Madras High Court
S. Thirunavukkarasu And Anr. vs J. Jayalalitha And Anr. on 27 August, 1997
Equivalent citations: 1997(3)CTC229
Author: Shivaraj Patil
Bench: Shivaraj Patil, P.D. Dinakaran
ORDER Shivaraj Patil, J.
1. The defendant in C.S. No. 322 of 1997 has filed O.S.A. No. 179 of 1997 aggrieved by the order dated 17.6.1997 made by the learned single Judge in Application No. 356 of 1997 in the said suit C.S.No. 322of 1997, under which an order of injunction was granted in favour of the plaintiff. Appeals, O.S.A.Nos.180 to 183, 185 and 186of 1997 are filed by the applicants who prayed to add them as additional defendants in the said suit C.S.No.322 of 1997 aggrieved by the order rejecting their applications by the learned single Judge by the very common order dated 17.6.1997.
2. O.S.A.No.184 of 1997 is filed by the Applicants in O.A. No. 1917 of 1997. They had filed the said application to direct the Registry to place all the papers before the Honourable Chief Justice for passing appropriate orders during the course of hearing of the case by the learned single judge. It is stated in ground No.l of the appeal memorandum that no order was passed and that Application No. 1917 of 1997 had become infructuous. But as a matter of fact the said Application No. 1917 of 1997 was dismissed by the learned single Judge as not pressed as recorded in paragraph 14 of the order under appeal. In view of the order passed by the learned single Judge in O.A.No. 356 of 1997 in C.S. No. 322 of 1997 and other applications filed seeking to implead as additional defendants in the said suit, nothing more is required to be done in this appeal, for the reasons more than one, viz., firstly that application No. 1917 of 1997 was dismissed on 17.6.1997 as not pressed; secondly the application No. 1917 of 1997 even otherwise had become infructuous in view of the order passed by the learned single Judge in O.A. No. 356 of 1997; and lastly when the very order passed by the learned single judge in O.A. No. 356 of 1997 is under challenge in O.S.A. No. 179 of 1997, this O.S.A. No. 184 of 1997 is of no consequence. Hence this O.S.A. No. 184 of 1997 is dismissed. 3. For convenience, we will refer to the parties in this order as they were ranked and referred to in C.S. No. 322 of 1997. As already stated above, the defendant in the suit is the appellant in O.S.A. No. 179 of 1997. The impleading applicants in the said suit have filed appeals O.S.As. No. 180 to 183, 185 and 186 of 1997.
4. Since the learned single Judge, in his order under appeals, has set out the facts leading to the passing of the impugned order in sufficient details and particulars succinctly, we do not think it necessary or desirable to state them again in detail. However, we shall state them briefly, to the extent they are needed, for the purpose of disposal of these appeals.
5. The plaintiff has filed the suit C.S. No. 322 of 1997 for declaration that the action taken by the defendant for convening and holding the General Council meeting of the All India A.D.M.K. party to be held on 3.6.1997 or on any other date is illegal and void; for declaration that any decision taken or resolution passed at the purported general council meeting, convened and held if any by the defendant, to be illegal and void; and for grant of a decree for permanent injunction restraining the defendant or any person or persons claiming under him from convening, calling or holding of the meeting of the general council of the A.I.A.D.M.K. party to be held on 3.6.1997 or on any other day.
6. The plaintiff had averred in the plaint that she is a member, and General Secretary of the All India Anna D.M.K. party (for short, 'A.I.A.D.M.K.' party). She had been elected as General Secretary of the A.I.A.D.M.K. party after the death of Puratchi Thalaivar M.G. Ramachandran - the founder of the party. She had been elected as General Secretary of the party on 23.6.1993 as per the rules of the party and she is continuing to hold the said post as on date. The said party won the general elections in 1991 and formed the Government. She was the Chief Minister of the Government of Tamil Nadu from 1991 to 1996. The defendant was also a member of the party.
7. Due to anti-party activities, the defendant was removed from the primary membership of the party in 1988. Subsequently he was inducted as a member in the year 1989. He again indulged in anti-party activities in 1990 and was expelled from the primary membership before the general elections were held in 1991. He was again inducted as a member of the A.I.A.D.M.K. party in 1996 prior to the general elections to Tamil Nadu Legislative Assembly. Under 'Two Leaves' symbol of the party, He won the election to the assembly and was given a post as Deputy Secretary of the party. He once again started indulging in anti-party activities which were prejudicial to the interest of the party, and taking note of the seriousness of the situation he was expelled from the party and also from the primary membership on 19.5.1997. He was also removed from all the other positions in the party. Thus on and from 19.5.1997 the defendant ceased to have any right over the party or its functions.
8. It is further averred that as per the rules of the party, the General Secretary alone is authorised to convene the meeting of the general council and executive counsel. However, if l/5th of the members of the general council request the General Secretary to convene the meeting, it is obligatory on the part of the General Secretary to do so within 30 days of receipt of such a requisition. It is said, the defendant began issuing statements condemning his expulsions, though he did not question his expulsion till the plaintiff filed the present suit. The plaintiff states that there was no requisition made by any person including the defendant requesting her for convening the general council meeting and therefore there was no occasion to convene any general council meeting.
9. It is stated that the defendant issued a statement, stating that he had called for general council meeting of the party to be held on 18.6.1997. He had also issued a press statement that a requisition had been made by more than 300 members on 24.4.1997 requesting the plaintiff to convene the general council meeting, and since the plaintiff failed to do so, he was convening the same. The plaintiff asserted that there was no requisition by any person, and that the defendant had no right whatsoever to convene the general council meeting in terms of the rules of the party, more so when he had been expelled from the party. In view of the statement of the defendant that the general council meeting of the party was to be convened by him, the plaintiff who is the general secretary of the party, called for a meeting to be held at Madras. On coming to know of the same, the defendant issued a further statement that he had convened the general council meeting of the party to be held on 4.6.1997 which was again pre- poned to 3.6.1997.
10. As per the rules of the party, registered with the Election Commission of India under Section 29-A of the Representation of Peoples Act, 1951, it is the General Secretary of the party who alone has the authority to convene the executive council meeting. Any action by the defendant in that regard was an intrusion of her rights, and the same was unauthorised. It is further alleged that the defendant participated in a meeting with other expelled members of the party. They were seeking to create confusion and chaos in convening the general council meeting without any authority whatsoever. In paragraph 15 of the plaint it is stated that the plaintiff was filing the suit in her individual capacity as General Secretary of the party, to prevent the defendant from indulging in illegal actions which encroached upon the right of the plaintiff as a general secretary of the party. She has also reserved her right to convert the suit into a representative suit at a later stage.
11. Along with the plaint, the plaintiff filed O.A. No. 356/97, seeking an order of injunction to restrain the defendant from convening and holding the meeting of the general council either on 3.6.1997 or on any other date, pending disposal of the suit. The said suit filed during vacation, came up before the vacation court on 3.6.1997. A representation was made on behalf of the defendant who had entered caveat, that the proposed meeting had already taken place and various resolutions had already been passed. Taking note of the same, the learned single Judge, though did not restrain the respondent from convening the meeting, made it clear that any decision taken in the meeting will be subject to the result of the order in the injunction application, and posted the case on 10.6.1997 for counter and hearing of the injunction application.
