Page No.# 1/19 vs Tezpur Bangali Aboitanik Natya ...
2022 Latest Caselaw 5033 Gua

                                                                   Page No.# 1/19

GAHC010011712020




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

                          Case No. : CRP/23/2020

         MIHIR KR. SEN AND 6 ORS.
         S/O- LATE SACHINDRA CH SEN, R/O- JYOTISH ROAD, P.O- TEZPUR, DIST-
         SONITPUR, ASSAM, PIN- 784001

         2: DULAL BASU
          S/O- LATE KHIRODE MOHN BASU
          R/O- BENGALI THEATRE HALL BYE LANE
          P.O- TEZPUR
          DIST- SONITPUR
         ASSAM
          PIN- 784001

         3: DIPEN CH GUPTA
          S/O- LATE DWIJENDRA GUPTA
          R/O- AMGAGAN
         WARD NO. 8
          P.O- TEZPUR
          DIST- SONITPUR
         ASSAM
          PIN- 784001

         4: PARSEH CH SAHA
          S/O- LATE DHIRENDRA LAL SAHA
          CK DAS ROAD
          P.O- TEZPUR
          DIST- SONITPUR
         ASSAM
          PIN- 784001

         5: SANKAR PAUL
          S/O- LATE NEPAL PAUL
          R/O- HARIPATTY
          P.O- TEZPUR
          DIST- SONITPUR
                                                                      Page No.# 2/19

             ASSAM
             PIN- 784001

            6: ASHOK RANJAN DAS
             S/O-LATE BHUBAN MOHAN DAS
             R/O- BAMUNGAON
             NEPALIPATTY
             P.O AND P.S- TEZPUR
             DIST- SONITPUR
            ASSAM
             PIN- 784001

            7: RAKHAL GHOSH
             S/O- LATE PRAFULLA CH GHOSH
             R/O- NT ROAD KACHARIGAON
            WARD NO.4
             P.O AND P.S- TEZPUR
             DIST- SONITPUR
            ASSA

            VERSUS

            TEZPUR BANGALI ABOITANIK NATYA SAMAJ AND 2 ORS
            JYOTISH ROAD, P.O- TEZPUR, DIST- SONITPUR, ASSAM, REP. BY THE GS

            2:THE CHAIRMAN
            TEZPUR BANGALI ABOITANIK NATYA SAMAJ
             JYOTISH ROAD
             P.O- TEZPUR
             DIST- SONITPUR
            ASSAM

            3:THE PRESIDENT
            TEZPUR BANGALI ABOITANIK NATYA SAMAJ
             JYOTISH ROAD
             P.O- TEZPUR
             DIST- SONITPUR
            ASSA

Advocate for the Petitioner   : MR. B C DAS

Advocate for the Respondent : MR. A GANGULY
                                              Page No.# 3/19

Linked Case : CRP(IO)/151/2021

DR. MIHIR KR SEN AND 6 ORS
S/O. LT. SACHINDRA CH EN
RESIDING AT JYOTISH ROAD
P.O. TEZPUR
DIST. SONITPUR
ASSAM-784001.

2: DULAL BASU
S/O. LT. KHIRODE MOHN BASU
 RESIDING AT BENGALI THEATRE HALL BYE LANE
 P.O. TEZPUR
 DIST. SONITPUR
ASSAM-784001.

3: DIPEN CH GUPTA

S/O. LT. DWIJENDRA GUPTA
RESIDING AT AMGAGAN
WARD NO.8
P.O. TEZPUR
DIST. SONITPUR
ASSAM-784001.

4: PARESH CH SAHA
S/O. LT. DHIRENDRA LAL SAHA
CK DAS ROAD
P.O. TEZPUR
DIST. SONITPUR
ASSAM-784001.

5: SANKAR PAUL
S/O. LT. NEPAL PAUL
RESIDING AT HARIPATTY
P.O. TEZPUR
DIST. SONITPUR
ASSAM-784001.

