Rajesh Sharma vs Sushil Ahuja
2010 Latest Caselaw 2395 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) No.260-61/2010

Rajesh Sharma                        .....Appellant through
                                     Mr. A.K. Nigam, Sr. Adv.
                                     with Mr. T.V. Ganju &
                                     Mr. P. Sahu, Advs.

                     versus

Sushil Ahuja                         .....Respondent through
                                     Mr. V.K. Rao, Sr. Adv. with
                                     Mr. Saket Sikri & Mr. Sumer
                                     Khanna, Advs. for
                                     Respondent Nos. 1-6.
                                     Mr. Rajat Navet, Adv. for
                                     Respondent Nos.7-8.

                              WITH

FAO(OS) No.262-63/2010

SBI Officers‟ Association            .....Appellant through
(Delhi Circle)                       Mr. A.K. Nigam, Sr. Adv.
                                     with Mr. T.V. Ganju & Mr. P.
                                     Sahu, Advs.

                     versus

Sushil Ahuja                         .....Respondent through
                                     Mr. V.K. Rao, Sr. Adv. with
                                     Mr. Saket Sikri & Mr. Sumer
                                     Khanna, Advs. for
                                     Respondent Nos. 1-6.
                                     Mr. Rajat Navet, Adv. for
                                     Respondent Nos.7-8.

                              WITH

FAO(OS) No.264-65/2010

S.K. Mendiratta                      .....Appellant through
                                     Mr. A.K. Nigam, Sr. Adv.
                                     with Mr. T.V. Ganju & Mr. P.
                                     Sahu, Advs.


FAO(OS)260-61/2010                                      Page 1 of 17
                      versus

Sushil Ahuja                         .....Respondent through
                                     Mr. V.K. Rao, Sr. Adv. with
                                     Mr. Saket Sikri & Mr. Sumer
                                     Khanna, Advs. for
                                     Respondent Nos. 1-6.
                                     Mr. Rajat Navet, Adv. for
                                     Respondent Nos.7-8.

%                         Date of Hearing: April 27, 2010

                          Date of Decision: May 05, 2010

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MR. JUSTICE A.K. PATHAK
      1. Whether reporters of local papers may be
         allowed to see the Judgment?                 Yes
      2. To be referred to the Reporter or not?       Yes
      3. Whether the Judgment should be reported
         in the Digest?                               Yes

VIKRAMAJIT SEN, J.

Caveat No.63/2010 in FAO(OS) No.262-63/2010

1. Caveat numbered as 63/2010 has been received from the

Registry and the same is taken on record. As the Caveator is

represented, Caveat stands discharged.

CM No.7215/2010 in FAO(OS) No.260-61/2010

2. As the Appeal itself has been heard in detail, the prayer

for stay of the impugned Order is no longer relevant.

Application is dismissed.

CM 7242/2010(Stay) in FAO(OS) No.262-63/2010

3. As the Appeal itself has been heard in detail, the prayer

for stay of the impugned Order is no longer relevant.

Application is dismissed.

CM 7244/2010(Stay) in FAO(OS) No.264-65/2010

4. As the Appeal itself has been heard in detail, the prayer

for stay of the impugned Order is no longer relevant.

Application is dismissed.

CM 7246/2010 in FAO(OS) 264-65/2010(permission to file the present Appeal)

5. The Application states that Appellants No.1-57 have

already been declared elected (unopposed) even prior to the

filing of the subject CS(OS) No.15/2010, but have not been

impleaded by the Plaintiff. In Avtar Singh Hit -vs- Delhi Sikh

Gurudwara Management Committee, (2006) 8 SCC 487 their

Lordships declined to consider the important question of

whether the absence of statutory notice vitiates the election, for

the reason that the writ petition was found not to be competent

as necessary parties had not been impleaded as Respondents.

