K Raj Kumar vs St.Marys Educational Society
2023 Latest Caselaw 4584 AP

     HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

            + C.R.P. Nos.4160 and 4163 of 2018

CRP No.4160 of 2018 :

Between:

#1.    St. Mary‟s Educational Society (Regd.No.26/1988)
       Rajahmundry Administrative Office at Sarpavaram,
       Kakinada, rep. by its Secretary and Correspondent

Kanikella Raj Kumar, S/o. Late K. Paul Raju, Aged 59 years and another.

                                          ...     Petitioners
                              And

$ 1.   K. Mary Ratnam, W/o. Late K. Paul Raju,

President (Presently styling herself as Secretary and Correspondent), St. Mary‟s Educational Society, (Regd. No.26/1988), Rajahmundry Administrative Office at Sarpavaram, Kakinda, Dr.No.167, Municipal Colony, Rajahmundry and 6 others.

... Respondents

JUDGMENT PRONOUNCED ON 29.09.2023

THE HON'BLE DR.JUSTICE K. MANMADHA RAO

1. Whether Reporters of Local newspapers may be allowed to see

- Yes -

the Judgments?

2. Whether the copies of judgment may be marked to Law Reporters/Journals - Yes -

3. Whether Their Ladyship/Lordship wish to see the fair copy of the

- Yes -

Judgment?

___________________________________ DR.JUSTICE K. MANMADHA RAO

* THE HON'BLE DR.JUSTICE K. MANMADHA RAO + CIVIL MISCELLANEOUS APPEAL No.153 of 2018

% 29.09.2023

CRP No.4160 of 2018 :

Between:

#1. St. Mary‟s Educational Society (Regd.No.26/1988) Rajahmundry Administrative Office at Sarpavaram, Kakinada, rep. by its Secretary and Correspondent Kanikella Raj Kumar, S/o. Late K. Paul Raju, Aged 59 years and another.

                                          ...     Petitioners
                              And

$ 1.   K. Mary Ratnam, W/o. Late K. Paul Raju,

President (Presently styling herself as Secretary and Correspondent), St. Mary‟s Educational Society, (Regd. No.26/1988), Rajahmundry Administrative Office at Sarpavaram, Kakinda, Dr.No.167, Municipal Colony, Rajahmundry and 6 others.

                                              ...     Respondents

! Counsel for the Petitioners     :      Sri P. Roy Reddy


Counsel for Respondents:         Sri C.V. Mohan Reddy
                                 Sri K. Venkatesh


<Gist :
>Head note :
?Cases referred :

   1. (2001) 2 Supreme Court Cases 652

   2. 2003 (3) ALT 127

   3. (2008) 14 SCC 58





4. (1999) 2 SCC 143

5. (2018) 11 SCC 769

6. AIR 1968 SC 36

7. (2003) 6 SCC 675

8. 2009 (2) ALD 93 (SC) = (2009) 6 SCC 194





           HON'BLE DR. JUSTICE K. MANMADHA RAO

    CIVIL REVISION PETITION Nos.4160 of 2018
                and 4163 of 2018
COMMON ORDER :

Since the Civil Revision Petitions arise out of a common

order dated 29.06.2018 passed in SOP No.308 of 2012 and

SOP No.51 of 2015 on the file of the Principal District Judge,

East Godavari at Rajamahendravaram (for short "the Court

below"), they are being taken up for disposal together, by way

of this common order.

2. SOP No.308 of 2012 was filed by the petitioners in

C.R.P.No.4160 of 2018 seeking a declaration that 2nd petitioner

is continuing as Secretary and Correspondent of 1st petitioner

Society, and to declare the Executive Body Meeting dated

23.5.2012 and the election of the respondents as void, and

also to grant permanent injunction against the respondents,

excluding 6th respondent, not to proclaim that they are

Executive Committee members and not to interfere with the

day to day affairs of the petitioners and in maintaining bank

accounts.

3. SOP No.51 of 2015 was filed by the respondents in

C.R.P.No.4163 of 2018 seeking a declaration that K. Raj

Kumar is not Secretary and Correspondent of the Society and

for directing him to hand over the original property documents

of the society and to render accounts from the year 2004 to

27.5.2012 and grant permanent injunction against the

respondents No.1 and 2 therein and also to direct 5th and 6th

respondents therein not to entertain the Bank operations by

the present Principals of St.Mary College of Pharmaceutical

Sciences at Surampalem, St.Mary College at Cheepuruapali

pending disposal of the said SOP and to permit the newly

appointed Principals to operate the accounts and also to direct

5th and 6th respondents therein to produce the statement of

accounts.

4. For sake of convenience, the parties are

hereinafter referred to, as arrayed before the Court below in

S.O.P.No.308 of 2012.

5. The Court below clubbed both the S.O.Ps. and

recorded common evidence in S.O.P.No.308 of 2012. During

enquiry, on behalf of petitioners, 2nd petitioner in

S.O.P.No.308 of 2012 was examined as P.W.1 and Exs.A.1 to

A.10 were got marked. On behalf of respondents,

respondents 2 and 7 in S.O.P.No.308 of 3012 (who are

petitioners 3 and 4 in S.O.P.No.51 of 2015) were examined as

R.Ws.1 and 2 and one D.Kantha Rao, the then Administrative

Officer of St.Mary Educational Society, Sarpavaram was

examined as R.W.3, and Exs.B1 to B16 were got marked.

