Madras High Court
Under Societies Of Registration Act Xxi ... vs M.Solomon on 21 April, 2016
Author: C.T.Selvam
Bench: C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.04.2016 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM C.R.P.(PD)(MD) No.872 of 2016 & CMP(MD)No.4476 of 2016 1.The Young Men's Christian Association, Madurai (Reg.No.4 of 1971) Under Societies of Registration Act XXI of 1860, and XXIV of 1954) 2.The Young Men's Christian Association, Madurai (Reg.No.4 of 1971) Under Societies of Registration Act XXI of 1860, and XXIV of 1954) Through its President. 3.The Young Men's Christian Association, Madurai (Reg.No.4 of 1971) Under Societies of Registration Act XXI of 1860, and XXIV of 1954) Through its General Secretary. 4.Jeyasuresh Jayaraj 5.Rev.S.Suyambu 6.Shamila Doris ... Petitioners/ Respondents-1 to 6/ Defendants 1 to 6 -Vs- 1.M.Solomon, Life Member, YMCA Madurai For himself and on behalf of other members of YMCA, Madurai, in representative capacity ... 1st Respondent/ Petitioner/Plaintiff 2.National Council of YMCA of India, through its National General Secretary, Bharat Yuvak Bhavan, 4th Floor, Jai Singh Road, New Delhi-110 001. 3.The District Registrar, Office of the Registrar of Societies, Madurai. ... Respondents - 2 & 3/ Respondents - 7 & 8/ Defendants 7 & 8 Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India to call for the records relating to the Order of interim injunction in I.A.No.153 of 2016 in O.S.No.264 of 2016 dated 12.04.2016 on the file of the Court of Madurai Town District Munsiff Judge, at Madurai to set aside the same and pass further orders as this Court may deem fit and proper. !For Petitioners :Mr.Issac Mohanlal, Senior Counsel for Mr.T.Cibi Chakraborthy ^For Respondents :Mr.G.Prabhu Rajadurai :O R D E R
This Civil Revision Petition challenges the order in I.A.No.153 of 2016 in O.S.No.264 of 2016 on the file of the Madurai Town District Munsiff Judge. In O.S.No.264 of 2016, plaintiff, a member of the first defendant association has sought a declaration that the resolution dated 23.12.2015 extending the office of the 5th defendant as General Secretary beyond 62 years is illegal and void and to the resolution dated 23.12.2015 appointing the 6th defendant as Assistant General Secretary, a post nonest as per the bye-law is illegal and void and to pass a decree of permanent injunction restraining the 5th and 6th defendants from officiating as General Secretary and Assistant General Secretary of the first defendant Society in violation of the bye-law of the first defendant Society.
2. By way of I.A.No.153 of 2016, the respondents/ Plaintiff sought the relief of ad-interim injunction, forbearing the 5th and 6th respondents from officiating as General Secretary and Assistant General Secretary of the first respondent's Society in violation of the bye-law of the first respondent's Society pending disposal of the suit. Such application came to be ordered on 05.04.2016. Such order is under challenge.
3. Heard the learned Senior Counsel appearing for petitioners and the learned Counsel appearing for respondents.
4. Learned Senior Counsel submitted that when the main relief prayed for in the suit is one of declaration, consequent relief of injunction cannot be granted pending the determination of the suit. The Court below while passing the order of interim injunction had not issued notice to petitioners. As a consequence, first respondent through his Counsel issued a notice dated 13.04.2016, pursuant to which, operations in the various bank accounts of the first petitioner/first defendant were not permitted. As a consequence, petitioners had been rendered unable to provide for 1500 special children under their care and the interest of about 500 employees also was affected. The commissioning of a new building constructed at the cost of Rupees Eight Crores scheduled for 23rd April 2016, had been stalled and had to be postponed causing inconvenience to very many persons including foreigners who had intended to participate. The respondent/complainant was one of 5000 members of the first defendant and no public interest was involved.
