@JUDGMENTTAG-ORDER
P.S. Narayana, J.@mdashHeard Sri K. Vishnu Kumar Reddy, the party-in-person in the present Civil Revision Petition, and Sri Venkal Narayana, the counsel representing R-4.
2. This matter came up for admission on 01.10.2007 and it was recorded as hereunder:
It is stated that Mr. Venkat Narayana is entering appearance and a request is made for adjournment. It is stated by the petitioner/party-in-person that the elections are scheduled to be held on 05.10.2007.
List the matter on 4.10.07.
Thus, this matter is appearing in the list today for admission.
3. The Civil Revision Petition is filed under Article 227 of the Constitution of India by the petitioner, the party-in-person, being aggrieved by the order made in IA. No. 563 of 2007 and in O.P. No. 542 of 2007 on the file of Principal District Judge, Nellore. The said application where the relief of a restraint order or stay of elections had been prayed for was dismissed. Being aggrieved of the same, the present Civil Revision Petition is preferred.
4. Sri Vishnu Kumar Reddy, the party-in-person, who is also a practising advocate, made the following submissions:
It is contended that there has been hike in the nomination fee for the election to the office of the 5th respondent/Association and it is also pointed out that there is refusal to convene the General Body Meeting for deciding the issue of dealing with the members, who are in default in respect of payment of monthly subscription, and the same being arbitrary, it is stated that the party-in-person approached the Court by filing the O.P. aforesaid. The representation made to the President of Nellore Bar Association, District Court Compound, Nellore and the refusal made also had been placed before this Court. It is also stated that the 4th respondent himself has hiked the nomination fee for the election of the office of the Secretary from Rs. 100/- to Rs. 500/- at once in the year 2004 and 2005, and this is nothing, but arbitrary, in exercise of excessive power and also acted in excessive of jurisdiction. It is also stated that several of the members are economically backward and in a way instead of following the democratic principles, such members are being discouraged by such actions. While making elaborate submissions, the affidavit filed in support of the application, the respective counter affidavits filed and the respective stands taken by the parties and also the relevant rules of Nellore Bar Association had been referred to. It is also stated before this Court that unless all these defects are rectified, to permit the respondents to proceed with the elections scheduled to be held tomorrow would amount to in a way approving the'' illegality in not permitting such members to participate in the election. This is against the very democratic principle, hence appropriate orders to be passed.
5. Sri Venkat Narayan, learned Counsel representing the 4th respondent, would maintain that this is a matter concerned with the elections of Nellore Bar Association. Normally, the Courts are to be slow in interfering with the elections by either making an order of stay or making an order of restraint. The learned Counsel also would maintain that it is not as though the grievances ventilated by the party-in-person are such so as to interfere at this stage. The counsel also would further comment that even otherwise there is no illegality or irregularity prima facie as can be seen from the counter filed by the 4m respondent before the learned District Judge, Nellore. Hence, the counsel would submit that may be the merits and demerits of the matter may be gone into at the time of final disposal of the O.P., as such, this is not a fit matter to make an order of restraint at this stage.
Heard the party-in-person and also Sri Venkat Narayan, the learned Counsel representing R-4.
6. The petitioner filed IA. No. 563 of 2007 in O.P. 542 of 2007 on the file of the Principal District Judge, Nellore praying for the stay of elections by issuance of a restraint order. The learned District Judge at para 6, having framed the point for consideration whether there are grounds to stop the election as pleaded by the petitioner, recorded reasons at paras 7 to 10, referred to
7. In the affidavit filed in support of the application, it was stated that the 4th respondent himself had hiked the nomination fee for the election to the office of the Secretary from Rs. 100/- to Rs. 500/- at once in the year 2004 and 2005. In this regard, he acted arbitrarily and in exercise of excessive jurisdiction and the said rule is unfounded. With the said impugned reform coming into force, the members who are economically backward are discouraged ''from contesting for that office and the annual election of the 5,h respondent/Association for all these three years has become only a rich man''s game. In addition to that, the conduct of the current year''s annual election, without deciding as to what steps were to be taken pertaining to the defaulters, is an act of haste and indelegence, and also illegal and violative of the legal rights of the members. The 5th respondent/ Association, which is enjoined upon to terminate the memberships of those who are in default, after the expiry of three months period from the month their subscriptions fell in arrear, has omitted to terminate their memberships, allowing their due amounts to go upto thousands of Rupees and is seeing to it that those members are restrained from participating in the annual election. The 4th respondent is proceeding with the conduct of the election without giving any regard to the objections raised by the members and is also reluctant to convene a general meeting to resolve the issue of the defaulters. The omission on part of the 5th respondent/ Association in the above regard is ensuing in the defaulting members begging the contesting candidates to clear their subscription dues, in return to their vote, and in the sustenance of the non-practising advocates on its rolls. In view of the above stated illegalities, it is imminently necessary that the on going annual election is stayed in the interest of justice.
