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16. The point for consideration in all these applications is whether the interim injunction granted to the applicant/plaintiff is to be made absolute or vacated?

17. The point:- The plaintiff has filed the suit in his capacity as the General secretary of the DMK party at Anna Arivalayam, No. 268-269, Anna Salai, Madras-6 for a permanent injunction to restrain the defendants, their supports, sympathisers and members of the group from using the name and flag of the party in their conferences, meetings, processions, deliberations anywhere and for costs contending that the party which was started as a Social Reformist party on 17.9.1949 by Dr. Aringar Annadurai as the founder, is now having Thiru M. Karunanidhi, as its present President, the plaintiff Thiru K. Anbazhagan, as its General Secretary and Thiru Sadiq Basha as its treasurer and the defendants and their supporters were expelled from the party, in pursuance of disciplinary actions taken against them as per the rules governing the party and it was also approved by the General Executive Committee of the party in its meeting held on 25.11.1993 at Salem and also in the General Council Meeting held on 29.12.1993 at Thanjavur and that the defendants and their supporters claim themselves to be the real DMK party functionaries and are using the name and flag of the party throughout the State of Tamil Nadu in their meetings, processions etc., and since the Election Commission is likely to notify two by-elections in Tamil Nadu for the Assembly Constituencies of Mylapore and Perunthurai to be held in the month of May, 1994 if the defendants also used the name and flag of the party which belong to the plaintiff and his party, there is every likelihood of the electorate being deceived and mislead which will result in much hardship and injury to the plaintiff and therefore injunction should be granted. The defendants have not yet filed their written statement in the suit; but in the applications filed by them to vacate the interim injunction granted in favour of the applicant on 8.4.1994 they are contending that the suit is not maintainable since the defendants are the real DMK party and that the interim injunction granted against them causes irreparable loss to them and therefore the interim injunction should be vacated. In pursuance of an application dated 6.8.1989 signed by Thiru M. Karunanidhi and Thiru K. Anbazhagan as the president and General Secretary of the DMK party having its office at Anna Arivalayam No. 268-269 Anna Salai to register them as a political party under the Representation of the Peoples Act in the State of Tamil Nadu and the union Territory of Pondicherry, the Election Commission has registered the DMK as a political party as on 18.9.1989 and the same has been communicated to General Secretary by the Election Commission. Therefore the DMK party having its office at Anna Arivalayam is a registered political party in the records of the election commission can not be disputed. The applicants have submitted the rules and regulations of the party to the Election Commission which has also recognised the rules and regulations of the party and therefore it is binding on all the members of that party also cannot be disputed. It appears that on 1.11.1993, the General Secretary of the party had issued a show-cause notice to the fourth defendant giving details or certain charges against the fourth defendant and had required him to send a reply within a week. In the said notice Rule 36 and Section 7 of the party has been referred for the attention of the fourth defendant and has required him to send the reply within a week. Since the said notice indicates various charges against the fourth defendant and gives one week's time to the fourth defendant and this show cause notice issued as per Rule 36 Section 7, which is referred in this notice in compliance of of Rule 36 Section 7. The total number of the . General Council members is also stated as about more than 1,100. It is stated in the said notice that atleast 1/3 members of the General Council should file an application to the General Secretary to convene a meeting. In other words, Section 7 of Rule 18 has also been drawn to the attention of the fourth defendant in the said show-cause notice issued on 1.11.1993. The fourth defendant had sent a reply on 7.11.1993. But the plaintiff in his capacity as the General Secretary did not accept the explanation given by the fourth defendant and by virtue of the powers vested in him in Rule 36 Section 1,2 and 14 expelled the fourth defendant from the post of Secretary of Election Committee and ordinary membership. We need not go into the question whether the expulsion is valid or not. Suffic it for us to observe that the General secretary of the DMK party had exercised the powers vested with him under Rule 36 Section 1, 2 and 14 and had expelled the fourth defendant after complying with the requirements of Rule 36, Section 7 and after inviting the attention of the fourth defendant to Rule 18 Section 7. Therefore the expulsion is a valid one. Learned counsel appearing for the first respondent during the course of his arguments has referred to this expulsion and has stated that the plaintiff has not obtained the approval of any court. As an aggrieved person, we can expect the fourth defendant alone to go to court, we cannot expect the plaintiff who had expelled the fourth defendant to go to court and get an order of