KPMS - KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 28783 of 2010(O)

1. PUNNALA SREEKUMAR, AGED 39 YEARS,

... Petitioner

2. SREEDHARAN, AGED 57 YEARS,

3. PURUSHOTHAMAN, AGED 50 YEARS, S/O.

Vs

1. KERALA PULAYAR MAHA SABHA,

... Respondent

2. N.K.NEELAKANTAN, AGED 59 YEARS, S/O.

3. T.V.BABU, AGED 52 YEARS, S/O.

For Petitioner :SRI.G.S.REGHUNATH

For Respondent :SRI.T.RAMPRASAD UNNI

The Hon'ble MR. Justice THOMAS P.JOSEPH

Dated :22/12/2010

O R D E R

THOMAS P.JOSEPH, J.

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W.P(C) No.28783 of 2010

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Dated this the 22nd day of December, 2010 J U D G M E N T

Petitioners are the respondents in I.A. No.3122 of 2010 and defendants in O.S. No.685 of 2010 of the court of learned Munsiff, Thiruvananthapuram. Respondents-plaintiffs filed the suit for a decree for prohibitory injunction to restrain petitioners from acting as General Secretary, Assistant Secretary and Organising Secretary, respectively of the Kerala Pulayar Maha Sabha (hereinafter referred to as "the Sabha"), a Society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (for short, "the Act"), engaging in the administration of the Sabha as such office bearers, convening meetings, collecting contributions or using its letter pads, seals, flags and for such other reliefs. Respondents also prayed for an order of prohibitory injunction in the same line vide I.A. No.3122 of 2010. Learned Munsiff after hearing both sides granted temporary injunction. Petitioners challenged that order in C.M.A. No.54 of 2010. Learned Additional District Judge, Thiruvananthapuram has confirmed the order of injunction. The W.P(C) No.28783 of 2010

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said order and judgment are under challenge in this petition filed under Article 227 of the Constitution.

2. Respondent No.1, as aforesaid is the Sabha. Respondent No.2 claimed to be the acting General Secretary of its State Committee and respondent No.3, its President. Petitioner No.1 and respondent No.3 were elected as General Secretary and President, respectively of the State Committee of the Sabha in the election held on 10.12.2006. Respondents claimed that the Bye-law (Ext.P5) of the Sabha permitted General Secretary to receive funds and utilise it for the affairs of the Sabha in accordance with the relevant rules of the Bye-law. Petitioner No.2 used to keep the minutes book, account books and he was entrusted with the responsibility to receive amount relating to renewal of membership. Petitioner No.3 was to renew the membership. Petitioners worked against interest of the Sabha. Petitioner No.2 made false entries in the various records as per direction of petitioner No.1 and misappropriated its funds. The State conference of the Sabha met in May, 2008. Verification of the accounts revealed that balance cash in the hands of petitioner No.1 was `.2,55,929.98 as against the stipulation in the Bye-law that petitioner No.1 shall not keep cash in his hand more than `.2,000/-. The same was the situation W.P(C) No.28783 of 2010

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when the State committee met on 21.08.2009. The State Secretariat of the Sabha met on 06.12.2009 and the accounts were verified by a Sub Committee appointed by it. The Sub committee reported that petitioner No.1 had received `.1,00,000/- from the Ernakulam District Committee of the Sabha for which only a temporary receipt was issued and no official receipt was issued. That amount was not accounted in the accounts of the Sabha. On 10.10.2008, it was revealed that a sum of `.2,20,397/- was given to the Scheduled Caste and Scheduled Tribe Samyuktha Samithy but there was no authorisation to petitioner No.1 to make any such payment to that Samithy. A sum of `.33,630/- received from the Irinjalakuda Union of the Sabha was not accounted. `.1,24,175/- was seen transferred to the account of Panchami on 31.07.2009 but not seen remitted in the accounts of Panchami. Entries were made in the accounts of the Sabha that a sum of `.57,720/- and another sum of `.1,28,789/- were spent for organising branches of the Sabha at Malabar but actually only Rs.5,000/- was spent for the said purpose. Accounts of the Sabha were got audited by M/s.Thomaskutty & Co., Chartered Accountants and the audit revealed a deficit of `.8,20,646.75. The State Committee of the Sabha met on 19.03.2010. At that time petitioner No.1 produced W.P(C) No.28783 of 2010

