Rajiv Khosla vs Delhi High Court Bar Association & ...
2013 Latest Caselaw 5208 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                Order reserved on: 08.11.2013

%               Order delivered on: 13.11.2013

+       CS(OS) 2149/2013 & I.A. 17827-17828/2013

        RAJIV KHOSLA                                          ..... Plaintiff
                            Through:   Plaintiff in person.
                   versus

        DELHI HIGH COURT BAR ASSOCIATION & ORS..... Defendants
                     Through:

        CORAM:
        HON'BLE MR. JUSTICE VIPIN SANGHI

                                  ORDER

VIPIN SANGHI, J.

I.A. No.17827/2013 (Exemption) Allowed, subject to just exceptions. The plaintiff is granted four weeks time to file better copies of dim documents and to file the original documents in his power and possession. Application stands disposed of.

C.S. (OS) No.2149/2013 Issue summons in the suit to the defendants returnable on 15.01.2014 before the joint registrar by ordinary process, registered AD speed post and authorised courier, to be listed along with C.S. (OS) No.2111/2013 titled "Delhi Bar Association & Ors. V. Delhi High Court Bar Association & Anr."

I.A. No.17828/2013

1. Issue notice to the defendants returnable on 15.01.2014 before the joint registrar by ordinary process, registered AD speed post and authorised courier.

2. I have heard detailed submissions of the plaintiff in person, who presses this application for grant of ex-parte ad interim orders of injunction. Since I am not inclined to pass ex parte ad interim orders of injunction, and detailed submissions have been made, I consider it appropriate to record my reasons therefor.

3. The plaintiff, who is a practising advocate and has been, inter alia, the Additional Secretary, Hony. Secretary and President of the Delhi Bar Association for various terms since 1986, has filed the present suit to seek a declaration that the amended rules of the Delhi High Court Bar Association/Defendant No.1 are null and void, non-est and in-operational, and that the said rules cannot be acted upon in relation to the elections for various posts in defendant no.1 association. The plaintiff also seeks a declaration that he is entitled to vote, and is eligible and entitled to contest the elections for the office of President of defendant no.1 association. The plaintiff has also sought a decree of declaration that the Delhi High Court Bar Association Election/December 2013 (Provisional Voters List) published on 31.10.2013 is illegal and not sustainable for the election of office bearers of defendant no.1 association. He has also sought a declaration that appointment of defendant no.4, Sh. J.P. Sengh as the Chief Election Commissioner, and the appointment of defendant no.3, Sh. Mohit

Mathur as the Joint Election Commissioner, and members of the election tribunal is wrong and unfair - on account of their being incumbent office bearers i.e. Vice President and Hony. Secretary of the defendant no.1 association respectively. He also seeks a decree of permanent injunction in favour of the plaintiff and against the defendants, thereby restraining them from acting upon the amended rules and upon the Delhi High Court Bar Association Election/December 2013 (Provisional Voters List) published on 31.10.2013 for the purpose of holding the election scheduled to be held on 13.12.2013, or for any other purpose whatsoever.

4. A permanent injunction is sought against the defendants to restrain them from entertaining, or accepting, or allowing any member of the defendant no.1 association from contesting the said forthcoming elections contrary to the rules. The plaintiff also seeks a mandatory injunction against the defendants requiring them to act according to the original rules/unamended rules and constitution of the Delhi High Court Bar Association, and to hold the election in terms thereof. The plaintiff also seeks a mandatory injunction against the defendants, thereby directing the defendants to allow the members of defendant no.1 to deposit the arrears of subscription within a reasonable time as per the practice adopted in the previous elections to enable them to cast their votes in the election strictly as per the un-amended rules/constitution. He also seeks a mandatory injunction to allow the plaintiff to file his nomination for the post of President of defendant no.1 association scheduled to be held in December 2013.

5. The case of the plaintiff, in material respects, is that the elections for the various posts of office bearers in the defendant no.1 association were lastly held in December 2011. Even though the term of the elected representative is one year, for the past few occasions, elections have been held only after about two years, except in the year 2004-05. The further case of the plaintiff is that against such allegedly illegal extension of tenure of office, the Delhi Bar Council initiated action, which resulted in holding of elections in the year 2011. He claims that on account of his being active against the office bearers of defendant no.1, defendant no.2 - the present president of defendant no.1 association, developed a grudge against the plaintiff and is hell bent not to allow the plaintiff to contest the election to the Hony. posts in defendant no.1 association.