12. On 10.6.1997, when the case came up for hearing, applications were filed by third parties seeking their impleadment in the suit. The defendant sought for further time, for filing counter. The case was adjourned to 12.6.1997. The defendant filed counter on that date, contending that the plaintiff has no cause of action for maintaining the suit or the injunction application; she has no civil right to agitate, or any fundamental right to question the convening of the general council meeting of the A.I.A.D.M.K. party; every member, at the time of joining the party, will have to take a oath that he/she will abide by the rules of the party and that he/she will not challenge any decision of the party in any Court; between the party and the members inter se, the rules of the party are binding and enforceable as in the case of contract; and the Civil Court has no jurisdiction to adjudicate upon the disputes arising between the members of a political party relating to their indoor management.
13. It is further stated that the suit is also not maintainable, since the validity of a general council meeting convened by one or other group of a political party in cases where a split takes place, is an incidental issue falling within the purview of the Election Commission of India, while determining the claim for recognition and also to the election symbol under paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as 'Symbols Order'). In that view, judicial review through Court of law is not possible. The plaintiff suppressed material facts. She had held a parallel meeting on 3.6.1997 which fact is not mentioned in the plaint. The defendant in paragraphs 5 to 14 of the counter affidavit has given the history of events including formation of the party, how a split took place immediately on the death of the founder, about the dispute between the two groups, and how it was finally settled.
14. It is further alleged that the activities of the plaintiff were such that many members of the party became ill-disposed towards him. In spite of all that he was maintaining discipline in order to see that the party should maintain democratic ideals, and for the said purpose, it was essential that the office-bearers and other people should have free access to the General Secretary. According to the defendant, with this object in mind, he sent a communication dated 22.4.1997 pointing out that majority of the members of the general council were in favour of convening a special General Council meeting at the earliest to decide various party matters. The plaintiff failed to convene such a meeting. On 22.4.1997 a letter was sent under certificate of posting to the plaintiff, pointing out the problems of the party and informing her to convene the general council meeting as per the desire of the majority of the members. It is stated that a true copy of the said letter was filed along with the counter.
15. The defendant further stated that as per Rule 19, general council meeting is to be held once in six months by giving 15 days notice in advance. The plaintiff committed breach of her duty in this regard, having not called such meeting within six months after the last meeting was held on 23.9.1996. The defendant also stated that he again met the plaintiff on 25.4.1997 at her residence and he personally handed over a copy of the letter dated 22.4.1997. Although she promised at that time to look into the affairs, no action was taken. He also met her on 15.5.1997 again, to invite her for a marriage. At that time also she was reminded about the letter dated 22.4.1997. It is only at that time he came to know that he was expelled from the party though no official communication had been received by him.
16. Thereafter on 20.5.1997 he addressed a letter to the Speaker of Tamil Nadu Legislative Assembly about the illegal announcement by the plaintiff expelling him from the party, and requested the Speaker to treat him as leader of the A.I.A.D.M.K. party. On 23.5.1997 a press statement was issued informing that though on 24.4.1997 a requisition letter was sent by more than 1/5 of the general council members and that 30 days' period had come to an end by 23.5.1997, and till that time the plaintiff had not sent any notice convening a general council meeting. Seven members of the Parliament in the Rajya Sabha of the party issued public statement condemning the plaintiff's arbitrary and autocratic style of functioning contrary to the party regulations. The defendant admitted that the plaintiff had convened general council meeting after the announcement was made by him.
17. It is further stated that respecting the wishes of the general council members, the meeting proposed to be held on 18.6.1997 was advanced to 4.6.1997. Seven members of Rajya Sabha treated the defendant as their leader and wanted the group led by him to be treated as the real A.I.A.D.M.K. group. In the meanwhile the said seven members of the Rajya Sabha wrote to the Chairman, Rajya Sabha reiterating their allegiance to the party under the leadership of the defendant. On 27.5.1997 the defendant informed the Director of Law and Principal Secretary, Election Commission of India, stating that he would be raising a dispute under paragraph 15 of the Symbols Order. He further stated that on 3.6.1997 a general council meeting was held and the proceedings commenced from 7.00 A.M. and more than 20 resolutions were passed. In that view, the suit itself had become infructuous. In that meeting he was appointed as general secretary removing the plaintiff from the general secretary ship. According to the defendant if the general secretary refused to convene the meeting, it was always open to any member of the party to convene the meeting of the general council, and take any decision after establishing majority.
18. After receipt of the counter, the plaintiff filed reply affidavit pointing out the various inconsistencies in the counter affidavit, while reiterating her earlier stand. Inconsistency was particularly pointed out regarding the requisition dated 22.4.1997, and denied her having met the defendant on 22.4.1997 or 25.4.1997. She affirmed that she never received any requisition for convening a meeting.
19. The defendant filed a rejoinder affidavit clarifying the statement made by him regarding the requisition dated 22.4.1997.
20. Impleading applications were filed by members of the Rajya Sabha and Legislative Assembly, who support the case of the defendant, and seek their impleading as necessary parties. It is further stated that seven members of the Parliament have signed the requisition dated 22.4.1997, and when the plaintiff had denied the same, their integrity is questioned, and hence to prove their honesty, they want to be impleaded. It is further stated that the result of the injunction application was likely to affect their acts also. As such they have to be impleaded as parties to the suit.
21. The plaintiff filed common counter affidavit to the impleading applications, contending that they are neither proper nor necessary parties. According to the plaintiff the relief sought in the suit is only against the defendant for his unauthorised acts. For that purpose the petitioners in the impleading applications need not be made parties. Thus she prayed for dismissal of the impleading applications.
22. The learned single Judge heard all the applications together and passed the impugned common order dated 17.6.1997 ordering injunction application O.A. No. 356 of 1997, and dismissing all the remaining applications, including the applications filed for impleading and vacating the interim injunction order, which order has given rise to these appeals.
23. Shri Shanthi Bhushan, learned senior counsel for the appellant-defendant, in O.S.A. No. 179 of 1997 submitted that-
(i) the suit filed by the plaintiff is not maintainable having regard to the nature of the dispute and the reliefs claimed in the suit; the subject matter of the suit does not relate to any property of the party; it only relates to the party affairs arising out of a split; even otherwise the suit in the present form is not maintainable as the suit is not filed in a representative capacity;
(ii) The rules of party have no force of law; as such there is no legal right to the plaintiff to claim an order of injunction;
(iii) in law there is no prohibition for one group or section to function as a political party; there are instances of split almost in all political parties, and after split two groups function separately with their own identity in. the same name of the party;
(iv) in view of the provisions contained in the Symbols Order, in particular having regard to paragraph 15, it is for the Election Commission to decide the question as to which one of them is the real party;
(v) in view of the specific rules of the party that a member cannot go to the Court, the plaintiff herself having filed the suit, she should be deemed to have been expelled or forfeited her membership;
(vi) if a meeting was not called, in spite of a requisition within the time allowed, the requisitioning members could hold a meeting in order to make Rule 19 of the party rules effective; and
(vii) temporary injunction order ought not have been granted having regard to the disputed facts; and balance of convenience, that too restraining implementation of all the resolutions passed in the general council meeting convened by the defendant on 3.6.1997; plain reading of some of the resolutions would show that injunction ought not have been granted having regard to the nature of those resolutions; at the most the learned single Judge could have stated or ordered that the resolutions passed and the decisions taken in the meeting of the general council convened by the defendant and held on 3.6.1997 were not binding on the plaintiff.
