Madras High Court
Basket Ball Federation Of India vs N.S.Ziauddeen on 26 March, 2013
Author: M.M.Sundresh
Bench: M.Jaichandren, M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 26.03.2013 Coram The Honourable Mr.Justice M.JAICHANDREN and The Honourable Mr.Justice M.M.SUNDRESH Original Side Appeal Nos.257 & 258 of 2012 & M.P.Nos.1 & 1 of 2012 O.S.A.No.257 of 2012 -------------------- Basket Ball Federation of India, rep. by its Honorary Secretary General Mr.Ajay Sud, B.12, Dhawandeep Building, No.6, Jantar Mantar Road, New Delhi-110 001. .. Appellant Vs. 1.N.S.Ziauddeen, 58/3, Alwarpet Street, Alwarpet, Chennai-600 018. 2.Tamil Nadu Basketball Association, rep. by its Honorary Secretary, 82/1, Play Ground Street, Kilpauk Garden Street, Chennai-600 010. .. Respondents O.S.A.No.258 of 2012 -------------------- Tamil Nadu Basketball Association, rep. by its Honorary Secretary, 82/1, Play Ground Street, Kilpauk Garden Street, Chennai-600 010. .. Appellant Vs. 1.N.S.Ziauddeen, 58/3, Alwarpet Street, Alwarpet, Chennai-600 018. 2.Basket Ball Federation of India, rep. by its Honorary Secretary General Mr.Ajay Sud, B.12, Dhawandeep Building, No.6, Jantar Mantar Road, New Delhi-110 001. .. Respondents Original Side Appeals filed under Order XXXVI Rule 1 of the Original Side Rules, 1956, read with Clause 15 of the Letters Patent against the order dated 10.07.2012 in O.A.No.214 of 2012 in C.S.No.187 of 2012. For appellant in O.S.A.No.257/2012 : Mr.P.S.Raman, S.C., for and 2nd respondent in M/s BFS legal O.S.A.No.258/2012 For appellant in : Mr.M.Vaidyanathan for OSA.No.258/2012 & Mr.S.Lokaiah 2nd respondent in O.S.A.No.257/2012 For 1st respondent : Mr.G.Rajagopal S.C., for in both appeals Mr.S.Jayakumar & Mr.Thanjai P.N.Chezhiyan COMMON JUDGMENT
M.M.SUNDRESH,J.
These original side appeals have been preferred by the appellants, who are the defendants in the suit in C.S.No.187 of 2012, challenging the order of the learned single Judge, granting an order of injunction in O.A.No.214 of 2012 in C.S.No.187 of 2012 dated 10.07.2012.
2. For the sake of brevity, the parties in these appeals are referred to in the same manner as mentioned in the plaint.
3. The facts in brief are as follows:
3.1. This case has got a chequered history. There are two different groups vying for pivotal positions to the Tamil Nadu Basket Ball Association, which is a body constituted under the Tamil Nadu Societies Registration Act, with a laudable object of conducting and developing the game of Basketball. There are a number of suits filed at the instance of the persons owing the allegiance to both the groups. Interim orders were also passed against some from functioning in their official capacity representing the Association.
3.2. The Basketball Federation of India, who is the appellant in O.S.A.No.257 of 2012 is the first defendant. The appellant in O.S.A.No.258 of 2012 is the second defendant, having been declared elected in pursuant to the appointment of Adhoc Committee by the first defendant to manage the affairs of the Tamil Nadu Basketball Association. The first defendant has been registered under the Societies Registration Act, 1860 (Central Act XXI of 1860). The Adhoc Committee was appointed by the appellant/first defendant, in and by the order dated 24.09.2008. The Adhoc Committee constituted, consisted of members from both groups. It has been decided by the first defendant to conduct election to the second defendant in view of the then prevailing dispute between the two groups. By the meeting convened by the first defendant on 02.02.2009, it has been decided among the two groups to hold the elections for the second defendant. Thereafter, the Adhoc Committee consisting of members from both the groups held its meeting on 08.02.2009. Further, on 23.03.2009, one more meeting was held by the Adhoc Committee, by which, both the groups had their persons as the Election Committee members formed by the Adhoc Committee. It was also resolved to conduct the elections on the zonal basis with secret ballets covering the Districts of the State of Tamil Nadu. Accordingly, one vote has been assigned for each registered club towards the conduct of the District Level Election.