6. The plaintiff claims that a collusive suit was filed in this court by one Ms. Nivedita Sharma being C.S. (OS) No.2883/2011 titled "Nivedita Sharma v. Delhi High Court Bar Association & Ors." with the agenda to stop the plaintiff from contesting the elections on the basis of the resolution of the executive committee, as well as to enable defendant no.2 to seek re- election for the post of president again, which was against a resolution passed by the same executive committee -prohibiting any sitting member to seek re-election for the same post, if he/she has already remained in the office for a period of two years. In that suit, the interpretation of Rule 19(a) and (b) of the constitution of defendant no.1 association came up for consideration. The issue was whether one term means „one year‟, or the period till the holding of the next elections.

7. The plaintiff states that vide order dated 23.11.2011 Ms. Nivedita Sharma was allowed by the court to contest the election for the same post for consecutive term on the interpretation that the "term" does not mean one year, but one "term". However, she contested for the post of vice president. The plaintiff claims that defendant no.2 - who contested for the post of president was the beneficiary of the order obtained from the court in the aforesaid suit.

8. The plaintiff states that C.S. (OS) No.2883/2011 was filed on 22.11.2011 after the appointment of Returning Officer and declaration of schedule of election, to seek clarification in respect of the nominations which were liable to be rejected by the Returning Officer in view of the resolution of the executive committee not to allow the sitting members to contest for the same post. The plaintiff further states that the court while disposing of the interim application in the said suit (thereby interpreting Rule 19(a) and (b) such that, the expression "term" was understood as not being limited to one year), observed that Rule 19(a) and (b) required amendment to avoid ambiguity and uncertainty and, therefore, the issue should be placed before the general body of the defendant no.1 association.

9. The plaintiff claims that a general body was held on 02.12.2011 when

- according to the plaintiff, it was resolved to fix the term of executive committee as one year, and to hold elections for various posts of defendant no.1 association by the third Friday of December. However, the plaintiff also states that there is a dispute with regard to the substance of the resolution passed at the said meeting. The plaintiff states that it was resolved by the general body on 02.12.2011 that the executive committee

shall hold a special general body meeting for amendment of the rules, and also to bring about electoral reforms, and that the amended rules and electoral reforms shall be circulated amongst the members sufficiently in advance of the holding of the special general body meeting. The plaintiff states that after the conduct of the elections on 16.12.2011, no such general body meeting or special general body meeting was convened. The plaintiff states that the defendants filed the amended rules secretly in the suit filed by Ms. Nivedita Sharma on 14.01.2013. The plaintiff claims that the members of the bar came to know about the changes made in the constitution of defendant no.1 association only in the first week of September 2013, when the order dated 30.08.2013 was passed in the aforesaid suit, and the amended rules were placed on the website of the defendant no.1 association in the first week of September 2013. The plaintiff claims that defendant no.1 did not inform any of the members about the amended rules and information was, for the first time, circulated vide circular dated 16.09.2013, wherein it was stated that the task of framing of amended rules had been completed and that the amended rules, regulations and election bye laws had come into force. The said circular further required the members to clear their dues three days prior to 30.09.2013 by account payee cheques from their own account, to become entitled to vote in the forthcoming election.

10. The plaintiff states that the task of framing of election bye laws was not complete till 30.08.2013, when the court had disposed of C.S. (OS) No.2883/2011. The case of the plaintiff is that the orders passed in C.S. (OS) No.2883/2011 on 18.10.2012 and 29.11.2012 show that the executive committee of defendant no.1 association was still seeking time to frame the

bye laws. Yet, the amended rules are deemed to have come into force on 01.10.2012. The plaintiff further states - by reference to an application filed under Order 47 Rule 1 CPC in C.S. (OS) No.2883/2011 (to seek a clarification from the court), and the order dated 14.12.2012 passed in the said suit, that even on the said date the election bye laws and amendment to the rules of defendant no.1 association had not been finalised. Consequently, the plaintiff claims, that the amendments and election reforms cannot be made effective retrospectively from 01.10.2012. The plaintiff states that defendant no.1 had filed the copy of the rules and election bye laws in CS (OS) No.2883/2011 on 14.01.2013, even though they were only "proposed" rules.