The learned senior counsel relied on certain decisions in support of his submissions.
24. Shri K.Subramaniam, learned senior counsel for the appellants in O.S.A.Nos.180 to 183, 185 and 186/97 contended that the appellants being members of the Rajya Sabha and legislative assembly filed the applications to implead them in the suit as they were necessary parties having regard to their interest and participation in the A.I.A.D.M.K. party led by the defendant; seven members of Rajya Sabha had signed the letter of requisition dated 22.4.1997; they are recognised as separate group viz., A.I.A.D.M.K. II in the Rajya Sabha; there are suits pending challenging the expulsion of members; the correspondence prior to the suit, as can be seen from Exs.B6, B7, and B9 to B.14 show the interest of the appellants as to how they are necessary parties. He also submitted that the result of the suit having regard to the nature of the relief sought and the order of injunction ultimately affected the appellants; and hence the learned single Judge committed a manifest error in rejecting the applications filed by them for impleading. The learned counsel made submissions on the merits of the appeal in O.S.A. No. 179 of 1997 also. He urged that the suit filed in individual capacity, as can be seen from paragraph 15 of the plaint, is not at all maintainable; there is implied bar under Section 9 of C.P.C. to maintain such a suit; the Election Commission has jurisdiction to decide about the validity of the resolutions, and the dispute of this nature will be normally the subject matter before the Election Commission, and the Election Commission is already intimated that the appellants would initiate proceedings under the Symbols Order; the application made for grant of temporary injunction in O.A. No. 356 of 1997 was not at all maintainable in view of Section 41(b) of the Specific Relief Act, 1963; the plaintiff herself being a wrong doer, she was not entitled for injunction having failed to call the general council meeting within six months, and even having failed to convene the meeting in spite of requisition; the balance of convenience also is in favour of the appellants; and hence injunction ought not have been granted.
25. Shri R. Krishnamurthi, learned senior counsel for the plaintiff-respondent in O.S.A. No. 179 of 1997 and first respondent in other appeals, drew our attention to Rules, 19, 20 and 21 of the party constitution, to contend that it was only the general secretary who was authorised to convene the general council meeting; the defendant was expelled by the plaintiff from the primary membership of the party as well as from the position of the Deputy Secretary on 19.5.1997. and as such he had no authority to call the general council meeting, and the meeting of the general council said to have been convened by him on 3.6.1997 was wholly unauthorised and illegal; the defendant issued statement saying that the general council meeting will be held on 18.6.1997; and the letter of requisition is stated to be of 22.4.1997, but the certificate of posting is stated to be dated 24.4.1997.
26. Shri Soli J.Sorabjee, learned senior counsel for the plaintiff-respondent submitted that -
(i) the suit is maintainable, and it is no more debatable that the suit is maintainable or not in view of the decision of the Apex Court in the case of Most Rev. P.M.A. Metropolitan and Ors. v. Moran Mar Marthoma and Anr., 1995 Supp.(4) S.C.C. 286;
(ii) looking to the averments made in paragraphs 8,9,10,12 and 15 of the plaint, it cannot be said that any question of symbol is involved in the suit; in deciding the jurisdiction, the averments made in the plaint are to be seen; having regard to Rules 19 to 21 of the party constitution, the acts of the defendant affected the rights, powers, and functions of the plaintiff; hence the suit is maintainable being of civil nature; further the agreement of parties cannot bar a suit under Section 9, C.P.C. having regard to Rule 5(i) and (vii) of the party constitution; the symbol order does not bar the jurisdiction of the Court having regard to the nature of the relief sought for in the suit. He made it clear that the question relating to Symbol or any other matter coming under the Symbols Order had to be decided in terms of paragraph 15 of the Symbols Order undoubtedly by Election Commission, and the jurisdiction of the Courts to that extent and in that regard is barred; and that the order under appeal, or the pendency of the suit may be taken as not coming in the way of the defendant and the impleading applicants who are the appellants in O.S.A.Nos.179 to 183,185 and 186/97, approaching the Election Com- mission under paragraph 15 of the Symbols Order;
(iii) admitted facts being that the certificate of posting is dated 24.4.1997; the meeting was called by the defendant on 23.5.1997 scheduled to be held on 18.6.1997; and the defendant having been expelled on 19.5.1997, the meeting held on 3.6.1997 by the defendant was neither authorised, nor valid; no material was placed before the learned single Judge that a letter of requisition to call for the general council meeting; alternatively the meeting was convened by the plaintiff within 30 days; in the party constitution itself, a distinction is made between a meeting 'held' and 'convened'; hence the meaning sought to be given on behalf of the defendant to 'convene' a meeting cannot be accepted; and
(iv) the scope of the O.S.A. No. 179 of 1997 is limited the exercise of the discretion by the learned single Judge in granting injunction cannot be said to be either perverse, capricious or arbitrary; even assuming that another view is possible on the materials placed before the court in a matter like this, the appellate court cannot substitute its discretion; the order of the learned single judge is a well considered order; and hence the appeal O.S.A. No. 179 of 1997 may be dismissed.
27. As regards the other appeals, the learned senior counsel submitted that appropriate orders may be passed by this Court.
28. Shri K.Subramaniam, learned senior counsel for the impleading applicants-appellants, in reply, submitted that the learned single Judge has not discussed the documents filed on behalf of the defendant and the impleading parties. The learned single judge has virtually decreed the suit while passing the order under appeals.
29. Shri Shanthi Bhushan, learned senior counsel for the appellant, in reply, reiterated the submissions made earlier and cited few more decisions in support of his submissions.
30. Shri Soli J.Sorabjee, learned senior counsel for the plaintiff submitted that the defendant himself has filed a suit challenging his expulsion. Hence it is not open to him to say that the plaintiff could not file the suit and on that account she has forfeited her membership of the party. So far as the expulsion order of the defendant from the party is in operation, he had no locus-standi to convene the general council meeting of the party.
31. We have carefully considered the submissions made by the learned senior counsel for the parties.
32. The learned single Judge in paragraph 18 of the order under appeal has stated that even though the prayer in the injunction application was only to prevent the defendant from convening or holding the meeting on 3.6.1997 or any other date, in view of the subsequent events, after the institution of the suit on 2.6.1997, arguments were advanced by both the learned senior counsel on both sides on the basis of those subsequent events, and they wanted the court to consider their arguments taking note of the subsequent events. Even though a contention was taken in the counter affidavit that the suit as well as the injunction application had become infructuous in view of the meeting held on 3.6.1997, no serious argument was advanced on behalf of the defendant on that basis. The learned senior counsel for the defendant also argued the case on the basis of the meeting held on 3.6.1997 and the resolutions passed in that meeting. In fact he produced the true copies of the various resolutions passed on that date.
