Society Suit for (i) for a declaration that the notice issued by the sixth defendant (second respondent in this appeal) convening the General Body Meeting of the first respondent–Society at 5 P.M. and the Executive Committee meeting at 5:30 P.M. on the same day namely 05.05.2018 was illegal; (ii) for a decree of permanent injunction restraining the defendant Nos. 5 & 6 from convening the meetings of the General Body and the Executive Committee of the first respondent–society; (iii) for a declaration that the appointment of the fifth defendant (third respondent in this appeal) as patron for life of the first defendant­Society was unlawful; (iv) for a permanent injunction restraining the sixth defendant (second respondent in the appeal) from acting as the Secretary of the first defendant­Society and (v) for the appointment of a Commissioner to receive the list of members and to conduct free and fair election of office bearers of the first defendant­Society. the trial Court passed an order on 26.04.2018 allowing Interlocutory Application No.386 of 2018 and injuncting the defendants from proceeding with the Meeting of the General Body and the Executive Committee as scheduled on 5.5.2018.= Despite objections to the maintainability of the revision on the ground of availability of an appellate remedy under the Code, the High Court allowed the Civil Revision Petition and set aside the order of injunction granted by the trial Court. It is against the said order that the plaintiffs have come up with the above appeal.= Apex court held that Therefore, we are of the view that the only way to bring to an end all the litigations between the parties before various fora is to set aside the impugned order and the elections held pursuant thereto and to appoint an Advocate Commissioner to convene the General Body as well as the Executive Committee for the election of office bearers. Accordingly, the appeal is allowed, the order of the high court as well as the elections purportedly held pursuant to the order of the High Court are set aside. Smt. S. SORNALATHA, Advocate, No.1, 1st Street, Chidambara Nagar, Thoothukkudi­628 008, is appointed as Commissioner with a mandate to do the following: (i) Within two weeks of receipt of a copy of this order, the Advocate Commissioner shall address letters to the sponsoring bodies/Societies of the first respondent society, for nominating members to the General Body and the Executive Committee of the first respondent­Society, as per the bye­laws. (ii) Within one week of receipt of the letter from the Advocate Commissioner, the sponsoring bodies shall send a list of members nominated by them to the General Body/Executive Committee of the first respondent society (iii) Within four weeks of receipt of the nominations, the Advocate Commissioner shall convene a meeting of the General Body and the meeting of the Executive Committee and hold elections in accordance with the bye –laws. (iv) After holding elections, the Advocate Commissioner shall ensure that form Nos. 6 and 7 are registered with the Registrar of Societies so that the registration of such forms do not become the subject matter of any litigation at the instance of the rival groups. (v) The Advocate Commissioner shall be paid, by the first respondent society, a remuneration of Rs. 1,00,000/­ apart from the reimbursement of the expenses incurred by her. (vi) Till the elections are held and results declared, the Advocate commissioner shall discharge the duties of the Secretary of the first RespondentSociety

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7764 OF 2019
(@ Special Leave Petition (C) No.26055 of 2018)
Virudhunagar Hindu Nadargal Dharma
Paribalana Sabai & Ors. … Appellants
Versus
Tuticorin Educational Society & Ors. … Respondents
J U D G M E N T
V. Ramasubramanian

  1. Leave granted.
  2. Aggrieved by an order of the High Court passed
    under Article 227 of the Constitution, vacating an
    interim order of injunction granted by the trial
    2
    Court, the plaintiffs have come up with this appeal.
  3. We have heard Mr. R. Anand Padmanabhan, learned
    counsel for the appellants and Mr. Vijay Hansaria,
    learned Senior Counsel for the respondent Nos. 1 &
    2.