11. In support of his submission that the said suit was a collusive suit, the plaintiff states that no written statement or other documents were filed in the said suit by the defendants, and the suit was disposed of merely on the statement of the interested parties who were, allegedly, in collusion with the plaintiff Ms. Nivedita Sharma. The plaintiff claims that the amended rules and bye laws were not in common knowledge of members and were suddenly brought into picture on 30.08.2013, when the court was dealing with the aforesaid suit of Ms. Nivedita Sharma. The case of the plaintiff is that the amendment to the rules is in violation of Rule 65 and 33 of the constitution of defendant no.1 association.

12. The plaintiff has also referred to an application filed by him under Order 1 Rule 10 CPC in the aforesaid suit. Since the said suit itself was disposed of on 30.08.2013, the plaintiffs application was also disposed of. The court had recorded the submission of the plaintiff herein that the

amended rules and election bye laws have no force in law, and that they were illegal as they had not been placed before the general body of defendant no.1 association. The plaintiff claims that he became aware of the filing of the amended rules and election bye laws in the aforesaid suit (which were filed on 14.01.2013) only on 30.08.2013 "when an application was filed by the plaintiff Ms. Nivedita Sharma, wherein she talks about the filing of amended rules and election bye laws by the defendants in the court".

13. Reference is made to Rule 65, as aforesaid, as also Rule 33 to submit that the amendment to the rules of the defendant no.1 association and election bye laws could have been done only by the general body of members and not by the executive committee. He states that the General Body of members of defendant no.1 have not approved the amendment to the rules of defendant no.1 or the election bye laws.

14. The plaintiff also discloses that six District Bar Associations made a representation to the Delhi Bar Council for resolving the issue. The Bar Council of Delhi took up the matter and passed a resolution on 24.10.2013 for taking over the affairs of defendant no.1 association and to hold elections under the original unamended rules. However, the defendants filed a writ petition being W.P. (C) No.6756/2013. The plaintiff states that on 26.10.2013, this court stayed the resolution of the Bar Council of Delhi and taking advantage of that situation, on 26.10.2013 the next elections were declared by the defendant no.1 association. He submits that the Returning Officer was not announced on the same day and was announced only on 31.10.2013.

15. The plaintiff states that six bar associations of district courts of Delhi and two other plaintiffs filed C.S. (OS) No.2111/2013 before this court on 29.10.2013, which was listed before the court on 30.10.2013. He states that the stay application under Order 39 Rule 1 and 2 CPC was dismissed on the premise that the amended rule sought to introduce "one bar one vote" principle, which was not even a part of the amended constitution as well as part of the pleading of the plaintiffs. At this stage itself I may observe that the interim application filed in the said suit was not dismissed, and notice has been issued on the said application. The said order shall be reproduced hereinafter shortly.

16. The plaintiff states that he did not file a suit earlier, as a representation was made to the Bar Council of Delhi. The plaintiff claims that he came to know of the order dated 26.10.2013 passed in the aforesaid writ petition, on 28.10.2013. He states that since this court directed deletion of all the six bar associations from C.S. (OS) No.2111/2013, he is left with no remedy except to file the present suit in his personal capacity.

17. The plaintiff states that the defendants have notified the name of the election commissioner and of the election tribunal. The sitting Vice President and Hony. Secretary have been named as the Chief Election Commissioner and Joint Election Commissioner respectively. Defendant nos.2 and 3, who are the President and Hony. Secretary have been made the members of the election tribunal. The plaintiff claims that the same is contrary to the rules of fairness, equity and principles of natural justice. The plaintiff states that defendant nos.5 and 6 are the other joint election commissioners.

18. The plaintiff further states that the defendants have notified the provisional voters list on 31.10.2013 and to his surprise, he has not found his name in the voters list, whereas the names of other office bearers of some of the other bar associations appear in the voters list. He submits that this is a deliberate attempt on the part of the defendants to delete the name of the plaintiff with malafide intention and with ulterior motives.

19. The plaintiff has raised issues with regard to the payment of subscription by the members, firstly by 27.09.2013, and thereafter by 30.09.2013. The plaintiff has also made averments with regard to the specific amendments carried out in the rules and election bye laws, particularly with regard to the eligibility for contesting for the post of President of the defendant no.1 association.

