High Court
Case Details
CRP 202/2008 BEFORE THE HON’BLE MR. JUSTICE S. TALAPATRA Heard Mr. P.K. Deka, learned counsel appearing for the petitioners as well as Mr . D. Choudhury, learned counsel for the sole respondent. This is a petition under Article 227 of the Constitution of India against the or der dated 24.06.2008 as passed by the Civil Judge (Sr. Division), Nalbari in Mis c. Appeal No. 02 of 2008 which was filed and preferred against the order dated 0 4.01.2008 passed by the Munsiff No.1, Nalbari in Misc. (J) case No. 30/2007 aris en from Title Suit No. 49 of 2007. The sole respondent herein filed the Title Suit No.49 of 2007 for declaration an d injunction in the Court of the Civil Judge (Jr. Division), Nalbari seeking dec laration that: (i) the formation of the governing body of the college by the defendants, the pe titioners herein, is against the norms and procedure for the said time being in force. (ii) the defendants have no right to carry out any administrative function of t he college under the cover of illegally formed governing body. (iii) the defendant No.1 has no authority to issue any notice to the plaintiff a nd hence the notice dated 29.10.2007 issued by the defendant No.1 (one of the pe titioners in the present case) to the plaintiff is illegal and not binding upon the plaintiff with a further prayer for injunction restraining the defendants fr om obstructing the plaintiff in carrying out his duties in the college as the Pr esident of the Managing Committee.
Legal Reasoning
A prayer of temporary injunction was also made by filing a petition unde r Order XXXIX Rule 2(1) of the C.P.C. for restraining the opposite parties (the petitioners herein) from interfering with the plaintiff, (the respondents herein ) in carrying out his function as the President of the Managing Committee of the College. Unless a prima-facie case is made out fiercely an order of temporary i njunction would be a distant hope. The respondent pleaded that the petitioners c onspired against him to cause his ouster by illegal means, even though he was le gally entitled to have all the privileges and authorities as the President of th e said Managing Committee of that college. On the other hand, the petitioners stated that the respondent had been i ndulging in serious irregularities and mismanaging the college. Even a police ca se is registered against the respondent being Nalbari P.S. case No.261/2007 unde r Sections 406/420/409/506 of the I.P.C. before the suit was filed. It is still being investigated. Situated thus, on 26.10.2007 a new Managing Committee was c onstituted by the governing body of the society, which is registered under the S ocieties Registration Act and the defendant No.1 (the petitioner herein) was ele cted as the new President and other members remained the same. Only the responde nt was removed. Being aggrieved by the decision, which was communicated by the letter dated 29.1 0.2007, the suit was filed. The Munsiff after considering the pleadings as supported by affidavit an d the records as submitted at that point of time before the Court rejected the p rayer for temporary injunction by the order dated 04.01.2008 in the said Misc.(J ) case No. 30 of 2007 holding that there was no prima-faice case in favour of th e plaintiff (the respondent herein) and the balance of convenience and inconveni ence deserves that such prayer for temporary injunction should be rejected as th e controversy relates to management of a college. The said order of the Munsiff was challenged in a Misc. Appeal filed under Order XLIII Rule 1(r) of the C.P.C. in the Court of the Civil Judge(Sr. Division), Nalbari and the said appeal was allowed by the order dated 08.05.2008 as passed in Misc. Appeal No.02 of 2008. T he Civil Judge (Sr. Division) Nalbari by the said order dated 08.05.2008 observe d: (cid:28)Accordingly, I find and hold that all the three cardinal princi ples are available in the present case in favour of the appellant. Accordingly, the status-quo position before the date of filing of the FIR against the appella nt on 24.10.2007 is directed to be maintained. The order passed by the Munsiff N o.1 is set aside. (cid:29) Being aggrieved the present petitioners filed a petition under Section 1 15 of the C.P.C. against the said order dated 08.05.2008, passed by the Civil Ju dge (Sr. Division) in Misc. Appeal 02 of 2008, being CRP 135 of 2008. After consideration of the records and submissions, this Court by the or der dated 29.05.2008 allowed the said petition on setting aside the order dated 08.05.2008 as passed by the Civil Judge, Nalbari and remitted the matter to the said Civil Judge for giving a fresh decision after consideration of all the mate rials available on record. Thereafter, the Misc. Appeal was again taken up by th e Civil Judge (Sr. Division), Nalbari and the impugned order has been passed wit h the observation that: (cid:28)Accordingly, I find and hold that all the three cardinal principles are available in the present case in favour of the appellant. Accordingly, the stat us-quo position before the date of filing of the FIR against the appellant on 24 .10.2007 is directed to be maintained. As it is a college having good number of students from all corners of th e District involved socially, educationally and culturally, all the parties are directed to maintain peace, tranquility and harmony for developing and flourishi ng in the society.
