Sh.Harbir Singh vs Shaheed Udham Singh Smarak ...
2010 Latest Caselaw 2146 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                      FAO (OS) No.273/2010

                            Date of Decision :- 23.04.2010

Sh.Harbir Singh                                                    .... Appellant
                              Through Mr.Sanjiv K.Jha, Advocate.

                                            Versus

Shaheed Udham Singh Smarak Shiksha Samiti &     .... Respondents
others
                  Through Mr.B.B.Gupta, Advocate.


                                          And

+                                      FAO (OS) No.274/2010

Sh.Harbir Singh                                                    .... Petitioner
                              Through Mr.Sanjiv K.Jha, Advocate.

                                            Versus

Shaheed Udham Singh Smarak Shiksha Samiti &     .... Respondents
others
                  Through Mr.B.B.Gupta, Advocate.


                                          And

+                                      FAO (OS) No.275/2010

Sh.Harbir Singh                                                    .... Petitioner
                              Through Mr.Sanjiv K.Jha, Advocate.

                                            Versus

Shaheed Udham Singh Smarak Shiksha Samiti &     .... Respondents
others
                  Through Mr.B.B.Gupta, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG


FAO (OS) Nos. 273, 274 & 275 of 2010                                Page 1 of 23
 1.     Whether reporters of Local papers may be                 YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                    NO
3.     Whether the judgment should be reported                   NO
       in the Digest?


ANIL KUMAR, J.

*

1. This order shall dispose of these three appeals filed by the

appellant against the order dated 11th February, 2010 passed in three

application being IA No. 11323 of 2008 under order 39 Rules 1 & 2 of

the Civil Procedure Code; IA No. 11324 of 2008 under section 151 of

Code of Civil Procedure for appointment of an Administrator and IA No.

12251 of 2008 under Order 39 Rules 1 & 2 of the Civil Procedure Code

in a suit for Declaration and Perpetual injunction filed by the appellant.

2. FAO (OS) No.273/2010

This appeal under Order XLIII and Section 151 of the Code of

Civil Procedure is against the order dated 11th February, 2010 passed in

I.A.No.12251 of 2008 in CS (OS) No.1957 of 2008. The prayers made by

the appellant under the said IA are as under:

a. To stay the operation of the notice dated 18.9.2008

b. To stay the holding of the proposed general body meeting dated 19.10.2008 as proposed in the notice dated 18.9.2008

c. To direct that the office bearers elected by the illegally held elections on 26.12.2007 not to interfere with the affairs of the society till the disposal of the present suit.

d. To pass such other and further orders as this Hon‟ble Court may deem fit and proper.

3. FAO (OS) No.274/2010

This appeal under Order XLIII and Section 151 of the Code of

Civil Procedure is against the order dated 11th February, 2010 passed in

I.A.No.11323 of 2008 in CS (OS) No.1957 of 2008. The prayers made by

the appellant under the said IA are as under:

a. Restraining Defendant no.2 being the secretary of the Society and other office bearers of the society to interfere in the functioning of the primary and secondary school;

b. Restraining Defendant no.2 and the other office bearers from operating the bank account and misappropriating or dealing with the society funds in any manner what so ever:

c. Restraining the Defendant no.2 and other office bearers from enrolling any member in the society and interfering in the affairs of the society.

4. FAO (OS) No.275/2010

This appeal under Order XLIII and Section 151 of the Code of

Civil Procedure is against the order dated 11th February, 2010 passed in

I.A.No.11324 of 2008 in CS (OS) No.1957 of 2008. The prayers made by

the appellant under the said IA are as under:

a. To appoint a Retired Judge of this Hon‟ble Court as the Administrator of the society till the disposal of the instant suit;

b. To direct that the office bearers elected by the illegally held elections on 26.12.2007 not to interfere into the affairs of the society;

c. To pass such other and further orders as this Hon‟ble Court may deem fit and proper.

5. Some relevant facts to appreciate the controversies between the

parties in the suit filed by the appellant and the three applications

which were filed by the appellant were dismissed against which order

these three above noted appeals have been filed are as follows. The

appellant is a retired cashier who is not gainfully employed after his

retirement and is a member of respondent No.1 society which is

registered since 1979 and runs a recognized aided senior secondary

school in the name of Shaheed Udham Singh Smarak Secondary School

at Shastri Nagar and also runs a primary public school which acts as a

feeder school for the secondary school.