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receipts for remittance of Rs.1,24,175/- to the accounts of Panchami on 19.03.2010 and assured to settle the balance and remit the amount in the account of the Sabha. While so, some expelled members of the Sabha filed O.S. No.417 of 2010 against the Sabha in the court of learned Munsiff, Thiruvananthapuram. Petitioner No.1 refused to sign vakalath (for and on behalf of the Sabha) even after respondent No.3, the State President wanted petitioner No.1 to do so. Petitioner No.1 refused to sign the vakalath to invite orders against the Sabha from court. Petitioners did not attend meeting of the State Committee held on 01.04.2010. That meeting decided that petitioner No.1 was liable to remit `.5,10,000/- to the Sabha. Petitioner No.1 attended the meeting of State Committee of the Sabha on 08.04.2010. He undertook to remit the amount on or before 15.04.2010. That fact was recorded in the minutes of the Sabha but petitioner No.1 took away the minutes book. Petitioners tried to assault other office bearers of State Committee of the Sabha. Petitioner No.1 did not remit the amount as he had undertaken in the State Committee meeting. In view of the threat from petitioner No.1 to other office bearers of the Sabha, the State Committee decided to convene its meeting at Ernakulam. Accordingly the State Committee met at Ernakulam on W.P(C) No.28783 of 2010

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24.04.2010. That meeting was attended by 30 out of its 43 members. Petitioners arrived at the meeting place and created commotion. They snatched some of the records. Police interfered and petitioners and their men went away from the place of meeting with the records they snatched. Police registered a case against petitioners and others in connection with that incident. The State committee (which met on 24.04.2010) decided to remove petitioners from the respective offices they held. Respondent No.2 was elected as acting General Secretary. On 05.05.2010 registered letter was sent to the petitioners informing them about decision of the State Committee in its meeting on 24.04.2010 and calling upon them to hand over the records they had unauthorisedly taken away. Respondents apprehended that petitioners might interfere with the administration of the Sabha in their assumed capacity as General Secretary, Assistant Secretary and Organising Secretary, collect funds, using letter pads, seal, etc., and hence the suit and application for injunction.

3. Petitioner No.1 filed objection denying the various allegations in Ext.P2 (affidavit in support of I.A. No.3122 of 2010). He contended that the suit and the application for injunction are not maintainable and that Rule 28 of the Bye-law W.P(C) No.28783 of 2010

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(Ex.P5) empowers General Secretary of the State Committee to sue and be sued on behalf of the Sabha. Respondents have not mentioned the provision under which they claimed right to file the suit on behalf of the Sabha. The tenure of office bearers of the Sabha expired on 09.03.2010. Any further extension could be decided only by the General Council (which is the supreme body) of the Sabha as per Rule 11(a) of the Bye-law. The General Council met on 16.05.2010 and decided to place respondent Nos.2, 3 and 4 others under suspension. Hence respondent Nos.2 and 3 have no right to institute the suit. Regarding averments in paragraphs 7 to 12 of the affidavit it is contended that Rule 13 of the Bye-law provides the procedure for presenting accounts in the General Council and once it is accepted, the Bye-law does not provide for its review by any other Committee. Petitioner No.1 denied the averments in paragraph Nos.13 and 14 of the affidavit and contended that there was no such undertaking made by him (to remit the amount). Allegations in paragraphs 15 and 16 of the affidavit are also denied and it is contended that the affidavit does not disclose how M/s.Thomaskutty & Co., happened to audit the accounts or what all records were given to them for that purpose. Regarding the averments in paragraphs 17 and 18 of the affidavit it is contended that petitioner No.1 did not make any W.P(C) No.28783 of 2010

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such admission (regarding liability to pay any amount). Regarding the averments in paragraphs 19 to 23 of the affidavit apart from denying the allegations it is contended that respondent Nos.2 and 3 had no locus standi to convene any meeting as claimed in paragraphs 19 to 23 of the affidavit. The averments in paragraphs 25 and 26 are also denied and it is contended that respondent Nos.2 and 3 have no right to take the alleged action (against petitioners). It is contended in the objection that respondent Nos.2 and 3 have no case that the said actions (against petitioners) were taken as provided by any Rule of Ext.P5, the Bye-law.

