Revd Dr. Valson Thampu vs Ajay P.Singha & Ors.
2010 Latest Caselaw 685 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


%                     Judgment Reserved on: 1st February, 2010
                     Judgment Delivered on: 8th February, 2010


+                           FAO (OS) No.602/2009

REVD DR. VALSON THAMPU                       ......Appellant
          Through:     Mr.Rajiv Nayar, Sr. Adv. with
                       Mr.P.C.Sen, Advocate


                                Versus


AJAY P. SINGHA & ORS.                       ......Respondents
           Through: Mr.U Hazarika, Mr. Dharitra Phookan,
                    Advocates for R-1.
                    M.Shoeb Alam, Advocate for R-5.
                    Mr.Rajeev Sharma, Ms.Asha
                    Sharma,Mr.Abhishek Birthray, Avocates
                    for Respondent Nos.3,4,6,7,10 &11
                    Mr.Vijay Hansaria,Sr.Adv. with Mr.Sanjay
                    Patra, Advocate for R-18.


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?     Yes

     3. Whether the judgment should be reported in the
        Digest?                                   Yes

PRADEEP NANDRAJOG, J.

1. CS(OS) No.2274/2009 was listed before the learned

Single Judge for admission on 2.12.2009 and along

therewith an application numbered as I.A.No.15562/2009

was listed seeking ad-interim injunction to restrain

Dr.S.Y.Qureshi, defendant No.5, from acting as the

nominee of the Principal on the governing body of Saint

Stephens College Society. Ajay P.Singha, respondent

No.1 in the instant appeal, was the plaintiff.

2. Having prior knowledge of the suit being filed but

without there being any caveat lodged, some of the

defendants appeared at the first hearing to oppose the

injunction prayed for. In particular, the appellant who was

impleaded as respondent No.4 seriously opposed the

grant of an ad-interim injunction. It is apparent that the

application seeking grant of ad-interim injunction was

argued before the learned Single Judge without any

pleadings on behalf of the defendants and on oral

submissions made by the contesting defendants.

3. On the same day itself i.e. on 02.12.2009, after

hearing the contesting parties, the learned Single Judge

granted relief to the plaintiff, in that, Dr.S.Y.Qureshi was

injuncted from participating in the meetings of the

governing body of the college.

4. As noted by the learned Single Judge in the order

dated 02.12.2009, a position conceded by learned counsel

appearing before him and before us in the appeal, as per

the constitution of Saint Stephens College Society, vide

Rule 1, the composition of the governing body of the

Society has been provided for and as per Clause „f‟ of Rule

1, the Principal of the College is empowered to appoint

one person to the governing body of the College Society.

5. Rule 2 stipulates that all elected or appointed

members on the governing body shall serve for a period

of three years and shall be eligible for re-election and that

casual vacancies shall be filled up by the Authority which

elected or appointed the person filling the casual vacancy

shall remain a member for the residue of the term.

6. As per respondent No.1 i.e. the plaintiff, the Principal

of the College, in exercise of the power conferred upon

the Principal by Clause „f‟ of Rule 1, appointed him to the

governing body of the College w.e.f. 01.08.2007 and thus

in terms of the mandate of Rule 2, his term was for a

period of three years and notwithstanding the letter of

appointment stating that he stood appointed by the

Principal of the College to the governing body for a period

of one year, he was entitled to function as a member of

the governing body of the College for three years

notwithstanding the fact that vide another letter dated

01.08.2008, his term was further extended for another

one year. Grievance was to the Principal of the College

appointing Dr.S.Y.Qureshi as a member on the governing

body of the Society, which knowledge, Ajay P.Singha

claims was gained by him in September, 2009 when the

website of the College did not show his name in the list of

members of the governing body of the College and

instead showed the name of Dr.S.Y.Qureshi.

7. To put it in simple terms, as per Ajay P.Singha, the

power of the Principal of the College under Clause „f‟ of

Rule 1 is to appoint one person to the governing body of

the College Society and the tenure of the said member is

fixed by the constitution of the College Society; vide Rule

2 being for a period of three years. Thus, as per Ajay

P.Singha his term would end on 31.07.2010.