3.3. A suit was filed by the one person from the side of one of the groups allegedly belonging to the group of the plaintiff before the City Civil Court, Chennai, in O.S.No.2531 of 2009 which was filed challenging the election. The said suit was filed just prior to the election proposed to be conducted by the Election Committee. An order of injunction was obtained on 03.04.2009. As against an ex-parte order of injunction, a revision was filed invoking the jurisdiction of this Court under Section 227 of the Constitution of India in C.R.P.(PD)No.902 of 2009. This Court has directed to conduct election, but the results to be withheld. Thereafter, a detailed order was passed on 12.08.2009, by which, strong observations have been made by this Court, on the plaintiff therein to the effect that he has suppressed the material facts. The observation of this Court in C.R.P.No.902 of 2009 dated 12.08.2009 are extracted hereunder.` "Suppression of relevant materials:-
17. The course of conduct adopted by the Honorary Secretary of the Association clearly shows that his intention was to obtain an order of Interim Injunction at any cost so as to stall the election process. The Order dated 17.09.2008 in O.A.No.999/2008 in C.S.No.882/2008 clearly shows that the Honorary Secretary and his father and brother along with the President of the Tamil Nadu Basketball Association were restrained from interfering with in any manner and in any capacity with the activities of the Tamil Nadu Basketball Association. It was also an admitted case that as on the date on which the suit was filed before the City Civil Court, the said order of injunction was very much in operation.
18. The first respondent being aware of the Order of Injunction passed as early as on 17.09.2008 should have disclosed the said fact in the plaint in O.S.No.2531/2009. The explanation given by the learned Senior Counsel for the first respondent that the resolution passed in the meetings held on 08.02.2009 and 23.03.2009 were exhibited as documents along with the plaint is clearly an afterthought. The first respondent was fully aware that while considering the application for interlocutory injunction, the trial Court would be reading mainly the pleadings and therefore, it was only a clever device invented by the first respondent to obtain an interlocutory Order. In case his intention was to obtain an Order of injunction on merits, he should have divulged the entire factual matrix in the plaint as well as in the affidavit filed in support of the injunction application. The suit filed by the group led by the first respondent and the suit filed against him were omitted to be disclosed in the plaint in O.S.No.2531/2009. Therefore, it cannot be said that it was an innocent omission and the intention was not to suppress material facts.
19. In the letter dated 10 January 2008, addressed to the revision petitioner, the first respondent has stated about the pending litigation thus:-
"There are two injunction orders of Honourable High Court of Madras, pending one in our favour and another one in favour of the other group."
20.However, when it comes to filing civil suit, he has conveniently omitted to mention the operation of the injunction order in the plaint.
21. The learned Trial Judge while granting an order of injunction was expected to consider the prima facie case, balance of convenience as well as irreparable injury. The order of injunction granted by the learned Trial Judge on 03.04.2009 does not contain reasons much less justifiable reasons."
3.4. Ultimately this Court has directed the revision petitioner to approach the trial Court for appropriate relief with a direction to the said Court to dispose of the interim application by taking note of the subsequent events as well. The Civil Court, accordingly, rejected the application for injunction on 30.09.2009. Consequently, elections have been conducted to the various Associations including the District, which is said to have been represented by the plaintiff at one point of time. Number of other suits have also been filed thereafter. In the meanwhile, members have been declared elected and they became the office bearers of the second defendant. The second defendant has started functioning with the newly elected members in pursuant to the election conducted in the year 2009.