33. It is not disputed by the parties that they are governed by the written Constitution of the party and are bound by the same. This fact is evident from the averments made in the affidavits of the parties. Documents filed by the plaintiff along with the plaint were marked as Exs.Al to A9, and the documents filed on the side of the defendant were marked as Exs.Bl to B16 in dealing with the application filed for grant of injunction. Even though some of the documents produced by the parties are extracts from the newspaper reports, the parties did not dispute the correctness or genuineness of those documents. Ex.A9 produced by the plaintiff and Ex.B16 produced by the defendant are the copies of the Constitution of the party. The learned single judge on comparison has found that there was no difference between them, and even the learned senior counsel, before us also, did not say that there was any material difference between them, particularly in regard to the provisions that come up for consideration.
34. In order to appreciate the rival contentions and their relative merits, we think it is appropriate to extract the relevant rules of the party as contained in Ex.A9/B16. The relevant rules read as follows:-
Rule 5 (i): Whether male or female who are eighteen years of age and above, and accept the aims and objectives, rules and regulations of the party, are eligible to become the members of the Party. They should further accept that the decisions of the party is final and pledge that they will not resort to court action on such matters.
Rule 5(vii): Members will have no right to resort to Court proceedings regarding internal party matters.
The decision of the General Council shall be final with regard to internal party matters and only those who abide by this condition are eligible to admission for Membership.
All those who have become Members of the Kazhagam are bound by the decision of the General Council.
Rule 19(vii).: The meeting of the Central Organisation General Council shall be presided over by the Chairman. In his absence one of the members of the General Council elected by the body shall preside over the meeting.
Rule 19(viii): The meeting of the General Council shall be held once in 6 months by giving 15 days notice in advance of the date of the meeting.
The quorum for the meeting shall be one fifth of the total number of members of the General Council. If the one fifth of the members of the General Council request the General Secretary to convene the Special Meeting of the General Council he should do so within 30 days of the receipt of such a requisition.
Rule 19(ix): The General Council will be the supreme authority to frame policies and programmes of the party and for implementation of them. The decision of the General Council is final and binding on all the members of the party.
Rule 20(i): The General Secretary of the party will be responsible for the entire administration of the party.
Rule 20(v): Convening of the Party Executive Committee and General Council.
The General Secretary of the Party shall have the powers and responsibilities to convene the Executive and the General Council Meetings, to implement policies and programmes of the party, to conduct elections and by-elections for party organizations, to examine the accounts of all the party units through the Audit committee, to manage the Party office, movable and immovable properties of the party, to represent the party in the legal proceedings that may arise in respect of party properties and to take necessary legal steps on behalf of the party to protect them.
Rule 23(ii): The Chairman will preside over and conduct the proceedings of the Central Executive Committee and the General Council Meetings. In the absence of the Chairman, one of the members present will preside over and conduct the meetings.
35. In the light of the contentions of the parties, as can be seen from the pleadings and submissions, the following points arise for consideration and decision:-
i. Whether the suit filed by the plaintiff is prima-facie maintainable;
ii. Whether the meeting of the general council convened by the defendant on 3.6.1997 was authorised and valid; and iii. Whether the order of the learned single Judge granting interim injunction calls for interference, keeping in view, prima facie case, balance of convenience, and irreparable injury, if any, that may be sustained if the order of injunction is refused?
We will deal with these points in seriatim.
36. Point No.l: According to the learned senior counsel for the appellants, the subject matter of the suit relates to the dispute regarding indoor management of the party affairs; the suit does not involve dispute as to the property of the party; the suit in the present form is not maintainable as the plaintiff has filed the suit in her individual capacity as the General Secretary and not for the party, and the suit is filed against the defendant in his individual capacity; as such the orders that may be passed cannot be binding on the members of the defendant's group; the suit is not also a representative suit in character; and there is implied bar in taking cognizance of the suit under paragraph 15 of the Symbols Order.
37. It is well settled that under Section 9 of the Code of Civil Procedure, all suits of civil nature can be entertained by a Civil Court unless such a suit is expressly, or by necessary implication, barred. It is not shown to us that there was any express bar or prohibition for the plaintiff in filing the suit. It cannot also be said that the suit is not of a civil nature.
38. Shri Shanthi Bushan, learned senior counsel relied on paragraphs 201 and 202 of Halsbury's Laws of England, Volume 6, Fourth Edition. Paragraph 201 gives definition of a club. Paragraph 202 reads:
"202. Jurisdiction of court over constitution of club. The court does not take cognisance of the rules of a voluntary society, entered into merely for the regulation of its own affair, save to protect the disposal and administration of property. The rules of a club may effectively provide that the governing body shall be the final arbiter on questions of fact but cannot prevent its decisions on questions of law being determined by the courts."
Relying on the statement contained in paragraph 202, he submitted that the court could not entertain the suit as the dispute did not relate to the disposal and administration of the property.
39. A careful reading of this paragraph 202 does not show that there was a bar of suit, but it only shows that the Courts cannot take cognisance of the rules of a voluntary society entered into merely for the regulation of its own affairs save to protect the disposal and administration of property. In the same paragraph itself, it is further stated that the rules of a club may effectively provide that the governing body shall be the final arbiter of questions of fact but cannot prevent its decisions on questions of law being determined by the Courts (Italics applied). In this view, we are unable to agree with the submission that the suit of the plaintiff, prima facie, is not maintainable merely on the ground that the dispute does not relate to the disposal and administration of property of the party. Moreover the resolution No. 6 passed in the meeting convened by the defendant and held on 3.6.1997 is to request the plaintiff to hand over the party files, movable and immovable property belonging to the party to the defendant. Again resolution No. 18 directs the plaintiff to return a sum of Rs. 4 crores taken away by her from out of the party fund to pay her individual income tax arrears, and if she fails to return the said amount it should be collected through legal process. Hence it cannot be said at this stage that the dispute does not relate to disposal and administration of the property of the party, prima facie.
40. The learned counsel cited few more decisions in support of his submission, which are not directly on the point although some inferences were to be drawn from the said decisions. Further in the light of the judgment of the Honourable Supreme Court in "Most Rev. R.M.A. Metropolitan and Ors. v. Moron Mar Marthoma and Anr., 1995 Supp (4) S.C.C. 286, we consider it unnecessary to refer to the other decisions cited by the learned senior counsel for the appellants. Paragraph 28 of the said Judgment reads:-
"One of the basic principles of law is that every right has a remedy. Ubi jus ibi remediem is the well known maxim. Every civil suit is cognizable unless it is barred, "there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue" Ganga Bai v. Vijay Kumar, . The expansive nature of the section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and latter added in 1976 bring out clearly the legislative intention of extending operation of the section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. The language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the ambit of the section by use of the word 'shall' and the expression 'all suits of a civil nature' unless 'expressly or impliedly barred'."
41. In paragraph 29 of the said Judgment it is stated that not only suits which are civil, but are even of civil nature, can be entertained by Courts unless such suits are barred expressly or impliedly. The Constitution Bench of the Apex Court in Narayan Row v. Ishwarlal Bhagwandas, , dealing with the expression "civil proceedings" has held, "a proceedings for relief against infringement of civil right of a person is a civil proceedings."