6. The facts which led to filing of SOP No.308 of 2012

are as follows:

The 1st petitioner Educational Society was registered on

12.01.1988 and the 2nd petitioner is life member and

continuing as Secretary and Correspondent of the society and

managing through treasurer/3rd respondent and deputies/2nd

and 4th respondents who are liable for rendering the accounts.

As they failed to do so, the 2nd petitioner demanded them for

correct and proper accounts but they postponed on one

pretext or the other and screened some records of the society.

In the circumstances, the respondents No.2 to 4 got issued a

notice through 1st respondent/President for conducting

Governing Committee meeting on 23.5.2012 at 3.00 p.m. by

violating Clause 15 of the bye-laws. As per Clause 5 of the

Bye-laws, the 2nd petitioner, being life member, cannot be

terminated or removed and will continue till death. Against

the proposal of the E.C. meeting, the 2nd petitioner sent a

protest letter dated 18.05.2012-Ex.A4 and got issued a

rejoinder on 25.5.2012, for which, he received further reply

dated 30.05.2012 stating that the E.C was held on 23.05.2012

and some resolutions were passed. Thereafter, the 2nd

petitioner got filed caveat petitions against the respondents

that they have concealed some of account books, ledgers,

bank books from his custody and also not rendering accounts

and he is apprehending misappropriation and destroying the

records. Later, the respondents have also filed another caveat

petition stating that in the E.C meeting dated 23.5.2012

elections were conducted and the 1st respondent/Mary

Ratnam was elected as Secretary and Correspondent and the

7th respondent as President of the Society. Thereafter, the 1st

respondent got issued registered notice dated 28.5.2012,

30.05.2012 to him and 6th respondent and also to the

Banker/Andhra Bank with false allegations. Therefore, the

respondents are preventing him from discharging his

legitimate duties in the society and submitting false and

frivolous petitions to the bankers and making propaganda.

Therefore, the SOP No.308 of 2012 was filed.

The 1st respondent filed counter and the same was

adopted by respondents No.2 to 5 and 7. They denied all the

allegations made in the petition and stated inter alia that

registered number of the 1st petitioner society is 26/88 and

the 2nd petitioner is not the Secretary and Correspondent of

the Society by the date of filing the petition, as such he has no

locus standi and the petition is liable to be rejected. Further,

the 6th respondent, who is wife of 2nd petitioner, colluded with

him and falsely representing that they are governing

committee members of the society and the status of the 2nd

petitioner with the society has to be decided as preliminary

issue. It is further stated that the 2nd petitioner is only the

member of the society. It is admitted that the 2nd petitioner is

life member of the society. Clause 16 of the bye-laws is clear

that the Treasurer has to maintain accounts as per the

direction of the Secretary but the 2nd respondent used to

maintain accounts by ignoring the Treasurer and by

dominating other members, acted a sole proprietor and used

to submit information to Registrar by forging the signatures of

other Governing Committee members. It is further stated that

during his tenure, the 2nd petitioner never conducted any

General Body or Governing Committee meetings and only

when the members came to knowledge that resolutions of the

society with forged signatures were submitted to the Registrar,

realized the fraud and intention of 2nd petitioner and as he

misused the power, thus as he is not competent to continue as

Secretary, steps were taken by convening the meeting of the

General Body as per the procedure contemplated in the Bye-

Laws and the new body was elected and 1st respondent was

discharging her duties as Secretary and the new body was also

recorded by the Registrar. The Governing Body and the

General Body rightly elected the 1st respondent in terms of the

Bye-laws of the society as such 2nd petitioner cannot question

those proceedings. Therefore, prayed to dismiss the petition.

7. The facts which led to filing of SOP No.51 of 2015 are

as follows:

The society is founded by Late K.Paul Raju and after

him, his wife i.e. the 2nd petitioner therein served during 1990

to 2004 as Secretary and Correspondent and President for the

specified spells. The 1st respondent therein i.e. Raj Kuamr,

being the son, after his retirement from Air-Force, at request,

was given employment, taken into management and the

management of the Society was entrusted to him in the year

2004 and he continued in that position till the election of the

2nd petitioner therein by the Extraordinary General Body

meeting on 27.05.2012. During that period, the said Raj

Kumar misappropriated Rs.63.00 lakhs of the society funds by

diverting the amounts to another account and conducted the

society unilaterally by forging signatures of Governing Body

members and even submitted the fraudulent resolutions to the

Registrar and the Banks. Therefore, 2nd petitioner therein

called for Extraordinary General Body Meeting on 27.5.2012

after due intimation to the respondents No.1 and 2 therein

and conducted elections, wherein the petitioners therein were

unanimously elected as Executive Committee Members and

since then they are running the institution. Hence, the said

Raj Kumar has nothing to do with the affairs of the society.

