The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 536 of 2024 An application under Article-227 of the Constitution of India. Rajib Lochan Dash .... Petitioner --------------- -Versus- Adarsha Nagar Unnayan Parishad, .... Opp. Parties Puri & Others Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s. G.R. Mishra & P.P. Dash, Advocates For Opp. Parties : M/s. P. Mishra, A. Mishra & S.S. Dash, Advocates [For Nos. 2, 4 & 6] M/s. N. Sarkar, P. Senapati, S. Priyadarsini & M. Muduli Advocates [For O.P.No.1] _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 18.11.2025 SASHIKANTA MISHRA, J. The Petitioner is the Plaintiff in C.S.No.128 of 2023, which is a suit filed by him for declaration, mandatory and permanent injunction. In the present Page 1 of 11 application, he questions the correctness of order dated 21.03.2024 passed by the learned 1st Additional District
Facts
Judge, Puri in FAO No.50 of 2023 in confirming the order dated 15.09.2023 passed by the learned Senior Civil Judge, Puri in I.A. No. 64 of 2023 whereby, his application for grant of temporary injunction against the defendants was rejected 2. For convenience, the parties are referred to as per their respective status before the trial Court. 3. The facts of the case, briefly stated, are that the Defendant No.1 is a society registered under the Societies Registration Act, 1860 comprising of residents of Adarsha Nagar of Puri. The Plaintiff’s father had purchased land in said Adarsha Nagar in the year 1994 and constructed his residential house thereon. He started residing in the house with his family since the year 2005. He became a member of the society in the same year by paying the required fees and participated in various activities as a permanent member. He died on 29.07.2020 whereupon the Plaintiff, vide letter dated 22.09.2020 addressed to the society intimated such fact and also became a member by Page 2 of 11 paying the annual fees for the years, 2020-21 and 2021- 22. The Plaintiff thereafter participated in various developmental works, day to day activities and general body meetings of the society sincerely. On 19.03.2022, an annual general body meeting was convened for selection of various office bearers of the society wherein, Defendant Nos.2 to 6, acting with malafide intention took the signatures of some members including the Plaintiff and selected themselves as office bearers. The Plaintiff objected to this but the same was to no avail. Being selected thus, the Defendants took control over the bank account and started withdrawing the society money illegally. They also committed several illegalities and irregularities. The Plaintiff demanded audit of the accounts of the society by an auditor but the same was not acceded to. Because of such stand taken by the Plaintiff, the Defendants wanted to remove him from the society by any means. On 04.01.2023, a general body meeting of the society was held and though the Plaintiff was present, Defendant Nos.2 to 6 objected to his presence by giving out that he had been removed from the Page 3 of 11 membership of the society. Since the so called removal of membership was without following the provisions of the bye-laws and without giving any notice to the Plaintiff, he served a legal notice on 10.01.2023 on the office bearers asking them to recall the decision. The defendants submitted reply containing false and frivolous allegations. Hence, the Plaintiff was constrained to file the suit seeking appropriate relief. Along with it, the Plaintiff filed an application under Order-XXXIX Rule-1 and 2 of CPC being I.A. No. 64 of 2023 seeking an order of temporary injunction to restrain the Defendants from debarring him from participating in the day to day activities/meetings/ general body meeting as a member. The Defendants filed their objection (rejoinder) claiming that the Plaintiff is not a valid member of the society at any point of time. His father was also not a member of the society. The money receipts relied upon by the Plaintiff showing payment of annual fees were stated to be false and fabricated. The general body meeting was held on 19.03.2022 wherein, the present Defendants were selected as Defendant No.1’s office bearers by following the proper procedure. Page 4 of 11 4. The trial Court, after hearing both parties held that as per Article-6 of the Constitution of the society, an application for membership is subject to approval of the executive committee but there was nothing on record to show that the Plaintiff was admitted as member of the society. Further, the Plaintiff was unable to prove that he shall suffer irreparable loss if he is not admitted in the society. Thus, balance of convenience also does not tilt in his favour. The application for injunction was thus dismissed vide order dated 15.09.2023. 5. The Plaintiff carried appeal to the District Court being FAO No. 50 of 2023. The Appellate Court took note of the two money receipts available on record to hold that the same had not been properly explained by the Defendants. It was thus held that the Plaintiff has a prima facie case but it was also held that the other two ingredients, namely, balance of convenience and irreparable loss are lacking. On such findings, the appeal was dismissed as per the impugned order. Page 5 of 11 6.