6. The respondent No.1 is represented through respondent No.2

whose election has been challenged by the appellant. He also challenged

contending that membership of respondent Nos.2 to 8 was cancelled by

board resolution dated 25th May, 2003 and respondent Nos.9 to 30 are

illegally enrolled members as the due process established for enrollment

of members was not followed for them and the respondent Nos.31 to 51

were alleged to be only valid members of respondent No.1 society.

7. There has been protracted litigation in respect of respondent

No.1 society and for its elections. A retired Judge of this Court was

appointed as a Court Commissioner for the election which was held on

24th November, 1991. Respondent No.2 was also the secretary of the

respondent no.1 society in 1991. A suit bearing No.2435/1993 was

filed against respondent No.2 and Thakur Lachman Singh seeking

restrain against them from interfering with the functioning of the

society and from collecting the dues and fees. An electoral roll of 42

members was prepared by Hon‟ble Mr.Justice Jagdish Chandra (Retd)

on 22nd February, 1994 and election for 11 posts under the bye-laws of

respondent No.1 society was held on 30th March, 1994. The Court

Commissioner later on had also showed his inability to continue as a

Court Commissioner and as such Hon‟ble Mr. Justice Charanjeet

Talwar was appointed in his place by order dated 18th May, 1994.

8. Election held on 30th March, 1994 was challenged, however, the

interim application was dismissed and in an appeal filed against the

dismissal of the application, fresh elections for 6 posts were ordered

and accordingly fresh elections were held on 15th October, 1995 and 5

posts were filled. On account of a tie for the 6th post, fresh election for

the sixth post was held on 7th July, 1996.

9. The elections held on 15th October, 1995 and 7th July, 1996 was

also challenged. By order dated 17th October, 1996, it was directed that

the administrator appointed by the Court should continue as an

administrator. The said order appointing an administrator, however,

was vacated by order dated 10th August, 2001 and the members elected

by order dated 7th July, 1996 were directed to assume the office and

therefore those elected members took over the affairs of the society on

9th September, 2001.

10. Allegations of financial mismanagement and embezzlement were

made against Sh.Saheb Singh, Sh.Anil Aggarwal and Sh.Lachman

Singh, Sh.Gordhan Sharma and Sh.Hargyan Singh Rathore. Allegations

were also regarding the irregularities in the provident fund account and

in respect of employees share being deducted and not deposited.

11. In the suit filed by appellant, it was alleged that in the alleged

general body meeting of 15th December, 2002, the primary membership

of respondent Nos.2 to 8 was suspended and a disciplinary committee

of three members was appointed and ordered to enquire into the

irregularities which found that the members had misappropriated the

funds of the society and a report was submitted to the executive

committee. The executive committee recommended expelling respondent

Nos.2 to 8 and allegedly in the general body meeting held on 25th May,

2003 the membership of respondent Nos.2 to 8 was cancelled.

12. Later on Hon‟ble Mr.Justice Satpal (Retd) had also been

appointed and he had also prepared the electoral roll of members,

however, he did not exclude respondent Nos.2 to 8 from the electoral

rolls. The plaintiff in the suit gave details of various other legal

proceedings initiated between the members of the society including suit

No.1479/2007; FAO (OS) No.297/2007.

13. The appellant primarily challenged the election held on 26th

December, 2007 on the basis of electoral roll prepared by the Court

Commissioner Hon‟ble Mr. Justice Satpal (Retd) and filed a suit praying

inter-alia that respondent Nos.2 to 8 be declared to had been validly

and legally expelled from the membership of the society; declare the

general body meeting dated 20th October, 2009 to be bad in law and

enrollment of respondent Nos.9 to 19 be also bad in law; declare that

the executive committee meeting dated 17th June, 2004 was illegal and

not authorized to enroll respondent Nos.19 to 30; declare the electoral

roll as prepared by the Court Commissioner Hon‟ble Mr.Justice Satpal

(Retd) as illegal; declare that the plaintiff and defendant Nos.31 to 51

are the only genuine and valid members of respondent No.1 society and

restrain respondent No.2 and the office bearers from interfering in the

affairs of the society.

