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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7764 OF 2019
(@ Special Leave Petition (C) No.26055 of 2018)
Virudhunagar Hindu Nadargal Dharma
Paribalana Sabai & Ors. ... Appellants
Versus
Tuticorin Educational Society & Ors. ... Respondents
J U D G M E N T
V. Ramasubramanian
1. Leave granted.
2. Aggrieved by an order of the High Court passed
under Article 227 of the Constitution, vacating an
interim order of injunction granted by the trial
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Court, the plaintiffs have come up with this appeal.
3. We have heard Mr. R. Anand Padmanabhan, learned
counsel for the appellants and Mr. Vijay Hansaria,
learned Senior Counsel for the respondent Nos. 1 &
2.
4. The appellants herein filed a suit O. S. No.
145 of 2018 on the file of Principal District
Munsif, at Thoothukudi praying (i) for a declaration
that the notice issued by the sixth defendant
(second respondent in this appeal) convening the
General Body Meeting of the first respondent–Society
at 5 P.M. and the Executive Committee meeting at
5:30 P.M. on the same day namely 05.05.2018 was
illegal; (ii) for a decree of permanent injunction
restraining the defendant Nos. 5 & 6 from convening
the meetings of the General Body and the Executive
Committee of the first respondent–society; (iii) for
a declaration that the appointment of the fifth
defendant (third respondent in this appeal) as
patron for life of the first defendantSociety was
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unlawful; (iv) for a permanent injunction
restraining the sixth defendant (second respondent
in the appeal) from acting as the Secretary of the
first defendantSociety and (v) for the appointment
of a Commissioner to receive the list of members and
to conduct free and fair election of office bearers
of the first defendantSociety.
5. Along with the suit, the appellants/plaintiffs
moved an Interlocutory Application i.e. I. A. No.
386 of 2018 seeking an interim order of injunction
restraining the respondents from convening the
meetings of the general Body and the Executive
Committee on 5.5.2018. It appears that the
appellants/plaintiffs also moved one more
Interlocutory Application i.e. Interlocutory
Application No.387 of 2018 seeking an injunction
restraining the defendant nos. 5 & 6 from acting
respectively as Patron and the Secretary.
6. It appears that the suit was filed on
23.04.2018 and the application for interim
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injunction was moved on 24.04.2018. The Contesting
defendants filed a counter affidavit on the very
next day namely 25.04.2018 along with 19 documents.
7. Therefore, after hearing both sides, the trial
Court passed an order on 26.04.2018 allowing
Interlocutory Application No.386 of 2018 and
injuncting the defendants from proceeding with the
Meeting of the General Body and the Executive
Committee as scheduled on 5.5.2018. It is relevant
to note that the trial Court not only took note of
the pleadings on both sides but also took note of 12
documents filed by the plaintiffs and 19 documents
filed along with the counter affidavits of the
defendants.
8. As against the order of the trial court
granting injunction, the fifth defendant in the suit
(the third respondent in this appeal) who was
claiming to be the Patron for life, filed a Regular
Appeal in C.M.A No.1 of 2018 on the file of the SubCourt at Thothukudi under Order XLIII Rule 1(r) of
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the Code of Civil Procedure. But the respondent
nos.1 & 2 herein who were the defendant Nos.1 & 6
respectively, instead of filing a Regular Appeal,
filed a Civil Revision in C.R.P.(MD) (PD) No.1084 of
2018 on the file of the Madurai Bench of the Madras
High Court, under Article 227 of the Constitution of
India.
9. Despite objections to the maintainability of
the revision on the ground of availability of an
appellate remedy under the Code, the High Court
allowed the Civil Revision Petition and set aside
the order of injunction granted by the trial Court.
It is against the said order that the plaintiffs
have come up with the above appeal.
10. The objection to the maintainability of the
revision was sought to be overcome by the High Court
on the basis of a few decisions which revolved
around the supervisory jurisdiction of the High
Court to keep the subordinate courts within the
bounds of law. Then the High Court found fault with
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the trial Court for taking up the application for
injunction filed on 24.04.2018, for hearing on
25.04.2018 and passing an order on 26.4.2018. This,
in the opinion of the High Court, was a case of
justice being hurried and consequently getting
buried. Therefore, the High Court allowed the
revision and set aside the order of injunction.
11. Primarily the High Court, in our view, went
wrong in overlooking the fact that there was already
an appeal in C.M.A. No. 1 of 2018 filed before the
SubCourt at Tuticorin under Order XLI, Rule 1 (r)
of the Code, at the instance of the fifth defendant
in the suit (third respondent herein), as against
the very same order of injunction and, therefore,
there was no justification for invoking the
supervisory jurisdiction under Article 227.
12. Secondly, the High Court ought to have seen that
when a remedy of appeal under section 104 (1)(i) read
with Order XLIII, Rule 1 (r) of the Code of Civil
Procedure, 1908, was directly available, the
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respondents 1 and 2 ought to have taken recourse to the
same. It is true that the availability of a remedy of
appeal may not always be a bar for the exercise of
supervisory jurisdiction of the High Court. In A.
