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2013 DIGILAW 477 (ORI)

Niranjan Rath v. Kishore Chandra Tripathy

2013-11-25

S.K.MISHRA

body2013
JUDGMENT S. K. MISHRA, J. : The judgment dated 21.3.2013 passed by learned District Judge, Cuttack in F.A.O. No.113 of 2013 is assailed in three writ petitions being W.P.(C) No.7650, 12203 and 12204 of 2013. In W.P.(C) No.7650/2013 the respondent Nos.1 to 7 of the aforesaid F.A.O. assails the judgment dated 21.3.2013. The same judgment has also been assailed by Kishore Chandra Tripathy the original plaintiff in the suit. For the sake convenience the petitioners in W.P.(C) No.7650/2013 will be referred to as the petitioners, Kishore Chandra Tripathy, petitioner in W.P.(C) No.12204/2013, will be called as the opposite party and the petitioners in W.P.(C) No.12203/2013 namely, Braja Bhai, will be referred to as he 3rd party. For the sake convenience the petitioners in W.P.(C) No.7650/2013 will be referred to as the petitioners, Kishore Chandra Tripathy, petitioner in W.P.(C) No.12204/2013, will be called as the opposite party and the petitioners in W.P.(C) No.12203/2013 namely, Braja Bhai, will be referred to as he 3rd party. 2.The learned District Judge, Cuttack, before whom the order dated 29.9.2012 passed by learned Civil Judge (Senior Division), 1st Court, Cuttack in I.A. No.420 of 2012 arising out of Civil Suit No. (1) No.492/2012 has been assailed, has given the following directions :- “Therefore, it is ordered that during pendency of the suit, the Executive Council, which is functioning now, shall not take any policy decision and also any decision having financial implications except meeting day to day expenditure of the SOPS and its organizations without the leave of the Court and also the prior approval of the General Body of the SOPS, and the petitioner-appellant shall be allowed to function as a member of the General Body of the SOPS and the suit shall be disposed of within two months hence.” 3.The facts leading to filling of these writ petition may be stated as follows :- The opposite party, i.e., the petitioner in I.A. No.420 of 2012 arising out of Civil Suit (1) No.492 of 2012 on the file of Civil Judge (Senior Division), First Court, Cuttack sought the relief for restraining the opposite parties-respondents, i.e. the present petitioners, from causing any disturbance or dispossession of the opposite party from rightful discharge of duties in the office of officiating President-cum-Vice President of Servants of the People Society (hereinafter referred to as ‘SOPS’) and the Chairman of Orissa branch of SOPS and also to restrain the office bearers claiming to have been elected in the meeting held on 28.6.2012 and interfere in the affairs of the Council elected for 2011-2013 debarring from causing any nuisance from the property of SOPS in any manner or enter upon the premises of Gopabandhu Bhawan without consent of the opposite party and not to hold any meeting of the Executive Counsel and Board of Management of Orissa Branch on 22.7.2012 and 23.7.2012 as per the notice dated 3.7.2012 issued by the petitioner No.6. 4.The opposite party in the capacity of Vice President and Officiating President of the SOPS, which is otherwise known as “Lok Sevak Mandal” a registered Society governed by its Constitution and bye-laws, instituted a suit in question against the petitioners and another as defendants and the President of the SOPS as proforma defendant, seeking the relief to declare the opposite party to have been elected to the Executive Council of SOPS for the tenure 2011 to 2013 and as the Officiating President and continuing as such to manage the affairs of the SOPS and allied organization, a meeting of the Executive Council and the General Body held on 27.6.2012 and 28.6.2012 and any business transactions made, resolutions passed or decisions taken be declared as illegal and void and not according to the Constitution of the SOPS, the election of the new office bearers not in accordance with the Constitution of the SOPS and they be permanently injuncted from entering into the premises of Gopabandhu Bhawan without consent of the opposite party till completion of the opposite party’s tenure and temporarily injunct them till finalization of the matter by the Court. 