Shaik Shafiullah v. Mohd. iya Educational Society, Cuddapah
2001-09-13
B.PRAKASH RAO
body2001
DigiLaw.ai
B. PRAKASH RAO, J. ( 1 ) IN this revision, the petitioners, who are the plaintiffs, are aggrieved against the proceedings under the docket order dated 27-8-2001 in I. A. No. 740 of 2001 and other applications in O. S. No. 21 of 2001 on the file of the Additional District Judge at cuddapah. ( 2 ) HEARD Smt. N. Shoba, the learned counsel for the petitioners and sri B. Narayana Reddy, learned Counsel who, on filing of caveat, takes notice on behalf of the respondents. ( 3 ) THE case of the petitioners is that they have filed the present suit for a declaration against the respondents herein that the certificate bearing Registration No. 685 of 1999 dated 3-8-1999 issued in favour of the defendant No. 1, a society, by the District registrar (Registration and Stamps) cuddapah is not valid, opposed to the provisions under the Societies Registration act and also for permanent injunction restraining the defendants in any way acting with the institution and the properties. Along with the suit, the plaintiffs had filed an application for consequential injunction pending the suit in I. A. No. 740 of 2001 wherein the Court below has granted ex parte ad interim injunction on 7-8-2001. ( 4 ) AFTER notice, the respondents herein have filed application in I. A. No. 748 of 2001 for vacating the said interim orders. Meanwhile, the petitioners have also filed another application in I. A. No. 741 of 2001 under Order 26 Rule 9 of the Code of Civil procedure seeking appointment of commissioner to take possession of account books. There is also another application in i. A. NO. 744 of 2001 filed by the petitioners-plaintiffs seeking directions to the advocate-Commissioner to break open the locks. Consequently, the defendants have also filed an application in I. A. No. 745 of 2001 for withdrawal of the warrant as issued in i. A. NO. 741 of 2001. ( 5 ) WITH these steps in the suit, now the petitioners objection is that the defendant no. 1-institution is not properly represented. The defendant No. l being a society should be properly represented and its interest be protected accordingly. The main dispute is as against the defendant No. 7 and the representation being made through the power of attorney on his behalf. All other defendants are office bearers of defendant no. 1 society.
1-institution is not properly represented. The defendant No. l being a society should be properly represented and its interest be protected accordingly. The main dispute is as against the defendant No. 7 and the representation being made through the power of attorney on his behalf. All other defendants are office bearers of defendant no. 1 society. ( 6 ) THE contention of the petitioners is that the objection raised is that there is no proper appearance or representation on behalf of the defendants especially the defendant No. 7, and the said objection has to be decided first as a preliminary issue but however, the court below is insisting for hearing of the interim applications together. According to the petitioners, as stated by the learned counsel appearing on their behalf, since the objection raised in regard to the representation goes to the root of the case, the merits cannot be gone into at this stage without getting over the said hurdle. ( 7 ) SRI B. Narayana Reddy, learned counsel appearing for the respondents, submits that there is already a General Power of Attorney executed by the defendant No. 7 in favour of one Abdul Hameed Khan Niazi under a registered document No. 64 of 2000 and there is due representation on behalf of the said defendant also with the other defendants. It is the case of the respondents-defendants that the raising of this objection and insisting for a decision before the merits are gone into is nothing but a device to delay and protract the proceedings especially after obtaining the ex pane interim orders. ( 8 ) IN support of the petitioners claim, reliance is placed on the decision of the apex court in T. K. Lathika v. Sethi Karsandas jamnadas wherein the apex Court considering the provisions of the Kerala rent Control Act, which imposes a ban on the landlord from applying for eviction of the tenant before the expiry of the moratorium period of a year and the objection raised with respect thereto, held that the High Court should have decided the question as to the maintainability of the petition first and it is only if that point was found in the affirmative, the merits need have to be gone into.