But, suppressing these facts, they filed SOP No.308 of 2012

claiming that he is the Secretary and Correspondent and

misrepresenting before the authorities and causing

inconvenience to the administration of the society. Further,

the 1st respondent withdrew the amounts through Principals

of St. Mary college of Pharmaceutical Sciences, Surampalem

and St. Mary College of Education, Cheepurupalli against

which the petitioners therein filed Writ Petition and also

criminal case against the misappropriation of funds. Further,

the bank accounts of the society were freezed by the Bank

Manager on the complaint of 1st respondent therein which

dislocated the administration of the society and due to non

payment of taxes, the FDR amounts were attached by Income

Tax Authorities. Thus, S.O.P. No.51 of 2015 was filed.

The 1st respondent in S.O.P.No.51 of 2015 filed counter

and the same was adopted by respondents No.2 to 4 therein.

Separate counters were filed by respondents 7 and 11. In the

counter, 1st respondent/Raj Kumar denied the material

allegations made in the petition and stated that the claim of

2nd petitioner is misleading and suppression of factual aspects

and the petition is not maintainable for non-joinder of

necessary parties i.e. other members of the Society and mis-

joinder of the parties/R3 to R16. It is further stated that he

is life member and his removal from the rolls of the society

does not arise, and after his retirement from Air-Force in

1992, he involved in the affairs of the society. The disputes

arose as the petitioners 4 to 6 failed to render the accounts

and to cover up such laches, notice was issued by 2nd

petitioner herein to convene a meeting on 23.5.2012.

Further, the claim of the petitioners is that on 23.5.2012, they

were elected, is hit by Bye-Laws of the society, thus he shall

be deemed to be continuing as Secretary and Correspondent of

the Society. However, the 2nd petitioner got issued notices to

the Bank Managers with false allegations and as such he filed

SOP No.308 of 2012. Howsoever, the allegation of

mismanagement and misappropriation stated by the

petitioners, is not supported by any evidence. It is further

stated that the Secretary and Correspondent cannot be

removed other than by General Body. But, in letter,

telegraphic and registered notice dated 28.5.2012 and

30.05.2012, the meeting dated 23.5.2012 is only mentioned,

however later came up with document stating that General

Body Meeting dated 27.5.2012 was held, which is only a

creation of record. As such, no sanctity can be given to those

documents.

In the counter affidavit filed by 7th respondent, it is

stated that there are fixed deposits in the joint name of

respective colleges and societies and concerned affiliated

universities. As there are rival claims regarding authorized

signatories, the bank informed them to resolve the disputes

amicably and till such time, they would not be allowed to

operate the accounts for which they have also agreed. There

are no operations in the above accounts and none of them

visited their bank for the last three years.

In the counter affidavit filed by 11th respondent, he

neither admitted nor denied the petition averments and stated

that he is no way concerned with the allegations and there is

no room for them to interfere with the disputes among the

society members. As such, it is neither proper nor necessary

party to the petition and hence prayed to dismiss the petition.

8. The Court below, vide the impugned common

order, dated 29.06.2018 in the aforesaid S.O.Ps., disposed of

the said petitions, by dismissing S.O.P.No.308 of 2012 and

partly allowing S.O.P.No.51 of 2015 in the following terms

mentioned therein. Challenging the same, the present Civil

Revision Petitions came to be filed.

9. This Court, vide order, dated 20.07.2018 in CRP

Nos.4160 & 4163 of 2018, granted interim direction, which

reads as under:

"Learned counsel for the respondents seeks time. Post on 27.7.2018.

Meanwhile, status quo as on today to be maintained in all respects."

10. Heard Mr. P. Roy Reddy, learned counsel appearing

for the petitioners and Mr. C.V. Mohan Reddy, learned senior

counsel representing Mr. K. Venkatesh and Sri Sai Kumar,

learned counsels appearing for the respondents.

11. Learned counsel for the petitioners contended that

the order of the Court below is contrary to law and

probabilities of the case and suffers from errors apparent on

the face of the record. He submits that the findings arrived

at, by the Court below are contrary to the Bye-laws of the

Society. He submits that there is violation of bye-law Nos.15

and 10 of the Society in conducting the alleged meeting on

23.05.2012 or on 27.05.2012 and also there is a violation of

Bye-law No.7 in conducting the alleged General Body Meeting.

The Court below did not consider the contentions advanced by

the petitioners and did not examine the evidence on record in

right perspective whether the procedure prescribed under the

Bye-laws was followed for conducting the alleged General Body

Meeting and for the alleged election held in the said meeting.

He further submitted that the findings arrived at, by the Court

below are not tenable, not based on evidence on record and

contrary to the Bye-laws of the Society, and hence, the same

are liable to be set aside.

12. Learned counsel for the petitioners further submits

that the Court below failed to see that there was absolutely no

basis for its coming to the conclusion that the election relating

to the subject society was conducted on 27.5.2012 and that

earlier stand of the respondents was that a meeting was held

on 23.5.2012. He further submits that the Court below having

concluded in para-33 of the order that it was not clear whether

elections were conducted in the year 2017 and whether the

respondents are continuing since 2012, since no material was

placed before the Court, ought not to have given credence to

the version of the respondents that election had been

conducted on 27.5.2012 and the Court below failed to see that

Ex.A3 and Ex.A5 issued by the President specified that the

Extraordinary Executive Body Meeting was scheduled on

23.5.2012 and that it was not intended to convene a General

Body Meeting or an Extraordinary General Body Meeting. He

further submits that the Secretary/ Correspondent could not

have been removed in the manner as was done, and that no

General Body Meeting was held, which clearly established from

the deposition of RW.1 himself, who unequivocally stated in

his cross examination that the new Executive Body was elected

on 23.5.2012 which clearly shows that the purported General

Body Meeting held on 27.5.2012 was an afterthought and

never took place.