3.5. Now, the plaintiff has filed the present suit in C.S.No.187 of 2012 seeking the relief of declaration and permanent injunction. Originally, the suit was filed against the first defendant alone. An application was filed seeking leave to sue, in which, notice was ordered. Thereafter, the plaintiff has filed an application for impleadment of the second defendant. Before the Court, the second defendant was represented by a person, none other than the plaintiff in O.S.No.2531of 2009. It also appears that there was already an injunction order pending against him at the relevant point of time. The suit filed by him was also said to have been dismissed. In pursuant to the impleading, the second defendant represented by the said person, had no objection for granting leave. It is not known as to how the impleading application was numbered even prior to the granting of leave. Be that as it may, the suit has been taken on file after granting of leave. An objection was raised by the second defendant stating that the person, who filed vakalath did not have the authorisation and he is not competent to represent. Thereafter, the second defendant was represented by some other person, who has been elected in pursuant to the election held by the Adhoc Committee. These are the facts surrounding the case.
3.6. It is the specific case of the plaintiff that he has filed the suit in his capacity as a person, who has played the game of Basketball and also as a member of the Namakkal District Basketball Association. This averment has been made specifically in paragraph 5 of the plaint. The sum and substance of the averments in the suit is that the first defendant does not have the power or the authority to interfere with the affairs of the second defendant. According to the plaintiff, the first defendant has been registered under the Societies Registration Act, 1860 (Central Act XXI of 1860), whereas the second defendant has got registered under the Tamil Nadu Societies Registration Act, 1975. The by-laws of the first defendant do not provide for such an election, even though the second defendant is a member of the first defendant. The plaintiff is not able to challenge the impugned communication, in view of the then prevailing fact situation. Hence, the plaintiff prayed to declare the order of the first defendant dated 24.09.2008 as null and void and consequently, sought for a permanent injunction restraining the first defendant from interfering with the affairs of the Tamil Nadu Basketball Association. This is in short, the case of the plaintiff.
3.7. Pending suit, an application was filed by the plaintiff in O.A.No.214 of 2012 in the month of March, 2012. The plaint was filed on 02.12.2011. In the said application, an injunction was sought for restraining the first defendant from recognizing the activities and functioning of the State Level office bearers and Executive Committee members of the Tamil Nadu Basketball Association, in pursuant to the order dated 24.09.2008, pending disposal of the suit. The learned single Judge, allowed the application by holding that as the order passed by the first defendant prima facie appears to be one without jurisdiction and therefore, as a natural consequence, an order of injunction should follow. Challenging the said order, the defendants have come up with independent appeals.
3.8. The learned single Judge was pleased to hold that the by-laws of the first defendant did not authorise the appointment of the Adhoc Committee. As Section 22 of the Limitation Act deals with continuing breaches and torts, the question of limitation cannot be put against the plaintiff. When an order is void ab initio, the consequence would follow. There is no necessity to implead the elected office bearers as the very order based upon which the Adhoc Committed was appointed itself is one without jurisdiction. Therefore, on that footing, the learned single Judge has allowed the application. Challenging the said order, these appeals have been filed. At the time of admitting the appeals, an order of stay was granted which is still in force.
4. The submissions of the learned counsels appearing for the appellant in both the appeals:
4.1. Shri P.S.Raman, learned Senior Counsel appearing for the appellant in O.S.A.No.257 of 2012, would submit that here is a case, in which, two groups have accepted the conduct of the election. The suit has been filed by the plaintiff, who claims to be a member of the District Association as well as a person, who has played the game of basketball. He has no locus standi to challenge the decision of the first defendant with whom the second defendant is a member. The by-laws of the first defendant are very specific and they bind its members. Rule 16 of the by-laws read with Rule 3 would make it clear that the appellant has got ample jurisdiction. The fact that the second defendant is the member of the appellant/first defendant is not in dispute. It is the appellant, who had got over all jurisdiction to regulate and promote the game of basketball. The learned single Judge has not taken into consideration all the facts involved, but merely proceeds on a wrong presumption of fact and law and an order of injunction ought not to have been granted after a period of two years from date of the election of the office bearers. The application also ought to have been dismissed on the ground of non-joinder of necessary parties. There is no cause of action much less a legal right in favour of the plaintiff against the first defendant. He also submitted that the suit having been filed in the personal capacity is not maintainable in law and in support of his contentions, the learned counsel has made reliance upon the following judgments.