declaration to the effect that the expulsion is a valid one. The expulsion of the fourth defendant is said to have been placed before the Executive Committee of the DMK party which met at Salem and it had approved the expulsion. Later on the defendants 1 to 3 and 5 to 11 have also been expelled by the General secretary on account of their support to the fourth defendant and their activities against the interest of the party. According to the applicant, the General Council of the party was convened by him to be held at Thanjavur on 29.12.1993 and all the members of the General Council were sent invitations and 908 out of 1112 General Council members have attended the General Council meeting held at Thanjavur under the Presidentship of Thiru M. Karunanidhi and have approved the act of the General Secretary in expelling the fourth defendant. In support of this contention, the applicant has also filed the attendance register of the General Council, which was held at Thanjavur on 29.12.1993, in which the signatures of all the members who have attended are found. The applicant has also filed affidavits of all the persons who have attended the meeting held on 29.12.1993 at Thanjavur in which the deponents have expressed full confidence in the President Thiru M. Karuanidhi, the General Secretary Thiru K. Anbazhagan and Treasurer Thiru Sadiqu Basha and wholeheartedly approved the disciplinary proceedings taken against the fourth defendant and have expressed that such disciplinary action is necessary for the benefit and welfare of the party and they wholeheartedly supported the disciplinary action taken against the defendants. According to the applicant in view of the approval of the General Council expelling the defendants from the various posts held by them and also the ordinary membership of the party, the defendants cannot claim themselves as members of the DMK party and that the party belongs to them and they alone are entitled to use the name and flag of the party since an expelled member has no proprietory interest or right in either of them. Learned counsel appearing for the first defendant has argued that the suit itself is not maintainable since it is an internal dispute between the members of a party and the Civil Court has no jurisdiction to sit in judgment over the indoor management of an association and therefore the suit is liable to be dismissed. This argument of the learned counsel appearing for the first defendant is not convincing since the sequence of events which I have referred above would reveal that the fourth defendant was expelled from the party on 11.11.1993 and the other defendants have been expelled subsequently and their expulsion was approved in accordance with the rules and regulations of the party. When the defendants were no longer members of the party from which they were expelled, it cannot be stated that the dispute between them and the plaintiff's supporters who have expelled them in is a dispute in the indoor management of an association and therefore this court has no jurisdiction.

22. It is argued by the learned counsel appearing for the second respondent that the suit is not maintainable under Order 1 Rule 8 Code of Civil Procedure. As per Rule 18, Section 5, the General Secretary is empowered to initiate all ligilations. Therefore, it cannot be said that Thiru K. Anbazhagan is not a competent person to file the suit since he continues to be the General Secretary and enjoys the full confidence of eight out of nine members of Parliament of the DMK party, four members of the Pondicherry Legislature and one member of the Tamil Nadu Legislature, who have given affidavits to the effect that they owe allegiance to the leadership of the party headed by Thiru M. Karunanidhi and Thiru K. Anbazhagan as secretary and have full confidence in their leadership and that they are fully supporting and endorsing the disciplinary action taken against Thiru V. Gopalaswamy, the fourth defendant herein and certain others. These affidavits have been filed before the Election Commission of India. Apart from these affidavits of the Members of the Parliament and Legislature, the plaintiff has filed the affidavits of 908 General Council Members to the same effect. In view of the abovesaid affidavits, it cannot be stated that the suit has not been filed by a competent person to protect the property of the party viz., the name and flag. As such, it cannot be stated that it would amount to an interference by the court into the internal administration of a political party. The suit is one for restraining the defendants and their men to act against the interest of the party as stated by the deponents of the affidavit, which I have stated earlier. Therefore I am of the opinion that the contention of the learned counsel appearing for the second respondent that injunction order is not a valid one is not tenable. The learned counsel appearing for the fourth defendant would argue that since the Election Commission had seized of the dispute, it alone can decide the dispute under Clause 15 of the Symbols Order and this court has no jurisdiction to try the suit Under Section 9 of Code of Civil Procedure. The suit is one for preserving the proprietory rights of the plaintiff viz., the name and flag of the party. Any claim to a proprietory right over a property is a pre-existing common law right. This pre-existing common law right is now recognised by the statute viz., Symbols Order and a new statutory right is provided without