Partly allowed

Muhammed Thayyib and Others v. a.P.Abdul Khader Maulavi and Others

Kerala HC12 Apr 2012RSA/1279/2010

Case brief

AI extract

What is this about?

This appeal challenges the validity of elections held in 2003 and the grant of injunction regarding the use of the society's name. The court held that postponing elections due to a state convention validly extended the terms of Committees, rejected claims of invalid elections due to local irregularities, and granted a qualified injunction preventing the unauthorized use of the society's name to av

What did the court decide?

Defendants restrained from using the name 'Kerala Naduvathul Mujahideen' without conspicuously indicating separation from the original registered Society.

Muhammed Thayyib and Others Vs a.P.Abdul Khader… — Service and Employment | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934

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RSA.NO. 1279 OF 2010 ( )

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AS.230/2008 OF THE ADDITIONAL DISTRICT COURT, KOZHIKODE-III O.S. NO.568 OF 2002 OF THE ADDITIONAL MUNSIFF, KOZHIKODE-I

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APPELLANT(S)/APPELLANTS/DEFENDANTS:

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1. MUHAMMAD THAYYIB, S/O.MUHAMMED KUTTY, RASHEED MANZIL, PATHAPRIYAN, P.O.EDAVANA ERNAD TALUK.

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2. V.P.ABDULKADER, VADAKKINAKATH POYILIL HOUSE, NARIKUNI, P.O.PARANNOOR MADAVOOR AMSOM DESOM, KOZHIKODE TALUK.

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3. K.P.ABDURAHIMAN, S/O.HUSSAINKOYA HAJI, MELAYIPARAMBA HOUSE, PANNIYANKARA AMSOM, DESOM PANNIYANKARA.

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4. ABDUL HABEEB, SON OF K.A.ABDULLLA K.K.VEETTIL HOUSE, EDAVANAKKAD AMSOM, DESOM ERNAKULAM DISTRICT.

¶12

BY ADV. SRI.S.VINOD BHAT

¶13

RESPONDENTS/RESPONDENTS/PLAINTIFF/DEFENDANTS:

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1. A.P.ABDUL KHADER MAULAVI, S/O.SAINUDEEN, GENERAL SECRETARY (STATE TO BE) KERALA NADUVATHUL MUJAHIDEEN, MUJAHID CENTRE ANNIE HALL ROAD, NAGARAM AMSOM DESOM KOZHIKODE TALUK, PIN-673 001.

¶15

2. HUSSAIN MADAVOOR, S/O.ABOOBACKER KOYA, PUNATHUMKUZHIYIL HOUSE, MADAVOOR P.O. MADAVOOR AMSOM DESOM, KOZHIKODE, PIN-673 583.

¶16

3. P.C.AHAMMAD, S/O.ABDU, KANHIRANDI HOUSE, SULTHAN BATHERI SULTHAN BATHERI AMSOM DESOM, WYNAD DISTRICT PIN-673 592.

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BY ADV. SRI.V.V.ASOKAN BY ADV. SRI.K.B.SIVARAMAKRISHNAN BY ADV. SMT.RUKHIYABI MOHD KUNHI

¶18

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-04-2012, ALONG WITH RSA. 1283/2010, CO. 42/2011, CO. 43/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

¶20

==================================== R.S.A. No.1279 of 2010 & Cross Objection 43 of 2011 AND R.S.A. No.1283 of 2010 & Cross Objection No.42 of 2011 ==================================== Dated this the 12^th day of April, 2012

¶21

J U D G M E N T

¶22

The Second Appeals and Cross objections arise from the common judgment and decree of learned Third Additional District Judge, Kozhikode in A.S. Nos.230 of 2008 and 217 of 2008 respectively, and the Cross Objection in A.S. No.217 of 2008 . Those appeals and Cross Objection were brought from the common judgment and decree of learned Additional Munsiff, Kozhikode-I in O.S. No.568 of 2002. R.S.A. No.1279 of 2010 is at the instance of additional defendants 4 to 7 while R.S.A. No.1283 of 2010 is preferred by defendants 2 and 3 (first defendant died pending the suit). Plaintiff has preferred the Cross Objections. Parties are referred as plaintiff and defendants for convenience.

¶23

The plaintiff is Shri A.P. Abdul Khader Moulavi claiming to be the General Secretary of the Kerala Naduvathul Mujahideen (for short, “the KNM”), Mujahid Centre, Anniehall Road, Kozhikode.

¶24

R.S.A. No.1279 of 2010, etc.

¶25

-: 2 :-

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Shri Abdul Khader Moulavi filed the suit on behalf of the KNM as its General Secretary, under Rule 8 of Order I of the Code of Civil Procedure (for short, “the Code”) effecting necessary publication in that regard, originally against defendants 1 to 3 for a declaration that the resolutions passed at a meeting of the State Executive of the KNM convened by the second defendant on 17.08.2002 expelling Abdul Khader Moulavi from the post of General Secretary, etc., are illegal and for a decree for prohibitory injunction against defendants 1 to 3 trespassing into the office of the KNM, interfering with the said Abdul Khader Moulavi functioning as the General Secretary, against defendants 1 to 3 using the name of the KNM, its seal and letterhead and against their operating bank account of the KNM. Plaintiff alleged that the KNM is a Society registered in the year, 1957 under the Societies Registration Act, 1860 (for short, “the Act), Abdul Khader Moulavi was elected as its General Secretary and though the second defendant failed in getting elected as a Secretary, Abdul Khader Moulavi nominated him as a Secretary. During the relevant time, the second defendant was facing action for misappropriation of funds of the KNM. The ISM is the youth wing of the KNM. The KNM took action against some

¶27

R.S.A. No.1279 of 2010, etc.

¶28

-: 3 :-

¶29

members of the ISM and expelled them. Some followers of defendants (1 to 3) filed O.S. No.533 of 2002 claiming that the ISM has no connection with the KNM and that the KNM has no control over the assets of the ISM. While so, a news item appeared in a vernacular daily that the State Executive meeting of the KNM convened by the second defendant on 17.08.2002 dissolved the State Executive, removed Abdul Khader Moulavi from the post of the General Secretary and elected defendants 1 to 3 as its President, General Secretary and Vice President, respectively. According to the plaintiff, no such meeting was convened and at any rate, second defendant had no authority to convene the meeting. Decisions if any, taken in the said meeting are illegal. The KNM has assets, is getting financial assistance from various sources and is running various institutions. Defendants 1 to 3 approached the bank with a claim that Abdul Khader Moulavi has no right to operate bank account of the KNM. Plaintiff apprehended that defendants (1 to 3) might trespass into the suit property belonging to the KNM, use its name, seal, letterhead, etc. Hence the suit.

¶30

Defendants 1 to 3 contended that Abdul Khader Moulavi has no right or authority to represent the KNM as he was

¶31

R.S.A. No.1279 of 2010, etc.

¶32

-: 4 :-

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removed from the post of General Secretary in the meeting of the State Executive on 17.08.2002. They contended that the meeting and proceedings held on 17.08.2002 are valid and that as office bearers defendants 1 to 3 are entitled to hold fresh elections (to the various bodies of the KNM) which were already overdue. Membership of the KNM expired in October, 2002 (later, amended as “by 31.12.2002”).

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pursuant to the publication under Rule 8 of Order I of the Code made at the instance of plaintiff, additional defendants 4 to 7 got impleaded in the suit. They supported defendants 1 to 3.

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Plaintiff filed I.A. Nos.2858 and 2982 of 2002 for an order of temporary injunction. Learned Munsiff passed orders on the said applications observing that removal of Abdul Khader Moulavi and his supporters from their respective posts as per resolution dated 17.08.2002 is prima facie invalid. Defendants 1 to 3 challenged the orders in C.M.A. Nos.240 to 243 of 2002 in the District Court, Kozhikode. In the C.M. Appeals, defendants 1 to 3 contended that all the Committees of the KNM ceased to exist by October, 2002 (later amended as by 31.12.2002) and hence all the questions raised in the plaint and applications for

¶36

R.S.A. No.1279 of 2010, etc.