4. Petitioner Nos.2 and 3 also filed similar objection (Ext.P4) challenging maintainability of the suit and the application for injunction. They contended that respondent Nos.2 and 3 have no right or authority to file the suit, Rule 28 of the Bye- law empowered the General Secretary to authorise other Secretaries or President to appear in his place. The General Council met on 16.05.2010 as provided under Rule 11(1) of the Bye-law and approved recommendation to place respondent Nos.2, 3 and 4 others under suspension (the suit was filed on 17.05.2010). Because of the decision of the General Council, respondent Nos.2 and 3 are estopped from claiming to be office W.P(C) No.28783 of 2010

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bearers of the Sabha. The term of office bearers expired on 09.12.2009. The State Executive Committee extended the period by another three months. That term expired by 09.03.2010. The General Council met on 19.05.2010 and extended the term for another three months. Respondent Nos.2, 3 and others were suspended on 16.05.2020. As regards the accounts of the Sabha it is contended that the General Council which met on 16.05.2010 approved the accounts and it cannot be reviewed by any other Committee.

5. Both sides produced documents in support of their respective contentions. Learned Munsiff found from the relevant records that a prima facie case is made out against petitioners, balance of convenience is in favour of the respondents and that if injunction is not granted, respondents will be put to irreparable loss and injury. In the appeal that order has been confirmed by the learned Additional District Judge.

6. It is contended by learned counsel for petitioners that this is a case where relevant aspects of the issue were not considered by the courts below. While learned Munsiff has exercised his jurisdiction in a wrong manner, appellate court has refused to exercise its jurisdiction. Failure to consider relevant aspects concerning grant of temporary injunction amounted to W.P(C) No.28783 of 2010

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jurisdictional error which is to be corrected by this Court in exercise of its power under Article 227 of the Constitution. Reliance is placed on the decision in Koishore Kumar Khaitan v. Praveen Kumar Singh ([2006] 3 SCC 312) where it is held that failure to state reasons (for passing the order) is a jurisdictional error. Learned counsel contends that the Sabha being a registered Society and in view of Rule 28 of its Bye-law, only the General Secretary of the State Committee could sue or be sued on behalf of the Sabha. The Bye-law does not provide for the post of acting General Secretary as respondent No.2 claimed to be. In the absence of General Secretary, only the President of the Sabha, in case he is authorised by the State Committee as provided under Sec.9 of the Act alone could sue or be sued on behalf of the Sabha. In the present case the Sabha is stated to be represented by respondent No.2 as acting General Secretary which post does not exist. There is no case that respondent No.3, the President was authorised by the State Committee to institute the suit. Learned counsel has drawn my attention to the observations in paragraph 5 of the decision inI.C. Bose Road Tenants' Association v. Collector, Horah (AIR 1977 Calcutta 437). It follows that there is no proper representation for W.P(C) No.28783 of 2010

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the Sabha in which case it must be taken that the Sabha is not a party to the suit. Hence the suit itself is not maintainable. Further contention is that the courts must be slow to interfere in the matter of internal administration of a registered Society. Learned counsel has placed reliance on the decisions in Shamsuddin Ahmed v. Charu Chandra Biswas (AIR 1934 Calcutta 621), Suryanarayana Rao v. Subrahmanyam (AIR 1940 Madras 902), A.S. Krishnan v. M. Sundaram (AIR 1941 Bombay 312), T.P. Daver v. Lode Victoria (AIR 1963 SC 1144) and Delhi Cloth & General Mills Co. v. Dharam Singh (AIR 1981 Delhi 157). These decisions say how far and when the court could interfere with the administration of a club or other registered body which is to function in accordance with its bye-laws. It is contended that alleged removal of petitioners from the respective offices in the meeting held on 24.04.2010 was not in accordance with Rule 40 of the Bye-law and hence the removal is prima facie illegal and without authority. Petitioners continued to be duly elected office bearers of the State Committee whose term of office was extended by the General Council in the meeting held on 16.05.2010. In such a situation learned Munsiff was not justified W.P(C) No.28783 of 2010

