Madras High Court
The Aruvipuram Dharma Paripalan vs K.Karunakaran on 14 December, 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14 .12.2011 CORAM THE HON'BLE Mr. JUSTICE K.VENKATARAMAN C.R.P. (PD) No.4420 of 2011 and M.P.No.1 of 2011 1.The Aruvipuram Dharma Paripalan Yogam. 2.Vellapalli K.Nadesan 3.E.V.Vasavan 4.The Aruvipuram Sir Narayana Dharma Paripalana Yogam. ... Petitioners Vs. K.Karunakaran ... Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India to dismiss and strike off the suit in O.S.No.8038 of 2011 pending on the file of the learned XVI Assistant Judge, City Civil Court, Chennai. For petitioners : Mr.V.M.G.Ramakkannan For respondent : Mr.S.Prabaharan, for Mr.M.Antony Selvaraj, Caveator. O R D E R
The present civil revision petition is filed seeking to dismiss and strike off the suit in O.S.No.8038 of 2011 pending on the file of the learned XVI Assistant Judge, City Civil Court, Chennai.
2. The defendants in the said suit are the petitioners herein and the plaintiff thereon is the respondent.
3. The respondent has laid the said suit against the petitioners claiming to be the member of the Chennai Sree Narayana Dharma Paripalanam (SNDP) Union, making several allegations against the second petitioner and as well as the third petitioner. In the said suit, the respondent has taken out two applications in I.A.Nos.17417 and 17418 of 2011 for interim injunction restraining petitioners 2 and 3 from in any manner dealing or encumbering or alienating the suit property and for interim injunction restraining the second petitioner herein from in any manner representing / functioning as General Secretary of the first petitioner respectively. By an order dated 31.10.2011, interim injunction was granted in both the applications by the said Court. The present civil revision petition has been filed, as stated already, to strike off the plaint.
4. The present civil revision petition was filed on the following grounds viz.,
(a) The Court where the suit has been filed, has no jurisdiction to entertain the suit and pass interim orders.
(b) Section 10GB of the Companies Act, 1956 expressly prohibits civil Courts to entertain the suits pertaining to the administration or affairs of the company.
(c) The relief that has been sought for in the suit would disclose that the respondent is seeking to restrain the elected directors and administrators viz., petitioner 2 and 3 herein from functioning and representing the first petitioner company without even challenging their election and appointment. Hence, the suit is not maintainable in law.
(d) The suit is barred under Section 11 C.P.C.
(e) Rule 71 of the Rules of the SNDP Yogam provides for resorting disputes pertaining to constitution of branches of the first petitioner company and conduct of election to an arbitrator.
(f) The members of the company have agreed with regard to the territorial jurisdiction for referring the disputes between them pertaining to conduct of election. In view of the same, the suit filed before the City Civil Court at Chennai is not maintainable.
5. On behalf of the respondent, the following contentions have been put forth viz.,
(a) The remedy of the petitioners, if aggrieved over the order of interim injunction granted by the trial Court, is to file an application for vacating the order of interim injunction or to file a civil miscellaneous appeal against the said order and the civil revision petition before this Court is not maintainable.
(b) The petitioners without filing vakalat and without filing a counter in the applications for interim injunction, have straight away approached this Court by filing the present civil revision petition under Article 227 of the Constitution of India, which is not sustainable / maintainable. This Court cannot see the merits and de-merits of the matter in issue, which has to be considered only by the trial Court, where the suit is pending.
6. Learned counsel appearing for the petitioners relied on the following decisions:-
(i) A.I.R. 1995 SUPREME COURT 1766 M/s.Angile Insulations v. M/s. Davy Ashmore India Ltd. and another.
(ii) A.I.R. 1996 MADRAS 140 Sri.Suryanarayana Paper and Boards Private Limited and other v. V.Padmakumar and 2 others.
(iii) A.I.R. 2002 SUPREME COURT 2402 M/s.Shriram City Union Finance Corporation Ltd., v. Rama Mishra
(iv) A.I.R. 2002 MADRAS 396 M/s.Consolidated M/s.Gujarat Carbon and Industries Ltd., and another.
