Madras High Court
R.K.Chandramohan vs Elephant G.Rajendran on 9 April, 2011
Equivalent citations: AIR 2011 MADRAS 293, (2011) 2 MAD LW 776 (2011) 5 MAD LJ 401, (2011) 5 MAD LJ 401
Author: R.Banumathi
Bench: R.Banumathi, V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.04.2011
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE V.PERIYA KARUPPIAH
O.S.A.NOS.78 and 79 of 2011
and M.P.Nos.1 of 2011
R.K.Chandramohan ... Appellant in
both O.S.As
Vs.
1. Elephant G.Rajendran
2.Tamilnadu Advocates Association
rep.by its Secretary M.Baskar
No.196, New Addl.Law Chambers
High Court Building
Chennai 600 104.
3.The Bar Council of Tamil Nadu
rep.by its Secretary
High Court Campus
Chennai- 600 104.
4.The Bar Council of India
Rep.by its Secretary
No.225, Okhla Industrial Area
Ph-III, New Delhi- 110 020. .... Respondents in
both O.S.As
Prayer: Original Side Appeals in O.S.A.Nos.78 and 79 of 2011 are filed under Order XXVI Rule 1 of the O.S.Rules read with Clause 15 of the Letters Patent against the order dated 8.3.2011 made in Application Nos.1244 and 1245 of 2011 respectively in C.S.No.7 of 2011 on the file of this Court.
For Appellant in : Mr.Vijay Narayan,Sr.Counsel
for
Mr.M.Santhanaraman
For Respondent No.1 : Mr.Elephant G.Rajendran
Party-in-person
For Respondent No.2 : Mr.S.Prabhakaran
for
Mr.W.M.Abdul Majeed
For Respondent No.3 : Mr.S.Y.Masood
For Respondent No.4 : Mr.K.Venkatakrishnan
COMMON JUDGMENT
R.BANUMATHI,J Whether the appellant is permitted to assume office as a member and whether he is to be allowed to contest for Chairmanship of Tamil Nadu State Bar Council for the term 2010-2015 is the point falling for consideration in these appeals. Being aggrieved by the Order 8.3.2011 made in Application Nos.1244 and 1245 of 2011 in C.S.No.7 of 2011, appellant/former Chairman of Bar Council of State of Tamil Nadu has come forward with these appeals.
2. The suit C.S.No.7 of 2011 arises on the following facts:
The Bar Council of Tamil Nadu is a statutory body created under the Advocates Act, 1961 with statutory rights and obligations. As per Section 3 of Advocates Act, there shall be a State Bar Council. As per section 3(3) of the Act, there shall be a Chairman and Vice-Chairman of each State Bar Council elected by the Council in such manner as may be prescribed. As per Section 8 of the Act, the term of office of elected member of a State Bar Council shall be five years from the date of publication of the result of his election.
3. The last election to the Bar Council of Tamil Nadu was held on 20.9.2005 and the Council was constituted on 12.10.2005. The term of office of the State Bar Council expired on 11.10.2010. In terms of the provisions of Section 8 of the Advocates Act and by virtue of resolution No.77 of 2010 passed by the Bar Council of India, the term of office of the Bar Council of Tamil Nadu was extended for a period of six months with effect from 12.10.2010. On the strength of the said extension, the State Bar Council convened a meeting on 23.12.2010 and passed resolutions fixing the date of election for the Bar Council of Tamil Nadu and Puducherry on 4.3.2011. By another resolution, special committee comprising of five senior advocates of High Court viz., Mr.G.Masilamani, Mr.M.Raveendran, Mr.S.V.Jayaramn, Mr.M.Venkatachalapathy and Mr.T.V.Ramanujam were appointed to scrutinise and monitor the conduct of the ensuing election with power to issue suitable instructions for the conduct of free and fair election and also power to nominate any number of advocates. To assist them in the conduct of elections., three advocates viz., Mr. T.V.Krishnakumar, Mr.S.Muthukrishnan and Mr.K.Mahendiran were appointed as Election tribunal as contemplated by the Rules. By 4th resolution, Bar Council of Tamil Nadu resolved to hand over the administration of the State Bar Council to the Advocate General with power to sign the cheques and operate the Bank accounts jointly with the Secretary. The election notification was issued on 27.12.2010 and the same was published in Tamil Nadu Government Gazette Part VI - Section 1, No.51-A. The notification was also published in the news paper on the following day and Press Release was issued by the Advocate General on 30.12.2010 confirming the election schedule and the appointment of the Secretary to the Bar Council of Tamil Nadu as the Returning Officer.