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in granting injunction against petitioners. Further contention is that though various allegations regarding falsification of accounts and swindling of funds of the Sabha are alleged by the respondents, the accounts were approved by the General Council in its meeting held on 16.05.2010. In such a situation no other body could review the accounts. Though relevant records were produced to show that the meeting of the General Council on 16.05.2010 approved the accounts, that has not been taken into account or given due weight by the courts below. Learned counsel contended that in a suit for injunction it is the responsibility of the plaintiff to prove a prima facie case, balance of convenience and that if injunction is not granted, irreparable injury will be caused to him. Reliance is placed on the decision in Dalpat Kumar v. Prahlad Singh ([1992] 1 SCC 719) where it is held that plaintiff has to prove existence of a prima facie case and that non-grant of injunction must result in irreparable injury to the party seeking relief. Balance of convenience must be in favour of grant of injunction. The court should cautiously look into the probable injury to both parties. According to the learned counsel, lakhs of members of the Sabha are being affected on account of the order of injunction in so far as petitioners who are elected office bearers of the Sabha are not W.P(C) No.28783 of 2010

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able to function as such in view of the order of the court and hence under no stretch of imagination it could be said that balance of convenience is in favour of respondents. On the other hand, order of injunction causes irreparable injury to the petitioners and members of the Sabha. It is also contended by learned counsel that there was an attempt on the part of some of members of the Sabha to prevent convening of the General Council meeting on 16.04.2010. They filed W.P(C) No.13260 2010 in this Court and there was an order of "stay" issued in that case on 16.04.2010 against convening of meeting for two months. The said order was not communicated to any of petitioners as found by a learned Single Judge of this Court vide order dated November 18, 2010 in Cont. Case (C) No.556 of 2010. Learned counsel submitted that a reading of the said order would show that even before filing the Writ Petition, a contempt petition was prepared against petitioners. In such a situation it could not be said that meeting of the General Council held on 16.05.2010 was illegal. Learned counsel contended that the order of 'stay' could affect validity of the election only from the date on which the order was communicated to the petitioner. Reliance is placed on the decision in Gasco Carriers (P) Ltd. v. Thomas (1994 [2] KLT SN 19 (Case No.25) where it was held W.P(C) No.28783 of 2010

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that the order of injunction would take effect only from the time the order is communicated to the party. In the circumstances learned counsel contended that meeting of the General Council and the decisions taken on 16.05.2010 should stand. Learned counsel requested to interfere and correct the mistake committed by the courts below in exercise of power of this Court under Article 227 of the Constitution.

7. Learned Senior Advocate appearing for respondents contended that it was following the removal of petitioner No.1 as General Secretary of the State Committee of the Sabha in its meeting held on 24.04.2010 that it appointed respondent No.2 as the acting General Secretary. It is contended that the Bye-law does not prohibit appointment of an 'acting' General Secretary when the post of General Secretary remained vacant. It is only a temporary arrangement. It is also contended by learned Senior Advocate that though respondent No.2 in his affidavit in support of I.A. No.3122 of 2010 has detailed the falsification of accounts, swindling of funds, undertaking made by petitioner No.1 to remit the amount and his failure to do so and which led to the removal of petitioners from their respective offices, none of petitioners cared to file a counter affidavit in answer to the affidavit of respondent No.2. In an application for injunction under Rule 1 of W.P(C) No.28783 of 2010

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Order XXXIX of the Code of Civil Procedure (for short, "the Code") the court is specifically empowered to take evidence by affidavit. In the present case respondent No.2 has sworn an affidavit stating reasons for the grant of temporary injunction vide I.A. No.3122 of 2010 (apart from the various documents respondents produced) but petitioners have not cared to file a counter affidavit. Even the objection filed by petitioners do not traverse the averments in the affidavit of respondent No.2. The objections contain only bare denials. It is also contended by learned Senior Advocate that jurisdiction of this Court under 227 of the Constitution is limited to cases of jurisdictional errors or perverse findings by the subordinate courts. The power under Article 227 is not for decision making but to correct errors of grave nature committed by the subordinate courts. Even if there is an error of fact this Court is not required to interfere under Article 227 of the Constitution unless it is of such a grave nature and/or finding is so perverse in that it is not supported by any evidence or no court could enter into such a finding on the materials on record. Reliance is placed on the decisions in Essen Deinki v. Rajiv Kumar ([2002] 8 SCC 400), Abdul Razak v. Mangesh Rajaram Wagle ([2010] 2 SCC 432) and State of W.P(C) No.28783 of 2010