(v)A.I.R. 2005 MADRAS 72 Suguna Poultry Farm Ltd and others v. Arul Mariamman Textiles Ltd. and others
(vi)A.I.R. 2006 SUPREME COURT 1474 Kishore Kumar Khaitan and Anr. v. Praveen Kumar singh
(vii)2010 (4) CTC 690 Southern and Rajamani Transport Private Limited v. R.Srinivasan.
7. Learned counsel appearing for the respondent relied on the following decisions:-
(i) 2000 (6) Supreme 269 A.Venkatasubbiah Naidu vs. S.Chellappan & Ors.
(ii)(2011) 3 M.L.J. 288 V.Krishnamoorthy vs. Balakrishnan and another.
(iii)(2010) 1 M.L.J. 1056 S.Gunaseelam v. C.Valarmathi and others.
(iv)(2010) 1 M.L.J. 229 Ootacamund Club v. Mehta
(v)1980 Kerala 611 R.Prakasam v. Narayana Dharma Paripalana Yogam.
(vi)(2010) 6 M.L.J. 172 Governing Council of American College v. Dr.M.D.Christober.
8. I have carefully considered the submissions made by the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent.
9. The respondent has filed the said suit against the petitioners for the following reliefs:-
" (i) For a declaration that the 2nd defendant or his men or agents or anyone claiming under him in any manner has no right to function as General Secretary of the 1st defendant, The Aruvipuram Sri Narayana Dharma Paripalana Yogam, having registered office at Siva Temple Perumkadaila Desam, Neyyatinkara Taluk, Tiruvanandapuram District.
(ii) For a declaration that the 3rd defendant or his men or agents or anyone claiming under him in any manner has no right to function as the Administrator of the Chennai S.N.D.P. Union, having office at 'Gurukripa' 92 / A2, 9th Main Road, Santhi Colony, Anna Nagar, Chennai-600 040.
(iii) For a permanent injunction restraining the 2nd defendant, his men, agents, servants or any one authorized by him, claiming through or under them from in any manner representing / functioning as General Secretary of the 1st defendant, The Aruvipuram Sri Narayana Dharma Paripalana Yogam, having registered office at Siva Temple Perumkadaila Desam, Neyyatinkara Taluk, Tiruvanandapuram District, pending disposal of the above suit.
(iv) For a permanent injunction restraining the 3rd defendant, his men, agents, servants or any one authorized by him, claiming through or under him from in any manner representing / functioning as administrator of the Chennai S.N.D.P. Union, having Office at 'Gurukripa' 92 / A2, 9th Main Road, Santhi Colony, Anna Nagar, Chennai-600 040.
(v) For a permanent injunction restraining the defendants 2 and 3, their men, agents, servants or any one authorized by them, claiming through or under them from in any manner dealing or encumbering or alienating or distributing the possession or altering the features or the structures of the schedule mentioned properties which belongs to or is managed by or through the Chennai S.N.D.P. Union or to or by any one of its constituent shakas.
(iv) costs of the suit."
10. In the plaint, several allegations have been made against the second petitioner as well as the third petitioner. Admittedly, except the third petitioner, all other petitioners herein are residing at Kerala. The first relief that has been sought for by the respondent is " for a declaration that the second petitioner herein has no right to function as the General Secretary of the first petitioner." The first petitioner and the second petitioner are functioning at Tiruvanandapuram District. The third petitioner was appointed as an Administrator by the second petitioner even as per the averments made in the plaint.
11. Now, the first and foremost aspect that has to be seen is that the respondent herein though raised various allegations against the second and third petitioners, has not questioned the election of the second petitioner as the General Secretary of the first petitioner Yogam. Even though it was pleaded on behalf of the respondent that the second petitioner was not duly elected, he has not chosen to challenge his election. Further, the respondent has not even sought for a declaration that the appointment of the third petitioner as Administrator by the second petitioner is not valid especially when the respondent raised a plea that the appointment of the third petitioner is not valid. When the respondent has not questioned the election of the second petitioner as the Secretary of the first petitioner Yogam and has not questioned the appointment of the third petitioner as the Administrator of the Chennai SNDP Union, I am of the considered view that the respondent cannot seek for a declaration that the second petitioner has no right to function as a General Secretary and for a declaration that the third petitioner has no right to function as an Administrator of the Chennai SNDP Union. Even, the consequent prayer, without challenging the election of the second petitioner and also the appointment of the third petitioner as Administrator, cannot be made.