20. The plaintiff has taken this Court through several documents placed on record - the primary objective being to show that the amended rules and election bye laws have not been placed before the general body of members of defendant no.1, and they are sought to be enforced and implemented without their approval by the general body. The submission of the plaintiff is that the amended rules and election bye laws are, therefore, null and void and cannot be enforced. It is in this background that the plaintiff is praying for interim relief in the present application. By way of interim relief, the plaintiff is seeking the following directions:

"a. Pass appropriate ex-parte order/directions directing the defendants particularly defendant no.5 & 6 to include the name of plaintiff in voter list and to allow the plaintiff to file nomination for the post of President in the forthcoming election of the office of defendant no.1

to be held on 13.12.2013 or thereafter in case of any change of any schedule of election pending disposal and subject to outcome of the above mentioned suit;

b. Issue ad interim ex parte injunction directing defendants particularly defendant no.5 and 6 to conduct forthcoming elections under the un-amended rules as existed in the previous election of defendant no.1 held in the year 2011;

c. Issue ad interim ex-parte injunction directing defendant nos.5 and 6 to appoint an independent election tribunal and as well as chief election commissioner and other joint election commissioner with the aid and help of former Presidents and Secretaries of defendant no.1; d. Grant an ad interim ex-parte injunction restraining defendant no.2, 3, 4 from acting as election tribunal, joint election commissioner as well as member of election tribunal and the chief election commissioner respectively;

e. Pass ad interim injunction ex parte directing the defendants particularly defendant no.5 and 6 to allow the members of Delhi High Court Bar Association to deposit arrears of subscription by giving reasonable time as per the practice adopted in the previous elections and to include their names in the voters list accordingly.

Or in the alternative f. pass an ad-interim ex parte injunction in favour of the plaintiff and against the defendants restraining the defendants from acting upon and holding elections as per their alleged amended rules without approval of the same from the General Body of the Delhi High Court Bar Association;

g. to grant ad interim ex-parte injunction restraining defendants particularly defendants no.5 and 6 from entertaining, accepting or allowing any of the members of the defendant no.1 from contesting the election contrary to the valid (unamended) rules of defendant no.1".

21. As noticed herein above, CS(OS) No.2111/2013 has already been preferred, praying for more or less the same reliefs as prayed for in the present suit by the plaintiff on similar grounds. In that suit as well, the plaintiffs had moved an interim application being I.A. No.17553/2013 to seek, more or less, similar interim reliefs. The defendants appeared on the first date itself and, after hearing learned senior counsel for the plaintiff in that case, Mr. Vikas Singh as well as Mr. A.S. Chandhiok for the defendants, the court declined to grant any ex parte ad interim order of injunction. The order passed in the interim application being I.A. No.17553/2013 in that case reads as follows:

"I.A. No.17553/2013

1. Issue notice. Learned counsel for the defendants accept notice. I have heard learned senior counsel for the plaintiff and the learned ASG, Mr. A.S. Chandhiok on behalf of defendant no.1, against whom the present application is pressed.

2. As noticed above, the grievance of the plaintiff is with regard to the adoption and enforcement of the amended election rules which, primarily, have the effect of enforcing the "one bar one vote" principle. The primary submission of Mr. Singh, learned senior counsel for the plaintiffs is that the amendment of the rules has not been carried out in accordance with the procedure prescribed in the rules themselves for carrying out the amendment. In this regard, reference has been

made to Rule 33 and 65. Essentially, these rules provide that amendments have to be carried out in a general meeting by a majority of 2/3rd. My attention has been drawn to several facts and documents to submit that the defendant association has not held a general body meeting for amendment of the said rules in terms of Rule 33 and 65. At this stage, I do not consider it necessary to refer to the details and particulars of the documents and materials relied upon for the said purpose. I may, however, note that the amended rules were filed by the defendant association in CS(OS) No.2883/2011 titled Nivedita Sharma v. Delhi High Court Bar Association & Ors. on 15.01.2013. Therefore, the said rules formed part of the judicial record in this court itself from 15.01.2013.

