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2001 DIGILAW 47 (ORI)

Registrar, Co-operative Societies, Orissa, Bhubaneswar v. Bhuban Behari Sahoo

2001-02-06

A.S.NAIDU, PRADIPTA RAY

body2001
JUDGMENT PRADIPTA RAY, J. — This appeal under Letters Patent is against an order dated January 22,2001 passed by the Hon’ble Single Judge refusing to vacate or modify the interim order dated December 20, 2000 passed by him in O.J.C. No. 13334/2000. 2. The relevant facts briefly stated are as follows : By order dated December 13,2000 the Registrar of Co-operative Societies, Orissa (hereinafter referred to as the ‘Registrar’) suspended the Committee of Management of Mayurbhanj Central Co-operative Bank, Baripada under the Presidentship of Sri Bhuban Behari Sahu in exercise of power under Sec. 32 (7) of the Orissa Co-operative Societies Act (hereinafter referred to as the ‘Act’) Shri Bhuban Behari Sahu, the President of the Committee was already under suspension by an order passed by the Auditor General in exercise of his powers under Sec. 62 (6) of the Act. On December 14,2000 the order of suspension was served on some of the members of the suspended Committee of Management and the Collector, Mayurbhanj as Chief Management in charge appointed by the Registrar assumed charge of management of the Co-operative Bank. Immediately upon assumption of charge the Collector, in¬formed the different authorities about the said fact of assump¬tion of charge by memo dated December 14,2000. On December 19,2000 Sri Bhuban Behari Sahu, the President of the suspended Committee of Management and Smt. Draupadi Sahu, the Vice-Presi¬dent filed two separate writ applications challenging the said order of suspension by the Registrar. On December 20,2000 the said writ applications were moved and the Hon’ble Single Judge directed to issue notice and ex parte granted the following interim order : “ Heard the petitioner in person. As an interim measure it is directed that operation of the impugned order dated 13.12.2000 as per Annexure-1 shall remain stayed until further orders and the Committee of Management shall remain in charge.” The Registrar of Co-operative Societies filed an application being Misc. Case No. 119/2000 before the Hon’ble Single Judge for vacating and/or modification of the interim order dated December 20,2000. On January 5, 2001 Sri Janaki Prasad Choudhury, Deputy Registrar of Co-operative Societies appeared in person before the Hon’ble Single Judge and filed a counter affidavit on behalf of the Registrar. Case No. 119/2000 before the Hon’ble Single Judge for vacating and/or modification of the interim order dated December 20,2000. On January 5, 2001 Sri Janaki Prasad Choudhury, Deputy Registrar of Co-operative Societies appeared in person before the Hon’ble Single Judge and filed a counter affidavit on behalf of the Registrar. As the writ petitioner complained that the interim order was not being complied with, the Hon’ble Single Judge directed the Registrar to explain why the interim order dated December 20,2000 had not been complied with. Against the said order dated January 5, 2001 the Registrar filed an appeal under Letters Patent being A.H.O. No. 9/2001. This Court did not want to interfere at the said stage as the Registrar’s application for vacating the interim order was still pending and by order dated January 10, 2001 disposed of the A.H.O. with the expectation that the application for vacating the interim order would be taken up on the next date fixed. By order dated January 22,2001 the Hon’¬ble Single Judge disposed of the writ petitioner’s application for interim order being Misc. Case No. 13524/2000 and the Regis¬trar’s application for vacating and modification of the interim order being Misc. Case No. 119/20001 making the interim order dated January 22, 2001 absolute and rejecting the Registrar’s application for vacating the interim order. Being aggrieved, the Registrar has filed this appeal under Letters Patent against the aforesaid order dated January 22,2001. 3. We have heard the learned Advocates for the appellant and the respondent No.1 (writ petitioner). 4. The learned Advocate for the respondent No.1 - writ peti¬tioner has questioned the maintainability of appeal under Letters Patent against an interim order. He has submitted that the present interim order cannot be said to be ‘judgment’ within the meaning of Letters Patent and this appeal is not maintainable. 5. What constitutes a ‘judgment’ under Clause 15 of the Letters Patent (in this High Court Clause 10) has been explained in details and settled by the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania and another (AIR 1981 S.C.1786). It has been settled therein that an order which has been made ap¬pealable under Order 43, Rule 1, C.P.C. decides valuable rights and possess the attributes and character of finality so as to be judgments within the meaning of Clause 15 of the Letters Patent. It has been settled therein that an order which has been made ap¬pealable under Order 43, Rule 1, C.P.C. decides valuable rights and possess the attributes and character of finality so as to be judgments within the meaning of Clause 15 of the Letters Patent. An order granting an interim injunction or refusing to grant interim injunction and an order vacating and/or refusing to vacate an interim order of injunction are appealable under Order 43, Rule 1, C.P.C. By the impugned order the Hon’ble Single Judge has refused to vacate the interim order and made the interim order final till disposal of the O.J.C. Supreme Court in A. Venkatasubbia Naidu v. S. Chellappan and others ( AIR 2000 SC 3032 ) has reiterated that an ex parte interim order is appealable and the choice is for the party affected by such interim order either to move the appellate Court or to approach the same Court which passed the ex parte order. Considering the nature of the order we hold that the present A.H.O. is maintainable. 6. Admittedly the order of suspension under Sec. 32 (7) of the Act was served on some of the members of the Committee of Management of December 14,2000 and the Collector assumed charge on behalf of the interim management. Even before us to learned Advocate for the respondent No.1 - writ petitioner has admitted that the Collector assumed the charge of the Co-operative Bank and the interim management Committee as appointed by the Regis¬trar is in charge of the management of the Bank. Another signifi¬cation fact to be noted is that although the Committee of Manage¬ment has been suspended, no other member of the suspended Commit¬tee of Management excepting the President who was already under suspension by virtue of an order passed by the Auditor General under Sec. 62 (6) of the Act and the Vice-President has so far challenged the said order of suspension. 