8. In the counter filed by the 4,h respondent, it is stated that the registration of the Society was renewed, and as such, the 5lh respondent/Association is only a dead society and thereby, the relief claimed in the main O.P. is not maintainable and as the main relief is not maintainable, any interim orders cannot be passed. It is also stated by the 4th respondent that the said 4th respondent is unconnected with the relief prayed in the application, but, however, it is stated that certain false allegations are made, and hence, a counter in detail is being filed. It is also stated in paragraph 5 that the contention that he filed the O.P. for declaration of the reforms by this respondent to the conduct of the annual election such as hiking the nomination fee for the election to the offices of the 5lh respondent/Association and his refusal to convene General Meeting for deciding the issue of dealing with the members who are in default with respect to payment of monthly subscription etc., are all incorrect. This respondent humbly submits that one V.C.V. Prasad was appointed as Election Officer in the year 2003 by resolution of the General Body on 09-06-2003. It is also submitted that according to the information of this respondent, who is also a member of the Association, that there is a General Body Resolution earlier fixing the fees for nomination to Secretary and E.C. members posts and Sri V.C.V. Prasad had issued Election notification in the year 2003 and the rule of collecting nomination deposit at Rs. 500/- from the candidates contesting as Secretary, and Rs. 100/- from the candidates for the post of E.C. Members and accordingly, the same was deposited for the elections held in June/ July 2003 and the said depositing of the amounts were also entered in the day book of the Bar Association, which is available with the 5th respondent. Relating to the default with respect to payment of monthly subscription, the norms that those who are in arrears for more than 3 months are disqualified, is in vogue since a long time. The election notifications and norms issued by the earlier Election Officers Sri N. Panduranga Rao Garu, Late Sri J.L. Narayana Rao Garu, and late Sri Kakani Subbaramaiah Garu will amply establish the same, which copies are available in the records of the 5th respondent. It is further stated in paragraph 6 that relating to the allegation that this respondent refused to convene a General Body Meeting, it is submitted that this respondent in his capacity as the election officer cannot convene a General Body Meeting and as such, all the allegations made against this respondent are incorrect, probably, because of the petitioner not knowing the actual facts, which is evidenced by the fact that the bye-laws were amended during the year 2004, but relying upon the bye-laws of 1977.
This is the stand taken by the 4th respondent.
9 The 5th respondent also filed the counter narrating several details. Even this respondent had reiterated the stand taken by the 4th respondent in his counter that had been referred to supra. Further, in paragraph 6, the 5th respondent had stated that further allegation that this respondent himself had hiked the nomination fee for the election to the office of the Secretary from Rs. 100/- to Rs. 500/- at once in the year 2004 and 2005 and acted arbitrarily and in exercise of excessive jurisdiction is not only false, but made with ulterior motives and incorrect and invented as stated supra. This respondent simply followed the procedure of his predecessors. Relating to the termination of membership etc., it is not within the realm of this respondent. The other allegation that this respondent is proceeding with the conduct of the election without giving any regard to the objection raised by the members and also relating to convene General Body Meeting to resolve the issue of defaulters. It is submitted that except the petitioner, no one has raised any objection before this respondent and this respondent is not competent to convene a General Body Meeting. It is further stated that when once the election process is begun and (stay of) elections will not arise as decided not only by the Hon''ble High Court of A.P., but also by the Apex Court of India and the petitioner who is an advocate filing such type of petition knowing fully well the established legal petition is nothing short of contempt of Court and makes this litigation a vexatious one with malafide intentions and thereby, the petition is liable to be dismissed with exemplary costs.
These are the respective stands taken by the parties.
10. The granting of temporary injunction or refusal thereof would depend on establishing the prima facie case, balance of convenience and irreparable loss.
11. In the case of election matters, normally, the Courts are expected to be slow while issuing restraint order, restraining the respondents from further proceeding with the election or restraining the elected representatives from acting as elected representatives. It is no doubt true that such applications for temporary injunctions under Order 39 Rules 1 and 2 of the CPC may have to be decided depending upon the facts and circumstances of a particular case.
12. In
It is thus clear that nine persons were selected and as stated in the minutes, they "will be inducted" into General Body as per the Constitution of the Society. It is not even the case of the appellants that they had paid an amount of Rs. 1.00 lakh before or on January 27, 2000. In fact, from the record it is clear that in 2006 when a meeting of the General Board was convened on March 22,2006 and the action of the Governing Board was accepted, such amount was not paid by the appellants. Even on October 24, 2006, when 118m meeting of the Board of Governors of the Society was convened, it was stated that the appellants had not paid an amount of rupees one lakh for becoming a promoter-member and hence a resolution passed by the Board of Governors of the Society on January 27, 2000 inducting them as ''Promoter Members'' and also a resolution, dated March 22, 2006 passed by the General Body could not be said to be legal and the action was nullity. It was also observed that the so-called Resolution No. 3 dated October 3, 1981 amending the Articles of Association was neither passed by the Board of Governors nor approved by the General Body either on that day or at any later date. The Articles of Association of 1979, therefore, were in force. For the qualification for membership as ''Promoter'' of the Society, rupees one lakh had to be paid. Since no such payment was made by the persons claiming Promoter-Members, their membership was ''void''. It was only thereafter that the appellants directly deposited the amount in the bank in the name-of the Society without even informing the Society about such payment.
