Bal Niketan Junior High School, Sankatha Ghat, Varanasi v. Kanhaiya Lal Barman
1979-05-18
A.BANERJI
body1979
DigiLaw.ai
JUDGMENT A. Banerji, J. - This civil revision is directed against an appellate order of the 6th Additional District and Sessions Judge, Varanasi dated 23rd May, 1978 dismissing an appeal against an order rejecting a grant of temporary injunction. The plaintiff-applicants have come to this Court in revision. They have filed original suit no. 269 of 1977 for perpetual prohibitory injunction restraining the defendants from causing any interference in the running of the educational institution known as Bal Niketan junior High School, Sankatha Ghat, Varanasi, defendants No. 4 to 6 who are officials in the Education Department, were impleaded in their official capacity and a prayer was made for restraining them from taking over possession and control of the aforesaid institution. An interim injunction was prayed for on the same lines. The trial court held that the plaintiffs had failed to make out a prima facie case and had refused to grant the temporary injunction prayed for. On appeal the court below had held that the plaintiffs had made out a prima facie case for the grant of injunction and the place of irreparable loss was also in plaintiff's favour but held that the balance of convenience was not in favour of the plaintiff-applicants. A plea was also raised in the court below that no injunction can be granted in view of the amended provisions of Order 39, Rule 2(2) (d) introduced by the State amendment. The court below observed that the State amendment could not prevail in view of the amendment by the Parliament to the Code of Civil procedure vide Central Act no 104 of 1976. The appeal was dismissed. The plain-tiff-applicants have filed the revision. 2. Learned counsel for the opposite-parties Shri Rajendra Kumar raised two preliminary objections to the maintainability of the revision. Firstly, that in view of the decision of the Full Bench in the case of Smt. Chandra Rani v. Vikram Singh, (1979 ALJ 401) The Central amendment introduced by the Code of Civil Procedure (Amendment) Act, 104 of 1976 could not prevail over the amendment introduced to Order 39. Rule 2 C. P. C. by the U. P. Act 57 of 1976.
Rule 2 C. P. C. by the U. P. Act 57 of 1976. Since the latter was the later Act, it was urged that the civil courts had no jurisdiction to grant any temporary injunction where the matter partained to the internal management of affairs of any educational institution, including a society, Consequently, even if any case was made out no injunction could be granted by the Civil Court in such a case. The second contention was that as a prayer had been made for restraining the opposite parties from prosecuting the criminal case pending in the court of the Magistrate it was not maintainable in view of the specific provisions of Sec 41 (d) of the Specific Relief Act. The said Section provided that an injunction cannot be granted to restrain any person from injunction or prosecuting any proceeding in a criminal matter. 3. Learned counsel for the applicants contended that the preliminary objection has no merits. He also contended that the court below was not precluded from granting the temporary injunction prayed for as it would not affect the internal management or affairs of any educational institution. He further urged that the plaintiffs were found to be in possession of the management of the institution and defendants had started interfering with their management and in such event if they had sought an injunction to restrain the other party from interfering with their possession and if the Court passed an order in their favour it would not affect the internal management or the affairs of the educational institution The dispute between the parties, be contended, did not affect the internal management or the affairs of the educational institution. It was also contended by him that where a bar in the exercise of powers is provided it was necessary for the Court to examine the matter strictly to find out whether a court was really precluded from exercising the power. Learned counsel also contended that the plea raised by the learned counsel for the opposite parties that the suit was not maintainable was wholly misconceived. 4. I have heard the learned counsel for the parties and I have also perused the orders passed by the courts below. The first and the foremost matter to be considered in this revision is to examine the scope of Order 39, Rule 2(2) (d) of the Code.
4. I have heard the learned counsel for the parties and I have also perused the orders passed by the courts below. The first and the foremost matter to be considered in this revision is to examine the scope of Order 39, Rule 2(2) (d) of the Code. The U. P. Legislature proposed certain amendments to Order 392 Rule 2, C P C. Under Act 57 of 1976 which came in force from 1-1-1977, Order 39, Rule 2 was amended and the proviso was added. It will be proper to quote the relevant portion thereof: "Provided that no such injunction shall be granted - (b) ............. (c )............. (d) to affect the internal management or affairs of, any education institution including a University, or a Society, or and any order for injunction granted in cantervition of these provisions shall be void." 5. Parliament passed certain amendments to the Code of Civil Procedure and these became effective from 1st of February, 1977. The question was whether the Central amendment or the State attachment would prevail. The Full Bench in the case of Smt. Chandra Rani (supra) ruled that the Central amendment was the earlier amendment and the State amendment was the later amendment and consequently, the later an amendment would prevail. Although the Central amendment was to come into force from a later date but it was found by the Full Bench that the Central Act as a matter of fact was passed earlier in time than the State Act. The law is settled that the later amendment, if it is repugnant to the Central amendment, would prevail provided it is passed later. The position in this case is clear that the State amendment was made later and is effective. 6. It is, therefore, necessary to examine whether the temporary injunction sought for by the plaintiffs was covered by clause (d) to the proviso to sub-rule (2) of Rule 2 of Order 39 of the Code. I have perused the order passed by the court below and there is no manner of doubt that the dispute between the parties was in regard to the management of the affairs of an educational institution.