¶37

-: 5 :-

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injunction became irrelevant. Defendants 1 to 3 requested the court to appoint an Advocate Commissioner to hold fresh elections with the membership as in the year, 1999. Plaintiff contended that the term of the State Executive of the KNM did not expire in October, 2002 (or by 31.12.2002 as contended by defendants 1 to 3 in the amended written statement) and that its term was to expire only in April, 2003 as the State Executive was formed only in April, 2000. Learned District Judge was of the view that all the office bearers of the KNM elected in October, 1999 ceased to hold office by October, 2002 and ordered fresh elections to be conducted by an Advocate Commissioner. Learned District Judge directed that elections be held based on the membership of the year 1999. Plaintiff challenged the judgment of learned District Judge in this Court in Civil Revisions. Plaintiff contended that fresh elections were conducted to the various bodies of the KNM in the year, 2003. Defendants 1 to 3 filed C.M.P. No.2667 of 2003 on 02.05.2003 in the Civil Revisions disputing that elections were conducted as above stated though certain newspapers carried reports in that way and seeking stay of the so-called elected members taking charge of office of the KNM. This Court did not pass any order on the said application.

¶39

R.S.A. No.1279 of 2010, etc.

¶40

-: 6 :-

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The Civil Revisions were disposed of on 18.11.2005 setting aside the judgment of learned District Judge for the reason, among other things, that learned District Judge could not have ordered fresh election in the absence of any pleading to that effect by defendants 1 to 3.

¶42

After disposal of the Civil Revisions, second defendant amended his written statement as per order on I.A. No.4777 of 2005 and incorporated a counter claim. The amended written statement and counter claim stated that term of office of various bodies including the State Executive of the KNM expired by 31.12.2002 (as against the original plea of October, 2002) and thereafter, no election was conducted to any body of the KNM. Second defendant contended that though plaintiff claimed that by a resolution of the State Executive, its term of office was extended, the bylaw (Ext.A1) of the KNM does not contemplate or provide for extension of term of office of any Committee. The bylaw only provided for postponement of elections in special circumstances. He contended that no such special circumstance existed so that, even the election could be postponed. In the counter claim second defendant prayed that fresh election be held based on the membership which existed in the year, 1999.

¶43

R.S.A. No.1279 of 2010, etc.

¶44

-: 7 :-

¶45

Plaintiff replied to the counter claim contending that elections were held in the year, 2003 and that the State Executive of the KNM can postpone elections and extend the term of office of various bodies including of the State Executive. Plaintiff disputed the locus standi of the second defendant to seek fresh elections, himself and followers having broken away from the parent body and formed a separate body of their own. Plaintiff further contended that the counter claim is barred by limitation.

¶46

Learned Munsiff framed the following issues.

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i) Whether plaintiff is entitled to a decree for declaration as prayed?

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ii) Whether plaintiff is entitled to a decree for injunction as prayed?

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iii) Whether the suit is maintainable? iv) Whether the counter claim filed by the second defendant is maintainable?

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v) Whether the counter claim is barred by

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limitation?

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vi) Whether second defendant is entitled to a

¶53

R.S.A. No.1279 of 2010, etc.

¶54

-: 8 :-

¶55

decree for holding elections by appointing an Advocate Commissioner?

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vii) Reliefs and costs?

¶57

As per order dated 24.05.2002 learned Munsiff framed the following additional issue.

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“Whether the alleged meeting claimed to have been called for and convened by the second defendant on 17.08.2002 and the decisions taken in that meeting are valid, competent and binding on the plaintiff's Organization, its assets and properties?”

¶59

Learned Munsiff held that the counter claim is not barred by limitation. Other issues were answered in favour of the plaintiff. But learned Munsiff was of the view that defendants could not be restrained from using name of the KNM since no question of passing off goods of the KNM is involved. Reliance was placed on the decision in B.C.W.C.S(P) Ltd. v. I.C.W. Co-

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op. Society Ltd. (1999 [1] KLT 322). Learned Munsiff granted reliefs to the plaintiff except regarding use of name of the

¶61

R.S.A. No.1279 of 2010, etc.

¶62

-: 9 :-

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KNM. Defendants 2 and 3 and additional defendants 4 to 7 challenged that judgment and decree in A.S. No.217 and 230 of 2008, respectively. Plaintiff filed cross objection in A.S. No.217 of 2008 against refusal of leaned Munsiff to grant injunction restraining the defendants from using name of the KNM. Learned District Judge confirmed judgment and decree of trial court and dismissed the appeals and Cross Objection. Hence these appeals by defendants 2 to 7. In the Second Appeals, plaintiff has filed Cross Objections against the judgment and decree of the first appellate court declining to grant injunction against defendants 2 to 7 using name of the KNM.

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The following substantial questions of law are framed for a decision.

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(i) Whether the illegality in the election to the basic units will vitiate the dependent election and result in invalidating the entire election?

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(ii) Whether a provision in a bylaw for postponement of election can be construed as empowering extension of the term of all the committees when their terms are separately and

¶67

R.S.A. No.1279 of 2010, etc.

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-: 10 :-

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expressly fixed under the bylaw providing that fresh elections are to be held before expiry of the fixed term?

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(iii) Whether appreciation of evidence by the courts below were perverse for non-consideration of the material facts and evidence specifically pointed out by the defendants?

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(iv) Whether failure to frame proper issues on material questions of fact and law vitiate the trial and caused prejudice to the defendants?

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The following substantial questions of law are framed on the Cross Objections.

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(i) Whether courts below are justified in declining relief of prohibitory injunction restraining the defendants from using the name of the Kerala Naduvathul Mujahideen by them after having sustained rest of the claims in the plaint and recognizing the plaintiff as the official Organization?

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R.S.A. No.1279 of 2010, etc.

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-: 11 :-

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(ii) Whether courts below are justified in

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relying on the decision in B.C.W.C.S(P) Ltd. v.

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I.C.W. Co-op. Society Ltd. (1999 [1) KLT

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to decline the relief of prohibitory injunction restraining the defendants from using the name of Kerala Naduvathul Mujahideen by them especially the ratio in the suit judgment has no relevance to the context?

¶80

In the appeals plaintiff have filed applications for reception of additional evidence producing certain documents.

¶81

Shri B.G.Bhaskar, learned counsel for

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appellants/defendants 2 to 7 contended that judgment and decree of the courts below granting declaration in favour of plaintiff and injunction against defendants are not correct. Learned counsel has raised the following contentions:

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(a) Trial court has not framed proper issues for determination.

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(b) Alleged extension of term of the State Executive beyond December, 2002 is illegal.

¶85

R.S.A. No.1279 of 2010, etc.

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-: 12 :-

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(c) No elections were conducted as claimed by the plaintiff to any of the bodies of the KNM in the year, 2003 though certain records are cooked up to show that elections are conducted. Hence fresh elections are to be conducted to the various bodies of the KNM as directed by the learned District Judge in the judgment in the C.M. Appeals.

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(d) The elections said to be held in the year 2003 are hit by the rule of lis pendens.

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(e) Trial and first appellate courts were not correct in granting a declaration in favour of the plaintiff and injunction against the defendants.

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(f) No injunction could be granted against defendants using name of the KNM since no question of passing off goods of the KNM in that name and style is involved.

¶91

Shri K.I. Mayankutty Mather, learned counsel for plaintiff contended that defendants 2 to 7 have no right to claim that fresh elections are to be conducted to the various bodies of the KNM since by the resolution dated 17.08.2002 they have formed a separate group and have conducted elections in their organization on several occasions after 2002. Defendants 2 to 7

¶92

R.S.A. No.1279 of 2010, etc.

¶93

-: 13 :-

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and their supporters have ceased to be members of the KNM by their not renewing their membership with it at the time elections were held to the various bodies of the KNM from the year 2000 onwards. The counter claim for conduct of elections was raised only in the year, 2005 while in the meantime elections had already been conducted in the year 2003. It is contended by the learned counsel that following that, in 2006 and 2009 also elections were held to the various bodies of the KNM and those elections are not disputed or challenged at all, though defendants 2 to 7 contend that no elections were held in the year 2003. According to the learned counsel, various records produced in the case would show that elections were duly held to the various bodies of the KNM for various periods. It is pointed out by the learned counsel that trial court was correct in granting declaration and injunction against the defendants. Learned counsel points out from paragraph 30 of the judgment of the first appellate court that there was no challenge to the declaratory relief granted by the trial court in favour of plaintiff. Hence defendants 2 to 7 cannot be allowed to raise the said question in these Second Appeals. It is contended that trial court having granted a decree for injunction restraining defendants 2 to 7 from

¶95

R.S.A. No.1279 of 2010, etc.

