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OP (C)No. 745 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
OP(C) NO. 745 OF 2022
AGAINST THE ORDER/JUDGMENT IN OS 1632/2019 OF I ADDITIONAL
MUNSIFF COURT ,TRIVANDRUM
PETITIONER/S:
KERALA POWER BOARD OFFICERS FEDERATION
C.M STEPHEN MEMORIAL BUILDING, POTTAKUZHI, PATTOM
P.O, THIRUVANANTHAPURAM-695004 REPRESENTED BY ITS
GENERAL SECRETARY BIJU PRAKASH S.P.
BY ADVS.
SABU GEORGE
P.B.KRISHNAN
P.B.SUBRAMANYAN
MANU VYASAN PETER
RESPONDENT/S:
1 K.S.SUNIL
AGED 56 YEARS
S/O KRISHNAN NAIR, EX-GENERAL SECRETARY, KERALA
POWER BOARD OFFICERS FEDERATION, C.MSTEPHEN
MEMORIAL BUILDING, POTTAKUZHI, PATTOM,
THIRUVANANTHAPURAM-695004,
2 KERALA ELECTRICITY OFFICERS CONFEDERATION
REPRESENTED BY ITS PRESIDENT M.V.MANOJ AND GENERAL
SECRETARY P.S PRASANTH HAVING OFFICE AT VAIDHYUTHI
BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.
3. M.V.MANOJ
AGED 55 YEARS
SENIOR SUPERINTENDENT, KSEB ELECTRICAL SECTION,
KURUPPATHURA, KOTTAYAM -686603 (PRESIDENT, KERALA
ELECTRICITY OFFICERS CONFEDERATION)(EMPLOYEE CODE
NO.1038850) .,
4 P.S.PRASANTH
AGED 43 YEARS
S/O PRABHAKARAN NAIR, ASSISTANT ENGINEER, KSEB
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OP (C)No. 745 of 2022
CENTRALISED CALL CENTRE, VAIDHYUTHI BHAVAN,
PATTOM, THIRUVANANTHAPURAM-695 004. (GENERAL
SECRETARY, KERALA ELECTRICITY OFFICERS
CONFEDERATION)(EMPLOYEE CODE NO.1038850).,
BY ADVS.
Joseph Antony
JOHN MANJOORAN(K/526/2019)
RAJU JOSEPH (SR.)(R-191)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION
ON 14.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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OP (C)No. 745 of 2022
C.S DIAS,J.
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OP (C)No. 745 of 2022
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Dated this the 14th day of June, 2022.
JUDGMENT
The original petition is filed to direct the Court of the First Additional Munsiff, Thiruvananthapuram, to issue the certified copy of the judgment dated 18.3.2022 passed in OS No.1632/2019 and also to declare that the order of dismissal of the above suit on 18.3.2022 is illegal and unsustainable in law.
2. The petitioner, who is the first plaintiff in the above suit, had filed the same against the respondents for a decree of permanent prohibitory injunction to restrain them from claiming themselves to be the office bearers of the petitioner Federation. The petitioner had also filed Ext P2 application seeking an order of temporary injunction. The fourth respondent filed Ext P3 counter affidavit to Ext P2 application. Thereafter, the court below has passed Ext P4 order of temporary 4 OP (C)No. 745 of 2022 injunction. In the meantime, the first respondent retired from service on 31.5.2021. Therefore, he became disqualified to hold the post of General Secretary of the petitioner as per the Kerala Servant's Conduct Rules, 1960. Despite repeated demands and resolutions passed by the District Committees, the first respondent evaded to hand over the account books, registers and records and attempted to squander the funds of the petitioner. In the above situation, the petitioner was constrained to file OS No.1410/2021 before the Court of the Munsiff-IV, Thiruvananthapuram, to declare that the first respondent is disqualified from continuing as an office bearer of the petitioner. The first respondent got infuriated with the filing of the above suit and he filed Ext P6 not pressed memo in Ext P1 suit. Immediately on coming to learn of the filing of Ext P6, the petitioner had filed Exts P7 & P8 applications, to reject Ext P6 and to substitute the name of the first respondent with that 5 OP (C)No. 745 of 2022 of Biju Prakash S.P as the General Secretary of the petitioner, respectively. The first respondent had filed Exts P9 and P10 written objection to Exts P7 and P8. Nonetheless, the court below without considering Exts P7 to P10, dismissed the suit as not pressed on the strength of Ext P6. The dismissal of the suit is illegal and unsustainable in law. Hence, the original petition.
3. The respondents 1, 3 and 4 have filed a counter affidavit refuting the allegations in the original petition. It is, inter alia, contended that even though the first respondent had retired from service on 31.5.2021, as per the bye-laws of the petitioner, he can continue to be an office bearer of the petitioner. Moreover, there is a newly constituted general body, which has taken the decision to not press the suit.
