@JUDGMENTTAG-ORDER
Dr. A.K. Rath, J.@mdashThis appeal is directed against the judgment and order dated 25.11.2013 passed by the learned Single Judge in WP(C) No. 7650 of 2013 dismissing the writ petition and thereby confirming the order dated 21.3.2013 passed by the learned District Judge, Cuttack in FAO No. 113 of 2012. By order dated 21.3.2013, learned District Judge set aside the order dated 29.09.2012 passed by the learned Civil Judge (Senior Division) 1st Court, Cuttack in I.A. No. 420 of 2012 and directed that 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 Servants of the People Society (hereinafter referred to as "the SOPS") and its organizations without leave of the court and also prior approval of the General Body. It was, inter alia, directed that the respondent herein shall be allowed to function as a Member of the General Body of the SOPS. Styling as officiating President and Vice-President of the SOPS, the respondent as plaintiff no. 2 laid a suit in the court of the learned Civil Judge (Senior Division), 1st Court Cuttack for a declaration that the plaintiff no. 2 is holding the office of SOPS as a member of Executive Council and Vice-President; that he is officiating as the President and continuing till rejoining of the President; that the resolution passed & decision taken in the general body of the meeting held on 27.06.2012 and 28.06.2012 as illegal; that the election of the office bearers held on 28.06.2012 is void ab initio and permanent injunction restraining the office bearers from interfering in the affairs of the plaintiffs or entering into the premises of Gopabandhu Bhawan, Cuttack, which is registered as C.S. No. 492 of 2012.
2. Case of the plaintiff is that SOPS was established in the year 1921-1922. The same is a registered body and registered under the Societies Registration Act, 1860 in the year 1953. The head office situates in New Delhi and Branch Office at Gopabandhu Bhawan, Buxibazar, Cuttack. In the meeting of the General Body 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. Defendant no. 8 was elected as the President. The term of the Executive Council was for the year 2011 to 2013. The President of the SOPS delegated his power under Clause-17 of the Constitution to him on 6.6.2012 which was extended from time to time. The President issued a letter for holding General Body meeting wherein it was decided to hold the election of SOPS which was not in conformity with the Constitution. The meeting could not be convened, but the appellant no. 2-Raj Kumar gave a notice of the General Body meeting on 28.6.2012 to elect the President and Executive Council. The Executive Council meeting was also fixed to 27.6.2012. It is further asserted that defendant nos. 1 to 7 formed an unholy combination and in gross violation of the norms and procedures contemplated in the Constitution, conducted a meeting, elected the President and also the members of the Executive Council of SOPS and had taken a decision for removing him from the post of officiating President, which came to his knowledge on 28.06.2012. Further case of the plaintiff no. 2 is that since some of the members of the SOPS were not acting in conformity with the Constitution and involved in serious activities, like, forgery, misappropriation of funds, they were removed by him on 27.6.2012. But then, they held a General Body meeting and elected as office bearers of Executive Council and also the President. While the matter stood thus, the defendant nos. 1 to 7 interfered with the affairs of the SOPS and intimated the General Manager of "The Samaj" that he had no business to interfere with the affairs of the SOPS. It is further stated that defendants 2, 4, 5 and 6 are no more the members of the SOPS, since they have been placed under suspension and removed from the membership.
3. Except proforma defendant no. 9-"The Samaj", no other defendants filed written statement in the suit. The case of the said defendant is that the plaintiff no. 2 is not authorized to represent the SOPS as per the Constitution. The plaintiff no. 2 was never authorized to officiate as President by the President of the SOPS. Further, the election of the office bearers was held in accordance with the Constitution of the SOPS. In the said election, Manubhai Patel was elected as President and other Executive Council members were also elected. The plaintiff no. 2 ceased to be a member of the Executive Council. It is further stated that the plaintiff no. 2 was removed from the life membership.
4. During pendency of the suit, the plaintiff no. 2 filed I.A. No. 420 of 2012 under Order 39 Rule 1 & 2 of the Civil Procedure Code, praying, inter alia, for restraining the defendants from causing any disturbance or dispossession of the plaintiff from rightful discharge of duties in the office of officiating President-cum-Vice President of 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 plaintiff and not to hold any meeting of the Executive Council 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 defendant no. 6.
5. Defendant no. 6, who is the Executive Council of the SOPS, has filed an objection to the said application. According to him, the General Body Meeting was held on 9.6.2011 in accordance with law. Omkar Chand was elected as the President and six executive council members were elected. The office bearers were duly nominated by the President. It is further stated that the plaintiff 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. A serious dispute has been made with regard to the delegation of the power to the defendant by the President. Other defendant/opposite parties adopted the averments made by defendant no. 6. Defendant no. 7-"The Samaj" also challenged the locus standi of the plaintiff to institute the suit. After hearing the matter at length, learned trial court by order dated 29.9.2012 dismissed the application for injunction. Thereafter the defendants filed appeal being FAO No. 113 of 2012 in the court of learned District Judge, Cuttack. The same was allowed to the extent indicated in the aforesaid paragraph. Thereafter, defendants filed WP(C) No. 7650 of 2013. Learned Single Judge dismissed the writ petition and thereby confirmed the order passed by the learned District Judge.
