LAKSHMIKANTH v. MOTILAL — 1992 DIGILAW 377 (KAR)

A. B. MURGOD, J. ( 1 ) MISCELLANEOUS first appeal No. 1739 of 1992 is directed against the order dated 20th may, 1992 dismissing la. I. Under order 39, rules 1 and 2, CPC in o. s. No. 3016 of 1992 on the file of the city civil court, Bangalore city. ( 2 ) MISCELLANEOUS first appeal No. 1801 of 1992 is directed against the order dated 4-8-1992 passed on i. as. I and iii in o. s. No. 2324 of 1992 on the file of vii additional city civil judge, Bangalore, allowing la. No. I filed under order 39, rules 1 and 2, CPC and dismissing la. Ill filed under order 39, Rule 4, CPC. ( 3 ) THOUGH the two appeals arise out of the two suits, the subject-matter involved in the two appeals is one and the same and the contesting parties are common and therefore the two appeals are heard together and disposed of by this common order. ( 4 ) THE facts given rise to these two appeals are as under: there is an institution called 'seva sagar' a service organisation registered under the Karnataka societies Registration Act, 1960 in registration no. 208 of 1986-87 on 25-2-1986. The original promoters of the society are r. Malliga, lakshmikanth and five others. The society is stated to have membership of 50 to 75. The object of the society is to organise social services and to work for upliftment of villagers, women, children and weaker sections of society by providing them educational opportunities, employment potentialities, financial assistance and helping development in all aspects. This society applied for affiliation to c. c. f. , i. e. , christian children fund and affiliation has been granted. The said c. c. f. is the major donor. In addition, contributions from the different departments of government, donations from private individuals and amounts realised by membership are the sources of financial contribution to the activities of this society. The society has got its own Constitution and bye-laws under which elections are to be held every year to elect a governing body which in turn elects the president, chairman and secretary. These are the office bearers of the society. ( 5 ) THE 'seva sagar' society claims to have adopted 45 villages around chunchanakuppe village in Bangalore taluk. The society has got its own Constitution and bye-laws under which elections are to be held every year to elect a governing body which in turn elects the president, chairman and secretary. These are the office bearers of the society. ( 5 ) THE 'seva sagar' society claims to have adopted 45 villages around chunchanakuppe village in Bangalore taluk. It also claims to rum 15 nursery schools, a manila mandal, a typewriting institute, a tailoring institute and other developmental activities. It is also their case that deserving families are assisted with monthly payment of cash of Rs. 75/ -. The accounts are stated to have been maintained according to rules and the accounts are audited by chartered accountants. The existence of seva sagar society, its registration and its activities are admitted to the litigants in o. s. No. 3016 of 1992 and o. s. No. 2324 of 1992. It appears on the request of seva sagar society, one prakash was got deputed to work on the governing body of the project of seva sagar society from the social welfare advisory board. ( 6 ) SRI. Lakshmikanth who was one of the founder-members came to be employe das social worker in the project on the monthly pay of Rs. 700/- and ultimately his pay was fixed at Rs. 1,490/- per month and in that capacity he was actually looking after the various works of the project. The seva sagar society had its governing body which used to chalk-out the programmes and guide the staff in day-to-day administration of its various activities. ( 7 ) WHEN things were moving as above, there appear to have arisen rival claims to office of president and secretary. One set of office bearers namely Sri Mothilal and Smt. Shama claiming to be president and secretary instituted o. s. No. 2324 of 1992 on 6-4-1992. This suit is for preventing defendants from interfering with the affairs and activities of the society. Sri Mothilal described himself as president and Smt. Shama described herself as secretary of the seva sagar. They also moved for temporary injunction and obtained ex parte order of temporary injunction. The defendants in the said suit are 12 persons. The summons were made returnable by 20-4-1992. The civil courts closed for the summer vacation on 24-4-1992. By that date defendants in o. s. No. 2324 of 1992 did not appear in that court. They also moved for temporary injunction and obtained ex parte order of temporary injunction. The defendants in the said suit are 12 persons. The summons were made returnable by 20-4-1992. The civil courts closed for the summer vacation on 24-4-1992. By that date defendants in o. s. No. 2324 of 1992 did not appear in that court. ( 8 ) IT appears on 26-4-1992, o. s. No. 3016 of 1992 came to be instituted by Sri N. Kantharaju and Sri Lakshmikanth, defendants 2 and 1 in the earlier suit describing themselves as president and secretary of the seva sagar society and prayed for relief of permanent injunction restraining the defendants from interfering with the enjoyment of the office. ( 9 ) THEY moved for temporary injunction against operation of bank accounts by defendants 1 to 4 and also against defendant 5 bank-manager from honouring the cheques issued. They prayed for temporary injunction not to operate bank account was granted. Thereafter the interim application