Legal Reasoning
The order passed by the Ld. Munsiff No.1, Nalbari is set aside. Before p arting, I like to state that many documents had been judged meticulously in deli vering this order, which should not be a binding in disposing the title suit. (cid:29) The said order is now under challenge by the present petition. Mr. P.K. Deka, learned counsel appearing for the petitioners submitted t hat the reasons as assigned by the appellate Court in passing the impugned order are so fragile that those can be debased by bare reading of the impugned judgme nt. He pointed out that the controversy is confined to whether the governing bod y was just in ousting the plaintiff, (the sole respondent herein) or not. If suc h decision cannot be faulted with, then the consequential order may not be inter fered by any Court. Mr. P.K. Deka, learned counsel appearing for the petitioners further sub mitted that the Civil Judge even by making an unwarranted assessment of the alle gation as made in the First Information Report held that there exists three card inal requirements of passing an order of temporary injunction. The inquiry is wh olly unwarranted in the situation. The members of the governing bodies are alway s entitled by law to take the decision by the majority or on consensus to run th e society properly. When that decision could not be shown to have been taken in breach of any law or in absence of materials, particularly when the plaintiff, t he respondents herein, did not attend the meeting to clarify the position regard ing the allegations that has been made in the First Information Report, the deci sion can hardly be reassessed. While refuting those submissions, Mr. D. Choudhury, learned counsel appe aring for the respondent submitted that against the respondent, a well-knit cons piracy has been hatched up by some of the petitioners for ousting the respondent (the plaintiff) from that post. The college has reached to its name and fame fo r immense contribution of the respondent. In that view of the matter, the impugn ed direction and the order of temporary injunction appears to have been passed b y the Civil Judge (Sr. Division), Nalbari. This Court on consideration of materials placed in the records as well a s the pleadings and the replies thereof are of the opinion that prima-facie the Civil Judge (Sr. Division), Nalbari has exceeded his jurisdiction as provided un der order XXXIX Rule 1 and 2 of the C.P.C. while issuing the temporary injunctio n of that nature. By this interlocutory order of injunction, the Civil Judge (Sr. Division ), Nalbari has restituted the position prior to 24.10.2007. The Civil Court can only restitute the position in exercise of powers as provided under Section 144 of the C.P.C. after adjudicating the suit finally, but not before that. Even thi s order of injunction can hardly fit within the meaning of the temporary injunct ion inasmuch as even for issuing a temporary mandatory injunction, there must be a compelling prima-facie case to demonstrate that unless such mandatory injunct ion is passed, there would be absolute failure of justice. Despite the scrutiny of the records such situation could not be gathered. Hence the impugned order o f temporary injunction is interfered with and set aside. The petition as filed under Order XXXIX, Rule 2(1) of the C.P.C. by the respondent is hereby rejected.
Decision
Before parting, with the records the petitioners are directed to file th e monthly returns of revenue and expenditure to the Court of the Munsifff No.1, Nalbari before the 15th day of every English Calendar month till disposal of the suit. It is further directed to expedite the proceeding of suit so that it can be disposed of within short span of time, preferably within 8(eight) months from the date of the receipt of this order. Accordingly this petition stands allowed to the extent as indicated above. Send down the LCRs forthwith.