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Maharashtra v. Arun Gulab Gawali ([2010] 9 SCC 701). According to the learned Senior Advocate, none of the arguments advanced in this Court referring to the competency respondent No.2 to represent the Sabha or validity of removal of petitioners from their offices in the State Committee were urged in the courts below. Hence petitioners cannot be permitted to raise such arguments in this Court in a petition filed under Article 227 of the Constitution. It is also contended that removal of petitioners from their respective offices in the State Committee meeting held on 24.04.2010 has been not challenged by petitioners so far, before any Forum. Regarding the meeting of General Council stated to be held on 16.05.2010 it is contended the said meeting was convened against the order of this Court dated 16.04.2010 in W.P(C) No.13260 of 2010 and hence cannot be without any consequence. At any rate it is not as if the courts below have not referred to the alleged meeting of General Council on 16.05.2010 and the alleged approval of accounts of the State Committee. Trial court has referred to the said aspects in detail in paragraph 13 of its order (Ext.P26) and came to the conclusion that prima facie, validity of meeting of General Council said to be held on 16.05.2010 cannot be accepted at this stage. Courts below having found concurrently in favour of W.P(C) No.28783 of 2010

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existence of prima facie case, balance of convenience and irreparable loss and injury this Court is not required to interfere under Article 227 of the Constitution, it is contended.

8. On going through the various decisions learned counsel on both sides have presented before me as regards the extent of jurisdiction of this Court under Article 227 of the Constitution it is revealed that this Court is not required to act as a court of appeal on the finding on disputed questions of fact. Interference is permissible only when there existed an error apparent on the face of record, or if any other well known principles of judicial review is found applicable where the findings arrived in the impugned judgment are perverse/or in arriving at such finding the subordinate court failed and/or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane thereof. In Jai Singh and Others v. Municipal Corporation of Delhi & Others ([2009] 9 SCC 385) it was pointed out by the Supreme Court that jurisdiction under Article 227 of the Constitution cannot be exercised like a "bull in a China shop" to correct all errors of judgment of a court or Tribunal acting within the limits of its jurisdiction. Corrective jurisdiction can be exercised where orders have been passed in grave dereliction of duty or in flagrant and W.P(C) No.28783 of 2010

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fundamental abuse of process of law and justice. High Court cannot lightly or liberally act as an appellate court and re- appreciate evidence. In Kishore Kumar Khaitan v. Praveeen Kumar Singh(supra) it is held that the power under Article 227 of the Constitution is to be invoked only to correct errors of jurisdiction but where the court below comes to a finding of fact by asking itself a wrong question or approaches the question in an improper manner, the finding cannot be said to be one rendered with jurisdiction and therefore is amenable to correction under Article 227 of the Constitution. I shall approach the arguments advanced by learned counsel in the light of the above principles.

9. There can be no doubt that the person claiming temporary injunction has to show existence of a prima facie case, balance of convenience in favour of grant of injunction and that if injunction is not granted, result would be irreparable loss and injury. 'Prima facie' case only means a case which requires consideration by the court. Plaintiff need only show that he has a fair question to be raised as to the existence of the right.