6: ASHOK RANJAN DAS
S/O. LT. BHUBAN MOHAN DAS
R/O. BAMUNGAON
NEPALIPATTY
P.S. AND P.O. TEZPUR
DIST. SONITPUR
ASSAM-784001.

7: RAKHAL GHOSH
                                                                         Page No.# 4/19

           S/O. LT. PRAFULLA CH GHOSH
           R/O. N.T. ROAD KACHARIGAON
           WARD NO.4
           P.S. AND P.O. TEZPUR
           DIST. SONITPUR
           ASSAM.
           VERSUS

           TEZPUR BANGALI ABOITANIK NATYA SAMAJ AND 2 ORS
           JYOTISH ROAD
            P.O. TEZPUR
            DIST. SONITPUR
            ASSAM (REP. BY THE GENERAL SECRETARY).

           2:THE CHAIRMAN

           TEZPUR BANGALI ABOITANIK NATYA SAMAJ
           JYOTISH ROAD
           P.O. TEZPUR
           DIST. SONITPUR
           ASSAM..
           3:THE PRESIDENT

           TEZPUR BANGALI ABOITANIK NATYA SAMAJ
            JYOTISH ROAD
            P.O. TEZPUR
            DIST. SONITPUR
           ASSAM..
            ------------

Advocate for : MR. B C DAS Advocate for : MR. A GANGULY (r-1

3) appearing for TEZPUR BANGALI ABOITANIK NATYA SAMAJ AND 2 ORS

BEFORE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY For the Petitioner : Mr. S. K. Singh, Senior Advocate.

For the Respondents         : Mr. A. Ganguly, Advocate,


Date of Hearing             : 03.11.2022, 14.11.2022.
                                                                          Page No.# 5/19


Date of Judgement              : 19.12.2022.
                           JUDGMENT & ORDER (CAV)

Heard Mr. S. K. Singh, learned Senior Counsel for the petitioners. Also heard Mr. A. Ganguly, learned counsel for the respondents.

2. This two revision petitions i.e. CRP/23/2020 and CRP(IO)/151/2021 were taken up for final disposal together.

3. CRP/23/2020 was filed under Section 115 of the Code of Civil Procedure assailing the order dated 30.09.2019 passed in Misc. Appeal No. 06/2019 by the learned Civil Judge, Sonitpur at Tezpur, by which the judgment and order dated 31.08.2019, passed in Misc. (J) Case No. 38/2019 by the learned Munsiff No. 1, at Tezpur, was uphold. The present petitioners were the respondents in the said appeal. Their grievance is that though the appeal was dismissed, upholding the judgment impugned, however, certain additional directions were issued in the appeal, thereby infringing certain right of the petitioners which will be dealt, in detailed at later part of this judgment.

4. CRP(IO)/151/2021 was filed under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure, assailing the order dated 16.03.2021 passed in Misc(J) Case No. 109/2019 by the learned Civil Judge, Sonitpur at Tezpur. The aforesaid Misc(J) Case No. 109/2019 was preferred under the provision of Order 39 Rule 4 read with Section 151 of the Code of Civil Procedure, seeking medication/clarification of the order dated 30.09.2019 passed in Misc. Appeal No. 6/2019, whereby the learned appellate Court below declined to entertain such petition.

5. In the aforesaid backdrop and on the prayer of the learned counsels for the respondents, this Court under its order dated 27.06.2022, passed in Page No.# 6/19

CRP(IO)/151/2021, directed both the revision petitions to be listed together.

6. Before coming into merit of the CRP/23/2020, let this Court deal with the objections raised by the learned counsel for the respondents regarding the maintainability of the said revision petition under provision of Section 115 of the Code of Civil Procedure.