In the same paragraph, referring to another case in Arbind kumar Singh v. Nand Kishore Prasad, wherein it was held that all proceedings which directly affect civil rights are civil proceedings, it is further stated that the word 'civil nature' is wider than the word 'civil proceedings'. Thus Section 9 would therefore be available in every case where the dispute has the characteristic of affecting one's rights which are not only civil but of a civil nature.
42. In paragraph 30 of the said judgment, their Lordships of the Supreme Court, referring to Explanations I and II Section 9, have noticed that there are numerous authorities where dispute about entry in the temple, right to worship, performing certain rituals, have been taken cognisance of and decided by civil Courts. In paragraph 38 of the same Judgment the Apex Court went on to say that, "The dispute about the religious office is a civil dispute as it involves disputes relating to rights which may be religious in nature but are civil in consequence."
The learned single Judge has also referred to and relied on the Judgment of the Apex Court aforementioned, and rightly so in our opinion also.
43. The learned single judge has stated that the plaintiff is entitled to hold the post of General Secretary unless she is legally removed or the term of office expired; membership in the party confers certain rights which cannot be denied except in accordance with the rules of the party; if her rights are interfered with as the General Secretary of the party, she was entitled to take remedy under Section 9 of the C.P.C. This being the position, we have no hesitation to say that the suit filed by the plaintiff being one of civil nature, prima facie, is maintainable though the dispute raised directly does not relate to any property of the party. We have already stated above that the reliance placed by the learned senior counsel for the defendant on paragraph 202 of Halsbury's Laws of England, on its plain reading, does not help the defendant. Added to that, when we have a direct decision of the Honourable Supreme Court, we are bound by it.
44. We will now examine whether paragraph 15 of the Symbols Order has created an implied bar for the maintainability of the suit. Paragraph 15 of the said order reads :-
"15. Power of Commission in relation to splinter groups or rival sections of a recognised political party. - When the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party, the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard, decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups."
The reliefs sought in the suit are for declaration that the action of the defendant in convening and holding the meeting of the general council of the A.I.A.D.M.K. party to be held on 3.6.1997 or on any other date is illegal and void, and for grant of permanent injunction restraining the defendant or anybody claiming under him from convening, calling or holding the meeting of the general council of the party, and to declare that any decision taken or resolution passed in the general council meeting convened and held by the defendant, as illegal and void.
45. As can be seen from paragraph 15 of the Symbols Order extracted above, if there are rival sections or groups of a recognised political party, each of whom claims to be that party, the Election Commission gets jurisdiction and authority to decide which of the rival section or group, or none of them, is that recognised political party; and that the decision of the Commission shall be binding on all such rival sections or groups. The relief sought in the plaint by the plaintiff are entirely different. The dispute that arise for consideration in the suit are also different. At any rate on the rival contentions required to be examined in dealing with the interim application made for grant of injunction on the basis of the submissions of the learned counsel for the parties, prima facie, it is not possible to hold that there is an implied bar having regard to paragraph 15 of the Symbols Order for maintaining the suit. We may also state here itself, for the purpose of jurisdiction, we have to see the averments made in the plaint. The averments made in the plaint do not show that the dispute falls within the scope and ambit of paragraph 15 of the Symbols Order.
46. The learned single Judge, in paragraphs 62 to 65 of the Order under appeal, has discussed about paragraph 15 of the Symbols Order on the maintainability of the suit. He has referred to the case of Sadiq Ali v. Election Commission of India, . After extracting paragrpah 21 of the said Judgment, the learned single Judge, referred to paragraph 34 of the same Judgment in which it is stated that the claim made in the said paragraph is only for the purpose of symbols in connection with the elections to the Parliament and State Legislatures, and that the decision of the Commission pertains to this limited matter. In the later decision of the Supreme Court in Kanhiya Lal Omar v. R.K. Trivedi and Ors., , the Sadiq Ali's case aforementioned was followed.
47. The learned single in paragraph 64 of the order under appeal, referred to the case of Kanhiya Lal Omar v. R.K. Trivedi and Ors., , wherein the Honourable Supreme Court has stated that the purpose of passing the Symbols Order is only to give notice to the voter to identify the candidate of a political party, whether recognised or un-recognised. Certain reserved symbols are given for recognised political parties. If there is a split in the recognised political party, for the purpose of allotting the symbol, an enquiry is made. It therefore follows that in a dispute under paragraph 15 of the Symbols Order, there is a dispute between two groups in which the voter is also interested. If the voter has no interest and the dispute is not regarding the symbol, paragraph 15 has no application.
48. It was not disputed before us that the defendant or other appellants have not yet raised the dispute as such under paragraph 15 of the Symbols Order before the Election Commission. However it is stated that the Election Commission is already intimated about initiating of proceedings under paragraph 15 of the Symbols Order. The case of the defendant is that he is intending to move the Election Commission about the split. It may be stated here itself, at this stage we are not concerned, for the purpose of these appeals, whether there is split or not in the party. Thus we have no good reason to disagree with the conclusion of the learned single Judge on. this aspect. Hence in our view also there is no implied bar to maintain the suit prima facie even having regard to paragraph 15 of the symbols order.
49. As can be seen from the plaint averments, the plaintiff claims to be a member and General Secretary of the A.I.A.D.M.K. party. The defendant was a member of the said party who had been given a posting as the Deputy General Secretary of the party. He was expelled from the primary membership of the party on 19.5.1997. As per the rales of the party, it is the general secretary of the party who is authorised to convene the meetings of the general council and executive council. No other person is empowered to call for or convene the meetings of the general council or the executive council of the A.I.A.D.M.K. party. After the defendant was expelled from the primary membership of the party, he began issuing statements condemning his expulsion, and till the present suit was filed he had not questioned his expulsion.
50. There had been no requisition made by any person including the defendant to the plaintiff requesting for convening the general council meeting. The defendant had issued a statement that he had called for the general council meeting of the A.I.A.D.M.K. party to be held on 18th June, 1997. The defendant had no right whatsoever to convene the general council meeting of the party as per its rales, and that too when he had been expelled from the party. Since the action of the defendant in seeking to call for an alleged meeting of the general council of the party is wholly unauthorised and illegal, the plaintiff was constrained to file the suit as there was interference in her rights to function as the General Secretary.
51. In paragraph 15 of the plaint, it is specifically stated that the plaintiff is filing the suit in her capacity as the General Secretary of the A.I.A.D.M.K. party to prevent the defendant from indulging in illegal actions which encroach upon the right of the plaintiff as the general secretary. It is further stated in the same paragraph that the plaintiff sought leave of this Court to file a petition, if necessary, to convert the suit to be filed in a representative capacity at a later stage. As per the party rales, the general secretary has a very vital role to play, and effective functions to discharge. The learned single Judge, in paragraph 46 of the order under appeal, has noticed that "even according to the defendant, the entire Association or Party is controlled and administered by the General Secretary. It is that authority that was sought to be usurped by the defendant. Naturally, her apprehension is genuine, and the same has also been established by defendant's subsequent conduct."