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-: 14 :-

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using the letterhead and seal of the KNM, should have granted a decree against use of its name as well.

¶98

The first contention learned counsel for defendants 2

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to 7 raised is the (alleged) impropriety in framing issues. It is contended that proper issues are not framed by the trial court for determination. Learned counsel has stated before me what ought to have been the issues framed by the learned Munsiff. That concerns the term of office of the State Executive elected in the year 1999, whether it ended in December, 2002 as contended by the defendants, whether Ext.A1, bylaw provides terms and extension of term of State Executive, whether there was in fact any decision by the State Executive to extend its term and if so whether the decision is valid, whether elections were held in all the Sakhas of the KNM in 2003 as claimed by the plaintiff, whether records produced by the plaintiff prove that a genuine election in accordance with the bylaw was held, whether (some of the) documents produced by the plaintiff are genuine and reliable, whether the claim of defendants that there was no election and records for election are fabricated is correct, whether membership of the KNM terminates at the end of three years and its renewal, whether renewal of membership was

¶100

R.S.A. No.1279 of 2010, etc.

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-: 15 :-

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possible in the year 2003 and whether election from among the members of 1999 through an Advocate Commissioner is necessary. Learned counsel argued that the above issues ought to have been framed and answered by the trial court.

¶103

An 'issue' arises when a material proposition of fact is asserted by one party and is denied by the other. 'Material proposition' are those proposition of law or fact which the plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. The court is to frame issues having regard to the proposition of law and fact asserted by the parties as above stated.

¶104

I have extracted above the issues learned Munsiff has framed in the case. It is relevant to note that learned Munsiff framed additional issues on 24.05.2007. The Judgment of the trial court does not show that at any point of time defendants had raised any objection to the issue framed or requested the trial court to amend, strike out or frame any other issues. Rule 5 of Order XIV of the Code gives ample power for the court at any time before passing the decree to do so. Defendants could have requested learned Munsiff to delete or amend the issues framed or frame additional issues. That was not done. Instead,

¶105

R.S.A. No.1279 of 2010, etc.

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-: 16 :-

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with the issues and additional issue framed and bearing in mind the allegations and counter allegations parties went to trial and adduced their evidence. It is not shown that non-framing of issues in the way now suggested, has resulted in any prejudice to the defendants. They have no case that because issues were not framed in the way suggested, they were mislead and could not adduce evidence. Issues framed by the learned Munsiff involve questions relating to the declaration and injunction prayed for and whether relief prayed for in the counter claim could be allowed. All the questions urged by the defendants could be considered and decided under the issues framed and the parties also thought so, while adducing evidence. It is relevant to note that all the arguments appellant/defendants have raised are with reference to

¶108

the evidence already let in. In Nirmal Kumar Choudhary

¶109

v. State of Bihar (AIR 1988 SC 394), referring to the contention that a material issue regarding availability of alternative accommodation was not framed by the trial court, it is held:

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“Though formally no issue was framed, the parties went to trial and adduced evidence with this

¶111

R.S.A. No.1279 of 2010, etc.

¶112

-: 17 :-

¶113

issue in mind and have drawn the attention of the Court to the existence of another house belonging to the appellant ......There is, therefore no need for the appeal being remanded for a finding on the question whether alternate suitable accommodation is available for the appellant”.

¶114

Parties hereto have, bearing in mind the various points of controversy between them taken part in the trial without any complaint on the issues framed or lack of proper/additional issues. Defendants cannot, in these Second Appeals be allowed to upset the findings of the courts below on the ground of nonframing of proper issues even if it is assumed so.

¶115

Next contention is that no elections were held in the year, 2003 but records are cooked up to show that elections were actually held. It is contended that term of office of the State Executive Committee of the KNM expired by 31.12.2002 and though Ext.A1, bylaw enables the State Executive to postpone election in special circumstance, there is no provision in Ext.A1 to extend the term of any Committee. The term of the State Executive Committee expired on 31.12.2002. Thereafter it was

¶116

R.S.A. No.1279 of 2010, etc.

¶117

-: 18 :-

¶118

not possible for the State Executive Committee to conduct elections in the year, 2003 as plaintiff claims. A further contention is that there was no renewal of membership of the KNM before 31.12.2002 and hence based on the membership that existed after 31.12.2002 no elections be conducted in the year, 2003. Learned counsel contends that Ext.A30, minutes book produced by the plaintiff to show that the State Executive in its meeting on 15.09.2002 decided to postpone the elections is a fabricated document. It is pointed out that at any rate there was no special circumstance as contemplated by the bylaw to postpone the elections.

¶119

Exhibit A30 is stated to be the minutes book of the State Executive of the KNM for the period from 15.09.2002. In Ext.A30 it is stated that the previous minutes book (Ext.A20) was entrusted to the counsel for production in the case and hence minutes of the meeting from 15.09.2002 onwards is being recorded in the new book (Ext.A30). Exhibit A30 states that the State Executive met on 15.09.2002. Minutes of the previous meeting was read by the Secretary and it was approved. The income and expenditure for the months of June, July and August was read and approved in the meeting of 15.09.2002. Decision

¶120

R.S.A. No.1279 of 2010, etc.

¶121

-: 19 :-

¶122

No.5 is that since the term of office of the existing State Executive expires only in May, 2003 and since the State Convention of the Organization is being held from 26 to 29 of December (2002), as it is difficult to conduct elections and the State Convention simultaneously it is decided that such of the Committees the term of which is to expire earlier shall continue in office until May, 2003 in accordance with clause 9(b) of Ext.A1, bylaw.

¶123

Exhibit A20 is the minutes book prior to Ext.A30. It is pointed out by the learned counsel that Ext.A20 was produced in the trial court only on 09.10.2002 (while Ext.A30 starts with the meeting held on 15.09.2002). Hence it is contended that the statement in Ext.A30 that a new book is being used for recording minutes of the meetings from 15.09.2002 as Ext.A20 (previous minutes book) was entrusted to the counsel for production in court is not correct. It is also contended that if actually Ext.A20 was not in the custody of the plaintiff, it was not possible to read the minutes recorded in Ext.A20 in the meeting on 15.09.2002 and approve the same. It is contended that from the above, it is clear that Ext.A20 was with the plaintiff when the minutes of the meeting on 15.09.2002 was recorded in Ext.A30.

¶124

R.S.A. No.1279 of 2010, etc.

¶125

-: 20 :-

¶126

It is also contended that there was no such decision (decision No.5 referred to above) taken and no meeting held on 15.09.2002 but Ext.A30 is cooked up to show that a meeting was held on 15.09.2002 and a decision as above stated was taken.

¶127

Learned counsel for plaintiff contends that no question in the above manner was put to P.W.1 when he was in the box so that, he could gave an explanation for the alleged discrepancy pointed out by the learned counsel for defendants. It is submitted that what is stated in Ext.A30 is not that the previous minutes book (Ext.A20) was produced in court by the time minutes in Ext.A30 was recorded but that the previous minutes book (Ext.A20) was entrusted to the counsel for production in the case and hence the mere fact that Ext.A20 was produced in the court only on 09.10.2002 does not mean that Ext.A30 is fabricated.

¶128

For the reason learned counsel for defendants 2 to 7 has pointed out and stated above, I am unable to say that Ext.A30 is the result of forgery. As rightly pointed out by the learned counsel for plaintiff, reason for preparing the minutes from 15.09.2002 onwards in Ext.A30 minutes book is not that by

¶129

R.S.A. No.1279 of 2010, etc.

¶130

-: 21 :-

¶131

the time the previous book (Ext.A20) had been produced in court but that Ext.A20 was entrusted to the counsel for production in court. If Ext.A20 were with the plaintiff on 15.09.2002 as learned counsel for defendants 2 to 7 contend, plaintiff could have easily recorded the minutes seen recorded in Ext.A30 in Ext.A20 itself. There was no reason why for the alleged manipulation plaintiff who had custody of Ext.A20 on 15.09.2002 as defendants 2 to 7 would contend, should select a new book as if the alleged manipulation could not be done in Ext.A20 itself! Argument of learned counsel for defendants 2 to 7 does not stand the test of reason. Moreover it is relevant to note that none of the defendants went into the box to depose that Ext.A30 is fabricated and face cross-examination. A mere argument in that regard is not sufficient.