7. The main purpose of an interim order is to preserve the status quo regarding the subject-matter of dispute pending final determination to prevent any further future injury. Excepting in extremely rare cases the Court should not pass an interim order disturbing or changing the situation prevailing on the date of passing the order or on the date of institution of the proceed¬ing. Excepting in extremely rare cases the Court should not pass an interim order disturbing or changing the situation prevailing on the date of passing the order or on the date of institution of the proceed¬ing. In Nandan Pictures Ltd. v. Art Pictures Ltd. and others (AIR 1956 Calcutta 482) the principles relating to grant of interim mandatory order have been discussed and it has been laid down : “I consider it sufficient to point out that it is only in very rare cases that a mandatory injunction is granted on an interlocutory application and instances where such an injunction is granted by means of an ‘ad interim’ order pending the decision of the application itself are almost unknown. xx xx xx xx At the same time, I may point out what the accepted principles have been and what has been according to the reported cases, the practice of the Courts. It would appear that if a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted. The one case in which a mandatory injunction is issued on an interlocutory appli¬cation is where, with notice of the institution of the plain¬tiff’s suit and the prayer made in it for an injunction to re¬strain the doing of a certain act, the defendant does that act and thereby alters the factual basis upon which the plaintiff claimed his relief. An injunction issued in such a case in order that the defendant cannot take advantage of his own act and defeat the suit by saying that the old cause of action no longer survived and a new cause of action for a new type of suit had arisen. When such is found to be the position, the Court grants a mandatory injunction even on interlocutory application, directing the defendant to undo what he has done with notice of the plain¬tiff’s suit and the claim therein and thereby compels him to restore the position which existed at the date of the suit.” Similar view has been expressed by the Madhya Pradesh High Court in Durg Transport Co. Private Ltd., Durg v. Regional Transport Authority, Raipur and others ( AIR 1965 MP 142 ). Private Ltd., Durg v. Regional Transport Authority, Raipur and others ( AIR 1965 MP 142 ). It has been observed therein : “A stay order or an order of injunction is not granted to disturb the status quo. It is no doubt granted to restore the status quo. it is never granted to establish a new state of things differing from the state which existed at the date when proceedings were instituted.” The said observation of the Madhya Pradesh High Court has been approvingly quoted in Banappa Dyayappa Kumbar v. Gurunath Krish¬naji Ingalgi and others (AIR 1973 Mysore 199). This Court in (1979) 47 CLT 433 (Bhikari Majhi v. Baidyanath Barik and another) considered various judgments dealing with the grant of temporary mandatory injunction and laid down : From a conspectus of the cases referred to above, the prin¬ciples that emerge are that under the provisions of Order 39, Rule 1 the Court can issue an injunction of a mandatory charac¬ter, but such an injunction can only be issued to keep things in status quo during the pendency of the litigation. Before issuing a temporary mandatory injunction the Court must be satisfied that the effect of the injunction would be to preserve the status quo during the pendency of the litigation and to prevent an irrepara¬ble injury to the plaintiff. If the effect of the injunction would be to alter the status quo during the pendency of the suit no such injunction can be issued, because that would result in granting to the plaintiff the remedy he seeks in the suit before the contentions of the contending parties are properly tried.” 8. In the impugned order the Hon’ble Judge has not consid¬ered the said undisputed fact that the order of suspension had already taken effect and management was taken over five days before the writ application was presented. It has been observed therein that a minimum opportunity of natural justice is supposed to be followed before an order of suspension is passed. We think that the said observation has been made only tentatively pending further examination inasmuch as no decision has been placed before us by the learned Advocate for the respondent wherein it has been held that the principles of natural justice is to be observed before passing an interim order of suspension. We think that the said observation has been made only tentatively pending further examination inasmuch as no decision has been placed before us by the learned Advocate for the respondent wherein it has been held that the principles of natural justice is to be observed before passing an interim order of suspension. The Hon’ble Single Judge has also recorded certain apprehensions which, according to us, can be taken care of at the time of final disposal of the O.J.C. In the present case the charge sheet has already been served on the members of the committee of management on January 8, 2001 and the Court has also decided to hear out the main writ application. The Court can always direct the authori¬ties to dispose of the proceeding under Sec. 32 (1) of the Act within the prescribed time. In any event, those reasons, if available may be good grounds for setting aside the order of suspension after hearing the main writ application, but not very relevant at this interlocutory stage. 9. No doubt, the writ petitioner has made out a prima facie case for determination, but prima facie case alone is not suffi¬cient for grant of any interim order. With due respect we are unable to appreciate that in the facts and circumstances the balance of convenience and inconvenience is in favour of main¬taining the interim order till disposal of the main writ applica¬tion. 10. For the reasons aforesaid we allow this appeal, The impugned judgment and order dated January 22,2001 is set aside. The interim order dated December 20,2000 passed in O.J.C. No. 13334/2000 is vacated. However, the temporary committee of man¬agement of constituted by the Registrar will not take any major policy decision and will only run the day to day administration of the Bank till disposal of the writ application. We, however, make it clear that we have not considered the merits of the writ application in any way or manner. The A.H.O. is allowed. A. S. NAIDU, J. I agree. A.H.O. allowed.