Madras High Court
Kancheepuram Murugan Silk Weavers ... vs Kancheepuram Murugan Silk Weavers ... on 12 December, 1990
Equivalent citations: (1991)2MLJ178
ORDER Srinivasan, J.
1. This civil miscellaneous appeal is taken up with the consent of parties. It is directed against an order of injunction passed by the Subordinate Judge, Kancheepuram in I.A. No. 1406 of 1990 in O.S. No. 309 of 1990. The order is to the effect that the appellant herein shall hold election to the Board of management of the Society only with the list of Members of the Society prepared on 20.10.1990 and that no member whose name is not found in the said list is entitled to participate in the election.
2. It is necessary to set out a few facts prior to the filing of the present suit in order to show that the present suit is an abuse of process of Court.
3. The appellant was appointed as Special Officer of the Society on 24.4.1989 under Section 89 of the Tamil Nadu Co-operative Societies Act, 1983, hereinafter referred to as the 'Act'. The State Government passed an Ordinance, which was Ordinance 4 of 1989 entitled as Tamil Nadu Co-operative Societies (Appointment of Special Officers) Ordinance. Under Clause 3 of the Ordinance the term of any committee or the board of management, President, Vice-President, Chairman, Vice-Chairman, Secretary and Treasurer of every primary society came to an end automatically on the appointed day, viz., 1.7.1989 and such members shall vacate their office on or before the said date. Under Clause 4 the Government was empowered to appoint a person as Special Officer to manage the affairs of any primary society referred to in Section 3. The Ordinance was substituted by Tamil Nadu Act 38 of 1989. The language of Sections 3 and 4 of the Act was the same as the language of Clauses 3 and 4 of the Ordinance. The term of the appellant as Special Officer was extended upto 31.10.1989 by Notification Rc. No. 40933/89/G2(1), dated 4.7.1989. That was issued under Section 4(1)(a) of the Ordinance. Another notification was issued on 28.2.1990 in Rc. No. 44280/G1-1 extending the period upto 31.12.1990. That was issued under Section 4 of Act 38 of 1989. The Special Officer by virtue of his office as such and exercise of his powers under Section 88 of the act admitted members to the Society. According to the Special Officer as many as 427 members were admitted between 31.8.1989 and 18.9.1989.
4. One of the members of the society filed a suit O.S. No. 165 of 1989 on the file of the Subordinate Judge's Court, Kancheepuram, on 19.9.1989. He claimed that he was representing all the members of the society. He filed an application under Order 1, Rule 8 Civil Procedure Code. The prayer in the suit was for a declaration that the defendants [herein were not entitled to induct or eject any person into or from membership of the society till the duly elected Board took charge. The defendants in the suit were the society represented by its Special Officer and the society represented by its Election Officer. That suit was decreed by the trial Court on 4.5.1990. On appeal the decree of the trial Court was reversed. There was a second appeal in this Court in, S.A. No. l511 of 1990. Pending the second appeal an application was made for injunction restraining the respondents therein from ii ducting any person as member of the society and for maintaining the status quo as on 31.8.1989 as decreed in the suit, O.S. No. 165 of 1989. Though interim injunction was granted by this Court at the same of admission of the appeal the same was vacated by me on 24.10.1990.1 passed the following order:
There is no justification for continuing the injunction in this matter. The Special Officer is certainly entitled to carry out the functions of the Board in the absence of the Board. It is stated that the Special Officer has fixed up election of the committee for 31.10.1990. Election shall go on. Interim injunction is vacated. Petition is dismissed.
Even before the ink in my order could become dry another member of the society filed the present suit in Subordinate Judge's Court, Kancheepuram on 25.10.1990 which has been numbered as O.S. No. 309 of 1990. The prayer in the suit is that there should be a decree declaring that any person stated to have been inducted after 1.7.1989 as member of the society and the defendants to the suit had no rights to violate the provisions of law under Section 89(1) of the Act and the judgment of the High Court reported in Elumalai v. The Assistant Director of Handlooms 1989 Writ L.R. 428, and as per the voters list published on 20.10.1990 and for injunction restraining the defendants from permitting any person said to have been admitted as member as and from 1.7.1989 from contesting or voting any election or proceeding". Though the prayer, is not intelligible as such and I have considerable difficulty in understanding the same, learned Counsel for the first respondent stated in the course of arguments that the sum and substance of the prayer was that persons admitted as members after 1.7.1989 by the Special Officer were not lawfully entitled to be members, as the Special Officer had no right to induct members and they were, the before, not entitled to take part in the election. According to learned Counsel the basis of the prayer in the present suit is that the Special Officer had acted illegally in inducting members after 1.7.1989.