5. Learned Counsel for respondents submitted that there were very many complaints against first petitioner/5th defendant. Quite against the bye- laws and memorandum of association of the first petitioner/first defendant, petitioners had sought to extend the services of the 5th defendant and also appointed 6th defendant to a post not provided for and such was the reason for the respondent/plaintiff moving the suit. He contended that the revision was not maintainable, since the order under challenge, passed under Order 39 Rule 1 of Code of Civil Procedure, was temporary in nature. Against such ex- parte order, petitioners/defendants were provided remedy under Order 39 Rule 3-A which requires the Court to dispose of the interim application within thirty days from the date of grant of injunction ex-parte. He further contended that where alternative remedy was available, it was not open to petitioners to seek relief under Article 227 of the Constitution of India.
6. Learned Senior Counsel appearing for the petitioners joined issue on the eligibility of the 5th and 6th respondents to the posts assigned to them contending that neither the memorandum of association or bye-laws dealt with the personnel policy of the first defendant. The appointment of the 5th and 6th defendants was in keeping with the present personnel policy. He contended that the present was fit case for exercise of power of superintendence under Article 227 of the Constitution of India, towards undoing the grave hardship caused to petitioners.
7.As any observations on the merits of the rival contentions would have a bearing on the suit, we refrain from making the same.
8. Order 39, Rule 3 of Code of Civil Procedure reads thus:
"3. Before granting injunction, Court to direct notice to opposite party- The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to the opposite party.
Provided that where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant."
9. In response to this Court expressing the view that requirements of Order 39 Rule 3 of Code of Civil Procedure had not been met in the order under challenge, respondents Counsel submitted that the Court below had perused the documents referred to therein and it may be construed that the Court below duly was satisfied with the need to pass the order under challenge. Placing constructions on orders or drawing support therefor on presumptions would render nugatory the legislative intent and purpose. The legislative intent is all too clear. An ex-parte order of injunction is to be the rare exception to the general rule there against. When a Court decides to act against the general norm, it specifically must state its reasons for doing so.
10. In Shiv Kumar Chadha -vs- Municipal Corporation of Delhi (1993 SCC
161) the Honourable Supreme Court has observed as follows-
"30. It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the Court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course., Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The Court grants such relief according to the legal principles- ex debito justitiae. Before any such order is passed the Court must be satisfied that a strong primafacie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.
31. Under the changed circumstance with so many cases pending in Courts, once an interim order of injunction is passed, in many cases, such interim orders continue for months; if not for years. At final hearing while vacating such interim orders of injunction in many cases, it has been discovered that while protecting the plaintiffs from suffering the alleged injury, more serious injury has been caused to the defendants due to continuance of interim orders of injunction without final hearing. It is a matter of common knowledge that on many occasions even public interest also suffers in view of such interim orders of injunction, because persons in whose favour such orders are passed are interested in perpetuating the contraventions made by them by delaying the final disposal of such applications. The court should be always willing to extent its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot-be. used to protect or to perpetuate a wrong committed by a person who approaches the Court.
32. Power to grant injunction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circumstances of a particular case. The Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in ail cases the Court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that "where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay......
33.It has come to our notice that in spite of the aforesaid statutory requirement, the Courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that Court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.
34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the Proviso aforesaid was introduced, Rule 3 said "the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party". The proviso was introduced to provide a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parts order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance there of will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a conditions has been imposed that Court must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor. (1875) 1 Ch. D. 426, Nazir Ahmed v. Emperor, AIR 1936 PC 253. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramachandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915.
35. As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side. It must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed.......
11. Finding that the Court below has failed to inform its reasons as required by proviso to Order 39 Rule 3 of the Code of Civil Procedure, the order under challenge is set aside and I.A.No.153 of 2016 is remitted back to the Court below. The Court below shall take up the matter afresh, issue notice to the respondents therein, hear both sides and pass orders on merits and in accordance with law.
12. Civil Revision Petition is allowed. No costs. Consequently, the connected Miscellaneous petition is closed.
TO The Madurai Town District Munsiff Judge, at Madurai..