¶132

Then the question is whether the term of office of the State Executive expired only in May, 2003 as stated in Exts.A30 and A31 or it expired by 31.12.2002 and whether it was within the power of the State Executive to extend term of the Committees which expired earlier? Exhibit A1, bylaw does not prescribe the procedure for election. The procedure is to be prescribed by the Chief Election Officer appointed for the

¶133

R.S.A. No.1279 of 2010, etc.

¶134

-: 22 :-

¶135

election. P.W2 was the Chief Election Officer for the election in 2002-03 (as himself and plaintiff claim). He stated that the procedure for holding the election in the year, 1999 was followed in the year 2003 as well. Clause 9 of Ext.A1, bylaw deals with the election. Sub-clause (b) of Clause 9 states:

¶136

“പ�ത��ക �ര��സ��കള�ല ��രഞ�ട�പ�കള�ഞട ക�ല�വധ�

¶137

ഒര� വര�� വഞര ന�ട�വ�ന ഭരണസമ��ക# അധ�ക�ര� ഉണ#”

¶138

Executive has the power to postpone the the elections upto one year)

¶139

It is pointed out by the learned counsel for defendants 2 to 7 that the above is the only provision which Ext.A1, bylaw contains and that concerns postponement of election alone and that too, in special circumstances. According to the learned counsel, in so far as Ext.A1, bylaw does not say that the State Executive has the power to extend the term of office of any Committee, the decision taken to that effect as seen from Exts.A30 and A31 is invalid. Learned counsel also

¶140

R.S.A. No.1279 of 2010, etc.

¶141

-: 23 :-

¶142

points out from clause 15 of Ext.A1, bylaw dealing with miscellaneous matters that the expressions such as “beginning of the year, end of the year”, etc., referred in the bylaw means the year beginning from April 1^st and ending by March 31^st but so far as election is concerned, it is “the calender year”.

¶143

It is appropriate to refer to clause 15(a) of Ext.A1

¶144

bylaw:

¶145

“ഭരണഘടനയ�ല വര��ര�ഭ� വര��ന*� എഞ,�ഞക

¶146

�റയ�ത.�ള ഏപ��ല 1 മ��ല ��ടങ� മ�ര3# 31 ന#

¶147

അവസ�ന�ക�, വര�വ�മ�ണ# വ�വക

¶148

��രഞ�ട�പ�ഞന സ�ബന�3�ടത8�ള� സ�ധ�രണഗ��യ�ല

¶149

കലണര വര�വ�മ�ണ# “

¶150

Learned counsel states that elections to the State Executive and to the other bodies of the KNM were conducted in October, 1999 and hence notwithstanding when the State Executive Committee or other Committees assumed office, its term of office expired by 31.12.2002, on the expiry of three years. Learned counsel has placed reliance on the decision in Tirur Service Co-op.

¶151

R.S.A. No.1279 of 2010, etc.

¶152

-: 24 :-

¶153

Bank v. Joint Registrar (1988 [2] KLT 756). A further contention learned counsel has raised is that at any rate, that there was the State Convention of the Organization to be conducted in December, 2002 is something which ought to have been in the contemplation of plaintiff and hence cannot be taken as a “special circumstance” enabling the State Executive to postpone the election even invoking clause 9(b) of Ext.A1, bylaw. To support that contention reliance is placed on the

¶154

decision in Raman Pillai v. Kerala University (1992 [2] KLT 768).

¶155

Learned counsel for plaintiff would contend that though Ext.A1 does not specifically say that the State Executive has the power to extend term of office, when power is conferred on the State Executive Committee to postpone the election in special circumstances it follows that that existing Committee has to continue in office until fresh elections are held and the new Committee assumes office. It is contended that otherwise there will be no administration of the KNM after the term of the existing Committee expired and until the new Committee assumes office after fresh elections are held. Learned counsel submitted that the KNM has various institutions educational and

¶156

R.S.A. No.1279 of 2010, etc.

¶157

-: 25 :-

¶158

charitable and it has vast assets. If the argument of defendants were accepted and if the term of office of all the Committees expired by 31.12.2002 and its term could not be extended, it would mean that there would be chaos and confusions so far as administration of the KNM is concerned. According to the learned counsel in such circumstance an interpretation which would result in absurdity cannot be adopted. Learned counsel contends that a harmonious construction of the provisions of the bylaw is required to be adopted and it has to be held that when the bylaw gives power to the State Executive Committee to postpone the election to the various bodies it goes with it that the existing Committees will remain until the postponed elections are held and the new Committees assume office. Learned counsel has placed reliance on the decisions in Krishna Kumar v. State

¶159

of Rajasthan (AIR 1992 SC 1789 (paragraph 11), D.Saibaba v. Bar Council of India (AIR 2003 SC 2502 – paragraph 17) and Univesrsity of Kerala v. Council of Principals, Colleges, Kerala and Others ([2006] 8 SCC 486).

¶160

In Raman Pillai v. Kerala University (supra) this

¶161

R.S.A. No.1279 of 2010, etc.

¶162

-: 26 :-

¶163

Court was considering whether postponement of election to the various bodies of the Kerala University for the reason that a common legislation of Universities in Kerala was under contemplation was justified. It was held that the said reason is not a valid reason to postpone the election as it did not amount to emergent situation as envisaged in clause (2) of the Kerala University (Conduct of Elections to Various Authorities or Bodies) First Statutes, 1974.

¶164

I am inclined to think that what is a “special circumstance” has to be decided with reference to the particular facts of the case. Clause 9(b) of Ext.A1, bylaw enables the State Executive Committee to postpone elections upto one year if there exists 'special circumstances'. In Exts.A30 and A31 it is stated that since the term of office of the State Executive Committee expires only in May, 2003 and the State Convention of the KNM has to be held from 26 to 29 of December 2002, it is difficult to hold elections and the Convention simultaneously and hence it is decided by the State Executive Committee of the KNM that the term of office of such of the Committees which were to expire earlier would stand extended till May, 2003. The State Executive Committee, in its wisdom thought that conducting

¶165

R.S.A. No.1279 of 2010, etc.

¶166

-: 27 :-

¶167

elections simultaneously with the organizational activities connected with the State Convention of the KNM is not feasible. I am unable to to say that it is not a 'special circumstance' which enabled the State Executive Committee to postpone the election.

¶168

Then the question is whether along with postponement of elections, the term of office of the Committee could be extended? It is pointed by the learned counsel that term of office of the State Executive Committee expired by 31.12.2002 since election to that body was held in the year, 1999. Learned counsel submits that even if election to the State Executive was held, assuming so, in November, 1999, in view of clause 15(a) of Ext.A1, bylaw the first year of office of the State Executive has to be taken as 1999 in which case the term expired by December, 2002 and hence the State Executive could not function after 31.12.2002. It is in this connection that learned counsel has placed reliance on clause 15(a) of Ext.A1, bylaw and the decision in Tirur Co-op. Bank v. Joint Registrar (supra).

¶169

There, this Court was considering the scope of Rule 39 of the Co-operative Societies Rules, 1969 (Kerala). That provision provided a definite date for expiry of the term. This

¶170

R.S.A. No.1279 of 2010, etc.

¶171

-: 28 :-

¶172

Court held that if the date of expiry is fixed by the bylaw, the term of the Committee has to be computed with reference to the year of the society. The first year of the Committee will be the period from the date of assumption of office till expiry of that year of the Society, even if it be less than one full year. Thus, if the year of the Society is January-December, the first year in office should be deemed to end with the 31^st December of the year irrespective of the date on which the Committee assumed office.

¶173

I have extracted above clause 15(a) of Ext.A1, bylaw. It is pertinent to note that so far as the election is concerned what is stated is:

¶174

കലണര വര�വ�മ�ണ# “

¶175

What clause 15(a) of Ext.A1, bylaw states so far it relates to election is that “ordinarily” it is the calender year. In other words extraordinarily, i.e., in special circumstances the 'year' so far as election is concerned need not necessarily be the calender year. Hence in appropriate circumstances it is possible to say that so far as 'election' is concerned the 'year' need not be the calendar

¶176

R.S.A. No.1279 of 2010, etc.

¶177

-: 29 :-

¶178

year.