3. The submission of Mr. Singh is that the said suit was a collusive suit and none of the plaintiffs or other persons interested became aware of the impugned rules when they were so filed. However, it is not in dispute that on 30.08.2013, the court passed an order in CS(OS) No.2883/2011. In those proceedings, Mr. Rajiv Khosla, who had preferred I.A. No.1539/2013 to seek impleadment in the suit had appeared and made his submissions that the impugned rules were framed illegally as they had not been placed before the general body. He had also evinced his attention to challenge the rules and he stated that he shall avail of such remedy as available as per law.

4. The present suit has been filed only on 29.10.2013 i.e. nearly two months after the expiry of the said statement being made by Mr. Rajiv Khosla, who is a member of the defendant no.2 council. This passage of time, in my view, is of some relevance in view of the intervening developments which have taken place. It is the plaintiffs own case that the other bar associations, who are impleaded as plaintiff no.1 to 3 and 5 to 6 in the present suit and (who have since been deleted), represented before the Bar Council of Delhi - raising a grievance with regard to the amendment carried out to the rules by defendant no.1. A perusal of the proceedings held before the Bar Council of Delhi, which have been placed on

record, clearly shows that the Bar Council of Delhi sought to act on the basis that the impugned rules had not been duly framed. The Bar Council of Delhi sought to take over the functioning of the defendant no.1, which was assailed by defendant no.1 by filing W.P.(C.) No.6756/2013. On 26.10.2013, a learned Single Judge of this court stayed the operation, effect and implementation of the resolution dated 17.09.2013, 11.10.2013 and 24.10.2013 of the Bar Council of Delhi,

5. I am informed that the said order has already been assailed by preferring LPA before the Division Bench, which is also listed today before the court. It is, therefore, clear that apart from the issue with regard to the jurisdiction of the Bar Council of Delhi to act in the matter - in the manner that it has done, a further issue with regard to the validity of the rules would also arise for consideration - in case, on the first issue, it is held that the Bar Council of Delhi had jurisdiction to act in the matter.

6. The elections on the basis of the amended rules have already been notified on 26.10.2013, though, according to defendant no.1, the same were notified on 16.09.2013. In my view, it makes no difference as the election process has already been set in motion prior to the filing of the suit and, therefore, interference with the said election process, at this stage, is not called for.

7. The introduction of, what is essentially, the "one bar one vote" principle by defendant no.1, even otherwise, does not appear to be something that calls for interference at this stage, as the said principle has been adopted by several other bar associations including the Supreme Court Bar Association. In fact, the Supreme Court has upheld the adoption of the said principle in Supreme Court Bar Association v. B.D. Kaushik, (2011) 13 SCC 774. My attention has also been drawn to the judgment of the Supreme Court in Supreme Court Bar Association v. B.D. Kaushik, (2012) 8 SCC 589. The Supreme Court accepted the recommendation for implementation of

"one bar one vote" principle in this decision.

8. The issue whether the adoption and implementation of the amended rules is legal, or not, is certainly an issue which arises for consideration and would be considered by the court after the pleadings are complete and the parties have led their evidence. However, at this stage, while considering the present application, this court has to consider, inter alia, where the balance of convenience lies, and the irreparable loss and injury that would be caused to the parties, if the interim order of injunction is passed, or refused. Considering the aforesaid aspects, I am of the view that the balance of convenience is in favour of refusing the interim injunction at this stage.

9. As aforesaid, the present petition has been filed after the election process has been set into motion, even though the amended rules were in existence - as they were made a part of the judicial record since January 2013 and, in any event, one of the prominent member and leader of the bar, Mr. Rajiv Khosla became aware of them on 30.08.2013. Pertinently, he is a member of the Bar Council of Delhi, and is a signatory to the resolutions which form part of the aforesaid writ petition filed by defendant no.1. The amended rules, as aforesaid, are essentially implementing the principle of "one bar one vote", which is also a principle which has been approved by the Supreme Court. The election process is already underway. Accordingly, in my view, the plaintiff is not entitled to any ex parte ad interim injunction at this stage. List for consideration on 25.02.2014.

10. Dasti under the signatures of the Court Master".

22. I have put it to the plaintiff to offer good justification for this court to take a different view on his interim application, than the view already taken by me while dealing with I.A. No.17553/2013 at the ex parte stage. The submission of the plaintiff is that further developments have taken place

since the passing of the order dated 31.10.2013, including that the voters list has been circulated - which does not contain the name of the plaintiff.