7. Mr. Ganguly, learned counsel for the respondents, while raising such objection as to the maintainability argues the following:-

I. CRP/23/2020 is not maintainable under Section 115 of the Code of Civil Procedure as the "case decided" is not in course of a suit or other proceeding, which would have been finally disposed of, if the order had gone in favour of the revision petitioners inasmuch it was an appeal under Order 43 Rule 1(r).

II. Mr. Ganguly, learned counsel further contends that other proceeding is to be construed ejusdem generis, which is not the case in the present proceeding and the subject matter was a suit. In support of such contention, he relies on a decision of the Hon'ble Apex Court in the case of Vishnu Awater -Vs- Shiv Autar & Ors reported in (1980) 4 SCC

81.

8. Countering such argument, Mr. S. K. Singh, learned Senior Counsel contends that even if the present application is not maintainable under Section 115 of the Code of Civil Procedure, this Court can very well convert the present petition into a petition under Article 227 of the Constitution of India inasmuch as the right of the petitioner under Article 227 of the Constitution of India is a valuable right and if such conversion is made, the respondent shall not be prejudiced. He further contends that the CRP/23/2020 is filed under Section 115 of the Code of Civil Procedure for the reason that though the appeal was Page No.# 7/19

dismissed by the learned appellate Court below, however, learned Court below gone beyond its jurisdiction by making further observations, and by issuing direction and in the aforesaid backdrop, this Court should not non suit the petitioners and this Court is having ample power under Article 227 of the Constitution of India to convert the present petition into a petition under Article 227 of the Constitution of India. In support of his contention Mr. Sing, learned Senior Counsel relies on a decision of the Hon'ble Apex Court in the case of Civil Appeal No. 7266/2022 dated 03.10.2022.

9. Having held thus, now let this Court enter into the main controversy in the present litigations as under:-

I. The petitioners claiming to be general members of the respondent No. 1, organization namely Tezpur Bengali Aboitanik Natya Samaj (hereinafter referred as to the Natya Samaj), which is a non government organization and has been in existence for more than hundred years at Tezpur. The petitioner Nos. 1 to 5, claims to be oldest members of the Natya Samaj.

II. The petitioners filed a suit being Title Suit No. 118/2017, against the Natya Samaj, challenging a resolution dated 03.09.2017, by which the Natya Samaj took a resolution to have a fresh election before completion of three years tenure of the Executive Body.

III. The grievance raised in the said suit was that the fresh election ought not to have been resolved to be held before expiry of the tenure of the earlier committee.

IV. The learned Munsiff, Tezpur, while dealing with the matter and taking an application for injunction restrained the respondents from conducting the election. The petitioners claim that as in the meantime, the three Page No.# 8/19

years terms completed and therefore, nothing survived to be adjudicated in the said suit and accordingly suit was allowed to be withdrawn vide order dated 05.05.2018, on the prayer of the plaintiffs i.e. the present petitioners in the revision petition.

V. The petitioners further claim that after withdrawal of the suit, the Natya Samaj through its management issued a show cause notice on 31.10.2018 asking the petitioners as to why disciplinary action in the form of their expulsion from the primary membership should not be taken against them for having approached the court of law and having filed a suit and thereby bringing disruption of normal functioning of the Natya Samaj which amounts to Anti-Party activities.

VI. The petitioners submitted their reply, however, on 07.12.2018, the petitioners received a communication under the signature of General Secretary of the Natya Samaj, whereby it was intimated that the petitioners had been expelled from the primary membership of the Natya Samaj.

VII. It is the further claim of the petitioners that some other persons who were also issued similar show cause notice were dealt leniently.

VIII. Against such expulsion, the petitioners as plaintiffs instituted yet another suit being Title Suit No. 15/2019, before the learned Munfiss No. 1, Sonitpur at Tezpur seeking a declaration that the expulsion letter dated 07.12.2018 and show cause notice dated 31.10.2018 are against the constitution of Natya Samaj and null and void.