4. Heard Sri.P.B Krishnan, the learned counsel appearing for the petitioner and Sri.Raju Joseph, the learned Senior Counsel appearing for the respondents 6 OP (C)No. 745 of 2022 1, 3 and 4. Service is complete on the second respondent.
5. The point that arises for consideration in the original petition is that whether the dismissal of the suit by the court below as not pressed on the strength of Ext P6, without adverting to Exts P7 and P8 applications and Exts P9 and P10 objections, is sustainable in law or not?
6. Ext P6 memo was filed on 3.12.2021, to dismiss the suit as not pressed. The petitioner filed Exts P7 and P8 applications on 9.12.2021, to recall the not pressed memo and to substitute the first respondent with Biju Prakash S.P, as the General Secretary of the petitioner.
7. As discernible from the order sheet maintained by the court below, it can be gathered that the court below adjourned the suit from 6.12.2021 to 17.12.2021. On 17.12.2021, the respondents prayed for time to file their written objections to Exts P7 and P8 and the suit 7 OP (C)No. 745 of 2022 was adjourned to 22.2.2022. On 22.2.2022, the first respondent filed Exts P9 and P10 written objections. The court below adjourned the suit to 18.3.2022. Surprisingly, on 18.3.2022, the court below, without adverting to Exts P7 to P10, acted upon Exts P6 not pressed memo and dismissed the suit.
8. Ext R4(g) judgment shows that the suit was dismissed on the basis of Ext P6 not pressed memo. The course adopted by the court below is vitiated by material irregularity and is unsustainable in law.
9. Whatever may be the merits of Exts P7 and P8 applications, when the petitioner had opposed Ext P6 not pressed memo and the court below granting the respondents an opportunity to file their objections to Exts P7 and P8, which they have done by filing Exts P9 and P10, the court below was cast with a legal obligation to advert to Exts P7 to P10 while passing an order on Ext P6. Not having done the same, that too after adjourning the suit for facilitating both sides to file 8 OP (C)No. 745 of 2022 the applications and objections, Ext R4(g) is erroneous and unsustainable in law. Hence, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, the original petition is to be allowed.
In the result, the original petition is allowed as follows:
(i) Ext R4(g) judgment dated 18.3.2022 is set aside.
(ii) OS No.1632/2019 is restored to file.
(iii) Ext P4 order will stand resurrected.
(iv) The court below is directed to consider Ext P6 not pressed memo, after adverting to Exts P7 to P10 and pass appropriate orders, in accordance with law, as expeditiously as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment.
The original petition is ordered accordingly.
sd/-
sks/14.06.2022 C.S.DIAS, JUDGE
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OP (C)No. 745 of 2022
APPENDIX OF OP(C) 745/2022
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF PLAINT DATED 25.10.2019 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, T R U E THIRUVANANTHAPURAM Exhibit-P2 TRUE COPY OF IA NO 12530/2019 DATED 25.10.2019 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P3 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 15.11.19 IN IA 12530/2019 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P4 TRUE COPY OF THE ORDER DATED 20.2.20 IN IA 12530/2019 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P5 TRUE COPY OF THE PLAINT DATED 8.12.21 IN OS 1410/21 OF THE DDITIONAL MUNSIFF COURT-IV, THIRUVANANTHAPURAM Exhibit-P6 TRUE COPY OF THE MEMO FILED BY THE RESPONDENT NO.1 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibitp7 TRUE COPY OF IA NO 3/2021 DATED 9.12.21 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P8 TRUE COPY OF IA NO 4/2021 DATED 9.12.2021 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P9 TRUE COPY OF THE OBJECTION FILED BY THE RESPNDENT NO.1 IN IA NO 3/21 DATED 22.2.22 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P10 TRUE COPY OF THE OBJECTION FILED BY THE RESPNDENT NO.1 IN IA NO 421 DATED 22.2.22 IN OS 1632/2019 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P11 TRUE COPY OF THE DAILY STAUTS OF OS 1632/2019 DATED 18.3.2022 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit-P12 TRUE COPY OF THE CASE STATUS TO OS 1632/2019 DATED 18.3.2022 OF THE FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM RESPONDENTS EXHIBITS Exhibit-R4(a) True copy of the notice date 04.12.2021 Exhibit-R4(b) true copy of the General Body meeting 10 OP (C)No. 745 of 2022 dated 19.12.2021 Exhibit-R4(c) True copy of the decision taken in the secretary meeting dated 14.08.2021 Exhibit-R4(d) True extract of the membership register containing names of 3rd and 4th respondents.
Exhibit-R4(e) True copy of the request given to advocate Bhasurendran Nair by the 3rd respondent dated 03.12.2021 Exhibit-R4(f) True copy of the minutes of the governing body convened by Biju Prakash on 07.12.2021 Exhibit-R4(g) True copy of the order passed by the 1st additional Munsiff Thiruvananthapuram in OS No 1632 of 2019 dated 18.03.2022 Exhibit-R4(h) True copy of the registered bye-law of the Kerala Power Board Officers' Federation dated 17.12.1997 alongwith typed copy