  4. The appellants herein filed a suit O. S. No.
    145 of 2018 on the file of Principal District
    Munsif, at Thoothukudi praying (i) for a declaration
    that the notice issued by the sixth defendant
    (second respondent in this appeal) convening the
    General Body Meeting of the first respondent–Society
    at 5 P.M. and the Executive Committee meeting at
    5:30 P.M. on the same day namely 05.05.2018 was
    illegal; (ii) for a decree of permanent injunction
    restraining the defendant Nos. 5 & 6 from convening
    the meetings of the General Body and the Executive
    Committee of the first respondent–society; (iii) for
    a declaration that the appointment of the fifth
    defendant (third respondent in this appeal) as
    patron for life of the first defendant­Society was
    3
    unlawful; (iv) for a permanent injunction
    restraining the sixth defendant (second respondent
    in the appeal) from acting as the Secretary of the
    first defendant­Society and (v) for the appointment
    of a Commissioner to receive the list of members and
    to conduct free and fair election of office bearers
    of the first defendant­Society.
  5. Along with the suit, the appellants/plaintiffs
    moved an Interlocutory Application i.e. I. A. No.
    386 of 2018 seeking an interim order of injunction
    restraining the respondents from convening the
    meetings of the general Body and the Executive
    Committee on 5.5.2018. It appears that the
    appellants/plaintiffs also moved one more
    Interlocutory Application i.e. Interlocutory
    Application No.387 of 2018 seeking an injunction
    restraining the defendant nos. 5 & 6 from acting
    respectively as Patron and the Secretary.
  6. It appears that the suit was filed on
    23.04.2018 and the application for interim
    4
    injunction was moved on 24.04.2018. The Contesting
    defendants filed a counter affidavit on the very
    next day namely 25.04.2018 along with 19 documents.
  7. Therefore, after hearing both sides, the trial
    Court passed an order on 26.04.2018 allowing
    Interlocutory Application No.386 of 2018 and
    injuncting the defendants from proceeding with the
    Meeting of the General Body and the Executive
    Committee as scheduled on 5.5.2018. It is relevant
    to note that the trial Court not only took note of
    the pleadings on both sides but also took note of 12
    documents filed by the plaintiffs and 19 documents
    filed along with the counter affidavits of the
    defendants.
  8. As against the order of the trial court
    granting injunction, the fifth defendant in the suit
    (the third respondent in this appeal) who was
    claiming to be the Patron for life, filed a Regular
    Appeal in C.M.A No.1 of 2018 on the file of the SubCourt at Thothukudi under Order XLIII Rule 1(r) of
    5
    the Code of Civil Procedure. But the respondent
    nos.1 & 2 herein who were the defendant Nos.1 & 6
    respectively, instead of filing a Regular Appeal,
    filed a Civil Revision in C.R.P.(MD) (PD) No.1084 of
    2018 on the file of the Madurai Bench of the Madras
    High Court, under Article 227 of the Constitution of
    India.
  9. Despite objections to the maintainability of
    the revision on the ground of availability of an
    appellate remedy under the Code, the High Court
    allowed the Civil Revision Petition and set aside
    the order of injunction granted by the trial Court.
    It is against the said order that the plaintiffs
    have come up with the above appeal.
  10. The objection to the maintainability of the
    revision was sought to be overcome by the High Court
    on the basis of a few decisions which revolved
    around the supervisory jurisdiction of the High
    Court to keep the subordinate courts within the
    bounds of law. Then the High Court found fault with
    6
    the trial Court for taking up the application for
    injunction filed on 24.04.2018, for hearing on
    25.04.2018 and passing an order on 26.4.2018. This,
    in the opinion of the High Court, was a case of
    justice being hurried and consequently getting
    buried. Therefore, the High Court allowed the
    revision and set aside the order of injunction.
  11. Primarily the High Court, in our view, went
    wrong in overlooking the fact that there was already
    an appeal in C.M.A. No. 1 of 2018 filed before the
    Sub­Court at Tuticorin under Order XLI, Rule 1 (r)
    of the Code, at the instance of the fifth defendant
    in the suit (third respondent herein), as against
    the very same order of injunction and, therefore,
    there was no justification for invoking the
    supervisory jurisdiction under Article 227.