13. Learned counsel further submits that in view of the

fact that the Bye-laws of the Society have not at all been

followed in conducting the alleged meetings either on

23.05.2012 or on 27.05.2012, the alleged elections conducted

in the said meetings are void and non est in the eye of law.

Further, in view of non-compliance with the requirement of

service of notices to all the existing members of the society, the

so called meeting said to have been held on 23.5.2012 and the

purported meeting said to have been held on 27.5.2012 would

be illegal and vitiated on this count. He mainly contended

that non-examination of K.Mary Ratnam was fatal to the case

of the respondents and an adverse inference under Section 114

of the Indian Evidence Act ought to have been drawn. He

further submits that there was absolutely no legal basis for the

purported election of a new Secretary/Correspondent, by

dislodging the 2nd petitioner in CRP No.4160 of 2018 from the

said capacity and that the provisions of the Act 2001 have

been violated in this regard. He further submits that

S.O.P.No.51 of 2015, which was filed under Section 23 of the

Act, 2001 is bad for mis-joinder of parties, and the Court below

failed to see that Section 23 of the Act does not contemplate a

lis being instituted against the persons/entities unrelated to

the subject society, as was the case with the said S.O.P. No.51

of 2015, in which, the array of respondents contained several

third parties.

14. In support of his contentions, learned counsel for

the petitioners has placed reliance on a catena of decisions of

the Hon‟ble Supreme Court, reported in (i) Makhan LalBangal

vs. Manas Bhunia and others1, wherein it was held that :

"An election petition is like a civil trial. The stage of framing the issues is an important one inasmuch as oh that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues the disputes on which the 'two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of order XIV of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by o(her should form the subject of distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue- wise would be able to tell precisely how the dispute was decided.

(2001) 2 Supreme Court Cases 652

Learned counsel for the petitioners on relying the above

decision submits that the court below did not frame issues.

(ii) in G. Jaya Rao vs. State of A.P. rep by its

Authorized Officer, Land Reforms2, wherein it was held in

paras 6 and 7, as under:

6. I have perused the written arguments. None of the contentions raised in the written arguments are considered. In fact, the decisions of the Supreme Court, this Court and Patna High Court have been cited in the written arguments. The same does not find place in the judgment of the appellate Tribunal. The lower appellate Court shall keep in mind that written arguments are submitted not for fancy sake. It is a right conferred by the statute to a party to submit the written arguments which are meant for consideration and adjudication. No Court shall ignore the written arguments and refuse to consider the same. If it were to do so, they are liable for action by the superior Courts. This is nothing short of judicial dishonesty. A judge is not supposed to exhibit such dishonesty. A judge is supposed to exhibit extreme patience and give long rope and hear arguments and then pronounce his decision after adjudicating the matter. I find that this is a classic case where the judge refused to consider the written arguments. He has not considered the decisions cited before him. In such cases, the judgment should not be upheld. It deserves to be set aside since no party can be allowed to leave the Court with dissatisfaction for non-consideration of his arguments. If such things were to happen, the litigant public certainly loses confidence in the judicial system. I am of the considered view that the appellate Court's judgment shall not stand for judicial scrutiny before this Court for the learned Judge's failure to consider the written arguments and adjudicate the matter in the light of the written arguments which lead to miscarriage of justice.

7. In the result, the Civil Revision Petition is allowed. The judgment of the Land Reforms Appellate Tribunal in L.R.A No. 13 of 1992 is set aside. The matter is remitted back to the appellate Tribunal for fresh consideration. It shall consider every point raised in the written arguments by traversing through the necessary material namely evidence including oral and documentary and give answer to every point and adjudicate the same as expeditiously as possible. Both the parties are directed to appear before the appellate Tribunal on 1.4.2003. In view of the direction for their appearance, there is no need to issue a fresh notice to both the parties. Costs shall abide by the result of the appeal.

2003 (3) ALT 127

15. Learned counsel for the petitioners has also placed

reliance on additional judgments of Hon‟ble Supreme Court

reported in :

(i) In Ramesh Chandra Sankla and others v. Vikram

Cement and others3, wherein, the Apex Court held at paras

91 & 98, as under:

"91. The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. It can be exercised ex debito justitiae i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must "advance the ends of justice and uproot injustice".

98. From the above cases, it clearly transpires that powers under Articles 226 and 227 are discretionary and equitable and are required to be exercised in the larger interest of justice. While granting relief in favour of the applicant, the court must take into account the balancing of interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As observed by this Court in Shiv Shankar Dal Mills v. State of Haryana [(1980) 2 SCC 437 : (1980) 1 SCR 1170] courts of equity should go much further both to give and refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon considerations of justice, equity and good conscience."