¶179

Exhibit A1 does not say that by postponement of election term of office of the Committee will stand extended. It is also true that as per Ext.A1, term of office of each Committee is three years. When under special circumstances as authorized under clause 9(a) of Ext.A1, bylaw, election is postponed, then the question is whether notwithstanding postponement of election, term of the Committee will expire by 31^st of December? Assuming that term of the Committee expired by 31.12.2002 and election is validly postponed till May, 2003 it is difficult to accept the argument that there will be a vacuum so far as activities and administration of the KNM are concerned from 31.12.2002 till elections are held in May, 2003 and the new Committee assumes office. If that happens, as rightly pointed out by the learned counsel for plaintiff, the result will be confusion, din and chaos and as John Milton has stated in “Paradise Lost”, it will be “confusion worse confounded”. I am inclined to think that a court cannot give such a rigid interpretation to promote confusion, din and chaos and produce absurd results. I must bear in mind that the KNM is a registered Society and it has various institutions; educational and

¶180

R.S.A. No.1279 of 2010, etc.

¶181

-: 30 :-

¶182

charitable not to say about its vast assets. If the argument of learned counsel for defendants 2 to 7 is accepted, there will be nobody to administer and govern the KNM and its properties after 31.12.2002 and until new Committees assumed office after the election in May, 2003. I am inclined to think that a harmonious construction of clause 9(b) of Ext.A1 has to be made to say that along with the postponement of election, term of the Committee concerned will also stand extended.

¶183

There is sufficient evidence in the case to show that there was postponement the of term of Committee in the past also even when the second defendant was one of the Secretaries of the KNM. Exhibit A18 is the minutes of State Council meetings which was elected in the year 1997. If the argument of defendants 2 to 7 were to be accepted, the first year of office of the State Council was 1997, no matter when it assumed office during that year and the first year of office of the State Council must have expired by 31.12.1997. That means, the three year term must have expired by 31.12.1999. But it is seen from page 29 of Ext.A18 that the same State Council (which was elected in the year 1997) met on 13.02.2000! In other words, the State Council which was elected in the year 1997 functioned after

¶184

R.S.A. No.1279 of 2010, etc.

¶185

-: 31 :-

¶186

31.12.1999. Exhibit A81 is the notice dated 01.12.1999 issued by the Chief Election Officer of the KNM (when the second defendant was the Secretary of the State Executive). It states that election to the State Executive Committee scheduled to be held on 28.11.1999 is postponed and it is scheduled to be held on 30.04.2000. Exhibit A81 further states that the exiting Committees are to hand over charge to the newly elected Committees within one year of the election. For that purpose the existing Committee should have remained in office. Therefore, from the previous practice also I hold that the election year, going by clause 15(a) of Ext.A1, bylaw though should ordinarily be the calender year, in special circumstances it need not be the calender year and that though Ext.A1, bylaw does not say that on postponement of election in special circumstance the term of office of the Committee could also be extended, giving a harmonious construction of clause 9(b) of the bylaw having regard to the practice which prevailed with the KNM and the circumstances which I have stated above, it should be taken that term of the Committee could also be extended until the new Committee after the postponed elections are held, assumes office.

¶187

R.S.A. No.1279 of 2010, etc.

¶188

-: 32 :-

¶189

It is contended that though certain records are created to show that elections were held in the year 2003, actually no elections were held. Learned counsel has given me a chart of some of the exhibits produced by the plaintiff (to show that election to various bodies of the KNM was conducted in the year 2003) to contend that those documents would reveal irregularities to such extent that this Court could hold that those documents are fabricated to show that elections were held. It is pointed out that either members in excess of the permitted number were “elected” or the required number of members were not “elected”. It is pointed out that in several instances separate lists of members of the Committee concerned are seen to have been forwarded to the Chief Election Officer and he, in turn to have transmitted such lists to the Committees. It is pointed out by the learned counsel that P.W.2., who is the Chief Election Officer was not able to give satisfactory explanation for the above irregularities. It is contended that since it is the case of defendants 2 to 7 that no such elections were held, it is not necessary to implead persons said to have been elected and no publication under Rule 8 of Order I of the Code was also required on the counter claim. It is contended that membership was not

¶190

R.S.A. No.1279 of 2010, etc.

¶191

-: 33 :-

¶192

renewed after 31.12.2002 and hence question of conducting valid election in the year, 2003 did not arise. Learned counsel placed reliance on the judgment dated 14.03.2005 of the Division Bench of this Court in W.A. No.495 of 2005 to contend that as the plea of defendants 2 to 7 is that no such elections are held, notice to persons said to be elected was not necessary. It is argued that if election to some of the Sakhas is found to be not conducted, then elections to all the superior bodies would fall to the ground as in the case of a castle of cards, having regard to the organizational set up of the KNM.

¶193

Learned counsel for plaintiff has invited my attention to the various records to show that elections were held in the year, 2003 and even after the expiry of three years' period from the year, 2003. It is contended that without a publication under Rule 8 of Order I of the Code so far as the counter claim which is to be treated as a cross suit is concerned, and at any rate without impleading persons who are stated to be elected to the various bodies in the election held in the year, 2003 a finding that no such election was conducted is not possible. Leaned counsel has placed reliance on S.I. Kpoor v. Jagmohan ([1980] 4

¶194

SCC 379), Olga tiles v. Bombay Municipal

¶195

R.S.A. No.1279 of 2010, etc.

¶196

-: 34 :-

¶197

Corporation (AIR 1986 SC 180), Ishwar Singh v. Kuldip Singh ([1995] Suppl. 1 SCC 179), University of Kerala v. Council, Principals, Colleges, Kerala and Others ([2006] 8 SCC 486) and I.Nelson v, Kallayam Pastorate ([2006] 11 SCC 624). Learned counsel argues that even if there is found to be some irregularity or even illegality in the election of some of the Sakhas or, there was no election in some of the Sakhas, that would not vitiate either the election of other Sakhas or of the superior bodies.

¶198

No doubt, on verification of some of the documents produced by the plaintiff and referred to in the chart learned counsel for defendants 2 to 7 has given me, there appears to be some irregularities as to the conduct of elections to some of the Committees. In some cases members in excess of the permitted number are stated to be elected while in certain others, the required number of members are not stated to be elected. In certain cases as P.W.2 also conceded, separate lists of members are seen forwarded to the Chief Election Officer and he, in turn (after alleged approval) returned the separate lists. It is argued by the learned counsel that even if two lists are sent up, the Chief Election Officer could after approval sent back

¶199

R.S.A. No.1279 of 2010, etc.

¶200

-: 35 :-

¶201

only one list to the Committee concerned. It is also pointed out from the chart given to me that in some instances files are seen corrected as regards the number of persons elected.

¶202

Trial court in paragraph 42 and the first appellate court in paragraph 19 of the judgments held that the plea of defendants that there were no elections after 2002 cannot be accepted.

¶203

Exhibit A82 is the copy of time schedule issued by the Chief Election Officer for the election in 2003. Exhibits A100 to A116 are copies of details of members of various District Councils. Exhibits A83 to A99 are details of elected members of all the Committees of the KNM (elected in the year, 2003). Section 4 of the Act requires annual list of members of the Managing Body to be submitted to the District Registrar. Exhibits A22 and A23 are copies of list of office bearers thus submitted to the District Registrar. Exhibits A24 and A25 are the lists submitted during 2004-05. Exhibit A117 is the time schedule for election held in the year, 2006 (after expiry of three years from 2003). Exhibits A135, 137, 139, and 141 to 151 are details of elected members of various District Committees (in the election held in the year, 2006). Exhibit A118 to A134 are details of

¶204

R.S.A. No.1279 of 2010, etc.

¶205

-: 36 :-

¶206

members elected to the Executive Committee of various Schools. Exhibits A37 and A38 are newspaper reports concerning the election. Exhibits A26 and A27 are the list of office bearers given to the District Registrar under Sec.4 of the Act.