8. We note that in the plaint Ajay P.Singha claims that

his term would end on 31.07.2011, but Sh.U.Hazarika,

learned counsel for Ajay P.Singha conceded during

arguments in the appeal that his client could not claim a

tenure beyond 31.07.2010.

9. There being no pleadings before the learned Single

Judge, the stand of the appellant while opposing the

injunction application has to be culled out from the

impugned order, as per which according to the appellant

the Principal had appointed Sh.Naveen Chawla to the

governing body of the College on 18.08.2006 and had

renewed the appointment somewhere in August, 2007

specifically writing in the two letters that his term would

be for one year and that Mr.Naveen Chawla tendered his

resignation on 10.07.2007. As per the appellant the

casual vacancy occasioned by the resignation of

Mr.Naveen Chawla was filled up by appointing Ajay

P.Singha on the governing body of the College. Since the

term of the person appointed on the governing body of

the College by the Principal under Rule 1 „f‟ was three

years and in case of a casual vacancy being filled up the

term of the person filling up the vacancy was for the

remainder for the three year period, Ajay P.Singha could

not claim a right to be on the governing body of the

Society for a period of three years.

10. The aforesaid stand taken by the appellant before

the learned Single Judge is apparent from the second

contention noted by the learned Single Judge and as

advanced by Sh.Rajiv Nayar, learned senior counsel for

the appellant. The learned Single Judge has noted as

under:-

"Mr.Nayar who appears for defendant No.4 has made the following submissions:-

(i) his first submission is that the plaintiff had, in the first instance, filed a writ petition. An order purportedly impacting the interest of defendant No.4 was passed by the learned single Judge which defendant No.4 carried in appeal to the Division Bench. By an order dated 16.11.2009, the

writ petition was dismissed as withdrawn and the interim order passed in favour of the plaintiff/writ petitioner was dissolved. Therefore, it is his submission there is no need to entertain the request of the plaintiff at this juncture of grant of an interim order.

(ii) the plaintiff was appointed against a casual vacancy of Mr.Navin Chawla whose term came to an end in August, 2009, therefore the plaintiff cannot in any event continue beyond August, 2009. I may only note that it is not disputed that Mr.Navin Chawla‟s appointment commenced with effect from 18.08.2006, which was for a period of three years and hence, would come to an end on 17.08.2009. As a matter of fact Mr.Nayar took the stand before me that the term of Mr.Navin Chawla was for a period of three years. However, it is to be noted that the Governing Body‟s minutes dated 05.10.2006 categorically approved, in the first instance the appointment of Mr.Navin Chawla, for a period of one year w.e.f 18.08.2006 (See document at Pages 80 &81)

It is also pertinent to refer to the fact, which is also not disputed, that Mr.Navin Chawla tendered his resignation on 10.07.2007.

In continuation of his submission recorded hereinabove, Mr.Nayar elaborated that the plaintiff was appointed against the casual vacancy of Mr.Navin Chawla, which occurred on account of his resignation on 10.07.2007; therefore, the term of the plaintiff could only run till the unexpired term of Mr.Navin Chawla, which ordinarily would come to an end on 18.08.2009

(iii) Dr.S.Y.Qureshi, who has been appointed in place of plaintiff, has already participated in the general body meeting and hence, the court ought not to intercede in the matter at this juncture."