These parties were the successful candidates/office bearers in

the elections which were sought to be countermanded. The

prayers in the Suit with which we are presently concerned are

imprecise inasmuch as they can lead to two interpretations -

firstly that the election vis-a-vis the Plaintiffs had alone been

brought into adjudication before the Court, or secondly that the

entire election process had been assailed. This, in turn, leads to

a piquant situation. If the entire election had been called into

question, the presence of the Appellants in FAO(OS) No.264-

65/2010 was mandatory, resulting in the Suit itself being not

maintainable. If only the posts to which the Plaintiffs were

interested had been called into question, the Suit would also not

be maintainable for the reason that it is impermissible to

truncate the challenge to the elections by not challenging 101

posts already declared elected unopposed, but calling into

question the declaration of the results in respect of other posts

on the ground that the entire electoral process was illegal. We

are, therefore, of the opinion that the application deserves to be

allowed. Leave is, therefore, granted, as prayed for and the

Appellants are permitted to assail in FAO(OS) No.264-265/2010

the impugned Order dated 26.3.2010.

FAO(OS) Nos.260-65/2010

10. These Appeals assails the Order of the learned Single

Judge passed in IA Nos.150/2010 and 290/2010 in CS(OS)

No.15/2010 which were filed on 7.1.2010 and 11.1.2010

respectively. In the first application, the Plaintiff had invoked

Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908

(„CPC‟ for short) praying for an injunction which was granted on

the first date of hearing, ad interim and ex parte, on 8.1.2010.

As is to be expected, the second application has been filed by

Defendants No.1 and 2 seeking vacation of the said ad interim

ex parte injunction which, while permitting Defendant No.3 to

continue with the election process, had directed it to refrain

from declaring the results thereof. The Order impugned before

us was passed on 26.3.2010 with directions to the Registrar of

Trade Union to convene a meeting of General Council within the

shortest possible time for the purposes of calling for the

elections. The effect of the impugned Order is to countermand

the elections that had reached the stage of casting of the votes

and would have gone to its natural culmination point, that is,

declaration of results, had the ex parte Order dated 8.1.2010

not been passed. It is not contested either before us or before

the learned Single Judge that elections to 101 posts stands

concluded and favourably declared as those candidates had not

been opposed. The controversy concerns, inter alia, the

important posts of President, Vice-President, General Secretary,

Joint General Secretary.

12. We think it necessary to recount some aspects of the

annals of the dispute. Plaintiffs No.1 and 2 had previously filed,

on 7.12.2009, CS(OS) No.2337/2009 praying that their removal

from the membership of State Bank of India Officers‟

Association (Delhi Circle) [for short „SBIOA (Delhi Circle)‟] may

be struck down and that the Defendants be restrained from

preventing the Plaintiff from contesting the elections of

Defendant No.1 which were to be held as per Election

Committee Circular EC/2009/01 dated 1.12.2009. Some of the

allegations contained in the previous Suit were that the Plaintiff

had remonstrated against failure to hold timely elections and as

a consequence thereof they were removed from the membership

of the SBIOA(Delhi Circle), that is, the Defendants. It is

significant that it had been pleaded in the previous Suit that the

term of the Executive Committee had already expired on

5.11.2008 and hence it was incompetent to remove the Plaintiff

from membership. Furthermore, the previous Suit alludes to the

subject Notification dated 1.12.2009 by which the assailed

elections had been intimated. There is no scope for debate on

the question that since the previous Plaint is dated 5.12.2009,

the grievance pertaining to the lack of legal competence of the

previous Central Committee [post amendment nomenclatured as

Executive Committee] was available to the Plaintiffs. By Order

dated 9.12.2009, the learned Single Judge had permitted the

Plaintiffs to file their nominations, subject to the result of the

Suit.