4. The 1st respondent Tamil Nadu Advocates Association is registered under the Societies Registration Act with Registration No.98/2008. In the plaint in C.S.No.7 of 2011, the 1st respondent/Plaintiff Association alleged that in the earlier election held in 2005, the election was marred by unprecedented malpractices and gross irregularities were committed by many contesting members. With a view to ensure free, fair and transparent election for the Bar Council of Tamil Nadu to be held in March, 2011, the suit has been filed by the 1st respondent/plaintiff represented by its Secretary seeking (i) for declaration that the Press Release dated 30.12.2010 (R.O.C.No.1733 of 2010) announcing the election to the Bar Council of Tamil Nadu on 4.3.2011 is null and void (ii) declaring that the electoral rolls published by State Bar Council is for the election of its members to be held on 4.3.2011 is null and void (iii) appointing a retired Judge of the High Court to conduct the election of members to the Bar Council of Tamil Nadu right from the preparation of electoral rolls upto the announcing of successful candidates and (iv) grant an order of permanent injunction restraining State Bar Council from proceeding with the electoral process in pursuance of its press release dated 30.10.2010 (R.O.C.No.1733 of 2010).
5. Pointing out that inspite of appointment of Committee in the previous elections, there were irregularities in the conduct of free and fair elections, on 12.1.2011, the learned single Judge passed an elaborate order appointing Justice K.P.Sivasubramaniam (Retired) as a Commissioner to oversee and monitor the ensuing elections to the State Bar Council. In the said order, the learned single Judge interalia issued various directions as to:- (i) printing of ballot papers; (ii) taking ballot papers to the respective polling stations; (iii) conduct of elections; (iv) involving judicial officers in the Districts and moffusal in nominating an independent observers and to receive ballot papers and sending them back to Madras with police protection and (v) directions as to the transportation of polled boxes and other directions.
6. In the said order dated 12.1.2011, the learned single Judge extended the time for payment of arrears of subscription till 24.1.2011 and directed the State Bar Council to issue circulars to all the Bar Associations/Advocate Associations, who in turn, shall display the same in the Notice Boards to enable the members, whose names are not found in the electoral rolls to take necessary steps, and final revised electoral rolls are directed to be published on or before 31.1.2011. In paragraph No.16(xix), the learned single Judge observed as under:
"The Court will monitor the progress of the entire election process till the results are announced".
7. The learned single Judge made it clear that the Commissioner was appointed only for the purpose of overseeing and monitoring the election process. All other functions of the Bar Council such as enrolment, signing of cheques, etc., are to be carried out by the Advocate General as per the resolution passed by the Bar Council. The Order dated 12.1.2011 was ordered to be communicated to all the judicial officers as well as to all the Bar Associations/ Advocate Associations. As detailed infra, Order dated 12.1.2011 was communicated to all the Bar Associations/Advocate Associations.
8. A news item appeared in the Times of India in its Chennai Edition reported that some of the Bar Associations have sold out their votes en bloc was brought to the notice of the Court by Elephant Rajendran, who filed Application No.450 of 2011 seeking to implead himself as a defendant and praying for issuance of directions. Upon hearing the counsels, by the Order dated 2.2.2011 single Judge issued further directions involving the Judicial Officers in the conduct of the elections. The learned single Judge issued further directions. In pursuance of the Order of appointment of Commissioner - Justice K.P.Sivasubramaniam (Retd.), the learned Judge Commissioner issued general instructions to the candidates and voters in R.O.C.No.91 of 2011 dated 28.01.2011 and R.O.C.No.132 of 2011 dated 11.02.2011.