52. Further, even the reliefs sought in the plaint are substantially against the defendant to declare that the action of the defendant in convening and holding the general council meeting of the A.I.A.D.M.K. party to be held on 3.6.1997 or any other date, as illegal and void, and for permanent injunction restraining the defendant and any other person claiming under him from calling or holding the meeting of the general council of the party either on 3.6.1997 or on any other date, and to declare that any decision taken or resolution passed at such meeting convened by the defendant is illegal and void. Looking to the averments in the plaint, and even the counter affidavit filed by the defendant, prima facie, we do not find that the suit as filed by the plaintiff, keeping in view the relief sought for, is not maintainable, on the ground that it is not filed in a representative capacity on behalf of the party or on the ground that it is filed only against the defendant which effectively affects the rights of the other members of the party. To put it in a nutshell, the plaintiff claims right as general secretary of the party, and she wants to prevent the defendant from interfering in her rights, functions, and duties as the general secretary of the party, and that the defendant having been expelled from the party on 19.5.1997 had no authority or right to convene or hold a meeting of the A.I.A.D.M.K. party. In our view, the learned single judge was right in taking a view that prima facie the suit was maintainable for the purpose of disposing of the application made for injunction.
53. An argument was also advanced on behalf of the defendant and the impleading applicants who are the appellants in the other appeals, that as per Rule 5(i) of the Party rules, members of the party should accept the decision of the party as final and they pledge that they will not resort to Court action on such matters; the plaintiff has disentitled herself to be a member of the party having filed the suit against the above mentioned Rule; further she could not file a suit at all. The learned senior counsel for the plaintiff promptly pointed out that even the defendant has filed a suit as admitted by him, of course after filing of the present suit, challenging his expulsion. Rule 5(i) states that the members should accept the decisions of the party as final, and they should pledge that they will not resort to court action on such matters. Agreement of parties cannot bar filing of a suit under Section 9, C.P.C. Rule 5(vii) says that members will have no right to resort to Court proceedings regarding internal party matters.
54. The defendant has been expelled from the party according to the plaintiff. The meeting convened by the defendant thereafter, and the decisions taken in the meeting cannot be said to be the decision taken by the party, to consider them as final. The members cannot go to Court on such matters. What are such matters are not elaborated or explained in the party rules. In this view, it is not possible to say as it is, at this stage, that the suit filed by the plaintiff is not maintainable on this account as well.
55. Point No. 2: As per Rule 19, the general council of the Central Organisation of the party is the supreme body of the party with all powers of the party. The General Secretary of the party shall be elected by all the party units of Tamil Nadu and other States. The meeting of the general council shall be held once in six months by giving 15 days notice in advance of the date of the meeting. If l/5th of the members of the general council request the general secretary to convene a special meeting of the general council, he should do so within 30 days of the receipt of such a requisition.
56. Rule 20 states that the General Secretary of the party will be responsible for the entire administration of the party. Under Rule 20(v), under the specific heading 'convening of the party executive committee and general council', it is stated that the general secretary of the party shall have the powers and responsibilities to convene the executive and the general council meetings. Neither under Rule 19 nor under Rule 20 there is any provision to convene the meeting by any person other than the general secretary of the party. Rule 19(vii) says that the meeting of the central organisation General Council shall be presided over by the Chairman; in his absence one of the members of the general council elected by the body shall preside over the meeting. Under Rule 23(ii) in the absence of chairman, one of the members present will preside over and conduct the meetings.
57. We have made this position clear in order to appreciate the contention that in case there was requisition by 1/5 of the total number of members of the general council, and the general secretary failed to convene the special meeting of the general council, whether the requisitioning members could convene the meeting of the general council or not. In the first place we have to consider whether there was requisition given to the plaintiff under Rule 19(viii) to convene the general council meeting. As per Rule 19(viii) of the party rales, the meeting of the general council shall be held once in six months. Admittedly no general council meeting was held after 23.9.1996, till 3.6.1997 on which date one general council meeting was convened by the plaintiff, and the other by the defendant.
58. According to the defendant, he wrote a letter to the plaintiff on 22.4.1997 informing her about the necessity for convening the general council meeting, and the same was also signed by about 300 general council members; the requisition was sent to the plaintiff on 22.4.1997 itself under certificate of posting; he met the plaintiff personally on 25.4.1997 and handed over such a letter, and reminded the plaintiff on 15.5.1997 to convene the requisitioned meeting of the general council. The learned single judge, on an elaborate consideration as contained in paragraphs 28 to 34 of the order under appeal, has found that there was no evidence to show that a requisition to convene the general council meeting was ever posted to the plaintiff.
59. The plaintiff has categorically denied the contentions of the defendant that any letter dated 22.4.1997 written by the defendant requisitioning to convene general council meeting was received by her. She also denied that the defendant met her on 25.4.1997 personally and handed over any such letter. She also has denied the defendant reminding her again on 15.5.1997 about the necessity of convening a meeting. Further she has also denied that any requisition was signed by about 300 general council members. In view of these specific denial of the plaintiff, it was for the defendant to prove that such a valid requisition was made.
60. The argument advanced on behalf of the defendant was that when a certificate of posting was filed there is a presumption, that the article mentioned therein has been posted, and further that when the address shown therein is the correct address of the plaintiff, the law presumes that it has been delivered to her. It was not disputed before us, even the certificate of posting gives rise only to a rebuttable presumption. The learned single Judge has noticed inconsistency in the stand of the defendant as to the date of sending of the letter by certificate of posting. In paragraph 15 of the counter affidavit the defendant has stated that as early as on 22.4.1997 he sent a letter by certificate of posting to the plaintiff to convene the special general council meeting, and that the xerox copy of the said letter dated 22.4.1997 and the xerox copy of the certificate of posting dated 22.4.1997 with the postal seal were annexed to the plaint. In paragraph 20 of the counter affidavit it is stated that the defendant has issued a press statement on 23.5.1997 stating that he has sent a letter to the plaintiff on 24.4.1997 to convene the meeting of the general council signed by more than 1/5 of the general council members in accordance with law and Rule 19(viii) of the party rules.
61. Ex.B3 is the postal certificate. Admittedly it is dated 24.4.1997, but from the postal seal the date is not decipherable. Ex.B2 is the letter dated 22.4.1997. In the last portion of it, it is stated that the desire of about 300 members of the council was also appended therewith. The learned single Judge has noticed that the defendant did not place before the court as to who are all those 300 members and what was the nature of their request, and as such the requisition could be taken as having been made by the defendant alone, though in the letter, reference is there to the grievance of various members. In the rejoinder filed by the defendant, about the inconsistency as to the date of posting the letter by certificate of posting, it is explained that the date 22.4.1997 was mistake for 24.4.1997. Even in the Press statement dated 23.5.1997 the defendant has not stated that any demand was made on 22.4.1997 nor that he had sent any letter on that date. His case was that a communication was sent on 24.4.1997. When the injunction application was moved by the plaintiff on 3.6.1997, the defendant had already entered caveat. Therein also it was also stated that requisition was made on 24.4.1997.