13. Plaintiffs No.1 and 2 were the only Plaintiffs in the previous

Suit in which the SBOIA(Delhi Circle) was arrayed as Defendant

No.1 and the Election Committee thereof was arrayed as

Defendant No.2. In the present Suit, apart from these Plaintiffs,

others have joined in as Plaintiffs. While the previous two

Defendants have been impleaded, five other Defendants have

been arrayed as Defendants. CS(OS) No.865/2009 has been filed

in the Court of the Civil Judge (J.D.), Agra by two other persons

in which, remarkably, neither the Election Committee nor the

Association have been impleaded. It is a fundamental principle

of law, based on the expediency of eradicating any possibility of

conflicting judicial decisions, that every person likely to be

directly affected by a Court order must be impleaded in the

litigation. Assuming that the subject Suit is found to be legally

competent, the principle of res judicata may not apply to

persons who were not parties before the Court. They could then,

after watching the outcome of the previous Suit, have filed a

fresh suit claiming themselves not to be bound by the previous

decision. In these circumstances, multiplicity of proceedings

would be encouraged by not insisting that all parties directly

and substantially involved in the cause of action should be

impleaded. Prima facie, we are of the view that the Plaint is

liable to be rejected on the ground of non-joinder of necessary

parties. The decision of the Apex Court in Avtar Singh Hit is

applicable on all fours.

14. Learned counsel for the Appellants has contended that the

grounds on which the present Suit is predicated were available

to the Plaintiffs in the earlier Suit and hence the Suit was liable

to be dismissed. We are of the view that the principles of Order

II Rule 2 of the CPC are attracted to the facts of the present

case. The entire Claim, and all Reliefs available to the Plaintiffs,

must necessarily have been raised and prayed for, and on failure

to do so, the Plaintiffs are precluded in the second Suit [the suit

in question from which the present Appeals emanate] from

raising those fresh grounds. Significantly, the Plaintiffs in the

previous Suit had sought and received Order enabling them to

file their nominations and participate in the very same elections

which they now find opportune or necessary to legally castigate.

In the said Order dated 9.12.2009 the Court was not petitioned

to and did not restrain even the declaration of the results of the

elections. The present/second Suit is liable for dismissal on this

ground.

15. Plaintiffs No.1 and 2 had participated in the election

process (which they are now assailing), pursuant to the Orders

passed in the previous Suit. Mr. V.K. Rao, learned Senior

Counsel for the Plaintiffs [Respondents before us], has sought to

place reliance on paragraph 11 of Bar Council of India -vs-

Surjeet Singh, 1980 (4) SCC 211, the relevant passage whereof

is reproduced for ease of reference:-

11. The contesting respondents could not be defeated in their writ petitions on the ground of estoppel or the principle that one cannot approbate and reprobate or that they were guilty of laches. In the first instance some of the contesting respondents were merely voters. Even Shri Surjeet Singh in his writ petition claimed to be both a candidate and a voter. As a voter he could challenge the election even assuming that as a candidate after being unsuccessful he was estopped from doing so. But to be precise, we are of the opinion that merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso. There is no question of approbation and reprobation at the same time in such a case. A voter could come to the High Court even earlier before the election was held. But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any laches and must be non-suited only on that account.

16. We are not persuaded by the argument of learned Senior

Counsel for the Respondent. Firstly, because the challenge has

been made by those very candidates who had initiated legal

proceedings to ensure their participation in the elections.

Secondly, for the reason that the assault has been mounted post

the conclusion of the elections results and finally the rigours of

Order II Rule 2 of the CPC had not become relevant in Surjeet

Singh.