I have perused the order passed by the court below and there is no manner of doubt that the dispute between the parties was in regard to the management of the affairs of an educational institution. The court below has after considering the entire body of facts and circumstances observed ; "In view of the facts and circumstance it is obvious that there are two factions in the General Body of the plaintiff society, who are almost at daggers drawn against each other and if any of them is permitted, without adjudicating their rights and title finally, it may result in chaos and further complication." This shows that the right is between two factions of the members of the society for the management and control of the educational institution. It is also apparent from the material on record that proceedings under Section 145, Cr.P.C. had also been initiated and an order had been passed appointing an official as the receiver of the institution The defendants had also filed suit no. 179 of lsa76 in the court of City Munsiff, Varanasi whereby the plaintiffs were permanently restraired from interfering with the functioning of Shiv Nath Pandey as the secretary. The percent suit was filed after the order was passed by the Magistrate in the proceedings under Section 145 Cr.d. C. It is obvious from the above that there is considerable amount of contest between the parties for the management of the affairs of the educational institution. 7. The contention that the applicants being in possession of the management and control of the institution any order passed safeguarding their interest and restraining any other party from interfering with their possession would not be an order affecting the internal management of the educational institution, is incorrect. This argument is fallacious It is not a question whether one party is in possession or not or whether the injunction order if passed would continue him in possession or not. but the question is whether by passing an order of temporary injunction the court below would be interfering in the internal management of the educational institution It was contended that the educational institutions by and large are being managed in the State of Uttar Pradesh by some society or the other.
but the question is whether by passing an order of temporary injunction the court below would be interfering in the internal management of the educational institution It was contended that the educational institutions by and large are being managed in the State of Uttar Pradesh by some society or the other. The Society elects members to the Managing Committee, who manage the educational institution If there is a dispute inter se between the members and one of them goes to the court to section intervention of the court and the latter passes an order it would amount to an order concerning the internal management or affairs of the educational institution. Of course, suits are not barred by members of the Managing Committee or by the society which controls an educational institution. What is barred is only the grant of injunction which affects the internal management or affairs of the educational institution or the society. This change has been introduced, it appears, in public interest Very many educational institutions could not carry on their primary work and objectives because of being involved in litigation and different injunction orders were passed from time to time which affected the running of the educational institutions. It was, therefore, thought necessary by the Legislature to introduce a restriction to the grant of temporary injunction. 8. In the present case it is obvious from the material on record that there were two factions of members of the society who were seeking to take control of the institution. It is apparent that there was a dispute between the parties in the management of the educational institution. The question between the parties was as to who would manage the institution. The aid of the court was sought so that one of the parties could manage the institution to the exclusion of the other. If the court passed an order of temporary injunction it would certain be interfering with the internal management of the educational institution. In this view of the matter I am of the opinion that the Civil Court in the present case has no jurisdiction to pass an order of temporary injunction as prayed for by the plaintiffs. The prohibition in Order 39, Rule 2 (2) (d) was fully applicable and for this reason alone the prayer for injunction ought to have been rejected.
The prohibition in Order 39, Rule 2 (2) (d) was fully applicable and for this reason alone the prayer for injunction ought to have been rejected. The court below had taken a wrong view on this matter presumably because the law was not clear then but in view of the Full Bench decision referred to above, the position is no longer in doubt. The preliminary objection therefore succeeds. 9. In view of the above, it is really not necessary to go into the second preliminary objection namely, that a temporary injunction cannot be granted in view of the provisions of Section 4 be of the Specific Relief Act. Suffice it to say that Sec. a l is .contained in Chapter VIII which deals with perpetual injunctions. The provisions relating to temporary in unctions is contained in Section 37 (I) of the Specific Relief Act which is a part of Chapter VII, but it is clear that the injunction which cannot finally be granted by the court cannot also be granted by way of temporary injunction. I do not find any material on the record showing that any prayer had been made by the plaintiffs for restraining the defendants from prosecuting the proceedings before a Magistrate pending under Section 146 Cr.P.C In this view of the matter the question of applying the provisions of Section 41 (d) of the Specific Relief Act does not arise. 10. Learned counsel for the applicants further sought to contend that the court below was in error in not granting the prayer for even after finding a prima facie case and irreparable loss in favour of the plaintiffs. In other words, it was contended that the court below has recorded a wrong finding on the question of balance of convenience. It is no ground for interference under Section 115 C.P.C. Unless the court finds in favour of the applicants on all the three points, viz., prima facie case, balance of convenience and irreparable loss, there is no question of granting any temporary injunction The conclusion arrived at by the court below was on an appraisal of the evidence and 1 am not satisfied that the judgment of the court below suffers from any illegality or material irregularity in the exercise of jurisdiction.
Further, in view of the fact that the parties are at such variance over the management of the institution and the order of the criminal court appointing an official as a receiver, 1 do not find this to be a fit case even if there was a jurisdiction in the civil court to grant a temporary injunction, to interfere with tie order of the court below. 11. In .be result, therefore, this revision fails and is dismissed with costs. The interim order dated 26-5-1978 is hereby vacated.