12. Thus, I am of the considered view that the respondent without challenging the election and appointment of the second and third petitioners respectively, cannot maintain the reliefs set out above. This point is held in favour of the petitioners.
13. The next contention raised by the learned counsel appearing for the petitioners is that except the third petitioner, all the petitioners are at Kerala. While so, the suit that has been filed at Chennai is not maintainable.
14. Before adverting to the said contention, it would be useful to extract paragraphs 42 and 43 of the plaint, wherein the cause of action is set out and the same is extracted here under:-
" 42. The plaintiff submits that part of cause of action for filing this suit arose as per proviso and explanation of Section 16 (d) and Section 20 of the Civil Procedure Code, 1908.
43. The plaintiff submits that the cause of action for filing the present suit arose on 1903 when the 1st defendant Yogam was formed and when the Chennai S.N.D.P. Union was formed with its own bye-laws and memorandum of association when several properties were purchased by the Chennai S.N.D.P. Union through its shakas for the benefit of its members; on 26.9.2009 when the 3rd defendant was appointed as the Administrator of Chennai S.N.D.P. Union; on 4.9.2010 when the 105th Annual General Body Meeting was alleged to have been held wherein the 2nd defendant was stated to have been illegally elected as General Secretary of the 1st defendant Yogam on 30.9.2011 when the plaintiff has made oral and written representations both orally and in writing to the President and Vide-President of the 1st and 4th defendants to desist from dealing, encumbering or alienating the properties of Chennai S.N.D.P. Union in any manner and also to remove the 2nd and 3rd defendants from 1st defendant, on and other dates when the defendants have been trying to adversely deal with the properties of the Chennai S.N.D.P. Union so as to defeat the interest of the members of Chennai S.N.D.P. Union."
15. Section 16 C.P.C. speaks of suits to be instituted where the subject matter situate. The said provisions is usefully extracted hereunder:-
"16. Suits to be instituted where subject-matter situate:- Subject to the pecuniary or other limitations prescribed by any law, suits --
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property;
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property;
(d) for the determination of any other right to or interest in immovable property.
(e) for compensation for wrong to immovable property.
(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate;
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court, within the local limits of whose jurisdiction the defendant actually and voluntarily reside, or carries on business, or personally works for gain".
16. The cause of action set out above and the reliefs that have been sought for would amply establish that the Court at Chennai has no jurisdiction at all to decide the issue raised in the suit. The petitioners being the defendants in the said suit, except the third petitioner, all are at Kerala. While so, it is not known how the Court at Chennai has entertained the suit. Even section 16 C.P.C. cannot be invoked since the main relief that has been sought for by the respondent which has been set out earlier would disclose that the main grievance of the respondent seems to be about the functioning of the second petitioner as General Secretary of the first petitioner and the functioning of the third petitioner as the Administrator of the Chennai S.N.D.P. Union. The other reliefs pertaining to permanent injunction restraining them from alienating or encumbering the suit property is only a consequential one. When the main relief cannot be granted by the City Civil Court at Chennai, since it has no jurisdiction, the consequent prayers themselves will not alone constitute the jurisdiction to entertain the suit. Even Section 20 C.P.C. cannot be invoked for filing the suit at Chennai. Admittedly, as stated already, the first petitioner company is situated at Kerala and petitioners 2 and 4 are at Kerala. It is not even the case of the respondent that leave has been sought for from the City Civil Court at Chennai to institute the suit in view of the fact that the third petitioner is residing at Chennai.
17. Summing up the entire discussions made above, I am of the considered view that the Court at Chennai has no jurisdiction to decide the suit.
18. That apart, Rule 71 (a) of the Rules of the S.N.D.P. Yogam (herein after referred to as the Rules) contemplates that litigations should be filed only in Courts functioning at Kollam. It would be useful to extract Rule 71(a) of the said Rules and the same is extracted here under:-
" 71.(a) If any litigation is filed against the Yogam for any relief, then that litigation must be filed only in Courts functioning at Kollam where the Head Office of Yogam is situated".
While so, I am of the considered view that the Court at Chennai has no territorial jurisdiction to decide the suit filed by the respondent.