in o. s. No. 3016 of 1992 came to be disposed of on 20-5-1992 after defendants therein appeared and contested the matter. Before passing the impugned order dated 20-5-1992, the presiding judge in o. s. No. 3016 of 1992 was made aware of the pendency of suit o. s. No. 2324 of 1992 and the interim injunction order passed therein. Inspite of these developments, parties did not take steps to get the two suits posted before the same judge. Subsequently the court heard interim applications in o. s. No. 2324 of 1992 and by that time the interim order dated 20-5-1992 was before the learned judge who passed the order in o. S. No. 2324 of 1992. ( 10 ) THE pleadings in the two cases make it clear that Sri Mothilal and Smt. Shama claim that general body meeting of seva sagar society had been held on 15th august, 1991 and in that meeting a committee of seven members was constituted on that date and in a meeting of the executive committee held subsequently, they were elected as president and secretary of seva sagar society. Similarly Sri Kantharaj and Sri Lakshmikanth contend that in the general body meeting held on 2-1-1992 a governing body of seven members was elected and on the same day, that governing body elected them as president and secretary in addition to other members of the governing body. Similarly Sri Kantharaj and Sri Lakshmikanth contend that in the general body meeting held on 2-1-1992 a governing body of seven members was elected and on the same day, that governing body elected them as president and secretary in addition to other members of the governing body. Both the parties have contended that they are the validly elected members of the organisation. They have got rights to represent the seva sagar society. Both of them have contended thatthey are maintaining accounts as required under the Karnataka societies Registration Act and rules and foreign contribution (regulation) Act, 1976 and the rules made thereunder. ( 11 ) IT is an admitted fact that in November 1991, Sri Lakshmikanth who was social worker of Seva Sagar Society has submitted his resignation. According to Sri Lakshmikanth and Sri N. Kantharaj, the resignation was tendered because Sri Lakshmikanth found it difficult to attend to all the work as social worker in addition to his job as secretary of the society, but according to the contentions in the other suit filed by Sri Mothilal and Smt. Shama, this resignation was to enable him to get out of the organisation without any inquiry as according to them, he had started advancing his own interest and interest of one gauthama kshethra abhivridhi sangha and that he had made an application for starting a nursery school in the name of gauthama kshethra abivridhi sangha though he was required to file an application in the same of seva sagar society. So also it is contended that Sri Prakash was sought to be withdrawn on a motion made by Sri Kantharaj and Sri Lakshmikanth on the ground that he wanted to work with his brother mothilal who advanced their interests at the cost of the interest of the seva sagar society. This is disputed by the other side. It is not necessary to go into these aspects at this stage. But this is the background in which these two suits have been filed and interim orders were sought for and parties were successful in obtaining ex pane orders. This is disputed by the other side. It is not necessary to go into these aspects at this stage. But this is the background in which these two suits have been filed and interim orders were sought for and parties were successful in obtaining ex pane orders. After the objections were filed the parties produced documents in support of their respective contentions and considering the same in o. s. No. 3016 of 1992 in which order was passed on 20-5-1992 the learned city civil judge held that o. s. No. 3016 of 1992 was not maintainable and the plaintiffs in that suit had failed to make out a prima facie case. The learned judge opined that balance of convenience was not in favour of both the parties. He went on to observe that the society would be put to hardship if the transactions of the society were stopped with the bank and the bank was making payments as per its rules and regulations and for illegal payments it was responsible and answerable. In that view of the matter the injunction issued against the bank not to honour the cheques was vacated observing that bank was required to follow the rules. In passing that Order, the learned judge took into consideration the ex parte interim injunction passed in o. s. No. 2324 of 1992 against the plaintiffs in o. s. No. 3016 of 1992. ( 12 ) IN the order passed on 4th august, 1992 in o. s. No. 2324 of 1992, the learned 7th additional city civil judge found that the plaintiffs in that suit had made out a prima facie case and the suit brought by Sri Mothilal and Smt. Shama describing themselves as president and secretary was maintainable and according to him, they had produced the original registers and documents and he also observed that contesting defendants were not the members and their claim to office was untenable and therefore he proceeded to confirm the injunction order passed ex parte. These two orders are challenged in the present two appeals and the two appeals are heard together. ( 13 ) THE learned counsel for the appellants submitted that the observations with regard to non-maintainability of o. s. No. 3016 of 1992 are incorrect. These two orders are challenged in the present two appeals and the two appeals are heard