10. So far as the allegations regarding falsification of accounts and swindling of funds are concerned, I referred to the averments in paragraph 2 of the affidavit in support of I.A. W.P(C) No.28783 of 2010

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No.3122 of 2010. Learned Munsiff has referred to Ext.A3, copy of statement of accounts as on 31.03.2008 to hold that the closing balance on that day was `.2,55,929.98 while under Rule 20(3) of the Bye-law, the General Secretary could keep with him only `.2,000/-. Learned Munsiff has also referred to Ext.A4 to hold that closing balance in the hands of petitioner No.1 exceeded the approved limit. Referring to paragraph 69 of Ext.A2, marked on the side of respondents it is held that in the meeting of the State Committee held on 06.12.2009 petitioner No.1 had undertaken to rectify the defects if any found on verification. Exhibit A5 is the report of the Sub Committee appointed by the State Committee to look into the irregularities and that Committee reported about irregularities in the matter of accounts (discussed by the learned Munsiff in page 19 of his order). Exhibit A6 is the audit report prepared by M/s.Thomaskutty & Co., Chartered Accountants. The audit revealed that on verification of accounts there was deficit of `.8,20,646.75. Page 132 of Ext.A2 states that in the State Committee meeting held on 19.03.2010 also petitioner No.1 had agreed to rectify the deficit referred to in Ext.A6. The State Committee meeting held on 01.04.2010 was not attended by petitioner No.1. In that meeting the State Committee resolved to ask petitioner No.1 to remit `.5,11,000/- in the account of W.P(C) No.28783 of 2010

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Sabha. There is also reference to the meeting of the State Committee held on 08.04.2010 and attended by petitioner No.1. He is stated to have undertaken to remit the above said amount on or before 15.04.2010. The Minutes Book was allegedly taken away by petitioner No.1. Exhibit A7 is the minutes of the State Committee meeting held on 24.04.2010. It is stated that 30 out of its 43 members attended that meeting and it was decided to remove petitioners from their respective offices. Exhibit A8 is the copy of letter addressed to the petitioners intimating them of the decision of the State Committee held on 24.04.2010 and Ext.A9 is the postal receipt.

11. The above allegations against petitioners are sought to be met by Ext.B6 which is the copy of minutes of the General Council dated 16.05.2010. That document was produced to show that accounts of the State Committee were approved by the General Council.

12. So far as meeting of General Council on 16.05.2010 is concerned, it is not disputed that this Court had passed an order of "stay" on 16.04.2010 in W.P(C) No.13260 of 2010 against convening of that meeting that for a period of two months but the meeting was held on 16.05.2010. True, this Court in C.C.C. No.556 of 2010 found that notice of the order dated 16.04.2010 W.P(C) No.28783 of 2010

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was not given to the petitioners and hence they are not liable for contempt. While dealing with a prosecution under Rule 2A of Order XXXIX of the Code, a learned Judge of this Court inCheruvannoor Nallalam Grama Panchayat v. Ravi (2006 [1] KLT 546) held that there is no need to prove formal service of the order of injunction and that it is enough that the party had knowledge of the order of injunction. Question whether petitioners had knowledge about the order passed by this Court on 16.04.2010 in W.P(C) No.13260 of 2010 is a matter yet to be decided. Learned Munsiff has also referred to the meeting of the General Council allegedly convened on 16.05.010 and Ext.B6, in paragraph 13 of the impugned order (Ext.P26). Extensive reference has been made to all the documents produced by petitioners. Of course, learned Munsiff has observed that the said meeting was convened in violation of the order of this Court dated 16.04.2010 in W.P(C) No.13260 of 2010 and in the Contempt Case by order dated 18.11.2010, this Court held that there was no notice of the order served on petitioners and hence they are not liable for contempt. Assuming so, learned Munsiff has referred to the contentions raised by respondents against validity of the meeting held on 16.05.2010. Learned Munsiff referred to Rule 11 of Ext.P5, the Bye-law regarding constitution of the W.P(C) No.28783 of 2010

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General Council and the argument of respondents that on 16.05.2010 renewal of membership was not completed in many Districts and in many of the Districts new Committees were not formed and Unions were also not reconstituted. Learned Munsiff also referred to the challenge to Ext.B1 by the respondents that it is a fabricated document and that some of the members who signed Ext.B1 were not even members of the Sabha. Learned Munsiff concluded that veracity of the said document can be ascertained only after a full-fledged trial.

