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2000 DIGILAW 230 (JK)

Bashir Ahmad v. Gh. Mohd. Sheikh

2000-10-20

NISAR AHMAD KAKRU

body2000
1. The plaintiff-appellant was originally elected in the year 1996 for a period of two years as Chairman of the Western Bus Services, General Bus Stand Batamaloo (undertaking for short). His term was to expire by the end of October, 1998 and the elections were to fall due by the end of October, 1998. There is no dispute that the elections were not held but the appellant™s stand is that in meeting of the General body held on 28-08-1998 which was attended by 650 members out of 800 members of the undertaking his term was extended for another span of three years. The respondents 1 to 9 opposed his continuation, consequently a suit was filed by plaintiff-appellant. An application was also filed for an interim relief which was disallowed by the learned Additional District Judge, Srinagar by his order dated 28-02-2000. However, an interim arrangement has been made which is to hold good till disposal of the suit. 2. This appeal arises out of the above said order. It is challenged on the grounds which are summarised hereunder: a) That the affidavits filed before the court below, denying the re-election of the appellant, have been believed by the court without granting opportunity of rebuttal to the appellant; b) That the court has drawn inference against the appellant because of their omission to produce the original minutes of the meeting which would justify reelection but such course has been adopted without asking the appellant to produce the original record; c) That the court has not approved of the re-election of the appellant by voice vote and has expressed its opinion on the merits of the case; d) That the trial court has exceeded its power and authority by entrusting the affairs of the Association to the S.P. Traffic. 3. The learned counsel for the respondents has urged in support of the order the following submissions: i) That according to the assertion of the appellant the election was held in October, 1996 and as such he had to function upto ending October, 1998, Whereas, reelection by voice vote is alleged to have taken place on 25-08-1998 when the appellant had still two months to remain in office and the re-election was not possible unless body was dissolved before expiry of the term. ii) By convention election has to be held by secret ballot and there was no justification for suberting the secret ballot process. iii) There is no provision or convention which would authorise extension of the term. iv) There was no agenda or information which would suggest that the meeting was going to consider the extension of term or re-election. v) The signatures have been forged on the resolution even of respondents 3 & 6 who according to the appellant belong to a different association namely Hilal Group and not only signatories but the passenger buses are also repeated in the resolution to show the number of participants on a higher side. vi) In the plaint it is stated that elections were held of transporters belonging to Districts Baramulla, Kupwara and Budgam, whereas appellants had filed a suit against the transporters of Baramulla challenging their separation which is subjudice. 4. Now coming to the grounds of challenge taken by the plaintiff-appellant in seriatim. The grounds (a) and (b) need simply to be ignored for the reason that there is no bar to pass an interim relief on the basis of application, affidavits and other material. Question of rebuttal and opportunity to produce the original record has to wait for the appropriate stage. As a matter of caution the plaintiff ought to have produce the original record yet nothing prevents him to refute the averments and to produce the evidence in accordance with the law but at the same time prima facie finding has to be recorded by the court on the material available. Since it was at an interlocutory stage, the court was within its powers to draw inference the way it has drawn. 5. The challenge reflected in sub-para (c) of para 2 appears to be the principal grievance of the appellant which is said to have violated the mandate of the judgment of the apex court in Colgate Palmolive (India) Ltd. Versus Hindustan Lever Ltd. reported in 1999 7 SCC page 1 at page 30. This judgment stipulates certain considerations which ought to weigh with the court while dealing with the application for grant of interlocutory injunction and condition (iii) para (24) casts an obligation upon the court to be alive to the factum of the strength of one partys case being stronger than the others while deciding an application. This judgment stipulates certain considerations which ought to weigh with the court while dealing with the application for grant of interlocutory injunction and condition (iii) para (24) casts an obligation upon the court to be alive to the factum of the strength of one partys case being stronger than the others while deciding an application. How can a judge come to such a conclusion unless the facts are narrated and reasons detailed. Moreso, without making reference to the facts the court may not be in a position to apply the tests such as (i) whether plaintiff has a prima facie case (ii) whether balance of convenience is in favour of the plaintiff and (iii) whether plaintiff suffers an irreparable injury if temporary injunction is refused. Therefore the observations are inevitable and it is neither possible nor permissible for the court to decide an application taking only a mental note of the reasons but not reducing the same into writing. No doubt the judgment Supra does not permit an expression of opinion as to the merits of the case but it does not place any embargo upon the prerogative of the court to make the observations. It may not be out of place to refer to the expression of the commission which had evoked the attention of the apex court (refer to para 40 of the judgment). Its reading makes it manifest that the Commission had returned a finding approving of the admissibility and legality of the opinions of experts to be taken into account at the time of disposal of the main matter and such direction was apparently bound to effect the final disposal of the case whereas in the case on hand there is no such direction which can effect rights of the parties at the final stage. Obviously, the ratio of the judgment supra is not attracted. 6. Now the challenge (d) that the court has exceeded its powers. The argument needs to be appreciated in the light of mandate of Order XXXIX Rule 1(b) CPC. Obviously, the ratio of the judgment supra is not attracted. 6. Now the challenge (d) that the court has exceeded its powers. The argument needs to be appreciated in the light of mandate of Order XXXIX Rule 1(b) CPC. In terms of the said provision of law, the court has not only the power to grant a temporary injunction but power also flows to it to make such other order for the purposes of staying and preventing the wasting, damaging, alienation, sale, removal or dispossession of the property, as the court thinks fit untill the disposal of the suit or until further orders. Thus the expression ˜such other order™ vests the court with the power to pass an order which can safeguard the interests of the parties and the direction falls within the ambit of the order XXXIX Rule 1(b). Such power is also available to the court under order XL R1 CPC and it is not correct that the court lacks jurisdiction to pass the direction when it comes to conclusion that it is just and convenient to do so. 7. It brings me to the contention of voice vote stance of the appellant. Believing the resolution as it is, it transpires from its contents that a meeting was convened to examine the accounts of the undertaking, may be for any other matter also but certainly not to hold the election, re-election or extension. The contention has also to be appreciated in the factual background that the undertaking has 800 members on its role, out of which 650 are the signatories of the resolution. The eligibility of a member is to own at least one passenger bus in his name, who is affiliated with the undertaking. There are ten vehicles which are repeated thrice in the resolution forming annexure to the plaint and sixty vehicles are repeated twice in the resolution, which would mean that the participants shown to be 650 is not the correct figure and it is certainly below 600. It needs to be placed on record that it is not the case of the appellant that the members had assembled to extend the term of the Chairman. Assuming that these members had participated in the meeting, what answer the appellant has for those who were not present. Isnt it that they have been denied the right to elect or get elected. It is, therefore unjust. Assuming that these members had participated in the meeting, what answer the appellant has for those who were not present. Isnt it that they have been denied the right to elect or get elected. It is, therefore unjust. In these circumstances the court has to play its role in upholding the rule of law, justice and democratic values, as otherwise the disorder appears evident and to operate the institution the element of public benefit has been correctly taken into account applying the law depending upon the situation. The trial court has evolved a mechanism of its own for control of the undertaking and admittedly without hearing the parties and if the parties feel that such mode is not fool proof one, they are free to approach the court below for its reversal/alteration and the trial shall be free to reconsider the matter be it on a motion of a party or of its own. 8. In the result this appeal is disposed of alongwith CMPs without any order as to costs. Interim direction is vacated. However, before parting with, be it noted that any observation made by the court below in the impugned order and by this court in this order shall not weigh with the court below at the time of hearing and disposal of the suit which shall have to be dealt with in accordance with law. For the aforesaid conclusion, the contentious issues taken by the LC for the respondents need not be considered. (N.A.Kakru) J. After announcing the judgment, the LC for the appellant submitted that he wants to avail of a remedy against the order, therefore seeks interference of the court to defer the implementation of this order. Let it be so for ten days in the interest of justice notwithstanding the opposition of the otherside.