excluding the civil Courts jurisdiction. Therefore both the common law and the statutory remedies which are concurrent remedies are available to the plaintiff and the option to choose the remedy and machinery for the enforcement of the rights lies with the plaintiff. If the right claimed by the plaintiff is not a preexisting right in common law and it had been created by the statute and the statue itself provides a machinery for enforcement of the right both the right and the remedy being creation of the statue and finality is also intended to the result of the statutory proceedings, then even in the absence of a provision excluding the jurisdiction of the Civil Court, we can say that the civil courts Jurisdiction impliedly barred. But the right claimed by the plaintiff being a preexisting common law right, it cannot be stated that the civil Courts jurisdiction is ousted by virtue of clause 15 of the Symbols order. The right to have a symbol in the election is right created under the statute and it is not a common law right. A particular symbol can be allotted by the Election Commission to any one who contests the election subject to the limitation that a particular symbol allotted to a particular recognised party cannot be allowed to be the symbol of any other party in that particular constituency. But the name and flag of a political party cannot be used in any where in India except by the party which had been registered by the Election Commission. Therefore, the argument of the learned counsel appearing for the fourth defendant that the plaintiff had no proprietory right and therefore the jurisdiction of the Civil Court is ousted impliedly if not expressly is not tenable. Learned Senior counsel Mr. Ramamurthy, has further argued that the plaintiffs are aware that the matter is pending before the Election Commission and that the plaintiffs are also aware that the fourth defendant and his supporters were holding meetings, processions etc., as DMK members and are using DMK flag throughout the Tamil Nadu for the past 3 months and acquiesced the conduct of the respondent for all these months and has now come forward with this suit just one week prior to the rally announced by the fourth defendant and that shows that the plaintiff has neither prima facie case nor balance of convenience in his favour and if the interim injunction granted is not vacated, the rally cannot be held and the risk of causing injustice to the defendant's is there and therefore the injunction should be vacated. This argument of the learned counsel is not acceptable since the learned counsel wants to bring this case as one Under Section 41(g) of the Specific Relief Act, which provides that an injunction cannot be granted to prevent a continuing breach in which the plaintiff has acquiesced. Whether the grant or refusal of an interim injunction will have the practical effect of by putting an end to the action, the court should approach the case on hand on the broad principle of what it can do in its best endeavour to avoid injustice and to balance the risk of doing an injustice to either party. The plaint refers to the probable announcement of two by- elections for two constituencies in Tamil Nadu Assembly. The election process are likely to commence in the last week of April, 1994. Whileso, if both the groups claim that they are the real and true DMK party and use the same name and flag certainly there will be a confusion in the mind of the electorate in these two constituencies and it will give room for law and order problems created by the rival groups. In the above circumstances, the situation before the announcement of the by-elections and after the announcement of the by-election will be difficult and it cannot be stated that the plaintiff's group has acquiesced the conduct of the defendants and therefore no injunction could be granted even in the changed circumstances and surroundings. In fact, refusal to grant injunction may cause injustice to the plaintiff since the evidence before this court shows that the plaintiff's group alone continues to be the parent party entitled to use the name and flag of that party. Further, it cannot be stated that the plaintiff had no intention of preventing the defendant from using the flag and name of his party till the filing of the suit and has induced a reasonable belief in the mind of the defendant that he consents to it since the comments sent by the plaintiff to Election Commission on 5.2.1994 a copy of which sent to the fourth defendant by the Election Commission, shows that it is not as if the plaintiff has acquiesced the conduct of the defendant without protest. Learned counsel appearing for the applicant Mr. K.V. Venkatapathi, would argue that the plaintiff did not take action earlier since he expected that the defendant would mend and return to the parent organisation and since there was no immediate cause for objecting to the use of the name and flag by the fourth defendant and his group until the announcement of by-election was made. This reasoning given by the learned counsel for the applicant is convincing. Further it is to be noted that subsequent to the letter of the party leader in Parliament to the Rajya Sabha Chairman, the Rajya Sabha had announced the fourth defendant as a member without party affiliation. Therefore the theory of acquiescence by conduct is not available to the fourth defendant to hold that the injunction if not vacated, it would cause injustice to him and his supporters.