together. ( 13 ) THE learned counsel for the appellants submitted that the observations with regard to non-maintainability of o. s. No. 3016 of 1992 are incorrect. According to him, the appellants and other members were the founder-members of the society and they had got the society registered and the claims of respondents that they got the society registered as founder-members in 1966 are not tenable. On that basis he proceeded to argue that the seva sagar society was holding general body meetings and they had got accounts audited and they filed returns with the registrar of co-operative societies and they had obtained the registration certificate under the kama la ka societies Registration Act, 1960 and also obtained sanction under foreign contribution (regulation) Act, 1976 and they got audited the accounts and the reports of chartered accountants are obtained every year and they had complied with every law and Rule and they were holding the office and they had been validly elected and therefore their case of holding the office on the date of suit should have been accepted and interim order of injunction should have been ordered as prayed for. ( 14 ) PER contra, the learned counsel for the respondents in the two appeals submitted that Sri Mothilal and Smt. Shama were the president and secretary validly elected in the general body meeting held in August 1991 and they were continuing in office as such and they were in effective control of the seva sagar society and its office and activities and they were disbursing the amounts and were maintaining the acquittance registers for having paid salaries to the staff and other registers for payments made to the deserving families and persons receiving benefits from the society. His arguments were also similar to those advanced by the appellants but he relied on the general body meeting held in August 1991. ( 15 ) FROM the submissions made by the counsel on both sides, it is seen that the membership of the society is not what it was on the date the society was formed and registered. His arguments were also similar to those advanced by the appellants but he relied on the general body meeting held in August 1991. ( 15 ) FROM the submissions made by the counsel on both sides, it is seen that the membership of the society is not what it was on the date the society was formed and registered. With the passage of time, there appear to have been fresh members inducted in the society and some old members ceased to be members of the society and the total membership appears to be 50 to 75 in all. Thus as found from the observations of the learned city civil judge in his order dated 4-8-1992 rival claims are being made to run parallel administration in the seva sagar society. After making this observation, the learned city civil judge has proceeded to make aprima facie enquiry into the validity of membership of one group and he appears to have overstepped his limits in so doing that there are no materials to show readmission of certain members who according to him had ceased to be the members for not paying monthly subscription regularly. This he appears to have done by having recourse to bye-law 16 of the bye-laws of the society. In doing that the learned city civil judge was enquiring into the merits of the case. It was not necessary to go into the validity of membership because that was not in issue in either of the suits. So also the validity of the meetings held in August 1991 and January 1992 need not be gone into at this stage for deciding the interim applications and therefore the arguments advanced in that behalf need not be taken into consideration to find out prima facie validity or otherwise of the elections in these two meetings. For deciding the present appeals, it is not necessary to go into the merits or validity of elections held or continuance of members as members of the seva sagar society on the date of suit. Therefore all these questions are left open to be agitated during the trial of the two suits. ( 16 ) SECTION 15 of the Karnataka societies Registration Act, 1960 reads as under: "suits by and against society. Therefore all these questions are left open to be agitated during the trial of the two suits. ( 16 ) SECTION 15 of the Karnataka societies Registration Act, 1960 reads as under: "suits by and against society. every society registered under this act may sue or be used in the name of the president, chairman, or principal secretary or the trustees as shall be determined by the rules and regulations of the society, and, in default, of such determination, in the name of such person as shall be appointed by the governing body for the occasion: provided that, it shall be competent for any person having a claim or demand against the society, to sue the president, or chairman or principal secretary or the trustees thereof, if, on application to the governing body, some other officers or person be not nominated to be the defendant. " bye-law 20 of the rules and regulations of seva sagar society states that the secretary shall make correspondence and file and defend suits on behalf of the society and record proceedings. A combined reading of Section 15 and bye-law 20 permits the secretary to maintain a suit for preventing interference in the activities of the society. In the instant case, the suit is filed not only by the secretary but also by the president. Inclusion of president with secretary will not be a drawback in maintaining the suit. Both the suits have been instituted by the