(i) DR.A.C.MUTHIAH V. THE BOARD OF CONTROL FOR CRICKET IN INDIA, REP. BY ITS PRESIDENT, CHENNAI AND ANOTHER (2010) 3 CTC 577;
(ii) DR.A.C.MUTHIAH V. THE BOARD OF CONTROL FOR CRICKET IN INDIA, REP. BY ITS PRESIDENT, CHENNAI AND ANOTHER (2011) 6 Supreme Court Cases 617; and
(iii) KHATRI HOTELS PRIVATE LIMITED AND ANOTHER V. UNION OF INDIA AND ANOTHER (2011) 9 Supreme Court Cases 126.
4.2. The learned counsel appearing for the appellant in O.S.A.No.258 of 2012 would submit that the very suit itself lacks bona fides. Both the groups took part in the meetings held and gave their consent. The plaintiff has not chosen to challenge the alleged removal. The documents filed would show that the plaintiff was not working as a President of the Namakkal District Basketball Association. The injunction sought for is also beyond the scope of the relief sought for in the main suit. What has been done by the first defendant is only a facilitation between two groups by way of conducting election. The learned single Judge has committed an error in giving a wrong factual finding, as if, the plaintiff was the president of the District Association. It is not the case of the plaintiff himself as seen from his plaint, that he was functioning as District President till the new elections were conducted. The newly elected office bearers are working as on today. Accordingly, both the learned counsels submitted that the appeals will have to be allowed.
5. The submissions of the first respondent/plaintiff:
5.1. Shri G.R.Rajagopalan, learned Senior Counsel appearing for the first respondent/plaintiff, would contend that the issue to be decided in the appeals is as to whether the first defendant has got jurisdiction to pass the order under challenge in the suit. The learned single Judge having come to the prima facie conclusion that the first defendant does not have the jurisdiction, consequently, granted the relief of injunction. The injunction order was granted as it would take substantial time to decide the suit. A void order would vitiate all subsequent actions. There is no question of limitation against an void order. When the learned single Judge has considered the said issue, this Court, in the nomenclature, shall not interfere with the same. Therefore, the learned Senior counsel would submit that the appeals will have to be dismissed.
6. DISCUSSIONS:
6.1. A perusal of the order of the learned single Judge would show that the underlining principles governing Order XXXIX Rule 1of the Code of Civil Procedure have not been taken into consideration. While considering the application for injunction, the Court will have to see as to whether a prima facie case is made out and the balance of convenience is in favour of the party seeking an order of injunction apart from irreparable loss that would likely to arise in the event of not granting the order sought for. It is the cardinal principle governing an application seeking an order of injunction. Even of the three criterias primacy has to be given to irreparable loss even in a case where a prima facie case is shown. Even though the said principle is well known, we would like to reiterate the same by extracting the recent pronouncement of the Honourable Apex Court in M/s BEST SELLERS RETAIL (INDIA) PVT. LTD., V. M/S ADITYA BIRLA NUVO LTD., AND OTHERS ((2013) 1 Law Weekly 238).
14. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. In Dalpat Kumar & Anr. V. Prahlad Singh & Ors. [(1992) 1 SCC 719] this Court held:
"Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in irreparable injury to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages."
6.2. Hence considering the said settled position of law and after going through the order under challenge, we are of the view that the learned single Judge has not adverted to the principles governing under Order XXXIX Rule 1 of the Civil Procedure Code, apart from not taking note of the fact that the exercise of power under Order XXXIX Rules 1 and 2 is a judicial discretion to be exercised on considering the relevant facts. We are also of the view that Order XXXIX Rule 2 of Code of Civil Procedure is also not applicable to the facts on hand.