9. Factual Background of filing of applications A.Nos.1244 and 1245 of 2011:- The 1st respondent Elephant G.Rajendran filed A.No.1244 of 2011 to implead the appellant as 4th defendant in the suit and Application No.1245 of 2011 seeking for a direction not to allow the appellant to contest the elections to be held on 4.3.2011. The appellant was the Chairman of State Bar Council during 2005-2010. In the month of June, 2009, the appellant is alleged to have brought influence upon the then sitting Judge to pass a favourable order of anticipatory bail about which the learned single Judge is said to have made complaint to the then Chief Justice. In this regard, alleging that the conduct of the appellant was not befitting his status and his position as the Chairman, the 1st respondent has filed two writ petitions in W.P.Nos.17353 and 17354 of 2009. By the order dated 7.12.2010, Division Bench suspended the status of the appellant as Chairman of the Bar Council of Tamil Nadu and the Division Bench disposed of the Writ Petitions with the following directions:
"95. In fine, these writ petitions are disposed of with the following directions to the petitioner, the Bar Council of Tamil Nadu and the third respondent viz.,;-
(a) The petitioner shall file a formal complaint along with a copy of this order before the Bar Council of Tamil Nadu and Pondicherry, within two weeks, from the date of receipt of a copy of this order;
(b) The petitioner shall file a copy of the said complaint with the third respondent Bar Council of India simultaneously;
(c) The third respondent Bar Council of India is directed to withdraw the complaint filed as directed before the Bar Council of Tamil Nadu and Pondicherry to its file in exercise of its power under Section 36(2) and (3) of the Advocates Act and dispose of the same in accordance with law;
(d) The first respondent's status as Member and consequently as Chairman of the Bar Council of Tamil Nadu and Pondicherry shall stand suspended forthwith and he shall not be permitted by the State Bar Council to function as such pending disposal of the disciplinary action by the third respondent Bar Council of India;
(e) The production of a copy of this order shall be sufficient for the respondents herein and all concerned to comply with the directions contained in this order; and
(f) The letter written by the learned Judge shall be kept under the custody of the Registrar-General of this Court in a sealed cover which shall however form part of the record of these two writ petitions."
10. Challenging the order of the Division Bench, appellant filed S.L.P.(Civil) Nos.35152-35153 of 2010 before the Supreme Court. In the first instance, the Supreme Court granted interim stay. Subsequently, the Supreme Court passed an order on 31.1.2011 vacating the interim stay. The order of the Apex Court reads as under:
"Leave granted.
The appeals will be heard on the SLP paper book, Additional documents, if any, may be filed by the parties.
Having heard learned counsel for the parties on the question of grant of interim relief, we do not find any ground to continue the ad interim order made on 15th December, 2010. Accordingly, we vacate the same. It will be open to the Bar Council of India to proceed in the matter in terms of direction (c) in paragraph 95 of the impugned judgment. Needless to add that the Bar Council shall take its decision on the complaint, to be transferred to it as per the direction of the High Court, uninfluenced by any observation in the impugned judgment on the merits of the complaint. As regards, direction (d) in paragraph 95, Mr.Mukul Rohtagi, learned Senior Counsel appearing on behalf of the appellant submits that the appellant has already handed over the charge of Chairman of the Bar Council of Tamil Nadu and Puducherry to the Advocate General of Tamil Nadu in view of the ensuing elections to the said Bar Council."
11. When the election process was commenced by the Judge Commissioner, appellant filed his nomination and the same was referred to the Advocate General, who is now exercising all the functions of the elected Council in view of the resolutions passed. On 2.2.2011, the learned Advocate General gave the opinion as under:
"Since the candidate is qualified to contest as per the Advocates Act and the Rules, the nomination may be accepted. However, since it is known that a case is pending before the Honourable Supreme Court wherein an I.A. has been filed for restraining him from contesting, it may be made known to the candidate that the acceptance of his nomination is subject to any orders that may be passed by the Apex Court."
12. On coming to know about the filing of the nomination of the appellant and its acceptance, the 1st respondent filed application before the learned Judge -Commissioner requesting him to reject nomination of the appellant. The learned Judge Commissioner passed an order dated 17.2.2011 stating that he has been appointed only to monitor the election process. In these circumstances, the 1st respondent filed application - A.No.1244 of 2011 to implead the appellant as 4th defendant in the suit and Application No.1245 of 2011 seeking for a direction not to allow the appellant to contest the elections to be held on 4.3.2011. The applications were strongly resisted by the appellant.
