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2005 DIGILAW 484 (MAD)

S. Amanulla Khan v. Al Ameen & Another

2005-03-21

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition, filed under Article 227 of the Constitution of India against the order of the District Munsif, Ilayangudi dated 12.11.2002 in I.A.No.173 of 2002 in O.S.No.24 of 2002, as stated therein.) This Civil Revision Petition has been filed under Article 227 of the Constitution of India by the Third Party-Amanulla Khan, challenging the order of the District Munsif, Ilayangudi dated 12.11.2002 in I.A.No.173 of 2002 in O.S.No.24 of 2002, granting Injunction in favour of the First Respondent / Plaintiff. The Interim Order relates to Ilayankudi Muslim Educational Association. Revision Petitioner - Amanulla Khan is the Third Party. 2. The Revision Petitioner is represented by Counsel Mr. R.Devaraj for Mr. M.Sriram and the Second Respondent is represented by Government Advocate Mr.V.Vivekanandan. First Respondent entered appearance through counsel. In consideration of the facts and circumstances of the case and the Revision Petition is preferred at the instance of the Third Party and that presently a New Secretary has been appointed for Ilayankudi Muslim Educational Association, the main Revision Petition itself has been taken up for final hearing and disposal. 3. For better appreciation of the points urged in this Civil Revision Petition, it is necessary to briefly refer to the previous proceedings, which culminated in the present Civil Revision Petition. (i) W.P.No.17067 of 2001: - This Writ Petition was filed by Ilyangudi Muslim Educational Association (hereinafter referred to as the "Association") represented by its Secretary. Finding that the Petitioner – Association can file an Appeal under the Provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and since alternative remedy is available to the Petitioner, the Writ Petition was dismissed, giving liberty to the Association to file an Appeal to the concerned Authority. (ii) W.A.No.1989 of 2001 and W.A.M.P.No.16179 of 2001: Aggrieved over the dismissal of the Writ Petition No.17067 of 2001 – declining to interfere with the order on the ground of availability of alternative remedy, the Association has preferred this Writ Appeal. Finding that there was no opportunity to the Appellant, and that there is violation of the Audi Alteram Partem Rule, in which case, the availability of alternative remedy is not a bar, a Division Bench of this Court has set aside the Order of the learned Single Judge passed in W.P.No.17067 of 2001. Finding that there was no opportunity to the Appellant, and that there is violation of the Audi Alteram Partem Rule, in which case, the availability of alternative remedy is not a bar, a Division Bench of this Court has set aside the Order of the learned Single Judge passed in W.P.No.17067 of 2001. The First Respondent / District Educational Officer, Sivagangai District was directed to issue notice to the Appellant and hear him and pass orders afresh. It was further directed that till such time, the Appellant shall continue as the Secretary/Correspondent of the Educational Institution. (iii) Election by Rival Group: - Order of DEO, Sivagangai dated 14.12.2001: - As per the direction of the High Court, the parties were called for the Office of DEO, Sivagangai. On enquiry, DEO,Sivagangai has learnt that the Members of the Association were divided into two groups and one such group has elected Al Ameen – the Plaintiff in O.S.No.24 of 2002 and the other Group have elected S. Amanulla Khan – the Revision Petitioner herein. Upon Enquiry, the DEO, Sivagangai has found it difficult to recognise the Election of either of the elected persons. Hence, DEO has directed the parties to approach the Tribunal under Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. The relevant order of the Second Respondent – DEO, Sivagangai is as follows: - "....,tw;wpypUe;J ,isahd;Fo K!;yPk; fy;tpr; r';f cWg;gpdh;fs; ,U gphpthfg; gphpe;J ,U gphptpdUk; jdpj;jdpna