6.3. Now coming to the case on hand and before us to see as to whether the plaintiff has made out a prima facie case. The suit is filed by the plaintiff mainly as a person interested in basketball and being a member of the District Association. The records produced would clearly show that both the groups took part in the meeting held by the first defendant. They also form part of the Adhoc Committee. The Adhoc Committee elected the Election Committee, which conducted the election. Therefore, prima facie, it is seen that both the groups did not have any serious objection for election. They also participated in the elections. Now the plaintiff seeks a declaration without even challenging his alleged removal as a President of the District Association. The fact as to whether he was in fact the President or not itself is in dispute. Further more, it is not the main basis upon which he has filed the suit as seen from the averments. However, the learned single Judge gave a factual finding in favour of the plaintiff, based on which the application was decided. Even otherwise, he has not chosen to challenge the said alleged removal said to have happened in the year 2008. Now only in the year 2012, he has filed an application for injunction, that too, against the office bearers of the second defendant. We are at a loss to note as to why the plaintiff has not challenged the alleged removal, but seeks an injunction against the office bearers with whom he does not have any direct grievance. The plaintiff is not a member of the first defendant. Therefore, prima facie, we are of the view that the very maintainability of the suit itself is in doubt and hence, the learned single Judge ought not to have granted an order of injunction. These appeals have also not been gone into by the learned single Judge. Further more, we are of the prima facie view that a conjoined reading of the Rule 3 and Rule 16 provide for sufficient power to the first defendant to act in the interest of the game basketball as culminated in the order under challenge in the suit. Even otherwise, we find that such an action is warranted in view of the then prevailing situation created by two groups. It can also be termed as a facilitation as a way out to resolve the dispute. Accordingly, we hold that there is no prima facie case in favour of the plaintiff.
6.4. Now, coming to the question of balance of convenience and irreparable loss, there is neither a balance of convenience nor a irreparable loss that would arise to the plaintiff. Admittedly, the office bearers of the second defendant have been functioning over the years. Consequently, there is no irreparable loss. Even assuming that the injunction sought for is granted, the appellant will not have any benefit as he has not challenged his removal. Even the alleged term of office, in the event of his continuance but for the subsequent election, has also expired now. Therefore, looking from any angle, we do not find neither the balance of convenience nor any irreparable loss. It is also to be taken into consideration that admittedly the persons have been elected and working as the office bearers of the second defendant in pursuant to the election. Merely because the second defendant is represented, it cannot be said that those office bearers are not entitled to be heard. A perusal of the injunction application would show that it has been specifically directed against the office bearers. Therefore, we are of the view that the plaintiff ought to have made the office bearers as parties. In other words, granting of an order of injunction against the third party without impleading and without hearing it cannot be sustained in the eye of law. We are of the firm view that the election conducted has created a legal right, which is vested with the elected persons. Therefore, such a right cannot be interfered without even hearing them. Hence, even on that score also, the order of injunction cannot be granted in favour of the plaintiff.
6.5. The learned single Judge has taken into consideration the issues which are to be decided at the time of deciding the suit. In this case, as discussed above, neither of the two groups have raised any serious objection for the Adhoc Committee and consequential election. It is on record that both the groups had participated in the process by contributing their members to the Adhoc Committee and Election Committee. They also contested the election. Admittedly, the second defendant is a member of the first defendant. The second defendant did not have any objection for the method adopted by the first defendant. Now what the plaintiff seeks is to get into the shoes of the second defendant by way of questioning the action of the first defendant. Prima facie, we are of the view that such an action is impermissible in law. We are also of the further view that the judgments taken note of by the learned single Judge are not applicable to the facts on hand, particularly, in deciding the application for injunction filed by a party, who is only a member of a District Association.
6.6. Hence, in the light of the discussions made above, we are constrained to allow these Original Side Appeals and accordingly, they are allowed. However, we make it clear that the dismissal of these appeals will not stand in the way of the plaintiff in filing such applications, which he deems fit and proper in the interest of justice including a prayer for a fresh election. As and when such applications are filed, they will have to be decided on their own merits and without being influenced by any of the observations made by us in these appeals as they have been made on a prima facie consideration. Considering the facts and circumstances of the case, we request the learned single Judge dealing with the final hearing of the civil suit to expedite the same. No order as to costs. Consequently, connected miscellaneous petitions are closed.
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