or forgery had been practised is to pre judge the highly contentious issue in the present case. The Court, in fact, has acted in haste in arriving at such a conclusion. Mention needs to be made of ballot paper pertaining to the general meeting in the Karnal segment. As per Photo copy of ballot paper which bears the signatures of the Honorary Secretary only; against the name of Dr. Kamal Gupta it records a figure of 99 in the column 'number of votes secured'. The meeting is stated to have been held on 21.8.1994. Interestingly, this document does not bear the signatures of any of the functionaries of the Karnal Unit, namely, President or Secretary or any other office holder. Such a document can be easily fabricated; as once the photo copy of the ballot paper has been made all that it is required is to insert the figure of 99 or the date when the election was held. This otherwise too stands falsified by the affidavit of Dr. Pardeep Khullar, Secretary of the Karnal Unit, stating to the contrary. In any case, these are contentious issues which can be only determined on the basis of evidence which is yet to be led.
11. It is now well settled that a person who seeks a temporary injunction has to satisfy the Court; (i) that there is a serious question to be tried in the suit and that on the facts before the Court there is a probability of his being entitled to the relief asked for by him; (ii) that the Courts interference is necessary from the species of the injury which normally the Court call an irreparable; and (iii) that the comparative mischief or inconvenience from withholding the injunction will be greater than which is likely to arise from granting it. Thus, the sum and substance is that the plaintiff has a prima facie case and balance of convenience is also in his favour and that non granting of such an injunction will cause irreparable injury. In the present case, an elected President is to hold the office for a period of one year only from 1.10.1994. The authorities have declared Dr. Ved Beniwal to be the duly elected President and to deprive him of his right on the basis of some infringement or infirmity is to stall a democratic process. The respondent participated in the election but was not successful. No grievance was made by his representative with regard to the alleged forgery or cheating at the time of counting. Per se it is difficult to hold that the functionaries of the IMA acted in collusion with the new incumbent to elect him as President in place of the respondent. It is a different matter that the Court may ultimately come to such a conclusion but that will be on the basis of evidence on record. This matter can be examined from another angle also. In case the orders impugned are allowed to remain in operation, the resultant effect would be that by the time the case is decided, the term of the office of President, in all probability, would expire by them; thereby causing irreparable injury to the petitioner. The opposite view is that with the vacation of stay order, the petitioner will indulge in dilatory tactics thereby frustrating the meritorious claim of the respondent based on unimpeachable material.
12. Having considered the matter in detail, I am of the view that the impugned order is unsustainable in law and is accordingly set aside. The petitioner having been elected as President cannot be deprived of his legitimate claim to assume the office of Presidentship till the matter is finally adjudicated by the Court.
13. Since the matter is urgent, the trial Court is directed to expeditiously decide the dispute, preferably within a short time, but after granting full opportunity to the parties to adduce evidence in support of their respective contentions. The parties are directed to appear before the trial Court on 7.3.95.