btt;ntW njjpfspy; Kiwna 12/08/2001 kw;Wk; 09/09/2001?y; njh;jy;fs; elj;jp xU gphptpdh; jpU/m/,/my;mkPd; vd;ghiua[k; gphpbjhU gphptpdh; jpU/v!;/mkhDy;yhfhd; vd;ghiua[k; jhshsuhfj; njh;t[ bra;Js;shh;/ ,j;njh;jy;fis ,U gphptpdUk; brd;id fk;bgdpfs; rl;l gjpthsh; mYtyfj;jpy; gotk; vz;/32?d; Kyk; gjpt[ bra;Js;shh;/ nkYk; xU';fpize;j bghJthd njh;jy; elj;jhky; ,isahd;Fo K!;yPk; fy;tpr; r';f cWg;gpdh;fs; ,UntW gphpt[fshfg; gphpe;J ,UntW njjpfspy; (mjhtJ 12/08/2001 kw;Wk; 09/09/2001) ,UntW njh;jy;fs; elj;jpapUg;gJ $dehaf Kiwfspd; go Vw;Wf; bfhs;sf; ToaJ my;y/ vdnt ,t;tpU njh;jy;fspy; vJ Vw;g[ilaJ vd;gij cWjp bra;a ,aytpy;iy/ ,J rhh;ghf ,isahd;Fo K!;yPk; fy;tpr; r';f tpjpfspy; tHpfhl;Ljy; VJk; ,y;iy/ Mfnt. ,g;gs;sp eph;thfk; Fwpj;J jhth cs;sbjd Kot[ bra;ag;gLfpwJ/ ,Jnghd;W jhth cs;s epfH;t[fspy; ePjpkd;wj;ij mQqfp jPh;g;ghizfs; bgw;W Kot[ bra;ag;gl ntz;Lk; vd 1973 kw;Wk; 1974?k; Mz;L jkpH;ehL m';fPfhpf;fg;gl;l jdpahh; gs;spfSf;bfd tiuaWf;fg;gl;l rl;l tpjp 53(V)?y; bjhptpf;fg;gl;Ls;sJ...." (iv) W.P.No.2058 of 2002 W.M.P.No.2846 of 2002: - Revision Petitioner - Amanulla Khan has filed this Writ Petition for issuance of Writ of Certiorarified Mandamus to call for the records of DEO, Sivagangai and quash the order dated 14.12.2001 and to recognise the Petitioner as the Secretary, validly elected by the General Body Meeting of the Association, which was held on 09.09.2001. This Court has directed the Director of School Education, Chennai to consider the representation of the Petitioner and to dispose of the same in accordance with law, within a period of four weeks from the date of the order (31.01.2002). (v) O.S.No.24 of 2002 and I.A.No.173 of 2002:- After disposal of W.P.No.2058 of 2002, the Plaintiff - Al Ameen has filed this Suit in O.S.No.24 of 2002 against the DEO, Sivagangai for declaring that he is the Secretary and Correspondent of the Association and restraining DEO, Sivagangai from interfering with the functioning of the Plaintiff – Al Ameen as the Secretary and Correspondent of Ilayangudi Higher Secondary School. (vi) Order of the Director of School Education dated 28.06.02 As per the direction of the High Court in W.P.No.2058 of 2002, the Director of School Education has issued Notice to Al Ameen and the Revision Petitioner - Amanulla Khan and heard their representations. Upon such enquiry, the Director of School Education satisfied himself that majority of the Members of the Association i.e., 51 of them have supported Amanulla Khan; none of the Members has issued Letter of Support in favour of the Plaintiff – Al Ameen. Upon such Enquiry, the Director of School Education has approved the Board Meeting held under the Presidentship of Abdul Kareem on 09.09.2001 and satisfied that the Revision Petitioner - Amanulla Khan was elected as the Secretary. (vii) Proceedings of DEO, Sivagangai dated 08.07.2002: - Pursuant to the proceedings of the Director of School Education, Chennai, the DEO, Sivagangai has issued the Proceedings dated 08.07.2002, recognising Amanulla Khan as Secretary and Correspondent. (vii) Proceedings of DEO, Sivagangai dated 08.07.2002: - Pursuant to the proceedings of the Director of School Education, Chennai, the DEO, Sivagangai has issued the Proceedings dated 08.07.2002, recognising Amanulla Khan as Secretary and Correspondent. The Proceedings of the DEO, Sivagangai reads thus: - "....ghh;itapy; fz;l gs;spf; fy;tp ,iz ,af;Feh; (nky;epiyf; fy;tp) bray;Kiwfspd; go ,isahd;Fo K!;yPk; fy;tp r';fj;jpd; gp/vy;/mg;Jy; fhPk; vd;ghhpd; jiyikapyhd eph;thff; FGtpw;F xg;g[jy; mspf;fg;gl;Ls;sjhy; mr;r';fj;jpy; m';fkhf ,Ue;JtUk; ,isahd;Fo nky;epiyg;gs;spf;F r';fj;jpd; brayhsuhf njh;t[ bra;ag;gl;Ls;s jpU/v!;/mkhDy;yhfhd; vd;gth; jhshsuhf epakdk; bra;ag;gl;lJ gjpt[ bra;ag;gLfpwJ/...." (viii) Thereafter, stating about the various proceedings and recognizing Amanulla Khan as the Secretary of the Association and Correspondent of the School, on 22.07.2002, DEO, Sivagangai has filed elaborate Counter Statement. In the Counter Statement, it is categorically stated about the Appointment and