14. Along with the suit, the appellant also filed an IA No.11323/2008

under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil

Procedure seeking an interim restrain against respondent No.2 from

interfering in the functioning of the primary and secondary school and

from operating the bank accounts and misappropriating or dealing with

the society funds in any manner and from enrolling any member in the

society and interfering in the affairs of the society. Another application

being IA No.11324/2008 was also filed by the plaintiff/appellant under

Section 151 of the Code of Civil Procedure for appointment of a retired

Judge as the administrator of the society and for a direction to the office

bearers elected by the election held on 26th December, 2007 not to

interfere into the affairs of the society. During the pendency of the suit

the appellant filed yet another application under Order 39 Rules 1 & 2

being IA No.12251/2008 praying inter-alia to stay the operation of

notice dated 18th September, 2008 proposing to hold a general body

meeting on 19th December, 2008 and for directions to the office bearers

elected on 26th December, 2007 not to interfere with the affairs of the

society till the disposal of the present suit.

15. The suit and the applications filed by the appellant were

contested by the contesting respondents pleading inter-alia that the

society is being run in a democratic and transparent manner and no

new members have been enrolled after 1st August, 2003 and there is no

violation of any bye-laws or regulation of respondent No.1 society. The

respondents pleaded that the Court may refrain from interfering in the

internal management of the society as it is governed by its own charter

and should not exercise any appellate jurisdiction over the decision

taken by the management. The respondents reiterated that elections

were conducted on 15th October, 1995 under the administration and

supervision of Hon‟ble Mr. Justice Charanjit Talwar (Retd), who had

been appointed as a Court Commissioner on 18th May, 1994 and in the

election conducted by him 11 members were elected as office bearers

and respondent No.2 was elected as a member of the executive

committee.

16. The respondents emphasized that from 10th August, 2001 upto

17th September, 2002 there were no disputes which can be inferred as

there had been no intervening litigation between the two factions. On

17th September, 2002 a notice for a general body meeting scheduled for

20th October, 2002 was given leading to institution of a suit being CS

(OS) No.1499/2003 which was, however, dismissed for non prosecution,

however, holding that the matter relates to the elections of a society

which elections had already been over.

17. Thereafter another suit being CS (OS) No.1479/2007 was filed

where Hon‟ble Mr.Justice Satpal (Retd) was appointed as a Court

Commissioner to hold the election of respondent No.1 society which had

fallen due in September, 2007. The Court Commissioner was also to

finalize the electoral roll/voter list.

18. Reliance was also placed by the respondents on the voter

list/electoral list prepared by the Court Commissioner, Hon‟ble

Mr.Justice Satpal (Retd) in his report dated 26th November, 2007

holding that there are 51 members of the society. The respondents also

asserted that the list of 42 members were ratified on the basis of report

of Hon‟ble Mr.Justice Jagdish Chandra (Retd) in his report dated 22nd

February, 1994 wherein also membership of Mr.Randhir was not

disputed. After 22nd February, 1994, 12 persons had died and 10

members were enrolled in terms of General Body meeting dated 10th

October, 2004 who had also been approved in the meeting of executive

committee dated 17th June, 2004. Twelve members were enrolled in

terms of general body meeting dated 10th October, 2004, whose

membership was also earlier approved in the minutes of the executive

committee meeting held on 17th June, 2004. Thus the list of 51

members was held to be valid and a report dated 26th November, 2007

was given. Pursuant to the electoral roll prepared by report dated 26th

November, 2007 elections were held on 26th December, 2007 and the

present suit was filed and thereafter on the ground that the election is

based on illegal electoral rolls.

19. The learned Single Judge while disposing off the applications of

the appellant has noted that the prayers made in the suit are the

prayers made in the applications filed by the appellant. The Court also

noted that where grant of temporary injunction would amount to

practically granting the relief claimed in the suit, the court should be

very slow in granting such prayers. It also noted that the Court

Commissioner had the requisite power to decide the question about the

genuineness of a particular member and to prepare the voter list. The

learned single Judge has also noted that the litigation between the

parties is contentious and allegations and counter allegations have

been made since 1991, Court Commissioners have been appointed

since 1991 to prepare the electoral list and to conduct the elections. The

management of the society had been handed over on 10th August, 2001

after a long period of the members duly elected on 15th October, 1995.