13. Thus it is not a case where the contention raised by petitioners before the learned Munsiff regarding convening of meeting of the General Council and the decisions General Council allegedly took were not considered by the learned Munsiff. Learned Munsiff considered the said contention and found on the facts and circumstances that genuineness of Ext.B1 and validity of the meeting held on 16.05.2010 could be decided only after trial. That finding cannot be said to be perverse so that this Court is required to interfere under Article 227 of the Constitution. Regarding the irregularities alleged against petitioners, learned Munsiff has referred to the various documents including Ext.A6, copy of report submitted by Chartered Accountants to hold that serious allegations are made W.P(C) No.28783 of 2010

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against petitioners and that prima facie that has to be accepted. The appellate court also considered this aspect at length and observed that even according to the petitioners, General Council met only on 16.05.2010, i.e., after petitioners were removed from their offices on 24.04.2010 and that validity of the General Council meeting on 16.05.2010 is yet to be decided. Appellate court also referred to Exts.B1 to B10 produced by petitioners and considered finding of the trial court. That prima facie finding rests on evidence on record and cannot be said to be perverse calling for interference under article 227 of the Constitution.

14. Another argument advanced before me is that respondent No.2 was not competent to represent the Sabha and that removal of petitioners from their office is not prima facie valid. No doubt, as per Rule 28 of Ext.P5, Bye-law the Sabha is to sue or be sued through its General Secretary. That rule also says that if necessary, the General Secretary can entrust that responsibility to the President or the Secretary. Contention raised is that the Bye-law does not contemplate the post of acting General Secretary and hence respondent No.2 could not represent the Sabha. Further contention is that in the absence of an authorisation by the State Committee, respondent No.3- President also could not have represented the Sabha in view of W.P(C) No.28783 of 2010

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Sec.9 of the Act. Rule 34 of the Bye-law states that it is within the power of the State Committee to make appointment to vacancies (of office bearers) created by resignation or otherwise. But it should be ratified by the next meeting of the General Council. Here, it is the case of respondents that meeting of the State Committee on 24.04.2010 removed petitioners from their respective offices and respondent No.2 was appointed as 'acting' General Secretary. It is not a case where respondent No.2 was appointed as General Secretary but he was only appointed to 'act' as General Secretary. Prima facie I do not think anything illegal in that course of conduct since the Bye-law does not prohibit appointing a person to act as office bearer when a vacancy arose in that post and until that vacancy is duly filled up.

15. I must also bear in mind that even if it is assumed that the Bye-law does not permit any person to be appointed as acting General Secretary and hence respondent No.2 could not have represented the Sabha, even as per the argument advanced by learned counsel for petitioners the President could represent the Sabha subject to authorisation by the Committee. Learned Munsiff has referred to these aspects in paragraph 8 of Ext.P26, order. Learned Munsiff has referred to page 139 of Ext.A2, minutes of the meeting of State Committee held on 19.03 2010 W.P(C) No.28783 of 2010

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where it is stated that the President (of the State Committee) was empowered to file cases on behalf of Sabha. Petitioner No.1 had attended that meeting and is stated to have signed the minutes as serial No.21. This is not challenged by petitioners. If that be so, if not respondent No.2, respondent No.3 was competent to represent the Sabha. President of the State Committee is on the party array as respondent No.3. In that circumstance prima facie it appears to me that even if respondent No.2 was not competent to represent the Sabha, so far as respondent No.3- President is empowered as per the decision of the State Committee held on 19.3.2010 referred to above being on record as one of the plaintiffs, it is at the best a mis-description in the cause title.

16. Then on the validity of removal of petitioners from their office, learned counsel contended that removal could have been only under Rule 33(1) of the Bye- law but that Rule has not been complied, removal is bad in law and hence courts below should not have injuncted petitioners from acting as office bearers.

17. Rule 40 of the Bye-law deals with the power of the Committee to take action on allegations against office bearers. Sub-rule (3) refers to the allegations concerning falsification of W.P(C) No.28783 of 2010