13. By the impugned order dated 8.3.2011, the learned single Judge allowed Application No.450 of 2011 impleading the 1st respondent as a third defendant. The learned single Judge allowed Application No.1244 of 2011 ordering impleadment of the appellant as the 4th defendant. The application in A.No.1245 of 2011 was disposed off with the following order:
"directing the Bar Council of Tamil Nadu not to permit the appellant to assume office and discharge the functions as elected member of the Bar Council of Tamil Nadu and Puducherry in the event of his being declared successful till the disposal of the disciplinary proceedings by the Bar Council of India or till he obtains appropriate direction from the Apex Court,which ever is earlier".
The learned single Judge further observed that:
"if after counting and after declaration of results, it is found that R.K.Chandramohan (appellant) had been elected, he shall not be permitted to assume office as a member and shall not be permitted either to discharge the functions of a member or to participate in the proceedings of the council, till the disposal of the disciplinary proceedings by the Bar Council of India or till he obtains appropriate directions from the Hon'ble Apex Court, whichever is earlier."
Being aggrieved by the impugned order, the appellant has preferred these appeals.
14. Onbehalf of the appellant, the learned Senior Counsel Mr.Vijay Narayan has submitted that the learned Judge erred in proceeding under the footing treating the suit - C.S.No.7 of 2011 as a suit filed in a representative capacity. Placing reliance upon a decision of INBARAJ AND ANOTHER VS. KALUNGUVILAI CMS SUDHANGA SUVISESA SABAI ((2004) 1 M.L.J 617), the learned Senior Counsel further submitted that before treating a suit as a representative suit under Order 1 Rule 8 C.P.C., it is imperative duty of the Court to give notice to all the parties concerned. The learned Senior Counsel mainly contended that the requirements of Order 1 Rule 8 were not complied with and therefore the Order made in Application Nos.1244 and 1245 of 2011 are in excess of jurisdiction and the orders passed were beyond the scope of the relief sought for in the suit itself and as such the applications were not maintainable.
15. Drawing the Court's attention to the prayer in the suit C.S.No.7 of 2011, the learned Senior Counsel submitted that having regard to the scope of prayer in the suit, the learned single Judge ought to have confined to the limited prayer in the suit and the learned single Judge erred in enlarging the scope of relief. The learned Senior Counsel would further submit that when the requirements of Order 1 Rule 8 C.P.C. has not been complied with the learned single Judge erred in assuming jurisdiction by ordering impleadment of the appellant as 4th defendant and passing orders, which prejudicially affects the appellant.
16. Reiterating the findings of the learned single Judge, the 1st Respondent- Mr.Elephant G.Rajendran has submitted that when the learned single Judge has been continually monitoring the conduct of election, 1st respondent rightly moved the learned single Judge for appropriate directions.
17. We have heard Mr.S.Prabhakaran, learned counsel appearing for the 2nd Respondent/Plaintiff-Tamil Nadu Advocates Association. Drawing our attention to various materials on record, Mr.S.Prabhakaran, learned counsel has submitted that elections were held in substantial compliance of various directions issued by the learned single Judge and therefore, no objection could be raised as to the maintainability of the suit. Learned counsel would further submit that having regard to the irregularities committed in the election in 2005, the learned single Judge has issued appropriate directions for free and fair conduct of elections and no exception is taken to the same.
18. We have also heard Mr.S.Y.Masood, learned counsel appearing for the 3rd Respondent-Bar Council of Tamil Nadu and Mr.K.Venkatakrishnan, learned counsel appearing for 4th Respondent-Bar Council of India.
19. Order 1 Rule 8 C.P.C. applies to representative suits. To avoid conflicting decisions and to avoid multiplicity of proceedings, where there are numerous persons having the same interest in a suit, one or more of them with the permission of the Court sue or be sued or defend in such suit on behalf of others. Order 1 rule 8 C.P.C. formulates an exception to the general rule that all persons interested in a suit shall be parties thereto. Of course, under Order 1 Rule 8 C.P.C., proper course is to obtain permission from the Court before instituting the suit in a representative capacity. Proper notice and its service are imperative. Though plaintiff Tamil Nadu Advocates Association is an Association of advocates, the suit - C.S.No.7 of 2011 was not instituted under Order 1 Rule 8 C.P.C. and leave of the Court has not been obtained to institute the suit in a representative capacity.
