Jammu & Kashmir High Court - Srinagar Bench
Sheikh Ashiq Ahmad And Ors vs President Chemist Association & Ors on 9 April, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CIMA No. 57 of 2013 CMP No. 131 of 2013 & CMP No. 132 of 2013 Sheikh Ashiq Ahmad and ors. Petitioners Rajwant Singh & Ors. Respondents !Mr. Z. A. Shah, Senior. Advocate Mr. Javaid Iqbal, Advocate ^Mr. M. A. Rathore, Advocate Honble Mr. Justice Janak Raj Kotwal, Judge Date: 09/04/2013 : J U D G M E N T :
1. Respondent-1 (Rajwant Singh) has filed a suit before the Court of ld. 3rd Additional District Judge, Srinagar seeking decree inter alia declaring the election to the Executive Committee of the Kashmir Chamber of Commerce and Industries (for short the Chamber) held pursuant to Notification No.16/36/C/1292 dated 8. 9. 2012 issued by the Secretary General of the Chamber and its result as null and void and permanent injunction restraining the defendants from acting upon the said election result in any manner. Alongside the suit, he has filed an application for temporary injunction seeking inter alia stay of election of office bearers. Herein respondents-2 to 5, who are the outgoing Office Bearers of the Chamber, are defendants in the said suit. Ld. trial Court issued notice of the suit and the application to the defendants, who caused their appearance on 3.10.2012 and sought time for filing written statement as also objections to the application. Learned Court by its order on the same day, while grating time, however, subject to objections from the other side, temporarily restrained the defendants from taking further steps in election process including constitution of the executive committee, till next date of hearing, which was fixed for 18. 10. 2012. In issuing this direction, ld. Trial Court took the view that in the facts and circumstances of the case, the ends of justice demand such an order to be passed.
2. Appellants, who were strangers to the suit and claim to be the members having been elected to the Executive Committee of the Chamber in the election under dispute, have challenged the direction issued by the ld. Trial Court by medium of this appeal with the leave of this Court.
3. The appellants have urged mainly that the learned trial Court has passed the impugned order without jurisdiction because Civil Court has no jurisdiction to stop the completion of election process as the result of election process can be challenged only after completion of the process before a Competent Forum and that it is not permissible under law to stop the election process midway.
4. To say precisely and emphasis, the main challenge to the impugned order relates to jurisdiction of the trial Court to stop the election process and is that election process, cannot be stopped midway.
5. Learned counsel for the appellants, while taking me through the memorandum and Articles of Association of the Chamber (for short the Memorandum) and submitting that the impugned order passed by the ld. trial Court was without jurisdiction, however, has stopped short of saying as what mechanism for challenging the election has been provided under the Memorandum and how election in question could not have been challenged before a Civil Court. Nonetheless, ld. counsel has relied upon a ruling of this Court in Shatru Jeet Singh Jamwal & Ors. v Om Parkash Shukla & Ors., 2005(2) JKJ 1 (HC). The civil revision in that case had arisen out of an order passed by the learned Additional District Judge, Jammu in an application for temporary injunction in a suit, the subject matter whereof pertained to election of Purani Mandi Business Association. This Court, while dealing with the scope of issuing restraint order in respect of election process has observed:
8. Law on the point is settled that after commencement of the election process the court should stay its hands and not interfere with the process. Reference may be made to the leading case on the subject, namely, N. P. Ponnuswami v. The Returning Officer, AIR 1952 SC 64. The said decision has been followed unanimously in umpteen cases thereafter. It is true that the decisions have been rendered in the context of Article 329 (b) of the Constitution of India or statutes containing similar provision but, in my view, same principle should govern non-statutory elections i.e. elections in private societies. The reason being that the result of election can always be challenged in accordance with the mechanism provided in the relevant rules bye laws and, where no such mechanism is provided, by way of suit. It is settled principle that before issuing injunction the party applying for injunction should not only make out a prima facie case but also satisfy the court that it will suffer irreparable loss and injury in case injection is not granted and that balance of convenience also lies in its favour. Where the result of elections can be challenged in accordance with the mechanism of the rules/bye laws etc. or by a suit, it cannot be said that the person would suffer irreparable injury if elections are not stayed.