23. Learned Senior counsel appearing for the defendants 2 and 11 M/s. Krishnan and A.L. Somayaji argued that the Honourable speaker of the Tamil Nadu Assembly has recognised the 11th defendant as DMK(2) and if the interim injunction granted to the effect that none of the defendants or supporters or men can use the name and flag is not vacated, there is every chance of a confrontation arising between this court and the legislature and to avoid such unhealthy trend, the interim injunction should be vacated. By no stretch of imagination it can be stated that the Hon'ble Speaker of Tamil Nadu Assembly is either a supporter or a sympathiesor of the 11th defendant in his political activities. He is also not a member of the party to which the 11th defendant belongs. Since two legislators in the Assembly originally belonged to a single party earlier are now in rival groups, in order to identify them and for convenience only the Hon'ble Speaker of Tamil Nadu Legislature has termed the two legislatures, who belonged to the DMK party originally as DMK(1) and DMK (2). Interim injunction is to restrain the defendants and their supporters only from using the name and flag. It is not against the Hon'ble Speaker of the Tamil Nadu Assembly and the media people who describe the two legislatures of the Tamil Nadu Assembly as DMK(1) and DMK(2) for the purpose of identification. There is absolutely no room for any confrontation between this court and the Tamilnadu Legislature, and the argument of the learned counsel appearing for the second defendant that if the injunction is not vacated there is every chance of confrontation between the legislature and the court is not at all convincing and acceptable.

28. Learned counsel appearing for the plaintiff Mr. Venkatapathi, would refer to the counters filed by the second and fourth defendants and has argued that the second defendant in his counter has stated that both the parties are entitled to use the name and flag whereas the fourth defendant in his counter has stated that his party alone is entitled to use the name and flag of the party and it shows that the object of the defendants is only to eradicate the DMK party from the political scene of Tamil Nadu. There is no explanation on the part of the defendants as to why there is this discrepancy in the counter filed by the defendants 2 and 4 with regard to the right of the plaintiff defendant to use of the name and flag. Learned counsel Mr. Venkatapathi has also referred to the history of this party and would argue that when leaders like late Thiru E.V.K. Sampath, Hon'ble Thiru V.R. Nedunchezhian, Hon'ble Thiru S.D. Somasundaram and late Hon'ble Thiru M.G. Ramachandran got out of the party, and formed new parties they did not choose to claim that their party is the DMK and their flag is the DMK flag and that they have formed new parties with a flag of their own for rendering service to the people of Tamil Nadu and it is only with the object of eradicating the DMK party from the political scene, the fourth defendant and his supporters uses the name and flag of the party. He has also pointed out that the defendants who have enjoyed power and position and hailed Thiru M. Karunanidhi as their leader, have chosen to describe him as a non-entity and this would go to show how the defendants conduct themselves and it is only because of this attitude of the defendants, group clashes and other untoward incidents have occurred in Tamil Nadu and to avoid such things in future, the injunction already granted should be made absolute. None of the facts referred by the learned counsel with regard to the formation of new parties by those leaders who have got separated from the parent party could be denied since it is history. The defendants have enjoyed power and position is also history. Subsequent to the claim made by the defendants that they are the real DMK party and they are entitled to use the name and flag of the party, clashes have occurred between the rival groups in almost every town and village in Tamil Nadu and it has given room for law and order problems. If one of them alone is the recognised DMK party permitted to use the name and flag, there is every chance of avoiding group clashes and riots on this issue and maintenance of peace. The documentary evidence placed before this court would go to show that there is a prima facie case for the plaintiff to claim that theirs is the DMK party and they alone are entitled to use the name and flag of the party and the balance of convenience is also in their favour. The relative hardship that may be caused to the plaintiff by vacating the injunction will outweigh the hardship that the defendants are said to be suffering on account of the interim injunction. In that view of the matter, I am of the opinion that the plaintiff is entitled to have interim injunction made absolute and the applications filed by the defendants for vacating the interim injunction granted on 8.4.1994 and suspending the order of interim injunction granted are liable to be dismissed.