5.The opposite party-plaintiff’s case is that the SOPS was established in the year 1921-22 which is registered under the Societies Registration Act, 1860 in the year 1953 having its Branch Office at Gopabandhu Bhawan, Buxi Bazar, Cuttack in the State of Odisha. According to the opposite party, in the meeting of the General Body held on 9.6.2011 he along with other five members namely, Raj Kumar, Deepak Malviya, Kirti Bhai Pandya, Bhimsen and Niranjan Ratha were elected to the Executive Council and defendant No.8 (Onkar Chand) was elected as the President of the SOPS. The term of the aforesaid Executive Council is for the year 2011 to 2013 and they are discharging their duties. The President of the SOPS delegated his power under Clause-17 of the Constitution of the SOPS to the opposite party on 6.6.2012, which was extended from time to time and the last delegation was on 10.7.2012. The president of the SOPS had issued a letter for calling upon a General Body meeting on 26.6.2012 to be held in the Head Office, wherein it was decided to hold the election of the SOPS which was not in conformity with the Constitution of the SOPS. The president of the SOPS had issued a letter for calling upon a General Body meeting on 26.6.2012 to be held in the Head Office, wherein it was decided to hold the election of the SOPS which was not in conformity with the Constitution of the SOPS. The meeting of the election being not in conformity with the Constitution of the SOPS inasmuch as the tenure of the Executive Council and office bearers was for two years, the aforesaid meeting could not be convened, but petitioner No.3, Raj Kumar, gave a notice of the General Body meeting on 28.6.2012 to elect the President and Executive Council of the SOPS and the Executive Council meeting was also fixed to 27.6.2012, which was in gross violation of the Constitution of the SOPS. When the same came to the notice of the opposite party, he directed him to postpone the meeting, which he was bound to carry out in view of Clause-18 of the Constitution, but defendant Nos.1 to 7 forming an unholy combination and in gross violation of the norms and procedures contemplated in the Constitution conducted a meeting and in the General Body meeting, elected a President and also the members of the Executive Council of the SOPS and claims to have taken a decision for removing the opposite party from the post of officiating President, which could come to the knowledge of the opposite party on 28.6.2012. The opposite party has further taken the averment that since some of the members of the SOPS were not acting in conformity with Constitution of the SOPS and involved in serious activities, like forgery, misappropriation of SOPS funds and doing some illegality, they were removed by the opposite party on 27.6.2012, which was duly communicated to them. It is further appeared that in spite of the aforesaid they having illegally and unauthorizedly calling upon a General Body meeting and holding the same, elected as office bearers of Executive Council and also the President, which was not due as per the Constitution of the SOPS, they have no manner of right to interfere in the affairs of the SOPS. While the matter stood thus, defendant Nos.1 to 7 interfered with the affairs of the SOPS and intimated the General Manager of “The Samaj” (who is also under the SOPS) that the opposite party has no business to interfere with the affairs of the SOPS. While the matter stood thus, defendant Nos.1 to 7 interfered with the affairs of the SOPS and intimated the General Manager of “The Samaj” (who is also under the SOPS) that the opposite party has no business to interfere with the affairs of the SOPS. Besides the same, the opposite party has also pleaded that the petitioners are no more the members of the SOPS having been suspended and removed from their membership by him in the capacity of the President of the SOPS and they have also been intimated by Enquiry Committee’s report from different charges, which is detrimental to the interest of justice. In spite of the same, they are representing themselves as the members of the Executive Council of the SOPS and also as office bearers and transacting business, which is illegal and being not in conformity with the Constitution of the SOPS. Hence the opposite party filed the suit and an interim prayer has been made as sated earlier. 6.“The Samaj” who is opposite party No.7 in the interim application and defendant No.9 in original suit has averred that the trial Court has no jurisdiction and the opposite party is not authorized to represent the SOPS as per the constitution of the SOPS. It has been denied that the officiating President was entitled to exercise the jurisdiction of the President as stated by the opposite party and he was never authorized to officiate as President by the President of the SOPS. Accordingly, it is averred that the next election of the Office bearers was held in accordance with the Constitution of the SOPS, wherein Manubhai Patel was elected as the President and the other Executive Council members were elected, the opposite party ceased to be a member of the Executive Council is false and frivolous and without any basis. It is further averred that the opposite party has also since been removed from the life membership of the SOPS. 7.Niranjan Ratha, who happens to be defendant-opposite party No.6 in the suit and interim application and petitioner No.1 in the W.P.