20. On going through the materials and various orders, we find that even though the requirements of Order 1 Rule 8 C.P.C. were not complied with, the plaint averments are to the effect to ensure free and fair elections. After filing of the suit, sufficient notice of the suit was given to all the Bar Associations in the State of Tamil Nadu and Puducherry. As pointed out earlier, to ensure that the elections be held in free and fair manner, and to avoid any malpractices, on 12.1.2011, the learned single Judge has appointed Justice K.P.Sivasubramaniam (Retd.) as Commissioner to oversee and monitor the elections to the State Bar Council. By the order dated 12.1.2011 and 2.2.2011, the learned single Judge issued various directions regarding conduct of the election, carrying of ballot boxes.
21. As pointed out earlier, by the Order dated 12.1.2011, the learned single Judge extended the time for payment of arrears of subscription towards advocates welfare fund till 24.1.2011 and directed Bar Council of Tamil Nadu to issue circulars to all the Bar Associations/Advocates Associations so that all the members are put on notice of the directions issued in A.Nos.78 and 18 of 2011 in C.S.NO.7 of 2011. The learned single Judge directed the Secretary of the Bar Council of Tamil Nadu to send Circular to all the Bar Associations/Advocates Associations, who in turn shall display the same in their notice Board, to enable the members, whose names are not found in the electoral rolls, to take necessary steps. The learned single Judge also directed that after that exercise final revised electoral rolls shall be published on or before 31.1.2011. In pursuance of the said directions, Bar Council of TamilNadu sent Circular Roc.No.35 of 2011 dated 12.1.2011, which reads as under:
"Sub: Extension of time for payment of subscription towards Advocates
Welfare Fund (B.C.I.) and
change of address IntimationReg.
Ref: Order passed in Appn.Nos.78 & 18 of 2011 in C.S.No.7 of 2011, dated
12.01.2011.
----
This is to inform you that His Lordship Mr.Justice V.Ramasubramanian by an order dated 12.01.2011 has directed the Bar Council of Tamil Nadu to receive the arrears of subscription towards Advocates Welfare Fund (B.C.I.) till 24.01.2011 and also the change of address, if any to be communicated to the Secretary, Bar Council of Tamil Nadu and the same has to reach the undersigned on or before 24.01.2011. I am herewith enclosing the copy of the Order passed by His Lordship Mr.Justice V.Ramasubramanian dated 12.01.2011. Kindly exhibit the said order conspicuously in the notice board of your Association so as to inform all the members of Your Bar.
I further request you to kindly send the name, address and telephone No./Cellphone no. of the President and Secretary of the Bar Association concerned immediately."
22. In pursuance to the Circular in R.O.C.No.35 of 2011 dated 12.1.2011 issued by the Bar Council of Tamil Nadu, the members have paid their arrears of subscriptions towards Advocates Welfare Fund within the extended time. It was stated that considerable number of advocates were benefited by extension of time for payment of subscription. It was thereafter the revised electoral list was published by the Bar Council of Tamil Nadu. The revised electoral rolls was also communicated to all the Bar Associations/Advocates Associations in R.O.C.No.88 of 2011 dated 31.1.2011. The said R.O.C. again makes a reference to C.S.No.7 of 2011 and the Order dated 12.1.2011. It is thus seen that the Circulars from Bar Council of Tamil Nadu makes a reference to C.S.No.7 of 2011 and the Order passed in A.Nos.78 and 18 of 2011 dated 12.1.2011. Inspite of the order being communicated to all the Bar Associations/Advocates Associations, nobody raised any objection as to the suit or questioned the jurisdiction of the Court. Even though put on notice about the suit - C.S.No.7 of 2011 and various orders/directions issued thereon, the members of Bar have not raised any objection as to the jurisdiction of the Court and thus acquiesced in the jurisdiction of the Original Side of the High Court.