  12. Secondly, the High Court ought to have seen that
    when a remedy of appeal under section 104 (1)(i) read
    with Order XLIII, Rule 1 (r) of the Code of Civil
    Procedure, 1908, was directly available, the
    7
    respondents 1 and 2 ought to have taken recourse to the
    same. It is true that the availability of a remedy of
    appeal may not always be a bar for the exercise of
    supervisory jurisdiction of the High Court. In A.
    Venkatasubbiah Naidu Vs. S. Chellappan & Ors.1, this
    Court held that “though no hurdle can be put against
    the exercise of the Constitutional powers of the High
    Court, it is a well recognized principle which gained
    judicial recognition that the High Court should direct
    the party to avail himself of such remedies before he
    resorts to a Constitutional remedy”.
  13. But courts should always bear in mind a
    distinction between (i) cases where such alternative
    remedy is available before Civil Courts in terms of the
    provisions of Code of Civil procedure and (ii) cases
    where such alternative remedy is available under
    special enactments and/or statutory rules and the fora
    provided therein happen to be quasi­judicial
    authorities and tribunals. In respect of cases falling
    1 (2000) 7 SCC 695
    8
    under the first category, which may involve suits and
    other proceedings before civil courts, the availability
    of an appellate remedy in terms of the provisions of
    CPC, may have to be construed as a near total bar.
    Otherwise, there is a danger that someone may challenge
    in a revision under Article 227, even a decree passed
    in a suit, on the same grounds on which the respondents
    1 and 2 invoked the jurisdiction of the High court.
    This is why, a 3 member Bench of this court, while
    overruling the decision in Surya Dev Rai vs. Ram
    Chander Rai2, pointed out in Radhey Shyam Vs. Chhabi
    Nath3 that “orders of civil court stand on different
    footing from the orders of authorities or Tribunals or
    courts other than judicial/civil courts.
  14. Therefore wherever the proceedings are under the
    code of Civil Procedure and the forum is the Civil
    Court, the availability of a remedy under the CPC, will
    deter the High Court, not merely as a measure of self
    imposed restriction, but as a matter of discipline and
    2 (2003) 6 SCC 675
    3 (2015) 5 SCC 423
    9
    prudence, from exercising its power of superintendence
    under the Constitution. Hence, the High Court ought not
    to have entertained the revision under Article 227
    especially in a case where a specific remedy of appeal
    is provided under the Code of Civil Procedure itself.
  15. Another aspect that was overlooked by the High
    Court was that the second respondent herein namely Shri
    A. Rajendran was already restrained by the Sub­Court,
    from functioning as the Secretary of the first
    respondent society. It is seen from the records that
    the civil revision was filed before the High court by
    the first respondent society as well the second
    respondent herein. The second respondent herein was not
    only the second petitioner in the Civil Revision
    Petition filed before the High Court, but he also
    sought to represent the first respondent­Society as its
    Secretary, before the High court in the Civil Revision.
  16. But in a connected Civil Miscellaneous Appeal No.7
    of 2018 filed by the appellants herein (plaintiffs in
    the suit), the Sub­Court, Thoothukudi passed an order
    10
    dated 22.04.2018 restraining the second respondent
    herein for acting as the Secretary of the first
    respondent­Society. This appeal arose out of the
    dismissal by the trial court, of an interlocutory
    application I.A.No. 387 of 2018 filed by the appellants
    herein for restraining the second respondent herein
    from acting as the Secretary and another person from
    acting as the Patron. The trial Court dismissed
    I.A.No.387 of 2018, but the plaintiffs filed an appeal
    in Civil Misc. Appeal No.7 of 2018. The same was
    allowed by an order dated 22.04.2018 by the Sub­court,
    Thoothukudi unseating the second respondent as the
    Secretary. Though the second respondent has claimed in
    his rejoinder, that the order passed in C. M. A. No. 7
    of 2018 was challenged in a revision in CRP (MD) No.