IX. Along with aforesaid suit, the petitioners also filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure, which was registered as Misc.(J) Case No. 38/2019. The Natya Samaj contested the Page No.# 9/19

said miscellaneous case by filing written objection. Thereafter, the learned Munsiff No. 1, Sontipur at Tezpur vide its order dated 31.08.2019, held that the petitioners has been able to make a prima facie case as the petitioners were expelled without being heard or without organizing any general body meeting of the Natya Samaj as required under their Constitution. It was further held that balance of convenience is also in favour of the petitioners. The issue of irreparable loss and injury was also held to be in favour of the petitioners for the reason that, if the injunction was not granted in favour of the petitioners at that stage by allowing them to take active participation in the Natya Samaj as members, then it will lead to such level of injuries which cannot be compensated by damages. Accordingly, learned Trial Court below allowed and permitted to participate the petitioners in the activities of the Natya Samaj as general members from the date of the order until disposal of the main Title Suit by suspending the operation of their expulsion from Natya Samaj.

10. Being aggrieved, the Natya Samaj preferred an appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure read with Section 104 of the C.P.C. before the learned Civil Judge, Tezpur at Sonitpur. The present petitioners contested the said appeal which was registered as Misc. Appeal No. 06/2019. The learned appellate Court vide its Judgment dated 30.09.2019, dismissed the appeal holding that the findings of the learned Court below does not deserve any interference from the appellate Court. The Court further held that the question of fact raised in the matter are required to be dealt with by the trial Court after recording of evidence of the parties. However, regarding the participation of the petitioners in the activities of the club, the learned appellate Court passed the following orders:-

Page No.# 10/19

"In respect of the participation of respondents in the activities of the association till disposal of the suit, this first appellate court observed that if the respondents are permitted to take part in activities of association till final disposal of suit then there is every possibility of forming conflicts between the parties and that may cause harm to the reputation and dignity of the association. Furthermore, to preserve the very purpose of filling the suit against the appellants it seems to be the demand of justice to ask the respondents not to interfere with any internal activities of the "Natya Samaj" although their expulsion of their membership from Natya Samaj stayed by the order of mandatory injunction. It is further directed that appellants shall consider the respondents to be the general members of the "Natya Samaj" till final disposal of the suit".

11. The petitioners being aggrieved by the aforesaid observation regarding the activity has preferred CRP/23/2020, before this Court assailing the aforesaid offending part of the decision.

12. During the pendency of the said CRP/23/2020, the present petitioners preferred an application before the learned trial Court below under Order 39 Rule 4 read with Section 151 of the Code of Civil Procedure seeking for clarification of the order dated 30.09.2019 passed Misc. Appeal No. 06/2019. The present respondents contested the same and the learned appellate Court below under its order dated 16.03.2021, dismissed the aforesaid application holding that as the order dated 30.09.2019 passed in Misc. Appeal No. 06/2019 has attained finality and no review petition has been filed by the respondents/petitioners under the provision of Code of Civil Procedure, the Order and Judgment passed in Misc. Appeal No. 06/2019 dated 30.09.2019 cannot be modified as prayed by the petitioners. The aforesaid order dated 16.03.2021 passed in Misc.(J) Case No. 109/2019 is under challenged in CRP(IO)/151/2021.

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13. Argument advanced by the learned counsel for the petitioners:-

Mr. S. K. Singh, learned Senior counsel in support of the case of the petitioners argues the following:-

I. The direction given in the impugned order dated 30.09.2019 by the learned appellate court to the effect that the petitioners were not to interfere with the internal activities of the Natya Samaj is illegal and not sustainable in law. The said order is vague in nature since the court below nowhere described in its order what it meant by internal activities of the Natya Samaj. On the other hand, taking advantage of such ambiguity in the order of the learned appellate court below, the respondents debarred the petitioners from taking part in each and every activities of Natya Samaj, which other general members enjoyed by terming the same as their internal activities. The respondents have no right to debar the petitioners from taking part in such activities where the general members participate. They cannot curtail the right to vote being the members of the organization as guaranteed under the Constitution of Natya Samaj. The respondents even did not accept the memberships subscriptions from the petitioners while non payment subscription, as per Constitution, makes membership liable to be cancelled. They interpreted the judgment of the appellate court that the memberships of these petitioners were on paper only with no right whatsoever. For which the said order needs to be set aside and affirm the judgment passed by the learned trial Court below.