persons described as president and secretary of seva sagar society and in that view, the two suits are maintainable. As the suits filed in the instant case are maintainable as they are in accordance with law the finding of the learned city civil judge in o. s. No. 3016 of 1992 regarding maintainability of the suit is incorrect and is not sustainable. ( 17 ) THE relief of temporary injunction is governed by the Provisions of order 39 of the Code of Civil Procedure. The learned counsel for the appellants pointed out that Rule 1 of order 39 of the Code of Civil Procedure is not attracted to the facts of the case inasmuch as no property is involved in the dispute. ( 17 ) THE relief of temporary injunction is governed by the Provisions of order 39 of the Code of Civil Procedure. The learned counsel for the appellants pointed out that Rule 1 of order 39 of the Code of Civil Procedure is not attracted to the facts of the case inasmuch as no property is involved in the dispute. There is no quarrel with that submission but he further went on to contend that Rule 2 of order 39, CPC is also not attracted and according to him, it is not open to the parties to have recourse to the Provisions of Rule 2 of order 39 of the Code of Civil Procedure since relief under Rule 2 is to be had only in respect of a breach of contract or injury pertaining to such breach of contract. Wording of Rule 2 of order 39 of the Code of Civil Procedure does not permit such a narrow construction as suggested. Rule 2, sub-rule (1) of order 39 of the Code of Civil Procedure states that in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff, may, at any time, after the commencement of the suit and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract of relating to the same property or right. The addition of the words 'of any kind' after the words 'or other injury' in the present Rule makes it clear that an injunction can be granted to restrain any kind of legal injury. If the plaintiff has got a right and if by the action of the defendant, injury is being caused to the plaintiff, then the plaintiff can apply for prevention of that injury by recourse to Rule 2 of order 39 of the code of civil procedure. In this behalf the learned counsel for the appellant placed reliance on state bank of india, tiruchirapalli v j. s. ramamoorthy, AIR 1982 Madras 197. In this behalf the learned counsel for the appellant placed reliance on state bank of india, tiruchirapalli v j. s. ramamoorthy, AIR 1982 Madras 197. This decision is in respect of a suit filed to declare that the notice demanding repayment of loan advanced on pronote was illegal and for the consequential relief of permanent injunction from giving effect to the notice. The court considered the right of the borrower to maintain such a suit for declaration and injunction to prevent the bank from recovering the loan. The court found that the borrower was not entitled to perpetual injunction under the Provisions of Section 38 of the Specific Relief Act, 1963 nor was he entitled to the temporary injunction to the said effect under order 39, Rule 1 as there was no property in dispute in the suit nor could such injunction be granted under order 39, Rule 2 of the Code of Civil Procedure. Since the borrower plaintiff in that suit was not entitled to relief of injunction there was no question of granting, temporary injunction under the Provisions of rules 1 and 2 of order 39 of the Code of Civil Procedure. That decision has no application to the facts of the case on hand. ( 18 ) HERE it is necessary to refer to the decision in manohar lal chopra v raibahadur rao raja seth hiralal, AIR 1962 SC 527 . This decision permits granting of temporary injunction under Section 151, CPC where the facts are not covered by requirements of rules 1 and 2 of order 39 of the Code of Civil Procedure. In the case on hand, the application by the parties had been filed under order 39, rules 1 and 2 read with Section 151, CPC. Therefore, the maintainability of the application for temporary injunction cannot be doubted. The law regarding grant or refusal of temporary injunction is well-settled by a catena of decisions of the Supreme Court and various high courts including this court. Grant or refusal of injunction is in the sound discretion of the trial court and it is not open to the appellate court to substitute its view if another view is possible on the same set of facts. Grant or refusal of injunction is in the sound discretion of the trial court and it is not open to the appellate court to substitute its view if another view is possible on the same set of facts. Therefore in the appeal, this court has to examine the order of the trial court to find out whether there is any perversity or omission to appreciate all the material placed on the record, in exercising the discretion in favour or refusing injunction. In matters involving rival claims to educational office in kunwar bhopal singh and others v sheoraj singh and others, AIR 1973 Allahabad 70 the High Court of Allahabad had laid down certain principles commending the court to have a pragmatic approach depending upon the facts of each case. The relevant observations are found towards the end of paragraph 2 on page 71. The observations read as under:"it is no doubt the law that before a plaintiff is entitled to a temporary injunction he should establish aprima facie case, the irreparable injury apprehended and the balance of convenience in his favour. But it is always difficult to balance all these