(ii) In Savita Chemicals (P) Ltd v. Dyes & Chemical

Workers' Union & another4, wherein the Apex Court held in

para-19, as under :

"There cannot be any dispute on the said settled legal position. Under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear errors of law. As we have already discussed earlier while considering Points 1 and 3, the findings reached by the Labour Court on the relevant terms were patently erroneous and de hors the factual and legal position on record. The

(2008) 14 SCC 58

(1999) 2 SCC 143

said patently illegal findings could not have been countenanced under Article 227 of the Constitution of India by the High Court and the High Court would have failed to exercise its jurisdiction if it had not set aside such patently illegal findings of the Labour Court. Consequently, on this point the appellant has no case. Point 4 is, therefore, answered in the negative against the appellant and in favour of the respondent.

In view of our conclusions on the aforesaid points, the inevitable result is that this appeal fails and is dismissed."

(iii) In Terapalli Dyvasahata Kumar v. S.M. Kantha

Raju (dead) through LRs & another,5 wherein it was held

that:

"Where the expression „District Court‟ is not defined by the special enactment in which it occurs, it must necessarily take with it all the trappings that go along with a District Court that is established under the general law. Section 23 of the 2001 Act does not provide for any procedure for the conduct of the application in the District Court concerned. This would necessarily mean that the provisions applicable to District Courts generally would apply, and that therefore the provisions of the Code of Civil Procedure, when it comes to determining the jurisdiction of such District Court, would necessarily apply."

16. Learned counsel for the petitioners submits that

there is no dispute with regard to the proposition of law that

provisions of the Code of Civil Procedure, 1908 would apply to

the proceedings under Section 23 of the Act, 2001. He

further submits that the impugned order of the Court below is

based on surmises and conjectures and resulted in totally

ambiguous directions being issued as seen from para 36 (4)

and (5) of the impugned order. He further submits that as per

the decision of Hon‟ble Supreme Court reported in Esthuri

(2018) 11 SCC 769

Aswanthaiah vs Commissioner of Income Tax6, wherein it

was held that "judgment cannot be founded on conjunctures,

surmises or speculation and that surmises have no place in

judicial and quasi-judicial proceedings."

17. In view of the above decisions, learned counsel for

the petitioners submits that, as held by the Hon‟ble Apex

Court, the order suffers from infirmity of non-application of

mind and thus the impugned order passed by the Court below

stands vitiated.

18. On the other hand, Mr. C.V. Mohan Reddy,

learned senior counsel for the respondents argued that the

common order passed by the Court below is correct and

proper. Learned senior counsel submits that when the

pleadings of respondents as to the background of the

Extraordinary Governing Committee and General Body

Meetings are concerned, the first communication i.e. notice

dated 14.05.2012-Ex.A3 for Extraordinary Executive

Committee meeting on 23.5.2012 was issued by 1st respondent

as President of the Society, wherein the Agenda is referring to

(a) the income and expenditure of the Society for five years; (b)

AIR 1968 SC 36

corpus fund of closed MCA College, at Sarpavaram; (c) the

policy adopted in establishing new colleges; (d) admissions,

income and expenditure of 2011-12, 2012-13 in convener and

Management quota; (e) as to the change of the Secretary and

Correspondent and (f) bank accounts opened in the name of

the society and new account opened in the name of the

correspondent. He further submits that, admittedly, the 2nd

petitioner received the notice-Ex.A3 but got issued protest

letter-Ex.A4 contending that 1st respondent/ President has no

authority to convene such meeting, and he did not attend the

same. Further, the Agenda is supporting the respondents‟

contentions against the 2nd petitioner, and without explaining

the allegations raising dispute as to authority to convene the

meeting, is prima facie establishing that in all probabilities the

circumstances claimed by the respondents were existing by the

date of Extraordinary Governing Committee meeting on

23.5.2012. Though the contention of 2nd petitioner is that the

President cannot convene such Extraordinary Governing

Committee meeting, as Clause 15(b) of the Bye-Laws

authorizes only the Secretary and Correspondent to convene

the meetings, hence any such meeting is void and non est, but

under Clause 14, the President shall preside over the

Extraordinary Governing Committee and General Body, and as

such conducting meeting by the 1st respondent cannot be

found fault.

19. Learned senior counsel further submits that 2nd

petitioner has no locus standi to represent St Mary‟s

Educational Society and hence the petition itself liable to be

rejected in limini. He further submits that 6th respondent is no

other than wife of 2nd petitioner and she colluded with 2nd

petitioner and they are wrongly representing their status as

Secretary and Correspondent of the society. Even by the date

of filing of the petition, there are exchange of notices and 2nd

petitioner well aware of the meeting held on 23.5.2012 and

failed to attend intentionally for that meeting with a mala fide

intention styling and calling himself as the alleged Secretary

and Correspondent of the society.

20. He further submits that the 2nd petitioner, having

committed the illegal such acts, attributed the baseless

allegations against the respondents and further, the allegation

that there was no meeting held on 23.5.2012 and no elections

were conducted as the respondents know that the same is not

valid under law is not true and correct. He further submits

that the bank account numbers given in the schedule by the

petitioners with an intention to cover up the laches for the

reason that the 2nd petitioner in collusion with bank people

fraudulently opened second account by submitting the

fabricated resolutions with the forged signatures of the other

members of the governing body, and further this Court has no

jurisdiction to entertain the petitions.