23. In the Order dated 12.1.2011, the learned single Judge also issued directions to the Registrar-General to send copies of the Order to all the Judicial Officers to enable them to nominate local poll observers. The said Order reads as under:
(xxii) The Registrar-General is directed to communicate a copy of this order to the Judicial Officers to whom the tasks of nominating an independent Observer, receiving the ballot papers and sending them back are entrusted. The Secretary of the State Bar Council shall also communicate a copy of this order to the Bar Associations/Advocates Associations, so that all the members are put on notice of the directions issued hereunder."
24. In pursuance to the said Order, the Registrar-General has sent communication to all the Judicial Officers in the State of Tamil Nadu to enable them to nominate independent Poll observers, Judicial Officers to receive ballot papers and sending them to Chennai with necessary police protection. Registrar-General is stated to have circulated the copy of the Order involving Judicial Officers as to the conduct of election, sending ballot papers to Chennai with necessary police protection. As per the Order of the learned single Judge dated 2.2.2011, the Registrar Management has to receive all the ballot boxes and hand over the same to the Judge Commissioner.
25. In R.O.C.No.91 of 2011 dated 28.01.2011, Justice K.P.Sivasubramaniam (Retd.) issued general instructions to candidates and voters as to the conduct of elections. Again, in R.O.C.NO.132 of 2011 dated 11.02.2011, the Commissioner had issued further general instructions to the candidates and voters. In R.O.C.No.230 of 2011 dated 25.02.2011, Justice K.P.Sivasubramaniam who was appointed as the Commissioner had issued instructions to Poll Observers and Special Poll Observers.
26. Various directions issued by the learned single Judge were thus communicated by the Bar Council of Tamil Nadu to the lawyers and the High Court Registry to the Judicial Officers and Judge-Commissioner also issued instructions and Bar Associations/ Advocates Associations were put on notice about the suit C.S.No.7 of 2011 and the High Court on its Original Side has seized up the matter and that the single Judge is continually monitoring the election of the State Bar Council. Elections were held in strict compliance of the directions. In our considered view, even though the requirements of Order 1 Rule 8 C.P.C. have not been complied with, the advocates in the State of Tamil Nadu, who are having the interest, had sufficient notice about the suit. Inspite of the various circulars in pursuance to Order dated 12.1.2011 and 2.2.2011 being circulated/communicated to all the Bar Associations/Advocate Associations, there was no objection as to the suit or as to the jurisdiction of the High Court in entertaining the Suit on its original Side and issuing directions. The acquiescence and the strict compliance of the directions of the Order dated 12.1.2011 and 2.2.2011, in our considered view would amount to waiver and no valid objection could be raised as to the maintainability of the suit -C.S.No.7 of2011 as a representative suit.
27. Whether relief granted is beyond the scope of relief sought for in the suit:- As pointed out earlier, the 1st respondent filed Application No.450 of 2011 for impleading himself as 3rd defendant and simultaneously filed Application Nos.1244 and 1245 of 2011. Even when orders were yet to be passed in Application No.450 of 2011 application to implead the 1st respondent as 3rd defendant, the learned single Judge proceeded to hear the applications A.Nos.1244 and 1245 of 2011. A.No.450 of 2011 came to be ordered by the same impugned order dated 8.3.2011, thereby ordering impleadment of 1st respondent as 3rd defendant in the suit. The learned Senior Counsel Mr.Vijay Narayanan has submitted that even when orders were yet to be passed in the impleading application filed by the 1st respondent (A.No.450 of 2011), the learned single Judge erred in proceeding to hear the applications filed by a third party.
28. Drawing our attention to the prayer in the suit, the learned Senior Counsel has submitted that the suit prayer is general i.e., to declare the Press Release dated 30.12.2010 as null and void and also to appoint a Judge to conduct the election to the State Bar Council. The learned Senior Counsel has submitted that the prayer sought for in Application No.1245 of 2011 is no way connected with the relief sought for in the suit. The learned Senior Counsel would further contend that to implead the 1st respondent as defendant No.3 and the appellant as the 4th defendant, there must be a right to some relief against the appellant in respect of the matter involved in the suit. The contention of the learned Senior Counsel is that the relief sought for against the appellant is no way connected with the relief sought for in the suit, which is more general in nature.