For the purposes of election which was to be held on in December,

2007, Hon‟ble Mr. Justice Satpal (Retd.) had been appointed as a Court

Commissioner.

20. In IA No.11323/2008, the appellant had sought a restraint

against respondent No.2 even as Secretary of the respondent no.1 to

interfere in the functioning of primary and secondary school and from

operating the bank account and dealing with the society funds which

prayer was declined by the learned Single Judge which is challenged in

FAO(OS) No.274/2010. The learned Single Judge considered that no

specific instance of embezzlement or fraud or of the dates on which they

were allegedly committed by respondent No.2 has been pointed out by

the appellant/plaintiff. The learned counsel for the appellant is also

unable to show the specific instances or such facts which would prima

facie show that there has been embezzlement or fraud by respondent

No.2. The allegations regarding embezzlement or fraud in the

circumstances appear to be vague and the inference of the learned

Single Judge that no prima facie case had been made out cannot be

faulted. In case no prima facie case is made out for embezzlement or

fraud then why respondent No.2 being the Secretary of the society

should be restrained from functioning of the primary and secondary

school has not been satisfactorily explained by the learned counsel for

the appellant. In absence of any prima facie case against respondent

No.2 for embezzlement or fraud, no directions can be given to

respondent No.2 not to operate the bank account or deal with the

society funds in accordance with the rules and regulations.

21. The leaned Single Judge also took into consideration the fact that

on 10th August, 2001 the management had been handed over to newly

appointed management and the management since 2001 is continuing.

The voter list had also been finalized on 10th October, 2004 in the last

general body meeting of respondent No.1. A voter list was also filed in

the Court by a Court commissioner on 22nd February, 1994. From the

voter list of 63 members, 12 members have died and voter list

comprises of 51 members. What has also been noticed that in two

elections in 2003 and 2005, the plaintiff had participated but he had

lost the election. This Court had enquired from the learned counsel for

the appellant as to what is the profession of the appellant and it has

been revealed that he is a retired cashier and after retirement he has

not been gainfully employed.

22. This cannot be disputed that the object of interim injunction is to

protect the status quo during the adjudication of the rights of the

parties. The learned Single Judge considering the prima facie case,

balance of convenience and irreparable loss caused, in case injunction

is not granted has declined to grant interim injunction against

respondent No.2 Secretary of the Society from interfering in the

functioning of primary and secondary school and from operating the

bank account of the society. The learned counsel for the appellant was

asked the basis for embezzlement and fraud alleged against the

respondent No.2 and the learned counsel has referred to the letter

dated 28th November, 2008 written by the alleged President, Shravan

Kumar Garg to the appellant stipulating that an amount of Rs.10,000/-

was given for the welfare of the school and no account for the same has

been rendered for the last two months before the executive committee.

Similarly, in the said letter it has been alleged that Rs.25,000/- was

paid to Smt.Ved Kumari a relative of the member of the executive

committee, however, no explanation has been given. Surprisingly,

though Shravan Kumar Garg is a party to the suit, however, the

President himself has not initiated any legal proceedings against

respondent No.2 for alleged non explanation of the said two amounts

allegedly incurred by respondent No.2 for the welfare of the school.

From the pleadings it is apparent in the facts and circumstances that

the appellant is carrying on proxy litigation on behalf of respondent

No.36, President of the Society.

23. The principles applicable to grant of an interlocutory injunction

were laid down by the Supreme Court in Gujarat Bottling Co. Ltd. v.

Coca Cola & Ors, (1995) 5 SCC 545 holding that grant of an

interlocutory injunction requires exercise of the discretion by the Court.

Relief by way of interlocutory injunction is granted to mitigate the risk

or injustice to the petitioner during the period before that uncertainty

can be resolved. In para 43 of Gujarat Bottling Co. Ltd. (Supra), the

Supreme Court elaborated the principles for grant of interlocutory

injunction which is as under:-

"43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests--(i) whether the plaintiff has a prima facie case: (ii) whether the balance of convenience is in favour of the plaintiff, and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience" lies. [See: Wander Ltd. v. Antox India (P) Ltd. (SCC at pp.

731-32] In order to protect the defendant while granting an interlocutory injunction in his favour the court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial."