21. To support his contentions, learned senior counsel

has placed reliance on a catena of decisions of Hon‟ble

Supreme Court reported in (a) In Surya Dev Rai v. Ram

Chander Rai & others,7 where it was held at paras 24 and

38, as under:

"Difference between a writ of certiorari under Article 226 and supervisory jurisdiction under Article 227

24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai [1986 Supp SCC 401] . Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.

38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:

(2003) 6 SCC 675

(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction -- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction -- by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two

jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."

(ii) In Sneh Gupta v. Devi Sarup & others8, wherein it

was held at para-33, as under:

"The High Court moreover was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High Court while exercising its supervisory jurisdiction to enter into the disputed question of fact. It has not been found by the High Court that the findings arrived at by the learned Additional District Judge were perverse and/or in arriving at the said findings, the learned Additional District Judge failed and/or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any other well-known principle of judicial review was found to be applicable. (See Yeshwant Sakhalkar v. Hirabat Kamat Mhamai [(2004) 6 SCC 71] .)"

22. On perusing the entire material available on

record and on hearing the submissions of both the learned

counsels, this Court observed that, admittedly, the 1st

petitioner is an Educational Society registered under the

provisions of Societies Act XXI of 1860, bearing Society No.26

of 1988. Ex.A1 is the Certificate of Registration. Exs.A2 and

A3 are Memorandum of Association of the Society. The 1st

petitioner Society was founded by late K.Paul Raju, who is

husband of 1st respondent/K.Mary Ratnam. After his death,

1st respondent/K.Mary Ratnam served as the Secretary and

2009 (2) ALD 93 (SC) = (2009) 6 SCC 194

Correspondent and also as the President of the 1st petitioner

society, during 1990 to 2004. The 2nd petitioner/K.Raj Kumar

is the son of 1st respondent/K.Mary Ratnam. The 6th

respondent is wife of 2nd petitioner/K.Raj Kumar. The 2nd

petitioner/K.Raj Kumar, after his retirement from Indian Air

Force, being the eldest male issue of the family, became life

member of 1st petitioner society, and became Secretary and

Correspondent in the year 2004 and for the second time in the

year 2009.

23. It is the contention of the 2nd petitioner/K.Raj

Kumar that inspite of his requests and demands, the 3rd

respondent/ Treasurer and the respondents No.2 and 4 for

furnishing proper accounts, they did not furnish the same and

influenced the 1st respondent/K.Mary Ratnam (President) to

issue a notice for Extraordinary Governing Committee meeting

on 23.05.2012. It is the contention of the respondents that, as

the 2nd petitioner/K.Raj Kumar was not conducting the Society

in terms of the Bye-laws and acting adverse to the interest of

Society, the 1st respondent/ K.Mary Ratnam conducted the

Extraordinary Governing Committee and General Body

meetings, wherein the respondents were duly elected as

Governing Members of the Society. The 2nd petitioner/K.Raj

Kumar challenges the validity of conducting the said meetings

as per Bye-laws and also the validity of the decisions taken

therein.

      24.     The      Court    below        framed    the   point     for

determination       viz.   „whether    the   claimed   election   of   the

respondents by the Governing Committee dated 23.05.2012 and

by the General Body dated 27.05.2012, is valid, if not, whether

2nd petitioner/Raj Kumar can be declared as continuing

Secretary and Correspondent of the Society ?‟, and recorded its

findings. Now, it has to be seen whether the findings arrived

at, by the Court below are based on the evidence on record and

commensurate with the Bye-laws of the Society, or whether the

said findings are contrary to the Bye-laws of the Society and

not based on evidence on record.

25. The 1st petitioner society is governed by the Bye-

laws of the Society dated 12.01.1988. According to the Bye-

law No.3, there are two types of members‟ viz., life members

and ordinary members. Membership of life member ceases on

his demise. Admittedly, the 2nd petitioner/K.Raj Kumar is a

life member. As per Bye-law No.8, the Managing Committee

consists of President, Secretary, Treasurer and four members,

elected at the Annual General Body meeting. As per Bye-law

No.7, the term of Office of the Managing Committee shall be

five years. According to the said Bye-law No.7, the Managing

Committee has to be elected at the General Body Meeting

specially convened for the said purpose every five years.

26. It is pertinent to mention here that, as per Bye-law

No.15 (a), Secretary shall be the Correspondent also and he

shall be in-charge of day to day administration of the Society.

As per Bye-law No.15 (b), the Secretary is authorized to

convene all the meetings of the Association including the

Management Committee Meeting.

27. As per Bye-law No.14, the President, who is elected

at the specially convened election General Body Meeting, shall

be in office for five years and he shall preside over the General

Body Meeting, Extraordinary General Body Meetings and

Managing Committee Meetings. As per Bye-law No.10,

Extraordinary General Body Meeting can be convened at the

request ¼ th of the members of the General Body.

28. As per Bye-law No.19, the quorum for General Body

is 2/3rd of its members and for Managing Committee is 2/3rd of

its members, including office bearers. As per the Bye-Laws,

the Governing Body consists of 7 members and the General

Body consists of 23 members. The Governing Body shall be

elected by the General Body.