29. Contending that in an adversary litigation, the relief to be granted may not exceed the scope of prayer in the main suit, the learned Senior Counsel placed reliance upon SREE JAIN SWETAMBAR TERAPANTHI VID (S) VS. PHUNDAN SINGH AND OTHERS, (AIR 1999 SC 2322), wherein the Supreme Court held that relief in interlocutory proceedings cannot be granted beyond the scope of the suit.
30. Of course, the prayer in the suit is entirely different from the scope of the prayer in application Nos.1244 and 1245 of 2011. It is pertinent to note that the larger interest of the advocates and to ensure free and fair election, the learned single Judge has passed an elaborate order. Instances of irregularities and malpractices in the previous election held on 9.9.2005 and report of the Committee as to the election in 2005 were brought to the notice of the learned single Judge. Taking note of the irregularities and malpractices committed in the previous elections in 2005, in paragraph No.16(xix) of the Order dated 12.1.2011, the learned single Judge observed that "the Court will monitor the progress of the entire election process till the results are announced". Since the single Judge has seized up the matter and is continually monitoring the election process, it cannot be said that the learned single Judge erred in entertaining the applications A.Nos.1244 and 1245 of 2011.
31. In MAHADEVA RICE & C.V.CHENNIMALAI, (AIR 1968 MADRAS 287), this Court held that (1) If, for the adjudication of the "real controversy" between the parties on record, the presence of a third party is necessary, then he can be impleaded; (2) It is imperative to note that by such impleading of the proposed party, all controversies arising in the suit and all issues arising thereunder may be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject-matter which could still have been decided in the pending suit itself; (3) The proposed party has a defined, subsisting, direct and substantive interest in the litigation, which interest is either legal or equitable and which right is cognisable in law; (4) Meticulous care should be taken to avoid the adding of a party if it is intended merely as a ruse to ventilate certain other grievances of one or the other of the parties on record which is neither necessary or expedient to be considered by the court in the pending litigation; (5) It should always be remembered that considerable prejudice would be caused to the opposite party when irrelevant matters are allowed to be considered by courts by adding a new party whose interest has no nexus to the subject matter of the suit.
32. Having regard to the fact that the Court is continually monitoring the election, the issues as to whether Appellant could assume charge as a Member of State Bar Council or not and when the matters are pending in the Supreme Court, whether he could contest the election for Chairmanship are relevant questions involved in the suit. In such view of the matter, Appellant -4th Defendant cannot be said to be an unnecessary party to the suit. Impleading of Appellant as 4th Defendant cannot be assailed.
33. In the appeal preferred before the Supreme Court, the appellant has filed I.A.No.4 of 2011 wherein he has prayed for the relief "to direct the appellant not to contest the election of the Bar Council of India to be held on 4.3.2011 pending disposal of the Special Leave Petition. The Supreme Court has not passed any order on the said application. The learned Senior Counsel Mr.Vijay Narayan has submitted that when the 1st respondent has moved the Supreme Court for the same relief by filing I.A.No.4 of 2011, the Supreme Court was aware of the ensuing election and the Hon'ble Supreme Court did not prevent the appellant from standing for election inspite of specific request having been made orally by the 1st respondent and while so the 1st respondent cannot initiate parallel proceedings. Learned Senior Counsel would further contend that when the 1st respondent has moved the Supreme Court and the prayer was not granted by the Supreme Court, the learned single Judge erred in saying that even if the appellant is elected he shall not be permitted to assume office as a member and shall not be permitted to discharge the functions as a member.
34. Of course, before the Supreme Court, the 1st respondent has filed the application I.A.No.4 of 2011 seeking for the prayer "to direct the appellant not to contest election of the Bar Council of India to be held on 4.3.2011." As pointed out earlier, by the order dated 12.1.2011, the learned single Judge held that the single Judge will continually monitor the progress of the entire election process till the results are announced. In C.S.No.7 of 2011, when the learned single Judge is continually monitoring the progress of the entire election process. The 1st respondent was justified in filing the application before the learned single Judge. It is not as if the learned single Judge prevented the appellant in entirety. The learned single Judge has only directed the appellant to get necessary clarification from the Supreme Court.