(C) No.7650 of 2013, has resisted the interim application to be not maintainable in view of the fact that the suit is not maintainable. 7.Niranjan Ratha, who happens to be defendant-opposite party No.6 in the suit and interim application and petitioner No.1 in the W.P.(C) No.7650 of 2013, has resisted the interim application to be not maintainable in view of the fact that the suit is not maintainable. He admitted that the General Body meeting to have been held on 9.6.2011 in accordance with law and Onkar Chand was elected as the President and six executive council members were elected and the office bearers were duly nominated by the President. He having been removed from the office as Vice President and suspended from life membership, has no authority to represent the SOPS and file the case and also a serious dispute has been made with regard to the delegation of the power to the opposite party by the President and also the power of the President to suspend the life members under Clause-16 of the Constitution. The other allegations made in the petition have been stoutly denied. The other petitioners have adapted the averments made by petitioner No.1-Niranjan Ratha. Opposite party No.7 has also challenged the locus standi of the opposite to institute the suit and also the jurisdiction of the Court to entertain the suit. 8.Learned District Judge having take into consideration the reported case of Hindustan Petroleum Corporation Limited v. Sri Sriram Narayan and another, AIR 2002 Supreme Court 2598 and Deoraj v. State of Maharashtra and others; AIR 2004 SC 1975 has held that the opposite party - K.C. Tripathy has foolproof case, inasmuch as the newly created Executive Council in a General Body meeting appears to have prima facie no sanction of the Constitution of the SOPS. Learned District Judge, further held that removal of the opposite party from the Executive Council and life membership appears to be prima facie without jurisdiction. He further held that the balance of convenience appears to lean in his favour and he is going to suffer irreparable loss, inasmuch as he having been duly elected by the General Body of the SOPS has not been allowed to discharge his function and the same cannot be adequately compensated in any manner if injunction is refused in the event and he is found to have a right to discharge his function. However, learned District Judge held that it would not be just and convenient to grant an order of mandatory injunction to allow him to continue as a member of the Executive Council and Vice President as his tenure is going to expire by the end of March, 2013. Learned District Judge held that it cannot be lost sight of that the newly elected Executive Council with the President appears to have prima facie no authority to continue as the Executive Council of the SOPS. Simultaneously, it also cannot be lost sight of that the SOPS has to be managed by the General Body and the Executive Council. Though the newly elected members of the Executive Council appears to have no prima facie sanction of the constitution of SOPS to continue. Learned District Judge further held that they are continuing and said to have been declared elected in a meeting of the General Body. It is further held that in the event they are restrained from exercising such function, the Management of the SOPS shall be affected adversely. To strike a balance between the two, learned District Judge held that interest of justice would be best served if the Executive Council so functioning now, is allowed to function with the restriction that no policy decision or decision having financial implication except the routine expenditure required for day to day function of the SOPS and its organization, be taken by the present Executive Council of the SOPS without the leave of the Court and prior approval of the General Body of the SOPS and the opposite party is allowed to continue as a life member of the General Body of the SOPS till disposal of the suit and the suit is directed to be disposed of within two months hence. With such observation, the learned District Judge passed the order as quoted earlier. 