29. It is further observed that the 2nd petitioner/K.Raj

Kumar received notice under Ex.A3, dated 14.5.2012 and got

issued Ex.A4-protest letter, dated 18.5.2012 stating that the

1st respondent/K.Mary Ratnam has no authority to convene

the meeting. The contention of 2nd petitioner/K.Raj Kumar is

that President cannot convene such Extraordinary Governing

Committee Meeting and contended that as per Bye-law 15 (b)

of the Society, Secretary is authorized to convene all the

meetings of the Association, including the Managing

Committee Meeting, and hence, the very conduct of the

meeting on 23.05.2012 by 1st respondent/K.Mary Ratnam is

void and non est and the decisions taken in the said meeting

do not have any value. Whereas, it is the contention of the 1st

respondent that President shall preside over the Extraordinary

General Body meeting, as per Bye-law No.14.

30. It is also to be noted that, as per Bye-Law No.15,

"The Secretary is authorized to convene all the meetings of the

associations including the Management Committee Meeting. He

shall be responsible for the management of the associations and

its institutions."

31. A reading of the aforesaid Bye-law makes it clear

that the Secretary is authorized to convene all the meetings of

the associations including the managing committee meetings.

Therefore, the observation made by the Court below that the

Bye-laws are not clear as to convening Extraordinary

Governing Committee Meeting, and as there is no specific

provision, the general procedure for Governing Committee

shall be adopted- is not in consonance with the Bye-laws of the

Society. When there is specific provision in the Bye-laws as to

authorization of convening a meeting, it cannot be by-passed

and hence the finding of the Court below that authorizing the

Secretary cannot be extended to interpret as absolute bar and

the remaining Governing Committee shall await till the

Secretary initiates such meeting would be absurd, is not

tenable. If at all there are any allegations of irregularities

against 2nd petitioner/K.Raj Kumar as Secretary and if he is

not convening the meetings, the respondents have not issued a

notice to that effect demanding him to convene a meeting for

election of new Governing body. Without taking such steps,

straight away 1st respondent/K.Mary Ratnam cannot proceed

to call for an Extraordinary Governing Body Meeting or

Extraordinary General Body Meeting, in breach of the Bye-laws

of the Society. Therefore, the finding recorded by the Court

below on this aspect as to authority of 1st respondent in calling

for Extraordinary Governing Committee Meeting or

Extraordinary General Body Meeting, is not in consonance

with the Bye-laws of the Society, which are binding on all

parties, and the said finding is not at all tenable, and hence

the same is liable to be set aside.

32. The next point with regard to due election of new

Governing Body in the meetings held on 23.05.2012 and

27.05.2012, it is the case of the 2nd petitioner/K.Raj Kumar

that Ex.A8-caveat petition and Ex.A9 & Ex.A10-Registered

notices, dated 28.5.2012 and 30.5.2012 got issued by the

respondents, resolutions of the Governing Committee Meeting

held on 23.05.2012 were only mentioned, and as such, falsity

of the election in the alleged meeting on 27.5.2012 is apparent,

and it clearly established that the respondents filed created

documents. The 2nd petitioner in his cross-examination as

P.W.1 admitted that he received notice on 23.5.2012 about the

General Body Meeting, but his case is that he sent a letter

stating that general body meeting cannot be convened in the

capacity of President.

33. Whereas, it is the case of the respondents that the

Governing Committee was elected in the Extraordinary General

Body meeting held on 27.5.2012, the burden is on the

respondents to establish that the same was done as per the

Bye-laws of the Society. On behalf of respondents, Minutes

book was also marked as Ex.B11. It is their case that on

23.05.2012, new Governing Body was elected by the then

Governing Body members. However, the same Governing Body

was also elected on 27.5.2012 in Extra General Body Meeting.

As per the Bye-laws, Governing Body has to be elected by the

General Body. Therefore, electing the Governing Body in the

Extraordinary Governing Body Meeting held on 23.05.2012 is

absurd and not in consonance with the Bye-laws. Admittedly,

the 2nd petitioner/K.Raj Kumar did not attend both the

meetings, by submitting a protest letter under Ex.A4 with

regard to the authority of the 1st respondent/K.Mary Ratnam

to convene the meetings. The Extraordinary General Body

meeting was summoned by 1st respondent/K.Mary Ratnam on

21.05.2012. As already discussed supra, there is no authority

for her to convene the said meeting and it is the 2nd petitioner/

Secretary who is authorized to convene the meeting.

34. This Court further observed that, as per Bye-law

No.7 of the Society, the Governing Body shall be elected at the

General Body Meeting specially convened for the said purpose.

In Ex.B11-minutes book, four items were placed for

discussion, where the fourth point is referring to the election of

the Governing Committee members. Even according to the

respondents, the Agenda refers to (a) to (f) points as mentioned

above. Therefore, the General Body meeting was not specially

conducted for the said purpose of electing the Governing Body

Members, but the same was conducted by including the said

subject along with other subjects and decisions were also

taken on the other subjects. Conducting the meeting on

23.05.2012 or on 27.05.2012, with the aforesaid agenda, is

contrary to Bye-law No.7 of the Society, which stipulates

convening a special meeting for the said purpose of election of

Managing Committee. Conducting the meetings for election of

Governing Body, by incorporating other subjects, is not in

consonance with the spirit of Bye-laws of the Society.