23. Having heard the plaintiff, perused the documents, and considered the decisions relied upon by him, I am not inclined to take a different view in the present application at this stage, than the one already taken by me, as aforesaid.

24. The submissions as advanced by the plaintiff in the present case are the same as advanced by learned senior counsel for the plaintiff in C.S. (OS) No.2111/2013. As noticed above, the primary submission is with regard to non compliance of Rules 33 and 65 of the defendant no.1 association.

25. As to whether or not - as a matter of fact, there is non compliance of the aforesaid rules while framing the amended rules and election bye laws; whether there was any necessity to comply with the said rules and - if not complied with, what is the effect thereof - are matters which would need consideration after grant of opportunity to the defendants to file their respective written statements and documents.

26. The grant of interlocutory injunction is governed by three principles, namely, the existence of a strong prima facie case in favour of the applicant, the balance of convenience being in favour of grant of the interlocutory relief, and the demonstration by the applicant of the circumstances to show that the refusal to grant the interlocutory relief would result in irreparable loss and injury to the applicant, which, it would not be possible for the court to remedy, if eventually the applicant succeeds.

27. As noticed by me in the earlier order dated 31.10.2013 passed in I.A. No.17553/2013 in C.S. (OS) No.2111/2013, even if one were to accept that the plaintiff has shown a prima facie case in his favour on merits, the plaintiff in the present suit is in a far worse situation when compared to the plaintiffs in C.S. (OS) No.2111/2013 when it comes to consideration of the aspects of balance of convenience and irreparable loss and injury. In the order dated 31.10.2013, this court had taken note of the fact that the plaintiff herein had become aware of the existence of the amended rules and election bye laws on 30.08.2013, when the court passed orders in C.S. (OS) No.2883/2011 in the presence of the present plaintiff. Pertinently, the Court had recorded the present plaintiffs submission that the impugned rules had been framed illegally as they had not been placed before the general body. The earlier suit - being C.S. (OS) No.2111/2013, had been preferred on 29.10.2013 i.e. nearly two months after the expiry of the statement being made by the plaintiff herein before the court on 30.08.2013. This court was of the view that this passage of time between 30.08.2013 and 29.10.2013 was of relevance, in view of the intervening developments which had taken place, namely, the notification of the elections on the basis of the amended rules and election bye laws on 26.10.2013 (on 16.09.2013 according to the defendant association). Though, the plaintiff has repeatedly averred in the plaint that he became aware of the amended rules and election bye laws only in the middle of September 2013 - even though he had himself contended before the court on 30.08.2013 that the said rules were null and void as they had not been placed before the general body of defendant no.1, the factual position is otherwise. Pertinently, the plaintiff has himself disclosed that he

had filed an application under Order 1 Rule 10 CPC in the suit filed by Ms.Nivedita Sharma to seek impleadment in the said suit.

28. During the course of hearing, since the plaintiff sought to make reference to orders passed in those proceedings, the record of disposed of suit being C.S. (OS) No.2883/2011 was called for. A perusal of this record shows that the plaintiff herein had moved I.A. No.1539/2013 under Order 1 Rule 10 CPC dated 29.01.2013 (the accompanying affidavit is affirmed on 30.01.2013), which was filed in the registry on 30.01.2013. The averments made in the said application are rather revealing. In para 5 of the application, the plaintiff stated as follows:

"5. That the present executive committee never held any General Body Meeting after getting elected in December, 2011 and the amended/proposed rules dated 08.01.2010 as well as the election rules which were framed and placed before this Hon'ble Court in January, 2013, after the expiry of the term of the present executive committee were never put for approval before the General House till January, 2013 and now the present committee has become Functus Officio and therefore they cannot frame any new rule for the DHCBA either themselves and are also barred for holing any General Body Meeting for consideration of the same".