9.Learned counsel for the petitioners submits that as both the parties to the Interim Application have filed writ petitions under Articles 226 and 227 of the Constitution of India, the appropriate course is to remand the matter for hearing afresh as both the parties argue that the orders passed by the learned District Judge are wrong. Such contention is fallacious in view of the fact that only because both parties have challenged a particular order, it cannot be ipso facto held to be illegal or without jurisdiction. Such contention is fallacious in view of the fact that only because both parties have challenged a particular order, it cannot be ipso facto held to be illegal or without jurisdiction. The second contention raised by the learned counsel for the petitioners is that there is non-compliance of the provisions of Rule 31 of Order 41 of the Civil Procedure Code, 1908. It is contended that it is mandatory in nature. In this regard, various reported cases have been cited. Learned counsel for the petitioners further submits that by virtue of Rule 2 of Order 43 of the Code the Rule 31 of Order 41 applies to any appeal preferred under Order 43. It is therefore contended by citing the reported case of M/S. UNITED ENGINEERS & CONTRACTORS VS. SECRETARY TO GOVT. A.P. & ORS; 2013 (1) SCALE wherein it is held that the appellate Court has decided the appeal without following the procedure required under law under Order XLI Rule 31 of the Code, the impugned judgment is not sustainable. Some other decisions have also been cited, which has laid down the law that Rule 31 of Order 41 of the Code is mandatory in nature, which reads as follows :- “31. Contents, date and signature of judgment - The judgment of the Appellate Court shall be in writing and shall state – (a)the points for determination; (b)the decision thereon; (c)the reasons for the decision; and (d)where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge for by the Judges concurring therein.” 10.A bare reading of the Code reveals that an appellate Court cannot set aside the impugned judgment without discussing the material on record and recording a contrary finding. 11.Having gone through the records, this Court comes to the conclusion that the learned District Judge has properly understood the matter and after discussing the materials available on record giving adequate and good reasons has passed the judgment impugned. So it cannot be held that there has been non compliance of Rule 31 of Order 41 of the Code. 11.Having gone through the records, this Court comes to the conclusion that the learned District Judge has properly understood the matter and after discussing the materials available on record giving adequate and good reasons has passed the judgment impugned. So it cannot be held that there has been non compliance of Rule 31 of Order 41 of the Code. 12.Learned counsel for the opposite party, on the other hand, submits that the learned District Judge has committed gross error of fact and law by giving direction to the effect that an illegally constituted council, shall remain in charge of the affairs of the SOPS. 13.Learned District Judge was aware of the fact that the term of the opposite party, i.e. Sri K.C. Tripathy comes to an end on 31st March, 2013 and he cannot act as the member of the Executive Council. In that view of the matter, injunction cannot be issued in his favour. Thus, in order to continue the activities of the SOPS, learned District Judge has come to the conclusion that interest of justice will be best served if the Executive Council, which is functioning at present, is allowed to function with the restriction that no policy decision or decision having financial implication except the routine expenditures required for day to day function of the SOPS and its organization, be taken by the present Executive Council of the SOPS without leave of the and prior approval of the General Body of the SOPS. However, the opposite party-Plaintiff was allowed to continue as a life member of the General Body of the SOPS till disposal of the suit. He further directed that the suit should be disposed of within two months hence. 14.The jurisdiction under Article 227 of the Constitution of India is supervisory jurisdiction. It can be exercised for keeping the subordinate Court within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction. This Court comes to the conclusion that there is no allegation regarding any error relating to jurisdiction of the appellate Court. Therefore, there is no reason to believe that to invoke the jurisdiction under Article 227 of the Constitution. Furthermore, neither any failure of justice nor grave injustice have occasioned by virtue of the order passed by learned District Judge. Therefore, this Court does not think, it is a fit case to interfere with the order passed by the learned District Judge. 15.Accordingly, the writ petitions filed by Niranjan Rath and others., Braja Bhai and Kishore Chandra Tripathy are hereby dismissed being devoid of any merit. 16.The lower Court records be sent forthwith to the original Court for disposal of the same as expeditiously as possible in pursuant to the order passed by the learned District Judge. Petition dismissed.