6. The clear and simple legal position, thus, is that the election process, besides to be challenged in terms of Article 329 (b) of the Constitution of India, can be challenged as per the mechanism provided in the relevant rules or by laws and, where no such mechanism is provided, by a civil suit.
7. Questions that may be raised before the trial Court, therefore, would be whether the civil court has the jurisdiction to hear the suit and whether the temporary injunction as sought by the plaintiff can be granted. Consideration on these questions, if raised, is left open to the trial Court.
8. The only question involved in this revision is whether the ld. trial Court has fallen into an error by passing the impugned order and thereby stalling election process.
9. The ld. counsel for the appellants would submit that the impugned direction is bad in law as it has stalled the election process, which is not permissible. Ld. counsel for respondent-1 (plaintiff), however, urged that the direction issued by the learned trial Court was just temporary arrangement, whereas the application for temporary injunction is yet to be decided on merit. It was issued after the defendants of the case had sought time for filing the written statement and objections and on hearing the counsel appearing for both the sides the ld. trial Court, had taken the view that ends of justice demands that further steps in election process were stayed till filing of the objections. This order was subject to objections of defendants and was applicable only till next date fixed before the trial Court i.e. 18.10.2012. However, the appellants instead of approaching the trial Court, filed this appeal which has caused delay in disposal of application for temporary injunction. The ld. counsel further submitted that the appeal filed by the appellants is premature and if legality of the impugned order is considered by this Court, a serious prejudice would be caused to both the sides. Consideration of the impugned order on merit of the case would tantamount disposal of the application for temporary injunction. In support of his contentions ld. Counsel relied upon a judgement of this Court in Dr. Narboo Tsering & anr. Vs. President Chemist Association & Ors., 2012 (1) SLJ 148 HC. This Court has observed:
7. It is also settled now that the order of injunction ex-parte is appealable under Order XLIII of the Code of Civil Procedure but this Court in various judgments has settled the position i.e. as a matter of practice appeal against the orders passed subject to objections are not entertained subject to exception and this practice has hardened into rule. So it is for the petitioner (defendants), if they choose, to file an appeal to carve out an exception for filing such appeal, or otherwise to have to file application/objections for modification/ alternation of the order.
10. It would go without saying that temporary injunctions by competent Forums or Courts, as the case may be, in election matters are not barred altogether. This Court in Shatru Jeet Singh Jamwals case (supra), has observed that before issuing injunction, the party calling for injunction should not only make out a prima facie but also satisfy the Court that it will suffer an irreparable loss and injury in case injunction is not granted and that the balance of convenience also lies in his favour.
11. When injunction should be granted or refused would differ from case to case but general principle to be adopted, would be that the election process is not stalled.
12. In this case the order passed by the ld. trial Court for filing written statement and objections, was necessitated as defendants had sought time was subject to the objections of other side and was for a limited period till next date fixed in the case which was not later than 15 days of the date of the order. The ld. trial Court had felt necessity of issuing ad interim injunction to meet the ends of justice in consideration of the facts and circumstances of the case.
13. The questions of jurisdiction and requirement of issuing of final temporary injunction, if raised, are yet to be considered by the Court after hearing both the sides. The appellants could take part in that hearing after seeking permission for impleadment in the case which, this Court has been told during the course of arguments, has been granted to them.
14. For what all has been said above, I am of the considered view that the ld. trial Court cannot be said to have committed any error by granting ad interim injunction and the case is not fit where this Court should interfere in appeal.
15. The questions raised here can aptly be decided by the ld. trial Court and should be done by the said Court. Interference in this appeal, would amount to stepping into the shoes of the ld. trial Court, which I feel should be avoided in the interest of both the parties.
16. Viewed, thus, instant appeal is dismissed.
17. However, keeping in view the legal position indicated herein above, the ld. trial Court is directed to dispose of the application for temporary injunction within 20 days after the receipt of the copy of this order.
18. Copy of this order be sent to the ld. trial Court by a special Messenger.
19. Both the parties shall cause their appearance before the trial Court on 15. 4. 2013 and shall complete their pleadings at earliest for which the ld. trial Court, may grant the parties sufficient time to its satisfaction. In any case, application for temporary injunction shall be disposed of within the time stipulated above.
(Janak Raj Kotwal) Judge Srinagar 09.04.2013 Ved-Secretary