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accounts, swindling of funds, etc., of the Sabha. Under sub-rule (4) when the persons against whom such allegations are made are the Secretary, Treasurers or the General Secretary they could be proceeded against in courts by the President as per the decision of the special meeting of the Committee concerned. Rule 33(1) of the Bye-law prescribed the procedure for non- confidence motion against office bearers and stated that quorum for non-confidence motion is 25% of members of the Committee concerned. There must be a request in writing by not less than 25% of the members of the Committee concerned to convene a meeting for the said purpose. Once non-confidence motion is received, notice of the meeting has to be given within 15 days and the meeting has to be convened within the next 15 days. Sub-rule 2 of Rule 33 says that non-confidence motion can be decided only in the meeting specially convened for the said purpose. It is contended by learned counsel that the said provision has not been complied before expelling petitioners from their respective offices and hence prima facie expulsion of petitioners is invalid. Rule 33(4) of the Bye-law relied on by learned Senior Advocate for respondents would however say that when the Committee is satisfied that there is dereliction of duty on the part of any of its members it is within the power of the W.P(C) No.28783 of 2010

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Committee to remove such persons from the discharge of official duty entrusted to them. The Committee could exercise that right subject to ratification by the authority immediately above such Committee. Learned Senior Advocate has given much stress to Rule 33(4) of the Bye-law and contended that though in the memorandum of appeal presented before learned Additional District Judge various rules of the Bye-law were quoted by petitioners as not having been considered by the learned Munsiff, no reference has been made to Rule 33(4) of the Bye-law.

18. The averments in the plaint and the affidavit in support of the application for injunction stated that petitioners have been 'removed' from the their respective offices on account of falsification of accounts, swindling of funds and failure of petitioner No.1 to co-operate with the Committee and on account of his failure to remit the amount as undertaken. Prima facie it would appear to me that it is not a case of any non-confidence motion being moved against petitioners but their removal from the respective offices they held as provided in Rule 33(4) of the Bye-law. If that be so, prima facie it was within the power of the State Committee to remove petitioners from their respective offices. Trial court has referred to the relevant aspects of the matter and held from the material placed before it that 30 out of W.P(C) No.28783 of 2010

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43 of the members of the State Committee attended the meeting on 24.04.2010 and decided to remove petitioners from their respective offices. It is not as if the trial or appellate court has not considered these aspects of the matter so that there is any jurisdictional error as contended by learned counsel for petitioners. Appellate court observed that there is no serious challenge in the objection filed by petitioners to the averment in the affidavit about expulsion of petitioners except a statement that respondents have not stated in the plaint or affidavit provision in the Bye-law under which petitioners were expelled. So far as it is not shown that the above findings are perverse or illegal, I am persuaded to think that this Court is not required to interfere with the findings entered by the trial court and confirmed by the appellate court.

19. Learned counsel for petitioners also argued that apart from proving prima facie case respondents are also to prove that balance of convenience is in their favour and that unless injunction is granted irreparable loss and injury will be caused to them. Learned counsel argued that apart from stating about balance of convenience and irreparable injury, learned Munsiff has not adverted to the relevant aspects of the matter. Learned counsel contended that order of injunction affected lakhs of W.P(C) No.28783 of 2010

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members of the Sabha which fact also was not taken into account by the trial court.

20. I referred to the allegations against petitioners raised by the members of the State Committee as referred to in the plaint and affidavit in support of the application for injunction (which are not countered by a counter affidavit) and which led to the removal of petitioners from their respective offices by the State Committee on 24.04.2010. I also referred to the materials produced by the respondents in the trial court to substantiate their contention. Courts below were prima facie satisfied that there are serious allegations of mal practices involving falsification of accounts and misappropriation of funds of the Sabha by the petitioners. Trial court found that in the circumstances balance of convenience is in favour of respondents and that if petitioners are permitted to continue in their respective offices and act on behalf of the Sabha, result will be irreparable injury and loss to the respondents (including the Sabha). Appellate court also has adverted to these aspects in paragraph 14 of its judgment. I am unable to say that the said findings are perverse on the facts and circumstances of the case. It follows that the order of the learned Munsiff as confirmed by the learned Additional District Judge requires no interference under W.P(C) No.28783 of 2010

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Article 227 of the Constitution.

21. The matter involves, as the courts below pointed out a rift in the Sabha. The dispute has to be resolved at the earliest. Learned Munsiff is therefore directed to to expedite trial and disposal of the case. Learned Munsiff is directed to dispose of the suit untrammelled by any observations/findings in the order/judgment under challenge or in this judgment. Petition fails. It is dismissed with the above directions. THOMAS P. JOSEPH, JUDGE.

vsv