Legal Reasoning
of the society even prima facie then, as per the bye-laws of the society, he has a right of participating in all its activities. The Defendants were not able to successfully refute the Plaintiff’s claim of being a member of the society. Under such circumstances, debarring him from participating in the activities of the society or attending the general body meeting would amount to gross violation of the bye-laws. This proves that the balance of convenience leans in favour of the Plaintiff and that being debarred to exercise his right under the bye-laws would result in irreparable loss, which cannot be compensated in terms of money. 8. Mr. Sarkar, on the other hand, argues that in order to maintain the application for injunction, all the Page 6 of 11 three ingredients are required to be proved, the Plaintiff has no proof that he was ever accepted as a valid member of the society. As regards the money receipts relied upon by him, it is argued that the same were paid towards development of Maa Mangala Temple and not as membership fees. According to Mr. Sarkar, none of the three ingredients are found to exist for which the application for injunction was rightly dismissed. 9. It is trite law that three ingredients are necessary to be satisfied for passing an order of injunction, namely, prima facie case, balance of convenience and irreparable loss/injury. As regards prima face case, the same being different from prima facie title, the existence of same can be readily inferred, if the applicant for injunction is able to show from the materials on record that he at least has an arguable case. It is enough if he can put forth a valid question, which the Court would consider appropriate for being decided during trial. Viewed in this context, the Plaintiff claims that his father was a member of the society and upon his death, he submitted an application for membership on Page 7 of 11 22.09.2020. A copy of such application is available on record. However, there is nothing on record to show that his application was approved by the executive committee of the society. Nevertheless, two money receipts, one dated 23.10.2021 for Rs.1,000/- and the other dated 19.04.2022 for Rs. 600/- are available on record. Both the receipts mention that the amounts were paid towards annual fee/dues. The defendants have taken a plea that the money was paid as contribution for Maa Mangala Temple. This implies that the authenticity of the money receipts is not in question by the defendants. As rightly held by the Appellate Court, the receipts mention that the amount was paid towards annual dues and that if the Plaintiff was not a member then how could the annual fees/dues be collected from him for two consecutive years. This in the considered view of this Court, prima facie, suggests that the Plaintiff is a member of the society. Thus, it must be held that the first ingredient, i.e., prima facie case, is satisfied. 10. As to balance of convenience, it is for the Court to see if the comparative mischief likely to be caused by not Page 8 of 11 granting the order of injunction would be more to the Plaintiff or the Defendants. It has already been held that there are materials to prima facie show that the Plaintiff is a member of the society. If such is the case then he has a right to participate in the activities of the society including the meetings of the general body. Clause-7 of the Constitution of the society is reproduced below:- “7. GENERAL BODY MEETING:-The General Body of the Parishad shall be composed of all ordinary members of the Parishad including elected/selected Executive Board. The General Body has the power to elect/select the member of the Executive Board.” Thus, as an ordinary member he has right of attending the general body meeting. Debarring him from attending the meeting would obviously result in violating his right under the constitution, This Court therefore, holds that unless an order of injunction is passed, the violation of Clause-7 of the Constitution of the society, in so far as it relates to the Plaintiff, would be perpetuated. Thus, the balance of convenience leans in favour of the Plaintiff. Page 9 of 11 11. As regards irreparable loss, both the Courts below appear to have proceeded on the notion that the function of the society is to undertake developmental works like road and sanitation, providing pure drinking water, maintaining greenery, cleanliness, hygiene and charitable works. The society is not a profit making or government organization. Under such circumstances, it was not understood by the Courts below as to how the Plaintiff would suffer irreparable injury if he is not permitted to attend the meetings and day to day activities. The above reason is, on the face of it, erroneous, for the reason that once the Court accepts that the Plaintiff is a member of the society then the constitution/bye-laws of the society comes into play, which confers certain rights on all members. Irreparable loss is not to be viewed always in the light of whether the same can be compensated in terms of money or not. Here, infringement of the rights conferred by the constitution/bye-laws on all members including the Plaintiff is a serious issue, which if allowed will perpetuate the illegality. It would tantamount to a situation where the Plaintiff, despite being a member Page 10 of 11 is kept away from the activities of the society and also from its general body meeting. Thus, depriving the Plaintiff from the activities as well as the meetings of the society till disposal of the suit would certainly cause irreparable loss to the Plaintiff for not being able to act in terms of the constitution/bye-laws of the society. This Court therefore, finds that all three ingredients necessary for passing an order of injunction are in existence. The Courts below have approached the matter from an erroneous perspective for which, the impugned orders cannot be sustained in the eye of law and hence, warrant interference. 12.
Arguments
Heard Mr. G.R Mishra, learned counsel for the Plaintiff-Petitioner and Mr. N. Sarkar, learned counsel appearing for the Defendant-Opposite Parties. 7. Mr. Mishra strenuously argues that once the Court holds that there is proof of the Plaintiff having paid annual fees of the society, it implies he was a valid member of society. Once he is held to be a valid member
Decision
For the foregoing reasons therefore, the CMP is allowed. The impugned orders are hereby set aside. The Defendants are restrained from debarring the Plaintiff from participating in the day to day activities/meetings/ general body meeting of the Defendant No.1-society till disposal of the suit. Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 18-Nov-2025 18:37:48 Orissa High Court, Cuttack The 18th 2025/B.C. Tudu, Sr.Steno ……..………………….. (Sashikanta Mishra) Judge Page 11 of 11