35. As pointed out earlier, the learned single Judge has held that "the appellant shall not be permitted to assume Office as a member and shall not be permitted either to discharge the functions of a member or to participate in the proceedings of the council till the disposal of the disciplinary proceedings by the Bar Council of India or till he obtains appropriate direction from the Apex Court. The learned Senior Counsel has submitted that to get the disciplinary proceedings completed at an early date, the appellant had in fact filed W.P.No.6833 of 2011 and by the order dated 17.3.2011 Justice P.Jyothimani has directed the Bar Council of India to complete the enquiry against the appellant in accordance with law and to pass order within a period of four weeks from the date of receipt of copy of the order. The learned Senior Counsel has submitted that the appellant had taken every step to implement the directions in W.P.Nos.17353 and 17354 of 2009 and while so the learned single Judge was not justified in depriving the appellant from "assuming the office as a member and discharge the functions of an elected member or to participate in the proceedings of the Council." The learned Senior Counsel has submitted that in the election held on 4.3.2011, the appellant has secured sufficient votes for becoming a member and he should be permitted to contest for the post of Chairmanship. The learned Senior Counsel urged that if the appellant is not permitted to contest the election for Chairman, serious prejudice would be caused to the appellant and irreparable injury would be caused to him and the appellant would be deprived of his position. The learned Senior Counsel has further submitted that the balance of convenience is also only in favour of the appellant.
36. In terms of paragraph 95(d) of the judgment in W.P.Nos.17353 and 17354 of 2009, it has been stated categorically that "the appellant's status as member and consequently as Chairman of the Bar Council of Tamil Nadu and Puducherry shall stand suspended forthwith and he shall not be permitted by the State Bar Council to function as such pending disposal of the disciplinary action by the Bar Council of India." When there was a specific direction suspending the appellant's status as Chairman, as a matter of right, the appellant cannot claim to contest for the post of Chairman for the next term unless the disciplinary proceedings is completed or he gets necessary clarification from the Supreme Court of India.
37. The Bar Council of India/ State Bar Council is a public institution aimed for public justice. The central function that the legal profession must perform is nothing less than the administration of justice. Every State Bar Council has a duty/ public duty to perform. When serious allegations are levelled against the appellant, in the larger interest, it would be appropriate that the disciplinary proceedings against the appellant is completed before he aims for the highest status in the State Bar Council.
38. Balance of convenience" means the comparative mischief or inconvenience to the parties. The Court has to balance and weigh the mischief or inconvenience to the either side before granting or withholding an injunction. The balance of convenience ought to be considered as a pre-eminent consideration in the matter of grant of an interlocutory injunction/direction in such a case. The Court must weigh the respective needs of the parties and in whose favour a prima facie case and balance of convenience lies.
39. The status of Chairman of the Bar Council is such a dignified position that the entire legal profession in the State looks upon the Chairman. In our considered view, when serious allegations are levelled against the appellant and when he has been indicted by the Division Bench of this Court, weighing considerations of various factors, we are of the view that the learned single Judge was right in "directing the Bar Council of Tamil Nadu not to permit the appellant to assume office and discharge the functions as elected member of the Bar Council of Tamil Nadu and Puducherry in the event of his being declared successful till the disposal of the disciplinary proceedings by the Bar Council of India or till he obtains appropriate direction from the Apex Court, which ever is earlier". Having regard to the dignified position of the Chairman, learned single Judge was right in saying "if after counting and after declaration of results, it is found that R.K.Chandramohan (appellant) had been elected, he shall not be permitted to assume office as a member and shall not be permitted either to discharge the functions of a member or to participate in the proceedings of the council, till the disposal of the disciplinary proceedings by the Bar Council of India or till he obtains appropriate directions from the Hon'ble Apex Court, whichever is earlier."
40. For the foregoing reasons, we do not find any ground warranting interference with the order of the learned single Judge and O.S.A.Nos.78 and 79 of 2011 are dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are also dismissed.
(R.B.I., J.) (V.P.K.,J.) 09.04.2011 Index: Yes Internet: Yes usk To 1. The Sub-Asst.Registrar Original Side High Court Madras. R.BANUMATHI, J. and V.PERIYA KARUPPIAH,J. usk Common Judgment in O.S.A.Nos.78 and 79 of 2011 09.04.2011