considerations on the facts and circumstances of each case, especially in suits for gaining control of the management and administration of educational institutions where the personal interest of the parties in some tangible property does not come up for adjudication before the court and at the same time the interest of many other persons not party to the suit are vitally affected. I have on previous occasions in case of this nature given expression to an opinion that a strict adherence to the settled principles for grant of interim injunction some times may not in the matters of management of educational institutions meet the requirements of the situation. I think a pragmatic view in such matter better subserves the ends of Justice rather than sticking to the consideration culled out from decided cases involving adjudication of personal rights in tangible property". in the case on hand also the rights agitated are for the control and management of the seva sagar society. In both the appeals, the contesting parties have staked claims to the posts of president and secretary of the said society. They have claimed that they are validly elected in the general body meeting held as per rules. Their personal interests in any property are not involved. In both the appeals, the contesting parties have staked claims to the posts of president and secretary of the said society. They have claimed that they are validly elected in the general body meeting held as per rules. Their personal interests in any property are not involved. Therefore on the material placed by the rival parties, an approach has to be evolved to find out whose claims for control and management of the society are to be upheld. The plaintiffs in o. s. No. 2324 of 1992 have in their plaint averments referred to original documents pertaining to the society in their possession and they placed the same for consideration of the court at the time of deciding the applications for interim orders. The defendants in that suit also produced documents which they relied on to contend that they were in effective control and management of the seva sagar society. The plaintiffs in o. s. No. 2324 of 1992 produced the original certificate of registration, original register of membership, original applications for granting membership, acquittance register for having disbursed salaries to the staff working in the society, registers showing payments to the beneficiaries, registers evidencing maintenance of accounts, original audit reports before the court and they were taken into consideration by the learned civil judge and by relying on the same he found that the plaintiffs in o. s. No. 2324 of 1992 were in effective control of the seva sagar society and its management and therefore it was in the interest of day-to-day administration of the seva sagar society and continuation of the benefits from the society to the parties that interim orders were required to be passed in favour of the plaintiffs in o. s. No. 2324 of 1992. The learned civil judge also looked into a few registers and xerox copies of documents placed by the defendants in support of their case in arriving at the above conclusion. In the light of the observations in kunwar bhopal singh 's case the above test helps to serve the ends of Justice and therefore it commends for acceptance and is accepted. It is accordingly found that the discretion exercised by the learned city civil judge in arriving at the conclusion impugned in this appeal cannot be said to be perverse or calling for interference by this court. It is accordingly found that the discretion exercised by the learned city civil judge in arriving at the conclusion impugned in this appeal cannot be said to be perverse or calling for interference by this court. ( 19 ) THE learned counsel for the appellants contended that the documents relied upon by them had not been properly considered and appreciated. In this behalf, the arguments are not acceptable. The observations of the learned city civil judge in paragraphs 15 to 18 are material and perusal of the same disclose that all the registers and documents relied on by them have been considered. Therefore no grounds are found to have been made out for interfering with the orders under appeal. Therefore there is no merit in either of the appeals and they deserve to be dismissed. Accordingly, both the appeals are dismissed. ( 20 ) THE learned counsel for the appellants requested for a direction to the trial court to dispose of the suits early. The prayer is accepted. The trial court is directed to dispose of the two suits expeditiously preferably before the end of this year and it is further directed that both the suits should be tried and disposed of by one judge by getting the two suits posted before the same judge. If necessary the parties may move the learned principal city civil judge in that behalf. ( 21 ) AT this stage, it is submitted by sri. H. Rangavittalachar, learned counsel for the respondents that the salaries are not paid and workers are suffering for want of payments and working of society is also hampered and activities are not carried on as usual. The pendency of the litigation shall not come in the way of day-to-day activities of the society and the temporary injunction order issued by the trial court shall help in carrying oaday-to-day activities and the institutions concerned may act on the orders passed by this court. The institutions may be moved by the competent persons for releasing amounts as per law. --- *** --- .