62. On the basis of this material, the learned single Judge found reason for the change of the stand of the defendant, because, the learned senior counsel for the plaintiff had advanced an argument that if in fact the requisition was sent on 24.4.1997 it could have been received either on 24th or on any subsequent date, and before the expiry of 30 days, the plaintiff herself had convened the meeting, and that would be a compliance of the party rules and the defendant was not entitled to convene a meeting of his own. As per Ex.Al the defendant was expelled from the primary membership of the party on 19.5.1997. It was published in the party organ. The same was broadcast as well as televised. On 20.5.1997 the defendant himself has written a letter to the Honourable Speaker of the Tamil Nadu Legislative Assembly to treat him as leader of the A.I.A.D.M.K. party as per Ex.B4 produced by the defendant himself. Within two days, seven members of the Rajya Sabha issued a press statement, referring for the first time, that the defendant sent a requisition on 24.4.1997. Thereafter the defendant made a statement to the press as per Ex.A.5.
63. Thus from 22.4.1997 till 22.5.1997, for a period of one month, nothing was stated as to the alleged requisition. From this the learned single Judge has taken the view that if such a requisition had been sent on 22.4.1997 the defendant would have issued a statement earlier, and in all probability the certificate of posting ought to have come into existence only after 22.5.1997 when members of the Parliament issued the Press Statement as evidenced by Ex.B5.
64. The learned single Judge has referred to various decisions in dealing with the evidentiary value of the certificate of posting. In paragraph 50 of the decision in Ramshankar Prasad and Ors. v. Sindri Iron Foundry (P) Ltd. and Ors., A.I.R. 1996 Cal. 512, it is stated thus:-
"..the conclusion is irresistible that these notices had never been put in the post, although certificates of posting purport to have been obtained in respect thereof. It is only too well known that certificates of posting can be got hold of without actually putting letters in the post and the respondents must have adopted that course so far as the board meeting of January 22, 1963 or the extra-ordinary general meeting of February 21, 1963 was concerned."
65. The Honourable Supreme Court in Shiv Kumar and Ors. v. State of Haryana and Ors., , has held:-
"We have not felt safe to decide the controversy at hand on the basis of the certificates produced before us, as it is not difficult to get such postal seals at any point of time."
This Court followed the aforementioned decisions in Malleswara Finance & Investment Co., v. Company Law Board, 1995 (82) C.C. 836.
66. In view of the specific denial of the plaintiff of having received any requisition letter for convening of the meeting of General Council, and in the absence of prima facie proof that such a letter of requisition was given to the plaintiff, it cannot be said that the defendant could convene general council meeting under Rule 19 (viii) of the party rules.
67. Even otherwise, the letter of requisition was sent by certificate of posting on 24.4.1997; it could have been received by the plaintiff at best on the same day or on any subsequent date. As per Rule 19(viii) the plaintiff could convene the special meeting of the general council within 30 days of the receipt of such requisition. The plaintiff herself had convened the meeting to be held on 5th June, and the same was published in local dailies. The Hindu reported the same on 25.5.1997 as per Ex.A6. Hence the defendant could not convene a meeting of general council as per Rule 19(viii) inasmuch as the plaintiff had convened the meeting within the period prescribed by the said rule.
68. The defendant issued press statement on 26.5.1997 as per Ex.A8 published in the Indian Express that the convening of his meeting on 18th June, 1997 is advanced to 4th June since the plaintiff has convened a meeting on 5th June. If there was no requisition, and when the plaintiff has admittedly called for a general council meeting, there was no authority for the defendant to call for the same, and that too to advance a meeting to be held on 18.6.1997 to 4.6.1997. Later both the plaintiff and the defendant advanced their meeting to 3.6.1997. The defendant was expelled from the primary membership of the party on 19.5.1997. He has filed a civil suit on 9.6.1997which was still to be numbered, challenging his expulsion. So long as the expulsion of the defendant from the primary membership is not annulled, and in the absence of any interim order not to give effect to his expulsion or suspending the order or expulsion, prima facie, one has to take note of the same. Ultimately the validity of expulsion or otherwise is a matter to be decided in the other suit filed by the defendant.
69. As per Rule 20(v) of the party, the General Secretary of the party is competent to convene the general council meeting. Rule 19(viii) does not authorise anyone else to convene the special general council meeting of the party. On facts, the learned single judge having held that the letter of requisition was not posted, has also held that even otherwise the plaintiff had convened the meeting of the general council as per Rule 19(viii). We have no good reason to differ from the finding recorded by the learned single judge that the letter of requisition was not given to the plaintiff. Once we take the view that the letter of requisition was not given to the plaintiff, the defendant had no authority to convene the meeting of the general council. Even otherwise Rule 19(viii) has not made any provision for convening the meeting of the general council by the requisitioning members in case the plaintiff as the general secretary failed to convene the meeting.
70. In this regard, the learned senior counsel for the defendant and the learned counsel for the impleading applicants relied on the order of the learned single Judge of this Court in Karuppasamy Pandian & 6 others v. All India Anna Dravida Munnetra Kazhagam and two others, (Application No.l 19 of 1988 disposed of on 20.1.1988 is C.S. No. 28 of 1988). In our view it is not an authority for the proposition that in case the General Secretary fails to convene the meeting under Rule 19(viii), the requisitioning members can convene a meeting. In the said order the Court refused to convene a meeting by appointment of a Commissioner. But an observation was made that if the General Secretary refused to convene a meeting, it is always open to any member of the party's general council to convene a meeting and take any decision after they establish their majority. In our view the order governs the facts of that case in the given circumstances. Even otherwise we do not agree that the requisitioning members may convene a meeting in case the general secretary fails to convene a meeting in terms of Rule 19(viii).
71. Rule 20 (v) specifically states that the general secretary of the party shall have the powers and responsibilities to convene the executive and general council meeting. Rule 19(viii) also obliges the General Secretary to convene special meeting of the general council on requisition within 30 days of the receipt of such requisition. Rule 19(viii) has made a specific provision to preside over the general council meeting, that in the absence of Chairman, one of the members of the general council elected by the body shall preside over the meeting. Again Rule 23(ii) states that in the absence of the chairman, one of the members present will preside over and conduct the meeting of the central executive committee and general council. In the very party rules, when provisions are made for presiding over meetings in the absence of chairman, a similar provision could have been made in case of Rule 19(viii) in the matter of convening a meeting.
72. The argument of the learned senior counsel for the defendant is that Rule 19(viii) may be harmoniously construed so as to serve the purpose of the rule; if the general secretary does not convene the meeting, the requisitioning members cannot be made helpless, and in the normal course, having given the requisition, they were entitled to have a meeting, and if not convened by the general secretary within the given time, they could themselves convene such a meeting. He also added that even if the general secretary convenes a meeting within 30 days from the date of receipt of the requisition fixing the date of the meeting after several years, it will create an anomalous situation. In that regard the learned counsel submitted that convening a meeting must be taken as holding a meeting. As already noticed above, general council meeting has to be called atleast once in six months. In case the general secretary convenes a meeting within the time given but scheduling to hold the meeting after few years, in such a situation it can always be challenged as unreasonable and stating that the very object of the rule is defeated or on such other grounds available. It is equally open to the members of the party to amend the rule if so desired so as to make a specific provision in this regard.