19. The third issue that has to be decided in this civil revision petition is whether in view of Section 10GB of the Companies Act, the Civil Court is prohibited to entertain the suit.
20. Before adverting to the said issue, it would be useful to re-produce Section 10GB of the Companies Act and the same is extracted hereunder:-
" 10GB. Civil Court not to have jurisdiction:- (1) No civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force".
The respondent, being a member of the Chennai SNDP Union, if aggrieved over the mal-administration or mis-administration respectively of the first petitioner Yogam and Chennai SNDP Union, should have approached the Company Law Board under Sections 397 and 398 of the Companies Act. Sections 397 and 398 of the Companies Act, therefore, are usefully extracted hereunder:-
" 397. Application to (Tribunal) for relief in cases of oppression:- (1) Any member of a company who complaint that the affairs of the company are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members (including any one or more of themselves) may apply to the Tribunal for an order under this section, provided such members have a right so to apply in virtue of Section 399.
(2) If, no any application under sub-section (1), the Tribunal is of opinion --
(a) that the company's affairs are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members; and
(b) that to wind up the company would unfairly prejudice such member or members, but that otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up;
the Tribunal may, with a view to bringing to an end the matters complained of, make such order as it thinks fit.
398. Application to Tribunal for relief in cases of mismanagement:- (1) Any members of a company who complain:
(a) that the affairs of the company are being conducted in a manner prejudicial to public interest or in a manner prejudicial to the interests of the company; or
(b) that a material change not being a change brought about by, or in the interests of, any creditors including debendure holders, or any class of shareholders, of the company has taken place in the management or control of the company, whether by an alteration in its Board of directions or manager or in the ownership of the company's shares, or if it has no share capital, in its membership, or in any other manner whatsoever, and that by reason of such change, it is likely that the affairs of the company will be conducted in a manner prejudicial to public interest or in a manner prejudicial to the interests of the company;
may apply to the Tribunal for an order under this section, provided such members have a right so to apply in virtue of Section 399.
(2) If, on any application under sub-section (1), the Tribunal is of opinion that the affairs of the company are being conducted as aforesaid or that by reason of any material change as aforesaid in the management or control of the company, it is likely that the affairs of the company will be conducted as aforesaid, the Tribunal may, with a view to bringing to an end or preventing the matters complained of or apprehended, make such order as it thinks fit."
21. Section 36 of the Companies Act envisages that the memorandum and articles would bind the company and the members thereof. In the case on hand, the respondent claims to be a member of Chennai SNDP Union and hence, he is also bound by the memorandum and articles of the first petitioner. If so, the respondent should have instituted the suit before the Court at Kollam as per Rule 71(a) of the said Rules or should have sought for arbitral proceedings as required under Rule 71(a) of the Rules. In fact, each one of the members including the respondent has signed the application for membership of Chennai SNDP Union, wherein they have simultaneously taken oath to abide by SNDP Yogam Rules. Having undertaken to abide by the rules, the respondent cannot be heard to say that he will bye-pass the rules and file the suit before the civil Court at Chennai. This point is also held against the respondent.
22. Yet another contention that has to be considered is pertaining to invoking of arbitral proceedings. Rule 71 of the Rules of the SNDP Yogam stipulates that if any dispute arises, the same shall be referred to an Arbitrator. Rule 71 of the said Rules is usefully extracted hereunder:-
" 71. If any dispute touching the Articles of Association between members of Sakha, between members of Sakhas and Sakhas, between the members of Sakhas and unions, between members of shakas and yogam, between the unions and the disputes between the Unions and yogam shall be referred to the Arbitration appointed by the Council or the Board of Yogam. When the Yogam is a party to the dispute, each party has the right to suggest one Arbitrator and if any difference of opinion between the Arbitrator so appointed, the said difference of opinion has to be referred to Umpire suggested by the Yogam Council and such decision shall be final."
The respondent, if aggrieved over the action of the second petitioner or the third petitioner, ought to have invoked Rule 71 of the said rules which provides for appointment of an Arbitrator.