35. As seen from the impugned order, in para-28.1,

the Court below observed that, it is not the case that the

members shown in the minutes of Extraordinary General Body

are not members or they have not attended the meeting or the

attended number does not qualify quorum, as such not

competent or sufficient to unanimously elect the Governing

Committee. The said observation is contrary to the evidence

on record. Moreover, the 2nd petitioner/Secretary, in his chief

examination as P.W.1, categorically deposed as under:

"On 23.5.2012 to discuss some of the issues including the change of Secretary and Correspondent which apparently shows that it was not intended to convene the General body meeting [or] Extra ordinary General Body meeting and even the said notice does not fall under Rule 10 of Bye-law since there is no such reference therein, on the other hand such notice is precluded in view of the Rules stated supra."

36. When P.W.1 categorically denied existence of

quorum to conduct the meeting, as contemplated under Bye-

law No.10, the burden is on respondents to establish that

there was quorum as contained in Bye-law Nos. 10 and 19 of

the Bye-laws, existed at the time of conducting the meetings

on 23.05.2012 and 27.05.2012. There is no evidence on

record to show that the Extraordinary General Body Meeting

on 27.5.2012 was conducted at the request of ¼th of the

members of the General Body, as contemplated under Bye-law

No.10 of the Bye-laws of the Society. Therefore, the said

observation and the finding of the Court below in para-28.1

that the respondents proved that in the Extraordinary General

Body meeting, they were elected as Governing Committee of

the Society from 27.5.2012, is perverse and not based on

record, and the same is liable to be set aside.

37. It is to be noted that the aforesaid S.O.Ps. were

filed before the Court below under Section 23 of the Act, 2001.

Section 23 of the Act, 2001 deals with „Dispute regarding

management‟ and reads that in the event of any dispute

arising among the Committee or the members of the society, in

respect of any matter relating to the affairs of the society, any

member of the society may proceed with the dispute under the

provisions of the Arbitration and Conciliation Act, 1996 or may

file an application in the District Court concerned and the said

Court shall, after necessary inquiry, pass such order as it may

deem fit.

38. An application under Section 23 of the Act, 2001

is maintainable only with regard to the disputes with regard to

management of the Society among the committee or members

of the Society, and no relief can be granted in the said petition

to the persons who are unconnected with the management of

the Society. Therefore, S.O.P.No.51 of 2015 is bad for joinder

of respondents 5 to 13 therein who are third parties. On this

count also, the said S.O.P. is not maintainable.

39. Admittedly, even as per the respondents, 2nd

petitioner/K.Raj Kumar was elected as Secretary and

Correspondent of 1st petitioner society for the second time in

the year 2009. As per Bye-law No.7, the tenure of the office is

five years. In view of the findings recorded supra holding that

1st respondent/K.Mary Ratnam is not authorized to convene

the Extraordinary Governing Body Meeting on 23.05.2012 and

the Extraordinary General Body Meeting on 27.05.2012 and

that the respondents failed to prove that they were elected as

Governing Body members in the meeting held on 27.05.2012,

2nd petitioner/K.Raj Kumar is entitled for a declaration that he

is continuing as Secretary and Correspondent of 1st petitioner

Society and for permanent injunction restraining the

respondents from proclaiming that they are the Executive

Committee members and from interfering with the day to day

affairs of the 1st petitioner society and in maintaining bank

accounts.

40. In view of the foregoing discussion, this Court

observed that, the findings arrived at by the Court below were

perverse and/or in arriving at the said findings the Court

below failed to take into consideration the relevant factors and

based its decision on irrelevant factors not germane therefor.

It could intervene, if there existed an error apparent on the

face of the record, or if any other well known principle of

judicial review was found to be applicable. A patent error is an

error which is self evident i.e., which can be perceived or

demonstrated without involving into any lengthy or

complicated argument or a long drawn process of reasoning.

Therefore, the Court below has not properly appreciated the

evidence and documents on record. Hence, this Court deems

fit, in the interest of justice, to interfere with the order of the

Court below by following the settled law decided by the Hon‟ble

Supreme Court in the cases of Suryadev‟s case and Sneha

Gupta‟s case (supra 7 and 8).

41. Accordingly, these Civil Revision Petitions are

allowed. The impugned common order dated 29.06.2018

passed in SOP No.308 of 2012 and SOP No.51 of 2015 by the

Court below is hereby set aside. Consequently, S.O.P.No.308

of 2012 is allowed declaring that the 2nd petitioner/K.Raj

Kumar is continuing as Secretary and Correspondent of 1st

petitioner Society and granting permanent injunction

restraining the respondents therein (except respondent No.6)

from proclaiming that they are the Executive Committee

members and also from interfering with the day to day affairs

of 1st petitioner society and in maintaining bank accounts.

And consequently, S.O.P.No.51 of 2015 stands dismissed.

42. It is made clear that the interim order dated

20.07.2018 granted by this Court in the aforesaid C.R.Ps.

stands vacated.

43. As a sequel, all the pending miscellaneous

applications shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 29 -09-2023 Note :. L.R. Copy to be marked.

(B/o) Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

CIVIL REVISION PETITION Nos.4160 of 2018 and 4163 of 2018

Date : 29 .09.2023

Gvl