17. The impugned Order, in our opinion, cannot be sustained

as it is diametrically and irreconcilably contrary to the

exposition of election law by their Lordship for over half a

century. N.P. Ponnuswamy -vs- Returning Officer, 1952 SCR

218 has been cited before the learned Single Judge. A decision

of Division Bench of this Court in Narender Kumar Jain -vs-

Government of NCT of Delhi, 2008 X AD (Delhi) 105 has also

been relied upon. The learned Single Judge had no option but to

apply these principles regardless of a contrary opinion being

favoured by him. The wisdom and relevance of precedents in a

common law system is to ensure the consistency and

predictability of the law. The renowned poet, Yeates in „The

Second Coming‟ surely did not have the legal system in mind

while reciting - "things fall apart; the centre cannot hold; mere

anarchy looses upon the world" which is indeed apposite. The

Ponnuswamy doctrine is that once the electoral process has

been set in motion, jural interference or interdiction is legally

inappropriate. The learned Single Judge has harboured

reservations similar to those expressed in Sarvothama Rao -vs-

Chairman Municipal Council, Saidapet, (1924) ILR 47 Madras

585, which was extracted in Narendra Kumar Jain relied upon

by the Appellants before him. Similar sentiments were before

their Lordships while deciding Ponnuswamy, but they palpably

failed to convince the Court to hold to the contrary.

18. Ponnuswami has been favourably received in several

subsequent decisions of the Supreme Court of India, including

Dr. Narayan Bhaskar Khare -vs- Election Commission of India,

AIR 1957 SC 694, Mohinder Singh Gill -vs- Chief Election

Commissioner, (1978) 1 SCC 405, The Election Commission of

India -vs- Shivaji, AIR 1988 SC 61, Boddula Krishnaiah -vs-

State Election Commission, A.P., (1996) 3 SCC 416, Lakshmi

Charan Sen -vs- A.K.M. Hassan Uzzaman, AIR 1985 SC 1233,

Ram Phal Kundu -vs- Kamal Sharma, (2004) 2 SCC 759 and

Manda Jaganath -vs- K.S. Rathnam, (2004) 7 SCC 492. We have

harboured some doubts as to whether this exposition of the law

would apply to elections of societies and bodies other than

Parliament and Legislatures for sundry reasons - (a) because

the constitutional provision, such as Article 329, does not apply,

(b) because the remedy is not legally circumscribed by a statute

such as the Representation of the People Act, 1951 and (c)

because the electoral rolls may not always have been finalised

before the Notification or Declaration of the Elections. Our

study, however, discloses that neither of these points is

relevant. The conclusions found in Paragraph 25 of

Ponnuswami indicate that their Lordships have not found any

distinction between elections to Parliament and Legislatures

and other elections, and because it is their opinion that if a

statute provides that a remedy shall be before a special Tribunal

by means of an election petition, legal recourse should be taken

to that remedy alone. The following passage is educative:-

25 (2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election:" and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the affect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.

19. In the present case disputes, including those pertaining to

elections, are to be resolved through arbitration.

20. In Lakshmi Charan Sen -vs- A.K.M. Hassan Uzzaman, AIR

1985 SC 1233 the Constitution Bench opined that - "no High

Court in the exercise of its powers under Article 226 of the

Constitution should pass any orders, interim or otherwise, which

has the tendency or effect of postponing an election, which is

reasonably imminent and in relation to which its writ

jurisdiction is invoked". What cannot be done in the exercise of

extraordinary powers preserved by the Constitution would, a

fortiori, not be permissible in the exercise of ordinary civil

jurisdiction, especially where the suit has been filed before the

culmination of the election process. Orders countermanding an

election would certainly be available, but this is possible after

the declaration of the results. The second reason why we find

the impugned decision unsustainable is because the Division

Bench in Narendra Kumar has taken the view that

Ponnuswamy applies ubiquitously to all election matters.

Surjeet Singh deals with a prayer seeking the setting aside of

the elections of the Bar Council of Delhi, that is, obviously after

the results had been declared. We do not think that the

Supreme Court intended to alter the Ponnuswamy principle by

merely stating that a voter could come to the High Court even

earlier before the election was held. In any event, it is contrary

to the opinion of the Constitution Bench in Lakshmi.