23. Learned counsel appearing for the respondent, however, strenuously contended that the petitioners if at all aggrieved over the order of interim injunction, ought to have filed an application for vacating the order of interim injunction or to file a civil miscellaneous appeal questioning the order of interim injunction. Without doing so, according to the learned counsel appearing for the respondent, the petitioners cannot maintain the civil revision petition.
24. I am of the considered view that the said contentions have to be met on three angles viz., (I) The petitioners have not come forward with the present civil revision petition questioning the order of interim injunction that has been granted by the Court referred to above. The grievance of the petitioners seems to be not only against the grant of an order of interim injunction but also on the ground of jurisdiction, which has been discussed earlier. In view of the same, I am of the considered view that on behalf of the respondent, it cannot be urged that the remedy of the petitioners lies only by filing an application to vacate the order of interim injunction or filing a civil miscellaneous appeal against the same and not a revision before this Court. The relief that has been sought for by the petitioners is to strike off the plaint and not one against the grant of an order of interim injunction.
(II) Even assuming that the petitioners have challenged the order of interim injunction granted by the learned trial Judge, it has to be decided whether they can do so without exhausting the alternative remedy which is available to them viz., filing an application to vacate the interim order or filing a civil miscellaneous appeal against the said order.
(A) Learned counsel appearing for the respondent strenuously contended that the petitioners have to exhaust the said remedy and cannot straight away come to this Court by filing the present civil revision petition. In support of this contention, the learned counsel appearing for the respondent relied on the decision reported in 2000 (6) SUPREME 269. By relying on the said decision, the learned counsel appearing for the respondent contended that against the order of granting exparte interim injunction, the party aggrieved over the same has to avail himself of remedies available under Code of Civil Procedure before he resorts to constitutional remedy. However, that is not the case where the person who has challenged the order of interim injunction granted by the trial Court, has raised a plea of jurisdiction or other issues as discussed earlier. Considering the issues involved in the present suit, I am of the considered view that the normal course that should be adopted by the petitioners as per the decision referred to above, may not be necessary to be followed by the petitioners.
(B) Yet another decision that was relied on by the learned counsel appearing for the respondent is reported in (2011) 3 M.L.J. 288 is concerned, in the said decision, this Court has held that against the order made under Order 7 Rule 11 C.P.C. for rejection of the plaint, alternative remedy has to be exhausted before invoking Article 227 of the Constitution of India. While dealing with the said issue, the learned Judge of this Court has held that the maintainability of the suit cannot be decided by the High Court in the revision which involves dealing with the merits and demerits of the case by the trial Court. However, in the case on hand, I have extensively dealt with how the suit is not maintainable before the Civil Court at Chennai and on other issues. Hence, this judgment also may not come to the rescue of the respondent.
(C) In the decision reported in (2010) 1 M.L.J. 1056 also which was relied on by the learned counsel appearing for the respondent, a revision was filed against the order rejecting the plaint under Order 7 Rule 11 C.P.C. While dealing with the said issue, this Court has held that the disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 C.P.C. The claim in the present suit is not about the falsity of the claim made by the respondent. But, even the fundamental issue pertaining to jurisdiction has been raised and hence, the said judgment also may not come to the rescue of the respondent.
(D) The other decision relied on by the learned counsel appearing for the respondent reported in (2010) 1 M.L.J. 229, is also pertaining to a revision filed before this Court under Article 227 of the Constitution of India against the rejection of the application made under Order 7 Rule 11 C.P.C. The ratio decidendi followed in the said case is usefully extracted hereunder:-
" As far as remedy available to a defendant who got defeated in a petition seeking rejection of plaint under Order 7 Rule 11 C.P.C. for not disclosing the cause of action is concerned, it is well settled that he has to prefer appeal and any error reportedly committed by the trial Court has to be corrected by the appellate Court in the matter of Order 7 Rule 11 which involves discussion of contentious issues of facts and the High Court under Article 227 of Constitution cannot sit as an appellate Court in exercise of power under Article 227."
Thus, the issue involved in the present case is entirely on different footing, which does not go with the ratio that has been decided in the said judgment. Hence, the said judgment also will not come to the rescue of the respondent.