6. We have heard Mr. B. Baug, learned counsel for the appellants and Mr. G. Mukherji, learned counsel for the respondent.
7. Mr. Baug submits that by interim order passed by the learned District Judge, which was confirmed by the learned Single Judge, the day-to-day functioning of "The Samaj" comes to a standstill. He further submits that the plaintiff has no locus standi to institute a suit inasmuch as he has been removed from the life membership of the SOPS. Thus, he cannot represent "The Samaj". According to Mr. Baug, the elected office bearers cannot be injuncted to manage the affairs of the SOPS in any manner. He further submits that the learned Single Judge has brushed aside the three well known principles in granting injunction.
8. Mr. Mukherji, learned counsel for the respondent, supports the orders passed by the learned Single Judge as well as the learned District Judge. He further submits that there being no perversity or illegality in the order passed by the learned Single Judge, the appeal is liable to be dismissed.
9. To grant injunction, the Court has to bear in mind three cardinal principles, namely, prima facie case, balance of convenience and irreparable loss and injury. Off late a fourth principle has been enunciated by the Supreme Court, i.e., public interest. (See Mahanadi Coalfields Ltd. v. M/s. Metaliks Ltd. and others, C.A. No. 8620 of 2013 disposed of on 23.09.2013).
10. In
The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been legally done or the restoration of that which was wrongfully taken from the party complaining. But, since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm. Courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as a pre-requisite for the grant or refusal of such injunction would be a sound exercise of a judicial discretion.
11. Further, the scope of interference in a writ of certiorari has been succinctly stated by the apex Court in the celebrated judgment in the case of
7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised.
12. The onus probandi is the plaintiff to satisfy the court that he has a prima facie case. It is sufficient for him to show that he has a fair question to raise as to the existence of his right and that till the question is ripe for trial, the case is made out for maintaining status quo.
13. The instant case may be examined on the anvil of the decisions cited supra.
The specific case of the plaintiff is that the defendants are life members of SOPS and defendants 2, 4 and 5 have been suspended by order dated 27.6.2012 and defendant no. 6 has been removed by order dated 27.6.2012 from the life membership of SOPS. Further, defendant no. 2 has tendered his resignation on 22.6.2012 from the life membership. The further case of the plaintiff that while he was discharging as Vice-President of the Society, on 6.6.2012, defendant no. 8 the President of the Society delegated his presidential power under Clause-17 of the Constitution to him and the same has been extended. While he was continuing as Vice-President of the Society, all of a sudden, defendant no. 2-Secretary of the Society wrote a letter to all the life members of the society requesting them to attend the general body meeting on 28.6.2012 to elect the President and the Executive Council of the Society. The said notice was in gross-violation of Clause 11 of the Constitution. It is further stated that some members of the SOPS were involved in serious activities, like, fraud, misappropriation of funds of the Society. Letter dated 2.7.2012, vide Annexure-5 series, inter alia, shows that a General Body meeting was held on 28.6.2012 wherein Shri Manubhai Patel was elected as President of the Society and defendants 1 to 6 as members of the Executive Council. The said letter shows that the terms of the office bearers of the Executive Council is for 2 years, i.e., from 2012-2013 and from 2013-2014.
14. Learned District Judge has held that the plaintiff has a full proof case. Balance of convenience leans in his favour and moreover he will suffer irreparable loss and injury, if he is not allowed to discharge his function, which cannot be adequately compensated in any manner. But then the 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 end of March, 2013. Bearing in mind the same, learned District Judge passed the order, which was upheld by the learned Single Judge.
15. Learned Single Judge in a well discussed judgment dismissed the writ application. By no stretch of imagination, it can be said that the orders passed by the court below as well as learned Single Judge are without jurisdiction or in excess of it or as a result of failure to exercise the jurisdiction. There is no jurisdictional error or perversity in the order passed by the learned Single Judge warranting our interference in the appeal.
16. In view of the discussions made in the preceding paragraphs and keeping in view the larger public interest, we modify the interim order only to the extent that the Executing Council, which is functioning now, shall not take any policy decision/final decision without leave of the trial court. It is open to the Executive Council to take decisions pertaining to day-to-day expenses of SOPS and its management. Learned trial court is directed to dispose of the suit as early as possible, preferably within a period of three months from the date of receipt of a copy of the order. Parties are directed to cooperate with the trial court for disposal of the suit. Before parting with the case, we would like to observe that the SOPS was founded by a great freedom fighter and prominent leader of the country, namely, Lala Rajpat Rai in the year 1921. The society is devoted to enlist and train national missionaries for the service of the motherland. It publishes a premium Oriya Daily "The Samaj". But off late the office bearers of SOPS, both erstwhile and existing, have dragged the institution/"The Samaj" to the portals of the Court to satisfy their personal aggrandizement. The founding members of "The Samaj" in their wisdom had never thought that a day will come, when the office bearers will approach the Court for settlement of their disputes. Let good sense prevail amongst the members of the executive council/office bearers to devote time for the society instead of settling their scores in the Court.
With the aforesaid observation, the writ appeal is disposed of.