Extending the said principle, the learned Counsel for the petitioners submits that the objection as raised by the petitioners in regard to proper representation goes to the root of the case and therefore, the merits of the case should not be gone into before a decision is taken on the said objection. ( 9 ) ON a consideration of the detailed submission made on either side and also on a perusal of the record, admittedly, the petitioners-plaintiffs have obtained an ex. pane ad interim injunction on 7-8-2001 in i. A. No. 740 of 2001 and it was followed by other applications for appointment of advocate Commissioner to seize the account books and for other reliefs. Similarly, the respondents-defendants have also filed applications to vacate the interim injunction and also to recall the warrant as issued against the advocate-Commissioner. On behalf of the petitioners, the proceedings of the Court below have been filed which show that on 29-8-2001, the Court below noted that all the petitions are connected and hence the petitioners-plaintiffs were directed to be ready in all the said petitions by 31-8-2001 to avoid conflict of decisions. In fact the docket sheet dated 27-8-2001 or the later proceedings would only show that all the applications are coming together and in view of the inter-connection, the Court is asking the parties to get ready. From the above, it is quite evident that there is no order or decision as such in any of the applications filed by either side. The petitioners are only aggrieved against a docket order, which is only a step in aid in the process of hearing. As evident from the proceedings, urgency is being shown by both sides. However, the petitioners now want a decision on the objection as to the proper representation on behalf of the defendants in the first instance and then only to go into the merits. Having obtained ex parte interim orders and in spite of the insistence on behalf of he respondents-defendants, the petitioners cannot simply seek to avoid the hearing on merits.
However, the petitioners now want a decision on the objection as to the proper representation on behalf of the defendants in the first instance and then only to go into the merits. Having obtained ex parte interim orders and in spite of the insistence on behalf of he respondents-defendants, the petitioners cannot simply seek to avoid the hearing on merits. As it is, there being no such order or a decision, the very revision as has been filed and framed is not maintainable and would not lie to this court under Section 115 of the Code of Civil procedure which contemplates interference by this Court only against a case decided whereas admittedly there is no decision taken in the order under challenge either way which can be brought within the ambit of section 115 CPC. No orders have been passed in the applications subsequent to the ex parte order granted earlier and, therefore, any such proceedings by way of docket order would not come within the mischief of case decided to warrant attraction of section 115, CPC. ( 10 ) ADMITTEDLY, the defendants have already filed an application seeking to vacate the ex pane interim order. The subject matter of the suit is in regard to the affairs of an institution, a registered society. Apparently, there is a dispute among the parties concerned with the said society. The ex pane interim order having been granted and the defendants respondents coming up with an application to vacate the same, it should not be kept pending for a longer time as contemplated by way of amendment to Order 39 CPC in the year 1976 itself. Rule 3-A of Order 39 CPC specifically contemplates that where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within 30 days from the date on which the injunction was granted and where it is unable so to do, the Court must record reasons. The endeavour is only to avoid any advantage being taken of by the plaintiff under an ex pane order. Once the parties appear and the pleadings are before the court, there is no reason not to dispose of the application. This Court takes judicial notice of the attempts to stall the proceedings by filing some or other application, which have to be discouraged.
Once the parties appear and the pleadings are before the court, there is no reason not to dispose of the application. This Court takes judicial notice of the attempts to stall the proceedings by filing some or other application, which have to be discouraged. ( 11 ) THE insistence on the part of the petitioners to have a say on the objection as a preliminary one i. e. , prior to venturing into the merits, is almost on par with the procedure as contemplated under Order 14 rule 2 (2) of the CPC which contemplates that amongst all the issues, an issue of law affecting the jurisdiction of the Court or a bar to the suit created by any law for the time being in force has to be taken up first. However, under Rule 2 of Order 14, there is an insistence for a judgment on all the issues notwithstanding that the case can be disposed of on a preliminary issue. ( 12 ) THERE is no such issue arising herein in regard to the jurisdiction of the Court or any bar to the suit created by. any law. The objection being that of proper representation can form part of other objections, which runs along with pleas on merits as can be taken by the parties in their pleadings. Therefore, all other issues i. e. , other than those as contemplated under Rule 2 (2) (a) and (b) of order 14 CPC should cover in general on merits and no such issue or question or objection can be taken or treated as a preliminary one and can be insisted to be heard and decided first before going into the merits. Further, when all the applications are already pending before the Court and are in the process of hearing, the managerial direction as to how and when such applications or questions involved should be decided or taken up should be left to the exclusive discretion of the Court concerned. Further, unless the main hearing is done, even the Court would not be in a position to say as to whether the decision on any objection can have weight with or without going into merits. ( 13 ) IN the above said circumstances, I do not find any merits in the revision and it is accordingly dismissed at the admission stage. No costs.