5. Though the language used in the prayer mentioned above is different from the language used in the prayer in O.S. No. 165 of 1989 the 1 substance of the two plaints is the same, the prayer in the second suit, viz., present suit has been camouflaged in order to escape the provisions of Section 11 of the Code of Civil Procedure. On a perusal of the plaints it is clear that both the members claimed to have instituted the suits as representing all the members of the Society giving vent to the same grievance before the Court. While one suit at the instance of one member invoking the provisions of Order 1 Rule 8, Civil Procedure Code claiming to represent all the members of the society is already pending in second appeal, it is not known how the second suit is filed by another member who also claims that he is representing all the members of the Society. It is stated that an application was filed in the present suit also for permission to sue in a representative capacity under Order 1, Rule 8, Civil Procedure Code. The facts I have already stated are sufficient to hold that the second suit is not maintainable, in view of the pendency of the earlier suit. If this is allowed, every member of the society will come out with one suit claiming that he is the representative of all the other members of the society and there will be no end to it, and the very object of Section 11, Civil Procedure Code will be defeated thereby once a member is permitted to represent under Order 1, Rule 8, Civil Procedure Code and the suit has been entertained, it is undoubtedly on behalf of all the members of the society and the decision therein is binding on them.
6. Consequently, the order passed by me in C.M.P. No. 13565 of 1990 in S.A. No. 1511 of 1990 is binding on all the members of the, society. The present suit has been filed only for the purpose of circumventing my order.
7. Learned Counsel for the first respondent contends that in the present suit he is only seeking to implement the orders passed by me by taking up the stand that members who are said to have been inducted after 1.7.1989 shall not take part in the election. Learned Counsel states that my order permitted the Special Officer to hold the election for which he had fixed the date as 31.10.1990 and my order only declared that the Special Officer was entitled to carry out the functions of the Board in the absence of the Board. According to learned Counsel the Board is not entitled to admit any person as a member of the society in violation of the bye-laws of the society. It is contended that the Special Officer has admitted members in violation of the by-laws of the society and the present suit is instituted challenging the admission of such members and preventing them from taking part in the election.
8. It is the same ground on which the prior suit was also filed seeking an injunction from the court preventing the members inducted by the Special Officer from taking part in the election or the affairs of the society. Hence the present suit is in no way different from the earlier suit. The same argument was advanced before me in C.M.P. No. 13565 of 1990 in S.A. No. 1511 of 1990.
9. I am not at present concerned with the validity of the induction of members in the society. If the contention of the respondent is that members have been unlawfully inducted and that they are not entitled to take part in the affairs of the society the remedy of the first respondent is to approach the forum prescribed under the Act. Section 23(4) of the Act provides that any question as to whether an applicant for admission as a member of a society is, or a member of a registered society was, or has become, subject to any of the disqualifications mentioned in the section, shall be decided by the registrar. Hence the registrar is empowered to decide the questions which are raised by the first respondent herein. He ought to have approached the registrar and he ought not to have filed the suit in the Civil Court. Section 90 of the Act provides for settlement of disputes by the registrar. The dispute that is now raised by the first respondent will undoubtedly fall within the provisions of Section 90 of the Act. Learned Counsel for the first respondent contends that this is not a matter covered by Section 90. I do not agree. Clause (c) of Sub-section (1) of Section 90 provides for disputes between the society or its board or past board or any officer, agent or servant, etc. Again Clause (a) provides for disputes among members, past members and persons claiming through members, past members etc. Clause (b) provides for disputes between a member, past member or person claiming through a member, past member and the society, its board or any officer, agent or servant of the society. Here the dispute is said to be raised by all the members of the society being shown as plaintiff represented by one of the members and the opposite party is the Special Officer of the society, who is carrying out the functions of the Board. Clause (b) of Sub-Section (1) of Section 90 of the Act will cover the dispute even if it does not fall under any other sub-clause.
10. Section 156 of the Act bars the jurisdiction of the Civil Court with regard to any order or award passed, decision or action taken or direction issued under the Act by an arbitrator, a liquidator, the registrar or an officer. Learned Counsel for the first respondent contends that the action of the Special Officer is not one under the Act as he is not validly continuing in office. According to learned Counsel after 1.7.1989 the Special Officer is not entitled to be in office because of the decision of the Division Bench of this Court in Elumalai M.S.E. v. The Assistant Director of Handlooms 1989 Writ L.R. 428, and the before, any action taken by him is not one under the Act. I do not agree with this contention. The judgment of the bench was concerned with the provisions of Section 89 of the Act. The Bench said that in cases where there was no Board functioning before the passing of the Ordinance, viz., Ordinance 4 of 1989, there was no occasion to invoke Clause 3 or Clause 4 of the Ordinance. However, the Bench directed the respondents before them to hold elections to the society and entrust its affairs to the elected members on or before 28.2.1990. The judgment of the Bench will have no application to the facts of the present case particularly when the Act has been passed superseding the Ordinance subsequently. Moreover, the action taken by the Special Officer is certainly an action under the Act. If he is not validly continuing as a Special Officer the remedy of the first respondent is to challenge his authority elsewhere. For the purpose of this suit he is treated as a Special Officer and he is shown as representing the society. The cause-title in the plaint describes the first defendant as the society, represented by its Special Officer. Hence the plaintiff in the suit considers the Special Officer as a person entitled to represent the society for the purpose of this suit. Learned Counsel for the first respondent made it clear that the validity of the appointment of the Special Officer is not challenged in these proceedings.
11. It is seen from the plaint that the suit has been valued at Rs. 30, 500 and court-fee is paid under Section 50 of the Tamil Nadu Court-fees and suits Valuation Act 14 of 1955. I have already referred to the prayer in the suit which is one for declaration and consequential injunction. Section 50 of the Tamil Nadu Court fees and Suits Valuation Act 14 of 1955 is a residuary provision and it will come into play only if there is no other provision under the Act. The section begins with the words "Suits not otherwise provided for". Section 25 is a specific provision for suits for declaration and consequential relief. Clause (a) deals with a suit for declaration and for possession; Clause (b) relates to a suit for declaration and for consequential injunction with reference to immovable property and Clause (c) pertains to a right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and the entirety thereof. Clause (d) of this section reads thus : "In other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher". According to learned Counsel for the first respondent Clause (d) would apply only to cases relating to immovable property which are not covered by Clauses (a) and (b). I do not agree with this contention. There is no warrant for introducing such words in Clause (d). Clause (d) is wide enough to cover all cases which are not governed by Clauses (a), (b) and (c). Hence any suit in which a prayer for declaration and any other consequential relief is made, will be governed by Clause (d) if it does not attract Clause (a) or (b) or (c). Consequently, the present suit is one falling squarely under Section 25(d) of Tamil Nadu Act 14 of 1955. The plaintiff-first respondent having valued the suit at Rs. 30, 500 ought to have paid court-fee under Section 25(d) of the said Act and there is absolutely no scope to invoke Section 50 and to pay fixed court-fee. The plaint ought not to have been numbered by the trial Court.
12. As the suit is not properly laid on the file of the trial court it was not proper for it to grant any interim relief in favour of the plaintiff-first respondent.
13. Learned Counsel for the appellant places reliance on the Judgment of the Supreme Court in Raja Ram Kumar v. Union of India A.I.R. 1988 S.C. 752. Dealing with the jurisdiction of Civil, Courts with regard to statutory rights the Supreme Court observed:
Generally speaking, the broad guiding considerations are that wherever a right, not pre-existing in common-law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, the n, even in the absence of an exclusionary provision the civil Courts' jurisdiction is impliedly barred. If, however, a right pre-existing in common-law is recognised by the statute and a new statutory remedy for its enforcement provided; without expressly excluding the civil courts' jurisdiction, the n both the common-law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence.
I have already expressed my opinion that the present suit is not maintainable in a Civil Court and the remedy of the firm. respondent-plaintiff is only to approach the authorities constituted under the Act. The judgment of the Supreme Court is binding authority for the said position.
14. Even on the merits, this is not a case in which an injunction should be granted. The plaintiff will not suffer any irreparable injury by the election being conducted by the Special Officer. Even after the election, the plaintiff has got his remedies to have it set aside. The question whether the members inducted by the Special Officer are entitled to take part in the election could be gone into and if the authority finds that they are not validly inducted, the election could be set aside and a fresh election could be had. While on the one hand the plaintiff is making a grievance of the continuance of the Special Officer contending that the Special Officer is not validly in office, on the other he is paving the way for the Special Officer to continue in off ice by preventing the election of the Committee of Management, The Court below ought not to have granted injunction, particularly when I had passed an order on 24.10.1990 that the election shall go on. The principles governing the grant of interlocutory injunction have been completely ignored by the Court below. The balance of convenience is certainly not in favour of the plaintiff.
15. In the facts and circumstances stated above, the order made by the trial Court granting injunction as prayed for by the first respondent/plaintiff is wholly unsustainable. The appeal is allowed, the order in I.A. No. 1406 of 1990 in O.S. No. 309 of 1990 is set aside and the said application will stand dismissed with costs throughout.