(E) Yet another decision that was relied on by the learned counsel appearing for the respondent is reported in (2010) 6 M.L.J. 172. In the said decision also, the learned Judge of this Court has held that against the order of interim injunction, the remedy would not be a revision under Article 227 of the Constitution of India. In the said decision, this Court found that the trial Court on the basis of the documents filed, has come up a prima facie conclusion and granted an order of interim injunction, which shall not be interfered with in a revision under Article 227 of the Constitution of India. Whether the order of the trial Court is right or wrong has to be decided, as rightly observed by this Court, before the trial Court by filing an application to vacate the order of interim injunction or filing a civil miscellaneous appeal questioning the same. At the same time, in the said decision, it has been held that it is not the case of the revision petitioner that the lower Court has no jurisdiction to decide the suit or the jurisdiction was improperly exercised in a manner not known to law. Paragraph 30 of the said judgment, is thus usefully extracted hereunder:-
" 30. In this case, it cannot be stated that the lower Court has no jurisdiction or the jurisdiction was improperly exercised in a manner not known to law. Further, the supervisory jurisdiction will not confer the High Court to go into the merits and demerits of the case and finding of the lower Court cannot be re-appreciated and this Court cannot evaluate the evidence or correct errors in drawing inferences."
Hence, I am of the considered view that the said judgment also will not come to the rescue of the respondent.
(III) While granting interim injunction restraining petitioners 2 and 3 from in any manner dealing or encumbering or alienating or disturbing the possession or altering the features or the structures of the schedule mentioned properties, the learned trial Judge has passed the following order:-
" Heard. Perused the documents and affidavit, on keen perusal of the plaint documents and preferably by document No.20, it is reliably learnt that the defendants has taken steps to illegally dispose of the properties belonging to the Chennai 'SNDP' Union to some third parties, by which the Chennai 'SNDP' Union and its members would be put to irreparable loss and hardship which cannot be compensated, hence, prima facie case made out and balance of convenience also lies upon the petitioner ad interim injunction granted against the 2nd and 3rd respondents till 28.11.2011. Issue notice to respondents comply order 39 Rule 3. Call on 28.11.2011".
The order does not disclose the reason for granting such interim injunction. The learned trial Judge placed reliance preferably document No.20, which is nothing but a representation sent by the respondent to the first petitioner, President and Vice President of the Yogam and the fourth petitioner. I am unable to understand how the said representation would constitute a reason for granting an order of interim injunction against petitioners 2 and 3. That apart, the learned trial Judge has stated that " it is reliably learnt that the defendants have taken steps to illegally dispose of the properties belonging to Chennai SNDP Union to some third parties". From where the learned trial Judge found so, is only a mystery. Further more, the learned trial Judge has stated that its members would be put to irreparable loss and hardship which cannot be compensated. The respondent said to be the member of the Chennai SNDP Union, can fight only for himself and he cannot fight for other members. Further more, the suit is not filed under Order 1 Rule 8 C.P.C.
(IV) As far as the order of interim injunction restraining the second petitioner from functioning as General Secretary of the first petitioner is concerned, the learned trial Judge has passed the following order:-
" Heard. Perused the documents and affidavit. On keen perusal of the plaint documents No.19 i.e., the election rules for conducting election of the President, General Secretary of the S.N.D.P. Yogam rule 4 of the above rules provide for publication of the draft voter's list in the notice board of the union concerned. Draft voter's list (or) final voter's list of the voter's of all eligible 'Shakas' under the Chennai 'SNDP' were neither prepared nor published, no paper publication was effected in respect of voter's list much less draft voter's list of any of the shakas under the Chennai 'SNDP' Union was published. In fact, no election was conducted in most of the shakas for identifying representatives. It is reliably learnt that the defendants has taken steps to illegally dispose of the properties belonging to the Chennai 'SNDP' Union to some third parties by which the Chennai 'SNDP' Union and its members would be put to irreparable loss which cannot be compensated. Prima facie case made out and balance of convenience also lies upon the petitioner ad interim injunction granted against the 2nd respondent functioning as the General Secretary of the 1st respondent till 28.11.2011. Issue notice to the respondents. Comply order 39 Rule 3. Call on 28.11.2011.".