11. The learned Single Judge has dealt with the

aforenoted submission by reasoning as under:-

"I have heard the learned counsel for the parties. What is come through at this stage is that the appointment letters issued to the plaintiff did not indicate that his appointment was to fill up a "casual vacancy". It is necessary to appreciate that Clause 1(f) of the constitution has two limbs. Under both the limbs the principal is empowered to appoint his nominee. The first limb allows him untrammeled (should read un-trampled) right to appoint his nominee for a period of three years. The second limb of Clause 1(f) of the constitution allows the principal to appoint a person on account of an eventuality occurring, which would fall under the expression „casual vacancy‟. The constitution curiously does not define the expression „casual vacancy‟. Therefore, the submission of Mr.Nayar, which is that the plaintiff was appointed against a casual vacancy of Mr.Navin Chawla, if accepted, then as argued by the plaintiff and the supporting defendants, in particular, Mr.Dogra, the casual vacancy would have run its cours on 17.08.2007 which is when, according to the Governing Body‟s minutes dated 05.10.2006, Mr.Navin Chawla‟s tenure would have come to an end. It may be pertinent here to quote the portion of Governing Body‟s minutes dated 05.10.2006:-

2(a) Under Rule 1(f), Mr.Navin Chawla has been re-

appointed member of the Governing Body for one year with effect from 18 August, 2006.......‟

This was obviously not so which is quite clear from a perusal of letter dated 17.09.2008 whereby the plaintiff‟s term was renewed with effect from 01.08.2008 by principal in exercise of his powers under Clause 1(f) for a period of one year. While it may be true that the plaintiff was appointed on account of vacancy having arisen with the resignation of Mr.Navin Chawla, what the letter seems to indicate is that this is in exercise of the powers of the principal under the first limb of Clause 1(f), and not to fill up a casual vacancy as was vociferously submitted by Mr.Nayar. I am not inclined to accept this submission. If that is the position, at least prima facie, the plaintiff‟s term in accordance with the provisions of the constitution and past practice adverted to both by the counsel

for plaintiff and defendant no.3 should ordinarily run for three years. The plaintiff‟s term in that situation would come to an end in August, 2010. The principal‟s response to the plaintiff‟s letter dated 24.09.2009 does not deal with this grievance."

12. Thus, the learned Single Judge has decided the issue

with reference to the question whether Ajay P.Singha was

appointed against a casual vacancy or not. Holding that

Ajay P.Singha was not appointed against any casual

vacancy, the stand of the appellants being negated, the

injunction prayed for has been granted.

13. Wider issues were sought to be urged without

pleadings in the appeal and since the written statement has

yet to be considered by the learned Single Judge and prima

facie opinion has yet to be formed on the basis of the

pleadings and the application seeking interim injunction has

yet to be decided, we are performing the delicate tasks of

deciding an appeal against an order granting an ad-interim

injunction and not an interim injunction and therefore lay

down the rule of the game i.e. what governs our jurisdiction

while hearing an appeal against an order granting ad-

interim injunction. We are guided by the decision of the

Supreme Court reported as 1990 (2) ALR 399 Wander

Limited & Anr. Vs. Antox India (P) Ltd. in which the Rule of

law pertaining to exercise of Appellate jurisdiction in such

cases was laid down in the following words: 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 by the court of first instance and substitute its

own discretion except where the discretion has been shown

to have been exercised either arbitrarily, or capriciously or

perversely or where the Court has 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. (Emphasis supplied)

14. A perusal of the impugned order does not reveal that

the attention of the learned Single Judge was drawn to the

principles of grant or refusal of interim injunctions; being to

firstly consider whether the plaintiff had a prima facie case,

secondly to consider where did the balance of convenience

lie, and thirdly whether irreparable loss which cannot be

compensated by money would be caused to the plaintiff if

injunction was refused. It appears that the attention of the

learned Single Judge was also not drawn to the principle

that interim injunctions are normally granted to maintain

status quo and not to restore status quo ante i.e. to restore

the parties to the position which existed at the time when

the offending act was committed to disturb the same, which

can only be done by grant of a mandatory injunction. We

find no such discussion in the impugned order.

15. This normally happens in a situation of docket

explosion; as in India. With counsel breathing down the

neck of the Judge who is overburdened with work, unless

the counsel point out, which from hindsight appears to be

the obvious, slip-ups occur.

16. In a dispute relating to a non pecuniary office we see

hardly any scope to apply the last limb of the trinity of the

principles relating to grant of interim injunction. Obviously,

nobody suffers a monetary loss if injunction is granted or

refused. But, the first two principles have to apply.

