Page No.# 1/8 vs Indian National Trade Union ...
2022 Latest Caselaw 3174 Gua

                                                                  Page No.# 1/8

GAHC010067592022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : MFA/60/2022

            SARAT BORKOTOKY AND ANR.
            S/O LATE HEM CHANDRA BORKOTOKY
            RESIDENT OF HOUSE NO. 1, SOUTH SARANIA. GUWAHATI , KAMRUP M
            ASSAM

            2: SRI SUMER SINGH GAUR
             S/O LATE SAHEB RAM GAUR RESIDENT OF HOUSE NO. 10
             JYOTI PATH DHIREN PARA
             GUWAHATI 781025
             KAMRUP M ASSA

            VERSUS

            INDIAN NATIONAL TRADE UNION CONGRESS AND 2 ORS.
            ASSAM BRANCH, GUWAHATI, REPRESENTED BY THE PRESIDENT OF THE
            WORKING COMMITTEE OF THE INDIAN WORKING TRADE UNION
            CONGRESS GUWAHATI, ASSAM BRANCH, K.C SEN ROAD, PALTAN BAZAR,
            PO 781008

            2:HIRANYA BORA
             S/O LATE K.P BORA
             RESIDENT OF TARUN NAGAR
             PO GUWAHATI
             KAMRUP M ASSAM 781005

            3:SRI DWIZEN LAHKAR
             S/O LATE BHAVAN LAHKAR
            PRESIDENT OF PANDU RAILWAY STATION COLONY
             PO PANDU
             PS JALUKBARI
             DIST KAMRUP M ASSA

Advocate for the Petitioner   : MR. R BARUAH
                                                                   Page No.# 2/8

Advocate for the Respondent : MR. B D DEKA

PRESENT THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the Appellant : Mr. R. Baruah Sr. Advocate.

             For the Respondents        :     Mr. B. D. Deka
                                        Advocate.

             Date of Hearing             :       14.06.2022
               Date of Judgment              :     24.08.2022

                         JUDGMENT AND ORDER (CAV)

Heard Mr. R. Baruah, learned senior counsel representing the appellants as well as Mr. B. D. Deka, learned counsel appearing for the respondents.

2. Challenge in this appeal under Order 43 Rule 1 of the Code of Civil Procedure is to the order dated 15.03.2022 passed by the learned Civil Judge No. 1, Kamrup (M) at Guwahati in Misc. (J) Case No. 424/2021 arising out of TS 279/2021.

3. Indian National Trade Union Congress (hereinafter referred to as 'INTUC') is a Trade Union registered under the Trade Unions' Act of 1926. INTUC is regulated by its own constitution. It has branches across various states of India. INTUC, Assam is functional within the State of Assam and it also has its own constitution.

4. In the year 2014, the respondent no. 2 Hiranya Bora was holding the post of General Secretary of INTUC, Assam. At that time, disputes arose Page No.# 3/8

regarding the convening of 26th triennial session of INTUC, Assam, by the then President late Renuka Devi Borkotoky. It may be mentioned that at that time the present appellant Sarat Borkotoky was the President of Reception Committee. It is stated that the now deceased President had called the said meeting in violation of certain rules of the constitution. The

said 26th triennial session was scheduled to be held on 8th and 9th March, 2014.

5. Therefore, the respondent no. 2 filed a title suit being T.S. No. 77/2014 in the Court of the Civil Judge No. 3, Kamrup (M), Guwahati seeking a declaration that the said triennial session was called without any authority and jurisdiction.

6. In that proceeding, the court passed an order on 12.06.2017 and thereby directed that the decisions or resolutions adopted in the said triennial session shall not be given effect to.

7. Ultimately, the matter reached this court and the further proceeding of T.S. No. 77/2014 was stayed.

8. In the last part of 2019, the present appellant Sumer Gaur, claiming to be the General Secretary of INTUC, Assam lodged an FIR against the respondent no. 2 alleging that he had forcefully taken over possession of the office building of INTUC, Assam. Thereafter, an application under Section 482 of the CrPC was filed for quashing the said FIR and this Court stayed it's further proceedings.

9. Subsequently, INTUC, Assam Branch and the respondent no. 2 filed a writ petition being WP(C) No. 4074/2020 challenging a Notification dated Page No.# 4/8

14.11.2019 whereby the INTUC had constituted the ad-hoc committee to look after the day-to-day business of INTUC, Assam. The respondent no.2 was made the President of the ad-hoc Committee. The said writ petition was withdrawn later.

10. The respondents pleaded that the ad-hoc committee was duly constituted by the central body of INTUC. It is further pleaded that since the Notification dated 14.11.2019 remained unchallenged, there is no embargo upon the ad-hoc committee for managing the affairs of INTUC, Assam.

11. The present appellants filed the prayer for ad-interim injunction seeking to restrain the respondent no. 2 from interfering with the affairs of INTUC, Assam. It is also prayed that the bank authority should be directed not to operate the bank account of the INTUC, Assam.

12. The trial court passed an order of injunction. Being aggrieved by the aforesaid order, the present appeal has been filed.

13. I have considered the submissions made by the learned counsels for both sides.

14. The law pertaining to ad interim injunction owes a lot to a famous English decision of the House of Lords rendered in American Cyanamid Co. Vs. Ethicon Ltd. [1975 (1) All ER 504]. Lord Diplock in Cyanamid's case laid down the following guiding principles for the grant of interlocutory injunction:

"(1) The plaintiff must first satisfy the Court that there is a serious issue to decide and that if the defendants were not restrained and the Page No.# 5/8

plaintiff won the action, damages at common law would be inadequate compensation for the plaintiff's loss.

(2) The Court, once satisfied of these matters will then consider whether the balance of convenience lies in favour of granting injunction or not, that is, whether justice would be best served by an order of injunction.

(3) The Court does not and cannot judge the merits of the parties` respective cases and that any decision of justice will be taken in a state of uncertainty about the parties' rights."

15. In Zenit Mataplast P.Ltd. vs State Of Maharastra & Ors [2009 (10) SCC 388], the Supreme Court held as under -

"Interim order is passed on the basis of prima facie findings, which are

tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. 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".

16. In Zenit Mataplast,s case (supra), the Supreme Court further held that -

"Grant of temporary injunction is governed by three basic principles,

i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts Page No.# 6/8

and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction."

17. In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, the Supreme Court observed ----

"that the other considerations which ought to weigh with the Court

hearing the application or petition for the grant of injunctions are as below :

(i) Extent of damages being an adequate remedy;

(ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefore ;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;

(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case;

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

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(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.

18. In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-

"The phrases `prima facie case', `balance of convenience' and ` irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience."

19. Reverting to the case in hand, INTUC is registered under the Trade Unions' Act, 1926 and INTUC, Assam is a part of INTUC. It is visible that two factions have evolved in INTUC, Assam and each faction is fighting to have control over the institution.

20. In Dalpat Kumar (supra), it has been stated that the phrases `prima facie case', `balance of convenience' and ` irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances.

21. INTUC, Assam is a functioning authority and by the order of injunction its functioning has been stopped'. I find that under the given Page No.# 8/8

circumstances of the case, there is no prima facie case for grant of injunction. I also find that there is no possibility of irreparable loss being caused if there is no order of injunction. For this reason, this Court is of the opinion that the impugned dated 15.03.2022 passed by the learned Civil Judge No.1, Kamrup (M) at Guwahati in Misc. (J) Case No. 424/2021 arising out of TS 279/2021 is bad in law and therefore the said order is set aside.

Accordingly, the appeal is allowed.

JUDGE

Comparing Assistant