24. The learned Single Judge after taking the facts and

circumstances into consideration has declined the temporary

injunction. The learned counsel for the appellant has not been able to

show such facts which could prima facie show the embezzlement or

fraud by the respondent No.2. The alleged non explanation of

Rs.10,000/- and Rs.25,000/- as to whether the amounts have been

spent for the welfare of the school or not and not putting it up before

the executive committee as has been alleged by the President in his

letter dated 28th November, 2008 to the plaintiff though the President

himself has not taken any action, will not reflect a very sound prima

facie case of embezzlement and fraud against respondent no.2 so as to

entitle the appellant for an interim injunction as prayed by him against

the respondent no.2 and to stop the functioning of the school.

25. The jurisdiction of the appellate Court to interfere with a

discretionary order passed by a Single Judge had also been considered

and laid down by the Supreme Court in Wander ltd. and Another v.

Antox India (P) Ltd; (1990) Suppl.SCC 727 holding that appellate Court

need not reassess the material and seek to reach a conclusion different

from the one reached by the court below. If the one reached by the

Court was reasonably possible on the material before it. It was held

that the appellate court would normally be not be justified in interfering

with the exercise of discretion under appeal solely on the ground that if

it had considered the matter at the trial stage it would have come to a

contrary conclusion. If the discretion is exercised by the Trial Court

reasonably and in a judicial manner the appellate court will desist from

taking a different view and will not normally interfere with the exercise

of discretion by the trial court. In para 14 of Wander ltd. and Another

(Supra), the Supreme Court had held as under:-

"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court‟s exercise of discretion."

26. In the circumstances, this Court does not find any ground to

interfere with the order passed by the Learned Single Judge and does

not find any prima facie case in favor of appellant. Also considering the

balance of convenience and the irreparable loss, this Court is not

inclined to grant any interim injunction that the respondent No.2 being

the secretary of the society and other office bearer of the society should

not interfere in the functioning of the primary and secondary school

and should not operate the bank accounts or deal with the society

funds in accordance with the rules and regulations of the society. The

election of 2007 was held pursuant to the electoral roll prepared by the

Court Commissioner and in the circumstances, interference with the

functioning of the elected members will hamper the smooth functioning

of the school and the orders prayed by the appellant will create more

inconvenience to the functioning of the society and the school and thus

balance of convenience is in favor of the respondent no.1 & 2. The

allegation of the appellant is not that the respondent no.2 has been

acting contrary to the rules and regulations of the society and/or

applicable to the school as no such violation has been alleged or pointed

out. Even otherwise this Court holds that there are no grounds to

interfere with the decision of the learned Single Judge exercising its

discretion declining the interim injunction sought by the appellant. The

appeal against the order passed in IA No.11323/2008 is, therefore,

without any merit and FAO(OS) No.274/2010 is, therefore, dismissed

with a cost of Rs.10,000/- payable to respondent No.1 society.

27. The appellant has also filed the FAO(OS) No.273/2010 against

the order declining the interim relief to the appellant in IA

No.12251/2008, whereby appellant had sought stay of operation of

notice dated 18th September, 2008 and also to stay proposed general

body meeting dated 19th October, 2008 as proposed in the said notice

and to direct the office bearers elected by the elections held on 26th

December, 2007 and not to interfere with the affairs of the society. The

learned Single Judge while declining the prayers of the appellant in the

said application being IA No.12251/2008 relied on the order dated 24th

November, 2008 passed by the single Judge staying item Nos.1 & 5 of

the impugned notice dated 18th September, 2008 notifying convening of

an annual general meeting.

28. By the notice dated 18th September, 2008 the amendments were

proposed in the bye-laws of the society which were approved by the

executive committee in the meeting held on 9th July, 2008, 30th August,

2008, 18th September, 2008 and 10th October, 2008. The proposed

amendments and the existing bye-laws are as under:-

                 Existing                         Proposed Amendments

a)     Society Office B/1866, In Society‟s School Building (Already

Shastri Nagar, Delhi- functioning here for more than 20 years). 110052. Therefore the amendment sought are only to keep the records straight. The said (In personal House

Property of a Member) amendments could not be processed earlier and are now being processed so that the Registrar of Societies can be informed accordingly.

b) Life Membership Fee Enhanced to Rs.5100/-[The amount of Rs.101/- Rs.5100/- has been effective since last about 7 years. However, the formal amendment is necessitated in the bye-

laws so that the office of the Registrar of Societies be informed accordingly].

c) Special Invitees--4 Now proposed only two.

numbers.

d) Word „Sansthapak The same ceased to exist with the consent Mandal‟ of all the members under the Chairmanship of Mr.Justice Jagdish Chandra (Regd.), the learned Court Commissioner appointed by this Hon‟ble Court during 1991-1993. The elections are being conducting accordingly since then.