    1295 of 2019 and an order of status quo was obtained,
    from the Madurai Bench of the Madras High Court, the
    same happened after more than a year. Therefore, on the
    date on which the first respondent­Society filed the
    Civil Revision CRP (MD) No. 1084 of 2018 before the
    11
    high court, the second respondent herein was not the
    secretary and could not have acted on behalf of the
    society. This aspect was also overlooked by the High
    Court.
  17. The observation of the High Court that the trial
    Court proceeded in great haste, appears to be
    uncharitable. It is true that the application for
    injunction was moved on 24.4.2018 but the respondent
    nos. 1 & 2 were very vigilant, if not overzealous and,
    hence, they not only filed a counter affidavit to the
    application for injunction on 25.04.2018, but also
    filed 19 documents. They also advanced arguments, only
    after considering which the trial Court passed an order
    on 26.4.2018.
  18. Order XXXIX Rule 3A of the Code of Civil Procedure
    itself mandates the disposal of an application for
    injunction within 30 days, whenever an injunction was
    granted without notice to the opposite party. In this
    case, the trial Court, without granting an ex­parte
    order of injunction, chose to allow the opposite
    12
    parties to file counter affidavit(s) along with
    documents and then heard the opposite parties before
    allowing the application for injunction. Finding the
    line of demarcation between speedy disposal and
    hurried dispatch, with mathematical precision, is not
    possible. In any case, even if the High Court was
    convinced that the trial Court had proceeded hastily,
    the High Court could have only remanded the matter
    back. But the High Court allowed the application for
    injunction without recording any finding on merits. In
    fact the order of the Trial Court deals with the rival
    contentions and is one passed on merits after due
    consideration of the pleadings and documents. The High
    Court unfortunately did not even deal with the matter
    on merits to over turn the decision of the Trial
    Court. Therefore, the order of the High Court is
    liable to be set aside and the order of the Trial
    Court is liable to be restored.
  19. But it is brought to our notice that after the
    High Court allowed the Civil Revision petition by its
    13
    order dated 28.08.2018, the second respondent herein
    proceeded with the meeting of the General Body and the
    Executive Committee on 25.09.2018 and also conducted
    elections. Notice was ordered and the interim order of
    the status quo was passed in the above special leave
    petition only on 8.10.2018. Hence, it was sought to be
    contended that the above appeal has virtually become
    infructuous.
  20. In normal circumstances, we would have agreed. But
    this is a case where every meeting of the General Body
    and every attempt at holding elections to the first
    respondent­Society seem to have created a series of
    litigation before three different fora namely (i) the
    Civil Courts) (ii) the Registrar of Societies (iii)
    the High court (in Writ Petitions arising out of orders
    of the Registrar of Societies). This can be seen from
    the following table:
    S.N
    o
    Events which
    triggered the
    Nature of
    the
    Forum where
    filed
    Status
    14
    litigation litigation
  21. Notice convening
    the General Body
    and Executive
    Committee on
    21.03.2015.
    Suit in O.S.
    No.79 of
    2015
    Sub­Court,
    Tuticorin.
    Despite
    undertaking
    to the
    Court, the
    meetings
    were held
    and office
    bearers
    elected
  22. By proceeding
    dated 27.03.2015,
    second respondent
    was appointed as
    Secretary of the
    College Committee
    of the College
    run by the first
    respondentSociety. This
    was by virtue of
    the elections
    held on
    21.03.2015.
    Writ
    Petition
    (MD) No.3869
    of 2016
    Madurai
    Bench of the
    Madras High
    Court.
    Pending
  23. Form Nos.6 and 7
    in terms of the
    Tamil Nadu
    Society
    Registration Act
    and the Rules
    framed thereunder
    were filed by the
    newly elected
    office bearers
    with the
    Registrar of
    Societies, for
    recording the
    names of the new
    set of officer
    bearers. But the
    Registrar
    rejected these
    forms on
    24.04.2015.