The said order does not reveal how the learned trial Judge came to the conclusion, on what basis and on what document, that it was neither prepared nor published as required under the rules of SNDP Yogam. That apart, the second petitioner who is functioning as the General Secretary of the first petitioner cannot be stopped from functioning without a notice to him and without proper reasoning. Hence, on this ground also, I am of the considered view that the order of interim injunction that has been granted by the learned trial Judge is not on well-footing.
25. (A) On behalf of the petitioners, the decision reported in A.I.R. 1996 MADRAS 140, was relied on by the learned counsel appearing for the petitioners. In the said decision, this Court has held that the suit against the company should be filed in place where the registered office of the company situate and the suit filed in a place where the plaintiff shareholders were residing and injunction granted without notice to the company was held to be improper.
(B) In yet another decision reported in A.I.R.2002 SUPREME COURT 2402, which was relied on by the learned counsel appearing for the petitioners, the Hon'ble Apex Court has held that it is open to the parties to choose any one of two competent courts to decide their dispute. Once parties bound themselves as such, it is not open for them to choose a different jurisdiction. In the present case on hand, the members of the first petitioner are bound by the Rules of the first petitioner. Rule 71 (a) of the said Rules stipulates that litigations must be filed only in Courts functioning at Kollam, where the head office of the company is situated. In such circumstances, as held by the Hon'ble Apex Court in the decision referred to above, the respondent who is bound by the Rules of the first petitioner company, cannot choose a different jurisdiction.
(C) In the decision reported in A.I.R. 2005 MADRAS 72, this Court in paragraphs 17 to 20 has held as follows:-
" 17. Here also, the Apex Court had observed, there is no hurdle for this Court, to exercise the constitutional power, which is well recognised principle, which gained judicial recognition. The ratio laid down by the Apex Court, that the parties should be directed to avail the remedy available, before the trial Court, should be followed, if the suit instituted by the parties are well framed or instituted or laid before the competent Court, having jurisdiction to decide the case. If a court had no jurisdiction, to entertain a suit in that case, if a direction is given to the parties to approach the court concerned, for appropriate remedies, then it would amount to vesting the jurisdiction upon a court, which has no jurisdiction under law. For the reasons aforementioned, on the basis of the pleadings, there could be no second opinion, that the Pollachi Sub Court has no jurisdiction to entertain the suit. The position being so, placing reliance upon the above decision, it is not desirable, to direct the revision petitioners, to approach the same court, for the remedies. Whenever, wherever the lower courts have committed jurisdictional error, knowingly or unknowingly, which was brought to the notice of this Court, then under the power of superintendence over all the courts, as adumbrated under Article 227 of the Constitution of India, the High Court should exercise its power and rectify the mistake, if not, the existence of Article 227 of the Constitution of India, may not have relevance at all. In this view of the matter, I am unable to accept the contention of the learned counsel for the first respondent, that the revision petitioners should be directed to approach the court concerned, for appropriate relief and the relief claimed by the revision petitioners should not be granted directly by this Court under Article 227 of the Constitution of India.
18. The learned Senior Counsel, Mr. A.L. Somayaji, relying upon a decision in Sri Suryanarayana Paper & Boards Pvt. Ltd. & 5 Ors v. Padmakumar & 2 Ors would contend, that when the subordinate courts have passed an order, not having territorial jurisdiction, that should be set aside under Article 227 of the Constitution of India. In the case involved in the above decision, a suit was filed before Udumalpet District Munsif Court, which had no jurisdiction to entertain the suit, as per the averments in the plaint and it appears, ad interim injunction was also granted. When the same was challenged, by the parties concerned, under Article 227 of the Constitution of India, this Court took the view, considering the averments in the plaint, that District Munsif, Udumalpet, chose to receive the plaint and granted ad interim orders without jurisdiction, which are unsustainable and have to be set aside, which ratio is squarely applicable to this case on hand.
19. The entire reading of the plaint undoubtedly brought to surface, that Pollachi Sub Court has no jurisdiction to decide the suit. The learned Subordinate Judge erroneously entertained the suit, and also granted injunction, without jurisdiction and in this view, the same is liable to be set aside. For the foregoing reasons, I am constrained to accept the revisions, rejecting the defence, thereby setting aside the order of the trial Court in I.A. No. 1042 of 2003 in O.S. No. 264/2003.
20. The Code of Civil Procedures empowers the Court to return the plaint, at any stage, for presentation in proper Court, having jurisdiction. In my considered opinion, the plaintiff/first respondent in this case is not entitled to the benefit of the said section, since as aforementioned, with ulterior motive, knowing fully well that the Sub Court, Pollachi had no jurisdiction, he has filed the suit, thereby compelled the revision petitioners also, to come to this Court, unnecessarily. Considering the attitude of the plaintiff, choosing the Court of his choice, the plaint need not be ordered to be returned to be presented before the Court, in which the suit should have originally been instituted, following the procedure contemplated under Order VII Rule 10, 10(a) of C.P.C. The entire conduct of the plaintiff brought to surface his evil idea, to obtain an order behind the back of the parties, who are interested in the property and such a person need not be shown any leniency. In this view, instead of ordering return of plaint, I am constrained to strike out O.S.No.264/2003 from the file of the Sub Court, Pollachi, since it had no jurisdiction, thereby ordering the learned Subordinate Judge, Pollachi, to delete the suit from the file. "
(D) In A.I.R.2006 SUPREME COURT 1474, the Hon'ble Apex Court has held that when a Court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution of India. Paragraph 12 of the said judgment is usefully extracted hereunder:-
" 12. The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a Court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary finding to support its order would also be a jurisdictional error liable to correction. Here the jurisdiction to grant an interim mandatory injunction could be exercised on entering a finding that on the day the order for maintaining the status quo was passed, the plaintiff was in possession and a day after the interim order was passed, he was in fact dispossessed. The interim direction to maintain status quo was an exparte order. From the order of the Additional District Court, it is not possible to come to the conclusion that on a proper advertence to the relevant materials, prima facie clear findings had been rendered by that court on these aspects. The prima facie infirmities attached to the letter said to create the tenancy cannot also be ignored, since that transaction is the foundation of the plaintiff's claim of possession".
(E) In yet another decision reported in 2010 (4) C.T.C. 690, the Madurai Bench of this Court has held that the alternative remedy under C.P.C. is not a bar to invoke the jurisdiction under Article 227 of the Constitution of India and the same could be invoked:-
(a) to prevent abuse of process of law;
(b) to prevent miscarriage of justice;
(c) to prevent grave injustice;
(d) to establish both administrative as well as judicial power of High Court.
Paragraph 24 of the said judgment is usefully extracted here under:_ " 24. In Surya Dev Rai v. Ram Chander Rai and others, 2003 (4) CTC 176 (SC): 2003 (6) SCC 675, the Honourable Apex Court has held in paragraph 22 that 'Article 227 of the Constitution confers on every High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any Court or Tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power the High Court has been conferred with certain specific powers by Clauses (2) and (2) of Article 227 with which we are not concerned hereat. It is well settled that the power of superintendence so conferred on the High Court is administ4rative as well as judicial, and in capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the way of justice and removing any obstacle therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certain jurisdiction. Else the parameters invoking the exercise of power are almost similar".
26. Considering the totality of the circumstances referred to above, I am of the considered view that the suit filed by the respondent before the Civil Civil Court at Chennai is totally a misconceived one. As held by this Court in the judgment reported in A.I.R. 2005 MADRAS 72, the respondent has filed the suit with ulterior motive in a Court of choice knowing fully well that the civil Court at Chennai has no jurisdiction and hence, as held in the said case, such a person need not be shown any leniency and instead of returning the plaint, I am constrained to strike off the plaint in O.S.No.8038 of 2011 on the file of the learned XVI Assistant Judge, City Civil Court, Chennai, which has no jurisdiction. The said Court is directed to delete the suit from its file. That apart, as I have already held, the remedy of the respondent lies in not approaching the Civil Court, but the other forum as envisaged in the Rules referred to above.
27. In fine, the civil revision petition stands allowed and the plaint in O.S.No.8038 of 2011 pending on the file of the learned XVI Assistant Judge, City Civil Court, Chennai, is struck off. The learned XVI Assistant Judge, City Civil Court, Chennai is directed to delete the suit from his file. However, this will not preclude the respondent to initiate proceedings in the other forums as per the Rules referred to above. No order as to costs. Consequently, connected miscellaneous petition is closed.
sbi To The Registrar, City Civil Court, Chennai