II. Mr. Singh, learned Senior Counsel further submits that the impugned order dated 16.03.2021 rejecting the plea of the petitioners to modify its earlier order as passed by the learned appellate court is illegal since the same has been passed ignoring the settled principles of law. The ground Page No.# 12/19

of rejection as set forth by the court below is not sustainable. The learned court was of the opinion that relief sought for modification ought to have been by way of a review petition ignoring the facts that modification/variation or clarification of the original order has been necessitated since it caused hardship to the petitioners.

III. Mr. Singh, learned Senior Counsel also submits that the order of the learned appellate Court, though in favour of the petitioners, because of the observation has caused a lot of hardships since it allowed the respondents to interpret its in their own way in order to oust the petitioners altogether from Natya Samaj despite their membership being restored by the two learned courts below.

14. Submission of the learned counsel for the respondents:-

Per contra, Mr. A. Ganguly, learned counsel for the respondents contends the following:-

I. The High Court under Article 227 does not interfere unless there is a grave jurisdictional error by the subordinate Court, which is so grossly wrong and unjust or "shocks the judicial conscience" of the High Court. In support of his contention Mr. Singh, learned Senior Counsel relies on a judgment of the Hon'ble Apex Court in the case of Indian Pipe Fitting

-Vs- Fakruddin M A Baker reported in AIR 1978 SC 45.

II. There is no prayer for mandatory injunction in T.S 15/19, and proviso to S. 34 SRA applies. There cannot be any temporary injunction sought in an injunction application. This was taken into consideration by the learned appellate court in impugned order dated 16.03.2021 in Misc (J) No. 109/2019 which has been impugned in CRP(IO)/151/2021. In support of his contention, Mr. Singh, learned Senior Counsel relies on Page No.# 13/19

judgment of the Hon'ble Apex Court in the case of Gadadhar Barman

-Vs- Ranendra Mohan Paul reported in (1998) 1 GLT 137 and Ibrahim Ali Barbhuiya -Vs- Rustana Begum reported in (2018) SCCOnline Gauhati 655.

III. Even if the learned appellate Court upheld the injunction order, the petition under Order 39 Rule 4 CPC pleading undue hardship should be made before the learned trial Court. In this regard, Mr. Singh, learned Senior Counsel relies on a decision of the Hon'ble Apex Court in the case of Ravishankar & Anr -Vs- VIIth Addl District Judge & Ors reported in (1994) MP LJ 783.

IV. CRP/23/2020 was filed during pendency of Misc. (J) No. 109/2019 under Order 39 Rule 4 CPC and CRP(IO)/151/2021 was filed when this court was in seisin of CRP/23/2020. Maintainability of both the petitions when this Court is in seisin of CRP/23/2020 is seriously in question.

V. The learned appellate Court was aware of the entire pleadings including the contents of written statement filed by the respondents/defendants and more specifically para 27 of the said written statement and hence balanced the unrestricted mandatory injunction favouring the plaintiffs. That balancing act should not be interfered with, even if it was wrong, as there is no jurisdictional error shocking this Court's conscience by that order.

VI. The jurisdiction of the High Court whether under Article 227 of the Constitution of India or Section 115 CPC is not to correct erroneous orders of the sub ordinates courts but to interfere in such orders which involve jurisdictional error or material irregularity in the exercise of revisional jurisdiction. Interference would not be justified merely Page No.# 14/19

because of the High Court is of the view that the impugned order is wrong, but the jurisdictional error must be of such magnitude as to vitiate the order impugned. In support of his contention, Mr. Singh, learned Senior Counsel relies on a decision of the Hon'ble Apex Court in the case of Managing Director Hindustant Aeronautics Ltd. & Anr

-Vs- Ajit Prasad Tarway reported in 1972 3 SCC 195.

VII. If as per Wander vs Antox, the learned appellate Court should be slow to interfere with a discretionary order, the revisional Court should be even slower to interfere especially when both the lower Courts have concurrently formed in favour of the petitioners themselves as per decision of the Hon'ble Apex Court in the case of Md. Samsuddin -Vs- Md. Sabjali Ali reported in 2017 6 Gau LJ 257.

VIII. The revisional Court must consider that the right of a member of a club or association is a mere contractual right and not a constitutional or legal right which is required to be protected by a interim mandatory injunction having the effect of allowing the main title suit at the initial stage.

15. This Court has given anxious consideration to the submissions made by the learned counsel for the parties. Also perused the materials available on record.

16. Coming to the point of maintainability, this Court is of the opinion that as the learned counsels for the parties had made deliberations and advanced arguments on the merit of their respective cases, the question of maintainability should not detained this Court any further inasmuch as this Court even under its power under Article 227 of the Constitution of India, in a given case may convert an application under Section 115 of the CPC to a Page No.# 15/19

petition under Article 227 of the Constitution of India inasmuch as this Court can exercise its power under Article 227 of the Constitution of India suo moto in an appropriate case. Therefore, the Revision Petition No. CRP/23/2020 be treated as an application under Article 227 of the Constitution of India.

17. Being held thus, now let this Court examine the sustainability of the order impugned in the present petition within the parameters of the power of this Court under Article 227 of the Constitution of India.

18. The impugned order dated 30.09.2019 passed in Misc. Appeal No. 06/2019 will go to show that the order of injunction granted by the learned trial Court in Misc. J. Case No. 38/2019 was not interfered with by the learned Appellate Court inasmuch as it was the conclusion of the learned Appellate Court that findings of the trial court below does not deserve any interference from the Appellate Court and also affirmed that findings of the learned trial Court below pertaining to the finding on the three golden principles of granting injunction.

19. After coming to such conclusion, while dealing with a further argument of the appellant that the interim injunction granted amounts to final findings and no issues were left to be decided, the learned Appellate Court below came to a conclusion that there are many question of fact required to be decided by the trial Court inasmuch as it was the finding of the appellate Court that the appellant has raised several questions of fact, which are disputed by the respondents and such question of fact are required to be dealt with by the trial Court after recording evidence of the parties. The Appellate Court also came to a conclusion that prior to such determination, as the three golden principles for granting injunction in the case were available, it was appropriate on the part of the learned trial Court to direct the restoration of the membership of the club to the respondents by staying the operation of the resolution of their expulsion till final determination of facts in issues by the trial Court.

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20. After the aforesaid conclusion, the learned Appellate Court taking note of a pleading that if the respondents plaintiffs are permitted to take part in the activities of the association till final disposal of the suit, there is possibility of forming conflicts between the parties and the same may cause harm to the reputation of the association, the Appellate Court directed the respondents not to interfere with any internal activities of the Natya Samaj with a further direction that the appellant Natya Samaj shall consider the respondents to be the general members of the Natya Samaj till final disposal of the suit and finally the Appellate Court dismissed the appeal.

21. From the aforesaid, it is clear that though the appeal was dismissed upholding the order of injunction, however, a direction was issued against the interest of the present petitioners, in whose favour injunction was granted and grant of such injunction was held to be valid by the appellate Court. Thus, the appellate Court passed a further restrain order asking the present petitioners not to interfere with any internal activities of the Natya Samaj, however, protected them to be general members of the Natya Samaj.

Thus in the considered opinion of this Court, the order impugned of the appellate Court is self contradictory inasmuch as it has not explained how the present petitioners will remain as general members and at the same time shall not interfere with the internal activities of the Natya Samaj and what are these internal activities.

Furthermore such order has been passed only on the basis of an apprehension that there may be conflict between the members, which may tarnish the image of the Natya Samaj. However, coming in to such conclusion, the learned appellate Court below has not discussed on the basis of what materials it has came to such conclusion inasmuch as it is settled proposition of law that while passing such a restraint order, the Court ought to have come Page No.# 17/19

to a definite conclusion based on material available that the appellant has made out a prima facie case which shows that there is every likelihood of interference by the respondents and the two other principles of balance of convenience and irreparable injury are available in favour of the appellant. In fact, the appellate Court concluded that all the three principles are in favour of plaintiff.

Accordingly, this Court is of the considered opinion that the findings of the appellant that there may be interference by the respondents is based on no material inasmuch as it is settled proposition that judicial order should be clear and unambiguous. However, while passing the impugned order the learned appellate Court below has failed to clarify what should be the internal activities from which general members are restrained. Accordingly, this Court is of the considered opinion that the learned Appellate Court has failed to exercise its jurisdiction which resulted in miscarriage of justice and passed the offending part in the impugned order while dismissing the appeal.

22. From the aforesaid, it is further clear that the appellate Court misdirected itself in respect of nature and scope of an appellate authority under the provisions of Order 43 Rule 1 (r) of the CPC, inasmuch as even after coming to a conclusion that the learned trial Court below has committed no error, by exceeding its jurisdiction passed fresh direction that too without discussing the existence of the three golden principles to pass such order. In this count also, the offending part of the impugned order is liable to be interfered for the reason that order has been passed by the Court in a manner not permitted under law.

23. In the case of Wander vs Antox, (supra) the Hon'ble Apex Court while dealing with exercise of discretionary power under the provision of Order 39 Rule 1 and 2 of the CPC, in no unambiguity held that the appellate Court Page No.# 18/19

should not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrary and capriciously or perversely or where the court had ignored the settled principle of law regulating grant or refusal of interlocutory injunction. In the case in hand, the appellate Court rather came to a conclusion that the finding of the trial Court does not deserve any interference and uphold the findings of the learned court below pertaining to the three golden principles. However, passed the offending part in the impugned order without giving any reasons for passing of such order. Accordingly, the same is interfered.

24. From the reasons discussed hereinabove, the revision petition is allowed interfering with the direction of the learned appellate Court that the respondents/plaintiffs not to interfere with any internal activities of the Natya Samaj.

25. Regarding the power of this Court under Article 227 of the Constitution of India, it is well settled that Article 227 of the Constitution of India confers power of superintendents upon this Court over the sub-ordinate Courts and such power of superintendents is administrative as well as judicial and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo moto.

26. The supervisory jurisdiction under Article 227 of the Constitution of India can be exercised when the sub-ordinate Courts assumed jurisdiction, which it does not have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasion thereby. In the case in hand, this Court as discussed herein above has on the given facts of the present case came to a finding that the appellate Court has exercised its appellate jurisdiction in a manner not permitted by law Page No.# 19/19

and resulted in grave injustice to the respondents/present petitioners. Accordingly, the judgment of the India Pipe Fitting (supra) and Hindustan Aeronautics (Supra) and Md. Samsuddin (supra) is not applicable to the given facts of the present case.

27. Though Mr. Ganguly, learned counsel has tried to impress upon this Court on the merit of the injunction petition and the availability of the golden principles including protection of right of a member of a club cannot be entertained inasmuch as the concurrent findings on this count cannot be adjudicated in absence of any challenge to such findings.

28. For the reasons and discussions made hereinabove, the present Civil Revision Petition No. 23/2020 is allowed interfering with the direction of the learned Appellate Court in debarring the petitioners from participating in internal activities of the Natya Samaj.

29. In view of such decision, nothing is survived to be adjudicated in the Civil Revision Petition (IO) No. /151/2021 and accordingly, the same is closed.

JUDGE

Comparing Assistant