recognizing of Amanulla Khan as the Secretary and Correspondent of the High Secondary School. In the Counter Statement, plea was taken as to the maintainability of the Suit. In the Counter Statement, the main contention of the Second Defendant – DEO, Sivagangai is about the non-maintainability of the Suit in view of Sec.53 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. Sections 53 and 54 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 reads thus: - "...53. Civil Court not to decide questions under this Act: No Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by any authority or officer mentioned in this Act. 54. Finality of Orders etc., passed under this Act:- (1) Any order made, decision taken or direction issued by any authority or officer in respect of matters to be determined for the purposes of this Act, shall, subject only to appeal or revision, if any, provided under this Act be final. (2) No such order, decision or direction shall be liable to be questioned in any Court of law...". (ix) Thereupon, the Enquiry in I.A.No.173 of 2002 was taken up. By the order dated 12.11.2002, the learned District Munsif, Ilayangudi has granted Injunction. Finding that as per the direction of the High Court in W.A.No.1989 of 2001, no opportunity was given to Plaintiff before conducting the Election and that there is violation of Audi Alteram Partem Rule and on those grounds found the Suit maintainable and granted Interim Injunction. 4. By the order dated 12.11.2002, the learned District Munsif, Ilayangudi has granted Injunction. Finding that as per the direction of the High Court in W.A.No.1989 of 2001, no opportunity was given to Plaintiff before conducting the Election and that there is violation of Audi Alteram Partem Rule and on those grounds found the Suit maintainable and granted Interim Injunction. 4. Aggrieved over the order, granting Temporary Injunction in I.A.No.173 of 2002, the Third Party - Amanulla Khan has preferred this Revision Petition. Assailing the Impugned Order, learned counsel for the Revision Petitioner has submitted that Injunction granted without giving notice to the proper party viz., Amanulla Khan is unsustainable. It is mainly contended that the Plaintiff - Al Ameen was very well aware of the proceedings of the DEO, Sivagangai on the Appointment of the Revision Petitioner as the Secretary and that the Plaintiff ought to have impleaded Amanulla Khan as the necessary party. It is further submitted that presently, new Secretary has also been appointed and that the Suit filed by the Plaintiff - Amanulla Khan for declaring him as the Secretary of the Association has become infructuous. It is further submitted that suitable directions are to be given to the Trial Court that the Suit has become infructuous. 5. Revision Petitioner -Amanulla Khan is not a Party in O.S.No.24 of 2002. Though he was not a party in the Suit, the sequence of events and proceedings of the Director of School Education, Chennai and DEO, Sivagangai clearly indicate that the Revision Petitioner has been in close watch of the proceedings. The Impugned Order granting Temporary Injunction in I.A.No.173 of 2002 is dated 12.11.2002. Within ten days thereafter on 22.11.2002, the Revision Petitioner has filed this Revision under Article 227 of the Constitution of India. Such immediate filing of the Revision Petition clearly shows that the Revision Petitioner has been in close watch of the Suit Proceedings. But, the Revision Petitioner has not chosen to take appropriate steps for impleading himself in I.S.No.24 of 2002 and taking steps for vacating the Injunction. 6. Placing reliance upon the decision reported in Tamil Nadu Electricity Board ..Vs.. M/S. V.Thiyagarajan And Brothers (1991 M.L.J. 138), learned counsel for the Revision Petitioner has submitted that the order of the Trial Court granting Temporary Injunction without impleading Amanulla Khan as a party, is wholly without jurisdiction and is liable to be set aside. 