73. Rule 19(vii) says that meeting of the general council shall be held once in six months by giving 15 days notice in advance of the date of the meeting. But in Rule 19(viii) of the same rules, it is stated that if a requisition is made the general secretary has to convene special meeting within 30 days from the date of receipt of such requisition. Even when the rules were framed a clear difference and distinction between holding a meeting and convening a meeting was kept in view. The learned single Judge in paragraphs 38 to 41 of the order under appeal, referring to various decisions, has taken the view that convening a meeting is to call for a meeting. We agree with the same. As already noticed above, even otherwise the plaintiff herself had convened the meeting. The defendant having been expelled on 19.5.1997 from the primary membership of the party, prima facie, he had no locus standi to convene the meeting of the general council.
74. Nothing prevented even the requisitioning members participating in the meeting convened by the plaintiff to ventilate their grievances, even though such a meeting was not called on requisition, as according to the plaintiff there was no requisition to call for such a meeting. Under the circumstances when the requisition was not at all received by the plaintiff to convene a general council meeting, the defendant has been expelled from the primary membership of the party on 19.5.1997 itself and who had no locus-standi to convene a meeting, and the general secretary alone was competent to convene a meeting, prima-facie, we have no hesitation to agree with the finding of the learned single Judge that the action of the defendant in convening of the meeting of the general council which was held on 3.6.1997 was unauthorised and against the rules of the party.
75. Point No. 3: In the light of our conclusions reached on points 1 and 2, it follows that the plaintiff has made out a prima-facie case. It cannot be said that the triable issues and arguable contentions do not arise for consideration in the suit. The action of the defendant, as complained by the plaintiff, amounted to interference in the exercising of the powers and functions of the plaintiff as general secretary of the party and in discharge of her duties. Further having regard to the facts and circumstances of the case, and in view of what is stated above, we also hold that the balance of convenience was in favour of granting injunction. In case injunction order is refused, the plaintiff would be put to irreparable injury which cannot be compensated in terms of money having regard to the fact that the plaintiff is a general secretary of the political party, when the A.I.A.D.M.K. party has large number of members and followers.
76. We make it clear that the observations made by the learned single Judge as well as by us, in the order under appeal and in our order, are only confined to disposal of the application made for grant of injunction. In other words all the issues that arise for consideration in the suit including question of maintainability of the suit shall have to be essentially decided on merits and on the basis of evidence both the parties may place during the trial of the suit. We specifically state that in case any dispute is raised before the Election Commission in terms of paragraph 15 of the Symbols Order, this order as well as the impugned order of the learned single Judge do not come in the way of the Election Commission deciding the dispute independently on merits, as the Election Commission has the exclusive jurisdiction to decide the dispute coming within the scope and ambit of paragraph 15 of the Symbols Order.
77. We have made the above observations in the light of the submissions made by the learned senior counsel for the appellants that the learned single judge has virtually decreed the suit by the order under appeal even before trial, and that the said order and the pendency of the suit will come in the way of the Election Commission deciding the dispute if raised under paragraph 15 of the Symbols Order. The learned counsel for the appellants also made a complaint that the learned single Judge did not discuss the documents relied on by the appellants. We do not think there is any substance in their complaint. The learned single Judge has looked into all the relevant documents. It was also not pointed out, which particular document was not looked into by the learned single judge and how the case of the defendant was prejudiced.
78. We are conscious that in considering the validity and correctness of the order of injunction under appeal, we should bear in mind that in the appeals, the appellate Court should not interfere with the discretion exercised by the learned single Judge unless such discretion exercised on the basis of the available material on record, was either perverse, arbitrary, or capricious. Looking to the order under appeal, it is not possible to say that the discretion exercised by the learned single judge suffers from any such infirmity so as to call for interference, even assuming that one other view is possible.
79. The appellants in O.S.As.Nos.180 to 183, 185 and 186/97 had filed applications for impleading them as additional defendants. They are all members of Rajya Sabha. They claim to have given requisition for convening the meeting of the general council. They also claim that there has been as split in the party and they have accepted the defendant as their leader. Any decision in the suit against the defendant would affect their interest also. They have also claimed that they have participated in the meeting of the general council, convened by the defendant and held on 3.6.1997. If the resolutions passed and decisions taken in the said meeting are to be declared as illegal and void as prayed for by the plaintiff, and in case any permanent injunction is granted as sought by the plaintiff in the event of decreeing the suit, the appellants will be certainly affected. Under the circumstances, in our view, the appellants are proper parties if not necessary parties to the suit. Added to this the learned senior counsel for the plaintiff did not seriously oppose for impleading these appellants as additional defendants in the suit. Hence these appeals O.S.As.Nos.180 to 183, 185 and 186 of 1997 are entitled to succeed.
80. The learned counsel for the appellants also urged before us that the learned single Judge was not right in granting the interim injunction as prayed for by the plaintiff in its entirety. Once we have reached the conclusion that the meeting of the general council convened by the defendant which was held on 3.6.1997 was unauthorised, essentially it should follow that the decisions taken and resolutions passed are illegal and void. The learned senior counsel for the defendant also submitted that at the most the learned single Judge ought to have held that the decisions taken and resolutions passed in the meeting convened by the defendant and held on 3.6.1997 were not binding on the plaintiff, and that in all cases of splits in political parties, it is open to any group or section to take decisions and act accordingly.
81. It is true that even otherwise, resolution Nos. 16 and 19 passed in the meeting convened by the defendant and held on 3.6.1997 do not survive for consideration. Further in regard to resolution No. 19 we have made the position clear by our separate order dated 8.7.1997. No doubt it is open to a group or section of people voluntarily meeting and taking decision to do some good work, but the question before the learned single Judge was, whether the meeting convened by the defendant and held on 3.6.1997 was laid and authorised, and if not whether the resolutions passed and decisions taken in the said meeting could be held to be valid as the resolutions and decisions of the A.I.A.D.M.K. party. As already noticed above, the learned single Judge, having considered all aspects in sufficient details concluded that the meeting convened by the defendant and held on 3.6.1997 was void ab initio. He further held that the decisions taken and resolutions passed in that meeting were prima facie invalid, and that the same shall not be implemented till the final disposal of the suit. The defendant was restrained from interfering with the rights and duties of the plaintiff as member and general secretary of the A.I.A.D.M.K. party. The order of injunction as granted by the learned single judge, in our view did not prevent either the defendant or the members of his group independently doing any good work in the interest of the people.
82. We have not referred to all the decisions cited by the learned counsel for the parties in view of the conclusions we have reached on the facts and circumstances of the case. Further the principles laid down in those decisions are not disputed.
83. The injunction granted by the learned single Judge has no effect of preventing one group or the other from functioning at all. We are of the view that the learned single Judge was right in holding that the defendant could not interfere with the exercise of the powers and functions of the plaintiff as the general secretary of the party and also in discharge of her duties as such, and it is for that reason the injunction order was granted. Hence the order passed by the learned single Judge in granting injunction to the plaintiff does not call for interference.
84. In the result, for the reasons stated and discussion made above, we proceed to pass the following order:-
(i.) O.S.A. No. 179 of 1997 is dismissed; O.S.A. No. 184 of 1997 is also dismissed;
(ii.) O.S.A. Nos. 180 to 183, 185 and 186 of 1997 are allowed and the order of the learned single Judge, to the extent of rejecting the applications of these appellants to implead them as additional defendants alone is set aside. These appellants shall be impleaded as additional defendants in the suit C.S. No. 322/97; and (iii.) No costs.