¶207

Exhibit A111 is one of the documents which according to defendants 2 to 7 is concocted. Concerning the election (allegedly) conducted as stated in Ext.A111, the elected members filed O.S. No.1 of 2004 for a declaration that their election is valid. Defendants therein contended no such election was held. Exhibits A74, judgment of the trial court and Ext.A76, judgment of the first appellate court in that case show that the plea of elected members in that case was accepted. Exhibit A100 relates to the election at Kasargod which according to defendants 2 to 7 is a concocted document. O.S. Nos.6 of 2004 and 123 of 2004 relate to that election. Exhibits A77 and 78, judgments are produced to show that the election was upheld. Exhibit A104 which is under challenge by defendants 2 to 7 relates to the (alleged) election to the Kundayikode Sakha of the KNM. Concerning that, there were two suits – O.S. Nos.3 and 32 of 2004 and by Ext.A73 common judgment the suits were decreed and election was upheld. Exhibit A44 is another document which

¶208

R.S.A. No.1279 of 2010, etc.

¶209

-: 37 :-

¶210

is under challenge. Concerning that, there was O.S. No.135 of 2004 (challenging the election held in 2003 and seeking an injunction that office bearers shall not take charge). Exhibit A39 is the copy of plaint. Exhibit A44, judgment shows that the plaint was rejected for non-payment of balance court fee. Thus the challenge to the election referred in Ext.A44, ended by Ext.A44, judgment.

¶211

For the mere reason that there appears to be some irregularities (assuming so) in the elections to some of the Sakhas it cannot be said that there was no election at all. I must notice that there were more than 860 Sakhas for the KNM in the year, 2003 and the irregularities pointed out is with respect to around 80 Sakhas. P.W.2 was questioned with reference to the irregularities (learned counsel for plaintiff states that though the chart given by the learned counsel for defendants 2 to 7 refers to about election regarding 80 Sakhas, P.W.2 was questioned only with regard to 30 Sakhas). P.W.2 was not able to give satisfactory explanation for all the irregularities pointed out to him. I must notice that P.W.2 was the Chief Election Officer for the whole State during 2003 elections and he may not have been able to give explanation for alleged irregularities pointed out to

¶212

R.S.A. No.1279 of 2010, etc.

¶213

-: 38 :-

¶214

him and concerning all the Sakhas and other bodies in the whole State. No attempt was made by the defendants to summon persons said to have been elected and prepared the relevant documents to show that no such elections were held. It is pertinent to note that none of the defendants even entered the box to say that no election was conducted and face crossexamination on that. Based on the irregularities pointed out it is not possible for defendants 2 to 7 to contend that no election was held in the year, 2003. Nor am I impressed by the argument that because there were irregularities (assuming so) in the election in some Sakhas or there were no election in some of the Sakhas, that would invalidate election to all the bodies in the whole State. Invalidity if any affects only that particular body and those elected from that body to the superior body.

¶215

I must also notice that no publication under Rule 8 of Order I of the Code was made so far as the counter claim is concerned. The counter claim must be treated as a cross suit. Hence when a prayer is made that election be held in accordance with the membership of the year, 1999 as if no election were held in the year, 2003 and thereafter, I am inclined to think that persons said to be elected must be heard.

¶216

R.S.A. No.1279 of 2010, etc.

¶217

-: 39 :-

¶218

The judgment in W.A. No.495 of 2005 was rendered in an entirely different situation. There, election to the Board of Directors of a Society was scheduled to be held on 06.01.2005. Appellants in the Writ Appeal were among those who had submitted nomination papers for the election. The Returning Officer rejected nomination papers of the Writ Petitioners. Rejection of nomination papers of Writ Petitioners was challenged in this Court. Learned Single Judge passed interim order in the Writ Petition that declaration of result of election will be subject to the result of that Writ Petition and that it shall be so made clear in the declaration (declaring appellants in the Writ Appeal as elected). Result of election was declared complying with the said order. Writ Petition was disposed of holding that rejection of nomination papers was arbitrary and unreasonable. The order rejecting nomination papers was quashed and the election was set aside. That was challenged in the appeal by those who were elected unopposed, contending that election could not have been set aside without a prayer and without impleading them in the Writ Petition. That argument was replied on the ground that the Writ Petition was filed immediately on rejection of nomination papers and before declaration of result of election. Appellants in the Writ

¶219

R.S.A. No.1279 of 2010, etc.

¶220

-: 40 :-

¶221

Appeal were not necessary parties to the Writ Petition to quash the orders rejecting nomination papers of Writ Petitioners. The Division Bench held that once the order rejecting nomination papers are quashed, declaration of result has no legal validity and that also is liable to be quashed. The Writ Petition was filed before the declaration of results and the interim order directed that declaration of result shall be subject to the result of the Writ Petition which was made clear in the declaration of result itself. Still appellants in the Writ Appeal did not get themselves impleaded in the Writ Petition and hence they could not say that judgment in the Writ Petition should be set aside on the ground that they were not made parties. Hence the Writ Appeal was dismissed.

¶222

That is not the situation in this case. As referred above, elections are shown to be held to the various bodies in the year, 2003. It is only in the year, 2005 that the counter claim was raised by amendment of the written statement. By the time counter claim was raised, elections were over, elected members were in office and their term was about to expire (in 2006). It was necessary that a publication under Rule 8 of Order I of the Code was made on getting leave of the court and

¶223

R.S.A. No.1279 of 2010, etc.

¶224

-: 41 :-

¶225

persons who would be be affected by the relief sought for in the counter claim were notified of the same.

¶226

Question is not whether, had those persons been heard the court would have accepted their argument or not. The maxim “Qui aliqud statuerit parte inaudita altera, equum licet statuerit, haud equus fuerit” (He who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right) must apply. In

¶227

R. v. University of Cambridge ([1723] 1 STR 557) it is stated:

¶228

“I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence even upon Adam, before he was called upon to make his defence. “Adam', says God, where art thou? Hast thou not eaten of the tree, whereof, I command thee that thou shouldst not eat? And the same question was put to Eve also”.

¶229

Lord Wright, has written in General Medical Council v.

¶230

R.S.A. No.1279 of 2010, etc.

¶231

-: 42 :-

¶232

Spaekman ([1943] AC 627):

¶233

“If the principles of natural justice are violated in respect of any decision it is indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision”.

¶234

There is some evidence let in to show that elections were held in the years, 2006 and 2009. Hence without giving notice to the persons who are stated to be elected in those elections, no relief as prayed for by the second defendant in the counter claim could also be granted, at any rate.

¶235

Yet another contention advanced by the learned counsel for defendants 2 to 7 is that elections are (allegedly held according to defendants 2 to 7 in 2003) held pending the suit, it is hit by the principle of lis pendens. Learned counsel has placed

¶236

reliance on the decisions in Samarendra v. Krishna Kumar (AIR 1967 SC 1440) and Kedarnath v. Sheonarian (AIR 1970 SC 1717) to contend that though

¶237

R.S.A. No.1279 of 2010, etc.

¶238

-: 43 :-

¶239

strictly Section 52 of the Transfer of Property Act may not apply, principles therein applied to situations of this nature as well. My attention is drawn to the decision in Raburao Vishwanath

¶240

Mathpati v. State (AIR 1996 Bombay 227) to contend that the principles of lis pendens applied to election proceeding as well.

¶241

Assuming so, question is what is the consequence of the election held in 2003? Elections are shown held in the year 2003 when there was no order of injunction restraining plaintiff from conducting election. I must also remember that the counter claim seeking fresh election to the various bodies of the KNM with the 1999 membership was made only in the year, 2005 while elections were held in the year, 2003. In 2003 when the elections were held, the suit was only for a declaration that the meeting convened by the second defendant on 17.08.2002 and the decisions taken therein are invalid, not binding on the plaintiff and for injunction against defendants 1 to 3. It is relevant to note that though second defendant had filed C.M.P. No.2667 of 2003 in the Civil Revisions pending in this Court on 02.05.2003 requesting that persons 'elected' may be prevented from assuming charge, Ext.A36 shows that no order was passed

¶242

R.S.A. No.1279 of 2010, etc.

¶243

-: 44 :-

¶244

on the said application. Moreover the trial and first appellate courts held that there was proper election held in the year 2003. If that be so, there is no question of application of the rule of lis pendens and merely for the reason that elections were held in the year 2003 without permission of the court when the suit was pending, I am not inclined to think that the elections must go.