17. On the issue of the application of the first principle i.e.

the plaintiff showing a prima facie case, as argued before

the learned Single Judge and as reasoned by him, the issue

which was debated was whether the plaintiff was appointed

against the casual vacancy caused when Sh.Navin Chawla

resigned in July, 2007. An ancillary issue pertaining to the

term of office of the members was also debated. Since the

learned Single Judge has not dealt with it, we presume that

no argument was advanced before him that Ajay P.Singha

having accepted appointments from time to time under

letters which clearly told him that his appointment was for a

period of one year, could not urge to the contrary.

18. Thus, as argued before the learned Single Judge

without any pleadings, it cannot be said that the discretion

exercised by the learned Single Judge is arbitrary,

capricious or perverse in so far as the issue of prima facie

case was debated.

19. But, we find an error in not considering the issue of

balance of convenience, which relates to a principle of law

governing grant of interim injunction.

20. Probably for the reason, nobody drew the attention of

the learned Single Judge, the error has crept in, but since it

relates to a principle of law governing jurisdiction of the

Court of first instance while granting or refusing ad-interim

injunction, irrespective of the counsel drawing attention of

the Court, the same has to be dealt with; we do so in

appeal.

21. The suit was filed on 01.12.2009 and as per

documents filed, Dr.S.Y.Qureshi was nominated by the

Principal to the governing body of the College on

27.07.2009 who accepted the same vide his letter dated

28.07.2009 and the same was conveyed to the Vice

Chancellor of the University on 31.07.2009 and that

Dr.S.Y.Qureshi had even attended meetings of the

governing body of the College when the suit was filed. We

note that before the suit was filed, Ajay P.Singha had filed a

writ petition in September, 2009 claiming the same relief

and the learned Single Judge hearing the writ petition had

granted an ex-parte ad-interim restraint order which as

challenged by way of a Letters Patent Appeal and before

the Division Bench, Ajay P.Singha consented to withdraw

the writ petition and filed a suit. We further note that

Dr.S.Y.Qureshi had attended the meetings of the governing

body prior to when the writ petition was filed.

22. Thus, while considering balance of convenience it

requires to be considered whether under the circumstances,

restraining Dr.S.Y.Qureshi to participate in the meetings of

governing body would amount to ousting him i.e. would it

be a case of ordering status quo ante to be restored akin to

granting a mandatory interim injunction. We feel it would.

The reason is obvious. Dr.S.Y.Qureshi who was nominated

in July, 2009 accepted the nomination and even participated

in the meetings of the governing body in which Ajay

P.Singha was absent. Granting an injunction would mean to

oust him and restore status quo ante as of August 2009.

23. We hasten to add that our aforesaid finding is with

reference to what needs to be considered at the stage of

granting an ad-interim injunction and need not be treated

as a conclusive and an authoritative expression on the issue

of balance of convenience to be discussed at the stage of

granting an interim injunction after pleadings are completed

and parties are heard. For, at that stage if mala-fide is

shown or it is shown that the plaintiff was tricked into or

deliberately kept in the dark and that the defendants have

taken an undue advantage, while weighing the balance of

convenience, the learned Single Judge would give due

weight to said material.

24. To conclude, we simply note that the ad-interim

injunction granted by the learned Single Judge was only till

the next date of hearing which is 16.02.2010 and that

before us in appeal Ajay P.Singha had consented that

pending hearing of the appeal he would not insist on the

order of the learned Single Judge being implemented. We

thus direct that till the learned Single Judge decides the

application seeking interim injunction, Dr.S.Y.Qureshi would

be permitted to participate in the meetings of the governing

body of the College Society.

25. We restate the usual mantra. Nothing said, noted or

expressed by us would be treated an expression on the

merits of the controversy. Any observation made by us

would be treated as a mere opinion and not a finding and

would be limited to the present order. The learned Single

Judge would decide the application under Order 39 Rules

1&2 CPC uninfluenced by any observation made by us in

the present order. The appeal stands disposed of in terms of

para 23 above.

26. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE February 08, 2010 mr