    A writ
    petition in
    WP (MD)
    No.19710 of
    2015 filed,
    challenging
    the
    rejection.
    Madurai
    Bench of the
    Madras High
    Court.
    Pending
  24. Elections held on A suit O.S District Suit
    15
    21.03.2015 No.21 of
    2016 was
    filed by the
    present
    appellant
    No.1 for a
    declaration
    that the
    election
    allegedly
    held on
    21.03.2015
    was null and
    void and for
    a permanent
    injunction
    Munsiff
    Court at
    Tuticorin.
    pending
  25. The newly elected
    office bearers
    sought to amend
    the bye laws.
    The amendment was
    rejected by the
    District
    Registrar.
    A writ
    petition in
    WP (MD)
    No.13144 of
    2016 filed
    challenging
    the order of
    the District
    Registrar.
    Madurai
    Bench of the
    Madras High
    Court.
    Pending
  26. A fresh notice
    dated 10.06.2017
    issued convening
    the meetings of
    the General Body
    and the Executive
    Committee on
    8.07.2017.
    A suit O.S.
    No.195 of
    2017 seeking
    a
    declaration
    that the
    notices were
    null and
    void and for
    a permanent
    injunction
    filed by the
    appellant
    No.1
    District
    Munsiff
    Court,
    Tuticorin
    Suit
    pending
  27. By a paper
    publication dated
    12.04.2018, the
    Second respondent
    convened the
    meetings of the
    General Body and
    A suit O.S.
    No.145 of
    2018 (out of
    which the
    present
    appeal
    arises) was
    District
    Munshif,
    Tuticorin
    pending
    16
    the Executive
    Committee on
    5.05.2018
    filed for
    the reliefs
    stated
    (supra)
  28. Therefore, we are of the view that the only way to
    bring to an end all the litigations between the
    parties before various fora is to set aside the
    impugned order and the elections held pursuant thereto
    and to appoint an Advocate Commissioner to convene the
    General Body as well as the Executive Committee for
    the election of office bearers. Accordingly, the
    appeal is allowed, the order of the high court as well
    as the elections purportedly held pursuant to the
    order of the High Court are set aside. Smt. S.
    SORNALATHA, Advocate, No.1, 1st Street, Chidambara
    Nagar, Thoothukkudi­628 008, is appointed as
    Commissioner with a mandate to do the following:
    (i) Within two weeks of receipt of a copy of this
    order, the Advocate Commissioner shall address letters
    to the sponsoring bodies/Societies of the first
    respondent society, for nominating members to the
    17
    General Body and the Executive Committee of the first
    respondent­Society, as per the bye­laws.
    (ii) Within one week of receipt of the letter from
    the Advocate Commissioner, the sponsoring bodies shall
    send a list of members nominated by them to the
    General Body/Executive Committee of the first
    respondent society
    (iii) Within four weeks of receipt of the
    nominations, the Advocate Commissioner shall convene a
    meeting of the General Body and the meeting of the
    Executive Committee and hold elections in accordance
    with the bye –laws.
    (iv) After holding elections, the Advocate
    Commissioner shall ensure that form Nos. 6 and 7 are
    registered with the Registrar of Societies so that the
    registration of such forms do not become the subject
    matter of any litigation at the instance of the rival
    groups.
    (v) The Advocate Commissioner shall be paid, by the
    first respondent society, a remuneration of Rs.
    18
    1,00,000/­ apart from the reimbursement of the
    expenses incurred by her.
    (vi) Till the elections are held and results
    declared, the Advocate commissioner shall discharge
    the duties of the Secretary of the first RespondentSociety
    …………………………..J/­
    (Rohinton Fali Nariman)
    ………………………….J/­
    (V. Ramasubramanian)
    OCTOBER 03, 2019
    NEW DELHI.