¶245

In the light of finding of the courts below as to the validity of meeting held on 17.08.2002, decisions taken thereon and on admitted facts, defendants have no right to contend that there should be fresh election to the various bodies of the KNM based on the 1999 membership. The reason is that defendants have no case that they have renewed their membership with the plaintiff after 31.12.2002. That forfeited the right of defendants to take part in the elections held after 31.12.2002. Moreover, various records produced in the case show that right from 17.08.2002 onwards, 2^nd defendant and his followers are carrying on with a parallel Organization as if they are the real KNM. They have been conducting elections in their bodies at various periods as evidence reveals. Exhibit A48 is the paper report dated 23.05.2006 regarding election of the State Executive Committee and defendants 1 to 3 being elected as

¶246

R.S.A. No.1279 of 2010, etc.

¶247

-: 45 :-

¶248

office bearers of the Executive Committee of the KNM. Exhibit A50 is the paper report dated 20.04.2003 stating that second defendant and others were elected as office bearers. Ext.A54 is another paper report dated 14.11.2005 regarding election of President of the faction of second defendant consequent to the death of the then President. Thus it is revealed that the faction headed by the second defendant has been conducting elections even after 31.12.2002 while he turns back and demands that plaintiff could not conduct election after 31.12.2002 and it should conduct election with the 1999 membership.

¶249

It is seen from Ext.A156 that the Chief Election Officer issued notification on 28.12.2002 that elections will be held in March, 2003 based on new membership. In Ext.A156, it is stated that the membership is to be renewed as per provisions of the bylaw from the 1^st to 20^th of January, 2003. Defendants have no case that they have renewed the membership with the KNM of which Abdul Khader Moulavi is the General Secretary. If that be so, they are not entitled to take part in the elections held after 31.12.2002. In that circumstance also defendants cannot be allowed to contend that plaintiff has to hold fresh elections with the 1999 membership.

¶250

R.S.A. No.1279 of 2010, etc.

¶251

-: 46 :-

¶252

So far as declaration granted by the courts below as regards validity of meeting and decisions of the Committee convened by the second defendant on 17.08.2002 is concerned, in paragraph 30 of the judgment, first appellate court states that there was no challenge to the declaration granted by the trial court for the reason that if the counter claim succeeds, election held in the year 2003 goes and the term of the previous Committees expired by 31.12.2002. It is not disputed by defendants 2 to 7 that second defendant who then was only a Secretary of the KNM convened the meeting of the State Executive on 17.08.2002. Exhibits B10 to B12 are copies of minutes containing resolutions whereby the Committees at Malappuram West, Wayanad and Kozhikode South are said to have recalled its members from the superior bodies to which those persons were elected. Exhibit A1, bylaw does not provide for recalling any member though it provides for passing a no confidence motion. So far as no confidence motion against a person elected to a superior body is concerned, Ext.A1 says that prior permission of such superior body is required. Not only that recalling not permitted, it is not shown that the relevant decisions in Ext.B10 to B12 are taken with the prior permission of the

¶253

R.S.A. No.1279 of 2010, etc.

¶254

-: 47 :-

¶255

superior bodies in which the “recalled” persons were members. P.W.6, who is said to have signed Ext.B10 as serial No.96 denied that he put his signature in Ext.B10. P.Ws.8 and 7 are said to have signed Exts.B11 and B12, respectively. They denied signing Exts.B11 and B12, respectively. They stated that they were not given notice of any such meeting. Exhibits B10 to B12 are not also properly proved by examining the persons concerned. Hence Exts.B10 to B12 cannot be accepted.

¶256

So far as meeting convened by the second defendant on 17.08.2002 and the decisions taken in that meeting are concerned, a copy of the resolution is not introduced in evidence by either side. But in the Interlocutory Application a copy of said resolution was marked as Ext.B1. Trial court referred to that document. According to P.W1, there was no such meeting of the State Executive convened on 17.08.2002 and the second defendant then being only a Secretary of the State Executive of the KNM was not competent or authorised to convene the meeting. Clause 8(d) of Ext.A1, bylaw deals with the powers of the Secretary. He has to assist the General Secretary in the discharge of the duties of the latter, do the work allotted to him by the General Secretary and discharge

¶257

R.S.A. No.1279 of 2010, etc.

¶258

-: 48 :-

¶259

duties of General Secretary in his absence as authorized in writing. It is not disputed that the power to convene meeting of the State Executive is with the General Secretary. Hence in view of clause 8 of Ext.A1, the second defendant could not have independently exercised that right. He could not have convened the meeting unless, he was authorized in writing by the General Secretary in his absence. There is no case for defendants 2 to 7 that Abdul Khader Moulavi, the General Secretary of the State Executive Committee of the KNM had authorized the second defendant in writing or otherwise, in his absence or not, to convene the meeting of the State Executive. There is no evidence let in by defendants 2 to 7 under what circumstance second defendant convened meeting of the State Executive. There is no case or evidence that as required by the bylaw 25% of members of the State Council had requested convening of meeting of the State Executive. It is in the above circumstance that the trial and first appellate courts held that the meeting held on 17.08.2002 is invalid and the decisions taken therein are not binding on the plaintiff. Having regard to the circumstances stated above I do not find reason to interfere with the said finding. Nor does that finding involve any substantial question of

¶260

R.S.A. No.1279 of 2010, etc.

¶261

-: 49 :-

¶262

law required to be decided by this Court.

¶263

It is argued by the learned counsel that at any rate, no injunction could have been granted against defendants as there was no proper cause of action pleaded and proved. It is pointed out that Ext.A16 is only a request made by the second defendant to Abdul Khader Moulavi, General Secretary to hand over records of the State Executive Committee of the KNM as defendants 1 to 3 were elected office bearers of the KNM on 17.08.2002. It is argued that Ext.A16 cannot be treated as an attempt to trespass into the office of the KNM and that Ext.A16 cannot confer cause of action for the plaintiff to sue for prohibitory injunction.

¶264

Plaintiff examined P.W3, Manager in the office to prove attempt of trespass. Even otherwise the demand made in Ext.A16 is sufficient to give genuine and reasonable apprehension for the plaintiff about the illegal designs of defendants 1 to 3. The trial court found and first appellate court confirmed that the meeting convened by the second defendant and the decision taken in that meeting on 17.08.2002 are invalid. If following the invalid election second defendant in his assumed position as General Secretary demanded the then General Secretary of the

¶265

R.S.A. No.1279 of 2010, etc.

¶266

-: 50 :-

¶267

KNM to hand over records, that is sufficient threat to the plaintiff as to the designs of defendants 1 to 3. Moreover P.W3 has given evidence regarding the attempt of defendants' trespass into the office.

¶268

Next question is whether plaintiff is entitled to get injunction against the defendant 2 to 7 using name of the KNM. Relying on the decision in B.C.W.C.S.(P) Ltd. v. I.C.W. Co-op. Society Ltd, (supra) the trial and first appellate courts refused that relief to the plaintiff. That was a decision rendered on the application of Sec.105 of the Trade and Merchandise Act 1958 regarding passing off. There, the defendant used the name 'Indian Coffee House' for its restaurant. Evidence revealed that the same items of eatables which are available in other restaurants are being served in the restaurant of plaintiff and defendant as well. Learned Judge held that in a passing off action, right to relief must relate to certain goods under a particular name manufactured by another and that mere use of name itself could not enable the plaintiff to obtain relief. The name must be related to a product and as consumables served in the catering establishments of plaintiff are the same supplied in any other hotel, plaintiff has no reason to complain of use of

¶269

R.S.A. No.1279 of 2010, etc.

¶270

-: 51 :-

¶271

the name alone. It was held that it cannot be said that the defendant using the name 'Indian Coffee House' is a garb for the supply of any particular article manufactured by the plaintiff. Hence it was held that plaintiff is not entitled to get injunction prayed for. Learned counsel contended that in this case the mere use of name by the defendants is not sufficient to give injunction against such user as no goods are passed off in that name.

¶272

Learned counsel for plaintiff placed reliance on the

¶273

decisions in Purushottamdas v. Bai Dahi (AIR 1940 Bombay 205) U.Srinivas Mallaih v. Krishna Kumar (AIR 1952 Calcutta 804), (AIR 1940 Bombay 205) and M/s.Helpage India v. M/s.Helpage Garhwal (AIR 2001

¶274

Delhi 499). It is argued that under the general law it is within the power of court to grant injunction against defendants using name of the KNM. It is argued that the KNM has acquired great Goodwill and is running various educational and charitable institutions. It has acquired large extend of properties. It is receiving subscriptions and donations from various sources. It has bank accounts. In such a situation if defendants are allowed to

¶275

R.S.A. No.1279 of 2010, etc.