Venkatasubbiah Naidu Vs. S. Chellappan & Ors.1, this
Court held that “though no hurdle can be put against
the exercise of the Constitutional powers of the High
Court, it is a well recognized principle which gained
judicial recognition that the High Court should direct
the party to avail himself of such remedies before he
resorts to a Constitutional remedy”.
13. But courts should always bear in mind a
distinction between (i) cases where such alternative
remedy is available before Civil Courts in terms of the
provisions of Code of Civil procedure and (ii) cases
where such alternative remedy is available under
special enactments and/or statutory rules and the fora
provided therein happen to be quasijudicial
authorities and tribunals. In respect of cases falling
1 (2000) 7 SCC 695
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under the first category, which may involve suits and
other proceedings before civil courts, the availability
of an appellate remedy in terms of the provisions of
CPC, may have to be construed as a near total bar.
Otherwise, there is a danger that someone may challenge
in a revision under Article 227, even a decree passed
in a suit, on the same grounds on which the respondents
1 and 2 invoked the jurisdiction of the High court.
This is why, a 3 member Bench of this court, while
overruling the decision in Surya Dev Rai vs. Ram
Chander Rai2, pointed out in Radhey Shyam Vs. Chhabi
Nath3 that “orders of civil court stand on different
footing from the orders of authorities or Tribunals or
courts other than judicial/civil courts.
14. Therefore wherever the proceedings are under the
code of Civil Procedure and the forum is the Civil
Court, the availability of a remedy under the CPC, will
deter the High Court, not merely as a measure of self
imposed restriction, but as a matter of discipline and
2 (2003) 6 SCC 675
3 (2015) 5 SCC 423
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prudence, from exercising its power of superintendence
under the Constitution. Hence, the High Court ought not
to have entertained the revision under Article 227
especially in a case where a specific remedy of appeal
is provided under the Code of Civil Procedure itself.
15. Another aspect that was overlooked by the High
Court was that the second respondent herein namely Shri
A. Rajendran was already restrained by the SubCourt,
from functioning as the Secretary of the first
respondent society. It is seen from the records that
the civil revision was filed before the High court by
the first respondent society as well the second
respondent herein. The second respondent herein was not
only the second petitioner in the Civil Revision
Petition filed before the High Court, but he also
sought to represent the first respondentSociety as its
Secretary, before the High court in the Civil Revision.
16. But in a connected Civil Miscellaneous Appeal No.7
of 2018 filed by the appellants herein (plaintiffs in
the suit), the SubCourt, Thoothukudi passed an order
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dated 22.04.2018 restraining the second respondent
herein for acting as the Secretary of the first
respondentSociety. This appeal arose out of the
dismissal by the trial court, of an interlocutory
application I.A.No. 387 of 2018 filed by the appellants
herein for restraining the second respondent herein
from acting as the Secretary and another person from
acting as the Patron. The trial Court dismissed
I.A.No.387 of 2018, but the plaintiffs filed an appeal
in Civil Misc. Appeal No.7 of 2018. The same was
allowed by an order dated 22.04.2018 by the Subcourt,
Thoothukudi unseating the second respondent as the
Secretary. Though the second respondent has claimed in
his rejoinder, that the order passed in C. M. A. No. 7
of 2018 was challenged in a revision in CRP (MD) No.
1295 of 2019 and an order of status quo was obtained,
from the Madurai Bench of the Madras High Court, the
same happened after more than a year. Therefore, on the
date on which the first respondentSociety filed the
Civil Revision CRP (MD) No. 1084 of 2018 before the
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high court, the second respondent herein was not the
secretary and could not have acted on behalf of the
society. This aspect was also overlooked by the High
Court.
17. The observation of the High Court that the trial
Court proceeded in great haste, appears to be
uncharitable. It is true that the application for
injunction was moved on 24.4.2018 but the respondent
nos. 1 & 2 were very vigilant, if not overzealous and,
hence, they not only filed a counter affidavit to the
application for injunction on 25.04.2018, but also
filed 19 documents. They also advanced arguments, only
after considering which the trial Court passed an order
on 26.4.2018.
18. Order XXXIX Rule 3A of the Code of Civil Procedure
itself mandates the disposal of an application for
injunction within 30 days, whenever an injunction was
granted without notice to the opposite party. In this
case, the trial Court, without granting an exparte
order of injunction, chose to allow the opposite
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parties to file counter affidavit(s) along with
documents and then heard the opposite parties before
allowing the application for injunction. Finding the
line of demarcation between speedy disposal and
hurried dispatch, with mathematical precision, is not
possible. In any case, even if the High Court was
convinced that the trial Court had proceeded hastily,
the High Court could have only remanded the matter
back. But the High Court allowed the application for
injunction without recording any finding on merits. In
fact the order of the Trial Court deals with the rival
contentions and is one passed on merits after due
consideration of the pleadings and documents. The High
Court unfortunately did not even deal with the matter
on merits to over turn the decision of the Trial
Court. Therefore, the order of the High Court is
liable to be set aside and the order of the Trial
Court is liable to be restored.