Since the same is now to be informed to the Registrar of Societies, formal amendments in bye-laws become necessary.

29. The learned Single Judge after considering the existing bye-laws

and the proposed amendments held that amendments sought at item

No.1 is a formal amendment while amendment by item No.5 is the

confirmation of the enrolment of newly inducted members. In the

circumstances, it has been held that any decision taken in the annual

general meeting will be subject to final outcome of the suit though the

voter list which has been finalized on 10th October, 2004 is under

challenge in the suit.

30. The learned counsel for the appellant prima facie has not been

able to show such facts as to why the annual general body meeting

which was proposed by notice dated 18th September, 2008 should be

stayed as item No.1 of the proposed amendment is formal regarding the

office of the society. Similarly, the amendment by item No.5 is also

regarding the confirmation of the enrolment of the newly inducted

members and appears to be formal. In the circumstances, the discretion

exercised by the learned Single Judge not staying holding of general

body meeting cannot be held to be illegal or so perverse that this Court

has to exercise its appellate jurisdiction and would interfere with the

decision of the Learned Single Judge. The learned Single Judge has

passed the order declining injunction considering the settled principles

of law regarding interlocutory injunction and, therefore, this Court does

not find any grounds to interfere with the same. The rights of the

plaintiff/appellant have been protected as any decision taken by the

annual general body meeting has been held to be subject to final

outcome of the suit and, therefore, there is no merit in the appeal of the

appellant. The appeal being FAO(OS) No.273/2010 is, therefore,

dismissed with a cost of Rs.10,000/- payable to respondent No.1 society

which is running the school.

31. By IA No.11324/2008 under Section 151 of the Code of Civil

Procedure the appellant had sought appointment of administrator of the

society which was declined by the order dated 11th February, 2010

which is impugned in the present appeal FAO(OS) No.275/2010.

32. The learned Single Judge while declining the prayer for

appointment of the administrator considered that for granting such a

prayer the appellant was not only liable to show a case of adverse and

conflicting claims but he was also liable to show some emergency or

danger or loss demanding an immediate action. It has also been held

that the appellant‟s own right must reasonably be clear and free from

doubt. The learned Single Judge has held that no such case is made

out in favor of appellant and if an order of appointment of an

administrator is passed, it will affect the rights which has been

recognized by this Court, as the management was handed over

pursuant to the consideration and supervision by this Court. The

learned counsel for the appellant has admitted that the claim of the

appellant for appointment of an administrator on account of alleged

illegal siphoning of funds of the society and other allegations is solely

based on the letter of the president of the society, Shri Shravan Kumar

Garg dated 28th November, 2008. Surprisingly, the President of the

society has not initiated any action on the basis of the allegation made

by him in his said letter and the action is initiated by the appellant who

is a retired cashier and after his retirement who is not gainfully

employed in some other activities. In the circumstances, the inference of

the learned single judge that the right of the appellant is not reasonably

clear and free from doubt, cannot be impugned on the grounds as has

been raised on behalf of the appellant. There is no infirmity in the order

of the learned single judge declining appointment of an administrator

and dismissing the application of the appellant being IA no. 11324 of

2008. Therefore the appeal filed by the appellant being FAO(OS) 275 of

2010 is also without any merit and it is dismissed with a cost of

Rs.10,000/- payable to the respondent no.1 society.

33. Therefore, in the facts and circumstances, there is no infirmity in

the order of the learned single Judge dated 11th February, 2010

dismissing three application of the appellant and all the three appeals

filed by the appellant are dismissed with the costs as indicated

hereinbefore.

ANIL KUMAR, J.

APRIL 23, 2010                                   MOOL CHAND GARG, J.
„VK‟