¶276

-: 52 :-

¶277

use the very same name, there is possibility of the public being mislead to believe that defendants are running the real KNM. The public may, under that misconception give subscriptions to the defendants as if they are running the real KNM. It is also contended that defendants using the name KNM without any right whatsoever is likely to cause injury to the plaintiff in that defendants can interfere with administration of institutions run by the plaintiff and even interfere with its bank accounts.

¶278

Trial court granted injunction against defendants 2 to 7 using the letterhead and the seal of the KNM. In other words, by that decree of injunction which I found there is no reason to interfere and involves no substantial question of law, defendants 2 to 7 are restrained from using the letterhead and seal bearing the name of the KNM. So far as B.C.W.C.S.(P) Ltd. v. I.C.W. Co-op. Society Ltd., (supra) is concerned, the said decision only dealt with Section 105 of the Trade and Merchandise Act dealing with a passing off action. In U.Srinivas Mallaih v. Krishna Kumar (supra) there was an application for injunction against applying for registration to the Registrar of Joint Stock Companies under the Societies Registration Act in the name of Indian National Congress or any name similar to that

¶279

R.S.A. No.1279 of 2010, etc.

¶280

-: 53 :-

¶281

and injunction against inviting or receiving subscriptions, donations or acquiring property in the name of Association so proposed to be registered under the Societies Registration Act. It was contended that in so far as there was no act of passing off, no injunction could be granted. Learned Judge referred to the

¶282

decision in Hendriks v. Montagu ([1881] 17 Ch. D. 638) where it was held that as the similarity of name was sufficient to lead to the conclusion that what the defendants were going to do was calculated to deceive and would deceive the public to the prejudice of plaintiff, the court would enforce the well known equity, namely, prevent the defendants from doing that which would lead the public to think that the defendant Company was the Company of the plaintiff. Injunction was issued in terms asked for in that case. In paragraph 15, referring to the decisions relied in support of the contention that mere use of name cannot be prevented, it was held that the decided cases show that protection afforded by injunction has not been restricted absolutely only to cases of passing off in relation to business name or names associated with the sale of goods and that there are exceptions to the general rule. In paragraph 21 it is held that the Indian National Congress is an institution having several

¶283

R.S.A. No.1279 of 2010, etc.

¶284

-: 54 :-

¶285

members, it has several branches and it has various bodies under it engaged in several activities. Substantial portion of its funds consists of subscriptions received from its members and donations made by others. In paragraph 22 it is stated that Society proposed to be registered by the defendants sets out its various objects and that the activities to be carried out by that Society, if formed will not be dissimilar to the activities of the Indian National Congress. Leaned Judge held in that situation that there is every possibility of confusion being the result and the public being deceived by the name used by the defendant and in that situation injunction was granted against using of the

¶286

name. In Purushottamdas v. Bai Dahi (supra) the issue related to the use of name of a Temple. There was already a Temple of 'Balia Kaka' in existence. Defendants wanted another Temple in the same name to be put up. Plaintiffs who were the Poojaries of Balia Kaka Temple in existence sought injunction against defendants using the same name for their temple. The court directed the defendants that if and when they erect a Temple of Balia Kaka, they shall take necessary precaution of preventing deception to the intending pilgrims by putting in a conspicuous place outside the wall of the new building a stone

¶287

R.S.A. No.1279 of 2010, etc.

¶288

-: 55 :-

¶289

slab showing the year in which it is built and that it is a “new Temple of Balia Kaka”.

¶290

It is not as if beyond the scope of the Trade and Merchandise Act the court could not grant injunction in appropriate cases. In Doherty v. Allaman ([1878) 3 AC 609) it is held that the grant of injunction is dependent upon the discretion of court and in exercising that discretion the court will consider along with other things whether the doing of the thing sought to be restrained must produce an injury to the party seeking the injunction, whether that injury can be remedied or atoned for and if capable of being atoned for damages. Relying

¶291

on Ashok Kumar Srivastav v. National Insurance

¶292

Co. Ltd. ([1998] 4 SCC 361) this Court held in Nandakumar

¶293

v. Federal Bank Ltd. (2009 [4] KHC 361) that Sec.38 of the Specific Relief Act, 1963 is not exhaustive as to the power of court to grant injunction and that even in cases where Sec.38 as such may not apply, if a person has suffered a legal wrong due to the act of the defendant or there is violation of an equitable right, he can ask for injunction.

¶294

I referred to the various documents proved in the case

¶295

R.S.A. No.1279 of 2010, etc.

¶296

-: 56 :-

¶297

to show that the KNM of which Abdul Khader Moulavi is the General Secretary was registered under the Act in the year, 1957 and since then is functioning. It is running various educational and charitable institutions, receiving subscriptions and donations, has acquired vast extend of properties and is operating bank accounts. In such a situations if defendants 2 to 7 are allowed to use name of the KNM without in any way indicating that it is a separate and independent group, possibility of the public who are associated with the KNM of which Abdul Khader Moulavi is the General Secretary being mislead and deceived cannot be ruled out. It may be possible that defendants might collect subscriptions from various sources as if they are representing the KNM. In that circumstance though not under the provisions of the Trade and Merchandise Act, equity and good conscience requires this Court to exercise the power under the general law and grant relief to the plaintiff so that, the public are not mislead and deceived and it does not amount to a legal wrong so far as the plaintiff is concerned. In the above circumstances I am inclined to hold that trial and first appellate courts were not correct in negativing the prayer of the plaintiff for injunction against defendants 2 to 7 using the name of the

¶298

R.S.A. No.1279 of 2010, etc.

¶299

-: 57 :-

¶300

KNM.

¶301

At the same time, there could be no blanket injunction against defendants 2 to 7 using name of the KNM. What is required is to avoid the public being mislead and misconceived by defendants 2 to 7 using the same name as such. Defendants can use that name only by specifically indicating that they represent an independent Organization separate from the KNM of which Abdul Khader Moulavi is the General Secretary (For example, while using the name “Kerala Naduvathul Mujahideen” defendants can say in bracket in a conspicuous manner “Hussain Madavoor Group, etc.)”. This, I say from the evidence which shows that by adopting the resolution in the meeting held on 17.08.2002 defendants 2 to 7 and others have broken away from the KNM of which Abdul Khader Moulavi is the General Secretary. Relief of injunction prayed in the matter of use of the name of the KNM has to be moulded accordingly.

¶302

Substantial questions of law framed are answered as above.

¶303

The Second Appeals and Cross Objections are disposed of as under:

¶304

R.S.A. No.1279 of 2010, etc.

¶305

-: 58 :-

¶306

(a) R.S.A. No.1279 of 2010 is dismissed.

¶307

(b) R.S.A. No.1283 of 2010 is dismissed.

¶308

(c) Cross Objection No.43 of 2011 in R.S.A. No.1279 of 2010 and Cross Objection No.42 of 2011 in R.S.A. No. 1283 of 2010 are allowed in the following terms:

¶309

(i) Defendants 2 to 7 and the men under them are restrained by a decree for prohibitory injunction from using the name, “the Kerala Naduvathul Mujahideen” except by indicating, attached to that name itself in a conspicuous manner that it is an independent Organization, separate from the Kerala Naduvathul Mujahideen registered in the year, 1957 (represented by Shri Abdul Khader Moulavi as its General Secretary) and mentioning its registration number, if any and the year of registration.

¶310

(ii) It will be open to the executing court to decide whether the separate identity provided by defendants 2 to 7 or other persons in control of their Organization as above

¶311

R.S.A. No.1279 of 2010, etc.

¶312

-: 59 :-

¶313

directed, is sufficient for the purpose above stated and if found not sufficient, to issue necessary direction to defendants 2 to 7 or such other persons in control of the said Organization, in the matter.

¶314

(iii) It is directed that the decree for prohibitory injunction granted hereby against the use of the name, the Kerala Naduvathul Mujahideen as above stated will take effect on the expiry of one month from this day.

¶315

(iv) Parties shall bear their respective costs in the Second Appeals and Cross Objections.

¶316

THOMAS P. JOSEPH, JUDGE.

¶317

vsv

Muhammed Thayyib and Others v. a.P.Abdul Khader Maulavi and Others

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Muhammed Thayyib and Others v. a.P.Abdul Khader Maulavi and Others

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