(emphasis supplied)

29. The aforesaid shows that as early as in January 2013, the plaintiff was well aware of the fact the amended rules were placed on the record of C.S. (OS) No.2883/2011 in the same month. It was his case even in January 2013 that the amended rules/election rules (bye laws) were not placed for approval before the general house. Not only this, a perusal of para 6 of this

application shows that the plaintiff was also aware of the content of the said rules. In para 6 of his application, the plaintiff, inter alia, stated:

"6. That the present executive committee under the garb of framing new rules/by-laws and election by-laws of DHCBA wants to act upon the resolution of the previous executive committee dated 08.01.2010 whereby they intend to debar any member from contesting election for a period of three years from the date of demitting his office as office bearer of any other Bar Associations and they also intend to put embargo on 25 years of membership of the DHCBA which amongst others illegal rules framed by previous executive committee directly come in the way of the applicant in contesting election for the post of president in the coming elections, despite the fact that these rules were never relied upon having been not approved by the General House and consequently not relied upon which enabled the applicant to contest the elections in December, 2011 for the post of president of DHCBA when the applicant was still in the process of demitting the office of President of Delhi Bar Association and was having a standing of 21 years in the DHCBA. It is pertinent to bring to the notice of this Hon'ble Court that the previous executive committee also stated to have passed resolution on 08.01.2010 putting an embargo on all office bearers of DHCBA not to contest the elections for the same post in rule 20(d) of the proposed DHCBA rules (which are yet to be approved from the General House being mandatory provisions for change in the rules) if such members has already held the said office for three terms. .... ....".

(emphasis supplied)

30. The endeavour of the plaintiff - in claiming that he became aware of the amended rules and election bye laws only in the middle of September

2013, is only to somehow cover up his conduct of omission and inaction since January 2013, till the filing of the present suit, in not raising a challenge to the amended rules and election bye laws, and now approaching the court after the election process has been set into motion.

31. The plaintiff has referred to certain interim orders passed in other proceedings pertaining to bar elections. It is well settled that interim orders do not constitute binding precedents. Moreover, these orders were passed in the facts of those cases which were before the court. It is not apparent from the order dated 09.02.2011 passed in WPC No.8590/2011 in Kabirudin Choudhry v. Delhi Bar Association & Ors., or the order passed in Lovely Jain & Anr. V. Delhi Bar Association & Anr. in C.S. (OS) No.3163/2011 dated 19.12.2011, 20.12.2011 and 10.01.2012, or the order passed by the Division Bench in FAO (OS) No.7/2012 in Lovely Jain v. Delhi Bar Association - that these orders were passed in facts similar to the present case, namely, the knowledge of the plaintiff of the amended rules for nearly ten months prior to the filing of the suit to assail the same, and the intervening notification of the elections on the basis of the amended/impugned rules. The law is well settled that once the election process is set into motion, the court do not interfere with the same and it is open to the aggrieved party to agitate his disputes after the process is complete and the results declared. Reference may be made to Boddula Krishnaiah & Anr. v. State Election Commissioner, A.P. & Ors., (1996) 3 SCC 416.

32. As noticed by this court in its order dated 31.10.2013, what is essentially sought to be done by the impugned rules and election bye laws is

to introduce the "one bar one vote" principle in respect of defendant no.1 association. This principle has been accepted by the Supreme Court in Supreme Court Bar Association v. B.D. Kaushik, (2011) 13 SCC 774 and Supreme Court Bar Association v. B.D. Kaushik, (2012) 8 SCC 589. The balance of convenience in the present case is clearly against the plaintiff and in favour of the defendant association and its members. It is the plaintiffs own case that elections have now been called after nearly two years, even though the term of the executive committee of defendant no.1 was one year. Once the election process has been set into motion, there is no justification for interfering with the same. The elections to the defendant association are held for the benefit and welfare of the general body of members of the association, and not for the benefit of any particular individual - who may have ambitions of contesting for one or the other honorary posts. When one weighs the competing claims and interests, the interest of an individual would have to make way in the interest of - hundreds, if not thousands, of other members, who are entitled to, eligible for, and are likely to take part in the election process which has been set into motion.

33. The grievance of the plaintiff that his name is not in the voters list, or that the names of several others similarly situated have been included in the voters list, can also be examined post the elections.