6. Placing reliance upon the decision reported in Tamil Nadu Electricity Board ..Vs.. M/S. V.Thiyagarajan And Brothers (1991 M.L.J. 138), learned counsel for the Revision Petitioner has submitted that the order of the Trial Court granting Temporary Injunction without impleading Amanulla Khan as a party, is wholly without jurisdiction and is liable to be set aside. In the said case, a huge amount of Rs.1,91,43,571 was involved, which amount was payable to Tamil Nadu Electricity Board. Without impleading Tamil Nadu Electricity Board to whom the amount was payable, the Plaintiff has filed the Suit in O.S.No.1604 of 1990 against the Second Respondent viz., Union Bank of India for Permanent Injunction restraining the Bank from making any payment to Tamil Nadu Electricity Board on the basis of Bank Guarantee pending adjudication of the dispute. Thus, in the facts and circumstances of the case, finding that for the relief sought for, Tamil Nadu Electricity Board was a necessary party to the Suit, learned Single Judge of this Court (KANAKARAJ, J.) has held thus: - "... In the present case, though the trial court had purported to say that a prima facie case had been made out for the grant of ad interim injunction, it appears that the trial Judge has mechanically passed the order without a real application of mind. Even a bare perusal of the prayer in the Suit suggests that the Petitioner is a necessary party to the Suit. The Trial Court was not justified in passing an order of interim injunction without the petitioner having been made a party. Therefore, the order of the Trial Court is totally without jurisdiction and is liable to be set aside under Article 227 of the Constitution....". Thus, in view of the huge amount involved payable to Tamil Nadu Electricity Board, the High Court in exercise of Supervisory jurisdiction under Article 227 of the Constitution of India has set aside the order of Interim Injunction granted by the District Munsif, Madurai Town. 7. The case in hand stands on different footing. No doubt, the Plaintiff ought to have impleaded Amanulla Khan. Considering the facts and circumstances of the case, learned District Munsif could have directed the Plaintiff – Al Ameen to implead Amanulla Khan, but that was not done. 7. The case in hand stands on different footing. No doubt, the Plaintiff ought to have impleaded Amanulla Khan. Considering the facts and circumstances of the case, learned District Munsif could have directed the Plaintiff – Al Ameen to implead Amanulla Khan, but that was not done. But, that does not in any way warrant interference of the Impugned Order at the instance of the Third Party, exercising supervisory jurisdiction under Article 227 of the Constitution of India. As elaborated earlier, when the Revision Petitioner repeatedly has been approaching the High Court by filing number of Writ Petitions, nothing prevented him by filing a Petition under Order 1 Rule 10 C.P.C for impleading himself in O.S.No.24 of 2002 and filing Application for vacating the Injunction; but that was not done. On the other hand, the Revision Petitioner has filed this Revision under Article 227 of the Constitution of India seeking intervention of the Court to set aside the order of Injunction in I.A.No.173 of 2002. When alternative effective remedy is available, by exercising supervisory jurisdiction under Article 227 of the Constitution of India, this Court would not interfere with the orders of the Court below. In view of the availability of the effective alternative remedy, the Impugned Order cannot be interfered with. It is stated that after the Revision Petitioner - Amanulla Khan, presently new Secretary has been appointed, who has been recognised by Second Defendant – DEO, Sivagangai. By change of subsequent events, the Suit might have become infructuous and it is for the Trial Court to take note of the same. It would not be appropriate for this Court to issue directions in this regard. In that view of the matter, this Revision Petition is liable to be dismissed. 8. In the result, this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs.