Kerala High Court
D. Jayakumar vs The India Evangelical Lutheran Church ... on 31 August, 2022
Author: C.S.Dias
Bench: C.S.Dias
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OP(C) No.1662 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
OP(C) NO. 1662 OF 2022
TO CONSIDER AND DISPOSE OF IA NO.1/2022 IN OS 700/2022 OF I
ADDITIONAL MUNSIFF COURT ,NEYYATTINKARA
PETITIONER/S:
D. JAYAKUMAR
AGED 64 YEARS
S/O DANAM NADAR,
JENNET BHAVAN, POOVAKKADU, VAZHUTHOOR,
NEYYATTINKARA VILLAGE, NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM, PIN - 695121
BY ADVS.
R.T.PRADEEP
M.BINDUDAS
K.C.HARISH
RESPONDENT/S:
1 THE INDIA EVANGELICAL LUTHERAN CHURCH (IELC)
REGISTERED OFFICE NO.47, ELDAMS ROAD,
TEYNAMPET, CHENNAI
REPRESENTED BY ITS ADMINISTRATOR,
2 JUSTICE D. HARIPARANTHAMAN (RETD.)
ADMINISTRATOR, IELC NO.47, ELDAMS ROAD,
TEYNAMPET, CHENNAI, PIN - 600018
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(C) No.1662 of 2022
C.S DIAS,J.
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OP(C) No.1662 of 2022
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Dated this the 31st day of August, 2022.
JUDGMENT
The original petition is filed to direct the Court of the Additional Munsiff-I, Neyyattinkara, to consider and dispose of IA No.1/2022 in OS No.700/2022 (Ext P2) on or before 3.9.2022.
2. The petitioner is the plaintiff in the above suit filed, inter alia, to declare the election to the office bearers of the IELC Ponvila Circle held on 9.8.2022 is void, as it was conducted in violation of the constitutional bye-laws of the first respondent. Along with the suit, the petitioner had filed Ext P2 application, for an order of temporary injunction, to restrain the respondents from inducting the office bearers of the Ponvila Circle. Even though Ext P2 application was moved, the court below only issued Ext P3 notice to the respondents, informing them that the 3 OP(C) No.1662 of 2022 application stands posted to 2.9.2022. The election to the third tier of the first respondent is slated on 10.9.2022. If Ext P2 application is not considered on or before 10.9.2022, it would render the suit infructuous. Hence, the court below may be directed to dispose of Ext P2 on or before 3.9.2022. Hence, the original petition.
3. Heard; Sri.R.T Pradeep, the learned counsel appearing for the petitioner and Sri.E.K Nandakumar, the learned Senior Counsel appearing for the respondents.
4. Going by the materials on record, it is seen that Ext P1 plaint was instituted on 25.8.2022. Along with the plaint, the petitioner had filed Ext P2 application, for an order of temporary injunction to restrain the respondents from inducting the office bearers of the Ponvila Circle declared elected by the second respondent in the election conducted on 9.8.2022, till the disposal of the suit. 4 OP(C) No.1662 of 2022
5. Order 39 Rule 3 of the Code of Civil Procedure, 1908, reads as follows:
3. Before granting injunction, Court to direct notice to opposite party:-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:
[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-
(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent].
6. A reading of the proviso to Rule 3 of Order 39 of the Code, substantiates that if the Court is satisfied that an ad-interim injunction is to be granted, then the 5 OP(C) No.1662 of 2022 Court shall without issuing notice to the opposite party and for reasons to be recorded that notice would defeat the application, grant an ad-interim injunction. However, if the court below is not satisfied that the application falls within the purview of the proviso to Rule 3 of Order 39 of the Code, the Court below shall, issue notice to the opposite party and after hearing both sides, decide whether or not to grant a temporary order of injunction.
7. In the case at hand, it is seen that even though the application was filed on 25.8.2022, the court below declined to invoke the proviso to Rule 3 of Order 39 and pass and ad-interim order of injunction. Instead, the court below has issued Ext P3 notice to the respondents informing them that the application stands posted to 2.9.2022.
In the above factual background, I am not inclined to pass any direction to the court below to consider and dispose of Ext P2 application invoking the supervisory powers of this Court under Article 227 of 6 OP(C) No.1662 of 2022 the Constitution of India. The court below is well within its bounds to consider and dispose of Ext P2 application, on its merits and in its proper perspective, after affording the respondents an opportunity to substantiate their stand by filing their written objection. Nonetheless, the court below shall bear in mind the election to the third tier is fixed on 10.9.2022.
With the above observation, the original petition is disposed of.
sd/-
sks/31.8.2022 C.S.DIAS, JUDGE 7 OP(C) No.1662 of 2022 APPENDIX OF OP(C) 1662/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF PLAINT DATED 20.8.2022 IN
O.S. NO.700/2022 BEFORE THE COURT OF 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA Exhibit P2 TRUE COPY OF I.A. NO.1/2022 DATED 22.8.2022 IN O.S. NO.700/2022 BEFORE THE COURT OF 1ST ADDITIONAL MUNSIFF, NEYYATTINKARA Exhibit P3 TRUE COPY OF NOTICE DATED 25.8.2022 IN I.A. NO.1/2022 IN O.S. NO.700/2022 OF THE COURT OF 1ST ADDITIONAL MUNSIFF, NEYYATTINKARA Exhibit P4 TRUE COPY OF I.A. NO.3/2022 IN O.S. NO.700/2022 DATED 24.8.2022 ON THE FILE OF COURT OF 1ST ADDITIONAL MUNSIFF, NEYYATTINKARA Exhibit P5 TRUE COPY OF I.A. NO.4/2022 IN O.S. NO.700/2022 DATED 25.8.2022 ON THE FILE OF COURT OF 1ST ADDITIONAL MUNSIFF, NEYYATTINKARA