34. The plaintiff has placed reliance on Brij Nath Dhar v. Jammu & Kashmir Govt. & Ors., 1981 (2) SLR 372 to submit that it was not necessary for him to move the court earlier to seek a declaration with regard to the impugned rules and election bye laws. He submits that for all intents and purposes, the same are void and have no existence in the eyes of law

and can be ignored by the party affected by it. I fail to appreciate as to what is the relevance of this decision while considering the aspect of grant of ex parte ad interim interlocutory relief. It is not that the court is non suiting the plaintiff on account of belated filing of the suit to assail the impugned rules and bye laws. Secondly, even in this decision, while making reference to a judgment of the Supreme Court rendered in 1967 (1) SLR 228 in State of Madhya Pradesh v. Syed Qamarali, it was observed, "However, when a litigant seeks some relief flowing from such an order, he must come within the period of limitation prescribed by the Limitation Act to seek that relief". Therefore, the affected party must approach within the period of limitation for seeking substantive relief and, in good time to seek interlocutory relief. Unfortunately for the plaintiff, he has approached this court rather belatedly, even though he was aware of the existence of the impugned rules and election bye laws since January 2013. His claim that he was not aware of the existence of the said amended rules and election bye laws cannot be, prima facie, accepted at this stage in the face of his own averments contained in his application under Order 1 Rule 10 CPC filed in C.S. (OS) No.2883/2011.

35. Reliance placed on State of Madhya Pradesh v. Syed Qamarali (supra) is also of no avail for the reasons aforesaid. The considerations which came into play while examining the prayer for interlocutory reliefs are somewhat different than those which weigh with the court while dealing with the substantive relief in the suit.

36. The plaintiff has also placed reliance on Rajender Kumar v. Punjab National Bank, 197 (2013) DLT 513 to submit that if no rules have been

framed in accordance with law, the earlier rules validly framed shall prevail. As aforesaid, the present suit is at a preliminary stage. The defendants have not yet been served and given an opportunity to file their written statement and documents. The decision relied upon is not one rendered at the ex parte or interlocutory stage. It is a final decision rendered after grant of opportunity to the parties to submit the pleadings and hearing by the court.

37. Lastly, the plaintiff has placed reliance on the decision of this court in Saroj Aggarwal & Anr. v. Shakuntala Aggarwal, 2013 (1) RLR 277. In this case, the court observed that, at the interim stage, the court has not to weigh the merits of the case set up by both the parties in a fine scale. The court has to see whether the plaintiff has made out a strong prima facie case for grant of ad interim interlocutory relief, and the courts interference is necessary to protect him from that species of injury which the court calls irreparable, before the legal right can be established on trial. The other important principle required to be considered at the interim stage is as to whether comparative mischief or inconvenience, which is likely to be caused to the plaintiff by withholding the injunction, will be greater than that which is likely to arise from granting it. It is the application of these principles noted in this decision, which leads me to the conclusion that the plaintiff has not made out a case for grant of ex parte ad interim orders of injunction as prayed for.

38. The election process is being undertaken to elect the representatives of the bar in the executive committee. As aforesaid, the purpose of holding elections is to enable the eligible members of the bar to elect their representatives, who would represent them and their interests for the term

that the elected representatives are in office. No doubt, an eligible member of the bar also has the right to contest the elections for a particular post. However, it cannot be said that the injury that the plaintiff would suffer, in case he does not contest the forthcoming elections would be irreparable. The doctrine of lis pendens would apply, and in the eventuality of the court returning a finding in favour of the plaintiff with regard to the several issues raised by the plaintiff, the elections - even if held, can always be annulled and fresh elections can be directed to be held under the rules and bye laws that the court finds to be applicable. Moreover, the term of office is only one year, and there would be further opportunity for the plaintiff and other aspiring members of the different associations to contest the elections in future, in case the plaintiff and others like him are held to be eligible for the said purpose. The elections are being held to honorary posts and not to an office of profit. Therefore, in my view, it cannot be said that the plaintiff would suffer irreparable loss and injury if the interim reliefs prayed for are not granted. The plaintiff cannot insist that by an interim order, at this stage, he should be permitted to participate in the election process. It is not his case that even under the impugned rules and election bye laws, he is eligible to contest the elections and has wrongly been denied from doing so. Admittedly, under the impugned rules and election bye laws, he is not so eligible. Therefore, until and unless the impugned rules and bye laws are stayed or set aside after hearing the defendants, the plaintiff cannot be permitted to participate in the election process.

39. For the aforesaid reasons, the prayer for grant of ex parte ad interim orders of injunction as prayed for by the plaintiff is rejected. However, the

application shall be considered on the aspect of grant of ad interim orders of injunction after hearing all parties concerned.

(VIPIN SANGHI) JUDGE NOVEMBER 13, 2013 sr