21. The learned Single Judge has also not returned a finding

on the maintainability of the Suit in view of the stipulation in the

Bye-laws of the Association which envisages the resolution of

disputes pertaining to elections by arbitration. The said Bye-law

has been reproduced by the Appellant in its application under

Order VII Rule 11 of the CPC in the previous suit and is

reproduced thus:-

27. If any dispute arises in regard to the interpretation of these bye-laws or any action of the Executive Committee or an officer bearer, it shall be referred to the Central Committee in writing at the next meeting which after hearing all the disputants shall decide the matter. If serious differences arise on the decision of the Central Committee on a matter of substantial importance or the disputants are not satisfied with the decision of Central Committee, the dispute shall be referred to Voluntary arbitrator, mutually agreed between the parties. In any case, no member shall resort to litigation against the Association, Office Bearers and/or Central Committee Members. All disputes/grievances involving the members, Officer Bearer, Executive Committee, Central Committee or the Association will necessarily be referred to a voluntary arbitrator first even if the Bank or any other outsider is/are also party to the dispute. No member will approach a court without first exhausting this remedy".

22. The wisdom in not interfering with the election process is

founded on plain commonsense, viz. that a challenge to the

elections is invariably initiated because the Plaintiff has realised

that he has lost at the elections. We will indeed be surprised if

the Plaintiffs have succeeded at the hustings; if so, it will be

sanguine to think that they will be willing to continue the

challenge ventilated in the Suit.

23. On the most fundamental level, the impugned Order

proceeds on the platform that the decision taken by the

Executive Committee on 1.10.2009 was a legal impossibility

because firstly the previous Committee had continued in Office

beyond the period contemplated under the Bye-laws and/or

secondly that consequent upon amendments carried out to the

Bye-laws/Constitution in February 2009 the General Committee

had ceased to exist. This is obviously why the learned Single

Judge had ordered the Registrar of Cooperative Societies to

convene a Meeting of the General Council so that a formal

resolution could be passed, calling for elections. A similar

situation had manifested itself in I Nelson -vs- Kallayam

Pastorate, (2006) 11 SCC 624. The assault of the Plaintiff was

that the concerned Society had become defunct and hence all

decisions had been rendered incompetent. This argument was

rejected by their Lordships who observed that "the society

became defunct or other statutory requirements were complied

with by the members of the society, penal measures could have

been taken but in no situation the election of the officer-bearers

could have been set aside. Right to contest an election of an

office-bearer of the society is a statutory right of the member

thereof ".

24. The sequence of events which exist in the present case,

already underscored by us above, is that the Plaintiffs have

approached the Court during the election process praying, inter

alia, that the results be now declared. In the first Suit, they

could have ventilated their grievance that the election process

which had been initiated by Resolution dated 1.10.2009 was

illegal but they failed to do so. The challenge, if it has to be

sustained, would have to be taken after the declaration of the

electoral results and obviously by way of a fresh legal action. It

seems plain to us that all the Members of the Association were

more than satisfied with the calling of the election in the

manner that occurred and the Plaintiffs are now disgruntled

anticipating their defeat.

25. When a Civil Court is called upon to pass an ad interim

injunction, three principles have to be kept in mind, namely, the

existence of a prima facie case in favour of the Applicant. The

balance of convenience should also lie in favour of the

Applicant. It should also be evident that irreparable injury would

be caused to the Applicant if the injunction prayed for is not

granted. The learned Single Judge has not returned a finding

favourable to the Plaintiffs with regard to these three

concomitants. It seems to us that a consideration of these three

requirements should have persuaded the Court not to interdict

the declaration of the results. A prima facie case cannot exist in

view of the principle that an injunction should not be given

which has the effect of interdicting an election process. So far

as the balance of convenience is concerned, it must lie in favour

of the majority who have cast their votes in a particular manner;

therefore, results should be declared. So far as irreparable

injury is concerned, challenge to the elections is certainly

possible, but after the results are declared.

26. We had called for the election results, which were

available in the Sealed Cover. The seals have been opened in

Court. We now declare the results as contained therein.

27. Appeals are allowed. The Election Results contained in the

Sealed Cover are declared and are given effect to. Our decision

shall, however, not foreclose any consideration of the legality of

the elections after their declaration. Parties shall bear their

respective costs.

( VIKRAMAJIT SEN ) JUDGE

( A.K. PATHAK ) JUDGE May 05, 2010 tp