Prima facie, we are of the view that the ", contention of the Society is well founded that such an amount ought to have been paid by a person before he is admitted as Patron Member in the light of the phraseology used in Clause 4(b) of the Articles of Association. We are, however, conscious of the fact that the main matter is pending before the trial Court. We may, therefore, hasten to add that we are dealing with the contention of the appellants and the arguments of the respondents only for a limited purpose of deciding the appeal which has been filed against an interlocutory order refusing interim relief. In our opinion, it cannot be said that by not granting interim relief, the Courts below had committed an error of law or of jurisdiction.
13. In
1. Whether the person seeking temporary injunction has made out a prima facie. This is sine qua non.
2. Whether the balance of convenience is in his favour that is whether it could cause greater inconvenience to him if the injunction is not granted than the inconvenience which he otherwise would be put to if injunction is granted. As to that, the governing principle is whether the party seeking injunction could be adequately compensated by awarding damages and the defendant would be in a financial position to pay them.
3 Whether the person seeking injunction would suffer irreparable injury. It is however, not necessary that all the three conditions must obtain. With the first condition as sine qua non atleast two conditions should be satisfied by the petitioner conjunctively and a mere proof of one of the three conditions does not . entitle a person to obtain temporary V\\ injunction.
14. While deciding whether prima facie case is established or not for the purpose of granting temporary injunction, Courts are expected to examine the merits and demerits of the matter, but, however, that does not mean that a final adjudication of the dispute may have to be made at this stage, but, however, the Courts may have to look into whether prima facie case had been established. The views expressed in
(a) Whether irreparable or serious mischief will ensue to the plaintiff.
(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
(c) the Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;
(d) the Court will consider whether the plaintiff had acquiesced for some time and in such circumstances it will not grant ex parte injunction;
(e) the Court would expect a party applying for ex parte injunction to show utmost good faith in making the application;
(f) even, if granted, the ex parte injunction would be for a limited period of time; and
(g) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court.
15. The Andhra University v. P.V.B. Raju 1974(2) An.W.R. 17 and
16. In Sridhar Panda v. Taramani Dibya 1997 (2) Crl. L.J. 579, it was observed that the Courts may issue injunctions where the right, which is sought to be protected, is clear and unquestioned and not where the right is doubtful and there is no emergency and where the injury threatened is substantial and is irremediable otherwise. It is also an important rule that the conduct of the parties seeking injunction must not be tainted with unfairness and share practice. The principle function of an injunction is to furnish preventive action against irreparable mischief. An injury is deemed to be irreparable when having regard to the nature of the act and from the circumstances relating to the threatened harm, the apprehended damage cannot be adequately compensated with money.
17. It is no doubt true that though the party-in-person, who is a practising advocate, is not personally affected, as such, being aggrieved of certain of the irregularities and in general interest since large number of the members by virtue of the default had been disqualified from participating in the election, had approached the Court by filing the present O.P.
18. In view of the respective stands taken by the parties, the merits and demerits may have to be gone into at the appropriate stage. It is no doubt true that the party-in-person has been agitating these issues from a couple of months, but for reasons best known, despite the fact that such defects could have been rectified, the respondents are further* proceeding with the elections in question. It is stated by Sri Venkat Narayan, the learned Counsel representing R-4, that the election notification had been issued. The list of voters also had been published and to stop the further proceedings in the election at this stage would cause serious prejudice. No doubt, Sri Vishnu Kumar Reddy would submit that when due procedure had not been followed, when large number of advocates, who may be otherwise qualified to participate in the election, such cases had not been considered at all, in the interest of such advocates, the further proceedings are to be stayed and a suitable restraint order to be passed.
19. In the light of the decisions referred to supra, inasmuch as the Courts are expected to be slow in interfering in such election matters by making restraint orders, this Court is not inclined to interfere at this stage. However, in the light of the peculiar facts and circumstances, since certain controversial issues are being raised, let the learned District Judge, Nellore dispose of the main O.P. itself within a period of four weeks from the date of receipt of a copy of this order.
It is also made clear that any election, which is going to be held, would be subject to further orders which may be made at the time of disposal of the main O.P.
20. The Civil Revision Petition is disposed of accordingly. No order as to costs.