19. But it is brought to our notice that after the
High Court allowed the Civil Revision petition by its
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order dated 28.08.2018, the second respondent herein
proceeded with the meeting of the General Body and the
Executive Committee on 25.09.2018 and also conducted
elections. Notice was ordered and the interim order of
the status quo was passed in the above special leave
petition only on 8.10.2018. Hence, it was sought to be
contended that the above appeal has virtually become
infructuous.
20. In normal circumstances, we would have agreed. But
this is a case where every meeting of the General Body
and every attempt at holding elections to the first
respondentSociety seem to have created a series of
litigation before three different fora namely (i) the
Civil Courts) (ii) the Registrar of Societies (iii)
the High court (in Writ Petitions arising out of orders
of the Registrar of Societies). This can be seen from
the following table:
S.N
o
Events which
triggered the
Nature of
the
Forum where
filed
Status
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litigation litigation
1. Notice convening
the General Body
and Executive
Committee on
21.03.2015.
Suit in O.S.
No.79 of
2015
SubCourt,
Tuticorin.
Despite
undertaking
to the
Court, the
meetings
were held
and office
bearers
elected
2. By proceeding
dated 27.03.2015,
second respondent
was appointed as
Secretary of the
College Committee
of the College
run by the first
respondentSociety. This
was by virtue of
the elections
held on
21.03.2015.
Writ
Petition
(MD) No.3869
of 2016
Madurai
Bench of the
Madras High
Court.
Pending
3. Form Nos.6 and 7
in terms of the
Tamil Nadu
Society
Registration Act
and the Rules
framed thereunder
were filed by the
newly elected
office bearers
with the
Registrar of
Societies, for
recording the
names of the new
set of officer
bearers. But the
Registrar
rejected these
forms on
24.04.2015.
A writ
petition in
WP (MD)
No.19710 of
2015 filed,
challenging
the
rejection.
Madurai
Bench of the
Madras High
Court.
Pending
4. Elections held on A suit O.S District Suit
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21.03.2015 No.21 of
2016 was
filed by the
present
appellant
No.1 for a
declaration
that the
election
allegedly
held on
21.03.2015
was null and
void and for
a permanent
injunction
Munsiff
Court at
Tuticorin.
pending
5. The newly elected
office bearers
sought to amend
the bye laws.
The amendment was
rejected by the
District
Registrar.
A writ
petition in
WP (MD)
No.13144 of
2016 filed
challenging
the order of
the District
Registrar.
Madurai
Bench of the
Madras High
Court.
Pending
6. A fresh notice
dated 10.06.2017
issued convening
the meetings of
the General Body
and the Executive
Committee on
8.07.2017.
A suit O.S.
No.195 of
2017 seeking
a
declaration
that the
notices were
null and
void and for
a permanent
injunction
filed by the
appellant
No.1
District
Munsiff
Court,
Tuticorin
Suit
pending
7. By a paper
publication dated
12.04.2018, the
Second respondent
convened the
meetings of the
General Body and
A suit O.S.
No.145 of
2018 (out of
which the
present
appeal
arises) was
District
Munshif,
Tuticorin
pending
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the Executive
Committee on
5.05.2018
filed for
the reliefs
stated
(supra)
21. Therefore, we are of the view that the only way to
bring to an end all the litigations between the
parties before various fora is to set aside the
impugned order and the elections held pursuant thereto
and to appoint an Advocate Commissioner to convene the
General Body as well as the Executive Committee for
the election of office bearers. Accordingly, the
appeal is allowed, the order of the high court as well
as the elections purportedly held pursuant to the
order of the High Court are set aside. Smt. S.
SORNALATHA, Advocate, No.1, 1st Street, Chidambara
Nagar, Thoothukkudi628 008, is appointed as
Commissioner with a mandate to do the following:
(i) Within two weeks of receipt of a copy of this
order, the Advocate Commissioner shall address letters
to the sponsoring bodies/Societies of the first
respondent society, for nominating members to the
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General Body and the Executive Committee of the first
respondentSociety, as per the byelaws.
(ii) Within one week of receipt of the letter from
the Advocate Commissioner, the sponsoring bodies shall
send a list of members nominated by them to the
General Body/Executive Committee of the first
respondent society
(iii) Within four weeks of receipt of the
nominations, the Advocate Commissioner shall convene a
meeting of the General Body and the meeting of the
Executive Committee and hold elections in accordance
with the bye –laws.
(iv) After holding elections, the Advocate
Commissioner shall ensure that form Nos. 6 and 7 are
registered with the Registrar of Societies so that the
registration of such forms do not become the subject
matter of any litigation at the instance of the rival
groups.
(v) The Advocate Commissioner shall be paid, by the
first respondent society, a remuneration of Rs.
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1,00,000/ apart from the reimbursement of the
expenses incurred by her.
(vi) Till the elections are held and results
declared, the Advocate commissioner shall discharge
the duties of the Secretary of the first RespondentSociety
…………....................J/
(Rohinton Fali Nariman)
………......................J/
(V. Ramasubramanian)
OCTOBER 03, 2019
NEW DELHI.
