Kerala High Court
D. Jayakumar vs The India Evangelical Lutheran ... on 31 August, 2022
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OP(C) No.1662 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
OP(C) NO. 1662 OF 2022
TO CONSIDER AND DISPOSE OF IA NO.1/2022 IN OS 700/2022 OF I
ADDITIONAL MUNSIFF COURT ,NEYYATTINKARA
PETITIONER/S:
D. JAYAKUMAR
AGED 64 YEARS
S/O DANAM NADAR,
JENNET BHAVAN, POOVAKKADU, VAZHUTHOOR,
NEYYATTINKARA VILLAGE, NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM, PIN - 695121
BY ADVS.
R.T.PRADEEP
M.BINDUDAS
K.C.HARISH
RESPONDENT/S:
1 THE INDIA EVANGELICAL LUTHERAN CHURCH (IELC)
REGISTERED OFFICE NO.47, ELDAMS ROAD,
TEYNAMPET, CHENNAI
REPRESENTED BY ITS ADMINISTRATOR,
2 JUSTICE D. HARIPARANTHAMAN (RETD.)
ADMINISTRATOR, IELC NO.47, ELDAMS ROAD,
TEYNAMPET, CHENNAI, PIN - 600018
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(C) No.1662 of 2022
C.S DIAS,J.
---------------------------
OP(C) No.1662 of 2022
-----------------------------
Dated this the 31st day of August, 2022.
JUDGMENT
The original petition is filed to direct the Court of
the Additional Munsiff-I, Neyyattinkara, to consider
and dispose of IA No.1/2022 in OS No.700/2022 (Ext
P2) on or before 3.9.2022.
2. The petitioner is the plaintiff in the above suit
filed, inter alia, to declare the election to the office
bearers of the IELC Ponvila Circle held on 9.8.2022 is
void, as it was conducted in violation of the
constitutional bye-laws of the first respondent. Along
with the suit, the petitioner had filed Ext P2
application, for an order of temporary injunction, to
restrain the respondents from inducting the office
bearers of the Ponvila Circle. Even though Ext P2
application was moved, the court below only issued Ext
P3 notice to the respondents, informing them that the
OP(C) No.1662 of 2022
application stands posted to 2.9.2022. The election to
the third tier of the first respondent is slated on
10.9.2022. If Ext P2 application is not considered on
or before 10.9.2022, it would render the suit
infructuous. Hence, the court below may be directed
to dispose of Ext P2 on or before 3.9.2022. Hence, the
original petition.
3. Heard; Sri.R.T Pradeep, the learned counsel
appearing for the petitioner and Sri.E.K Nandakumar,
the learned Senior Counsel appearing for the
respondents.
4. Going by the materials on record, it is seen
that Ext P1 plaint was instituted on 25.8.2022. Along
with the plaint, the petitioner had filed Ext P2
application, for an order of temporary injunction to
restrain the respondents from inducting the office
bearers of the Ponvila Circle declared elected by the
second respondent in the election conducted on
9.8.2022, till the disposal of the suit.
OP(C) No.1662 of 2022
5. Order 39 Rule 3 of the Code of Civil
Procedure, 1908, reads as follows:
3. Before granting injunction, Court to direct notice
to opposite party:-The Court shall in all caseS, except
where it appears that the object of granting the
injunction would be defeated by the delay, before
granting an injunction, direct notice of the application
for the same to be given to the opposite party:
[Provided that, where it is proposed to grant an
injunction without giving notice of the application to
the opposite party, the Court shall record the reasons
for its opinion that the object of granting the injunction
would be defeated by delay, and require the applicant-
(a) to deliver to the opposite party, or to send to him
by registered post, immediately after the order
granting the injunction has been made, a copy of the
application for injunction together with-
(i) a copy of the affidavit filed in support of the
application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant
relies, and
(b) to file, on the day on which such injunction is
granted or on the day immediately following that day,
an affidavit stating that the copies aforesaid have
been so delivered or sent].
6. A reading of the proviso to Rule 3 of Order 39
of the Code, substantiates that if the Court is satisfied
that an ad-interim injunction is to be granted, then the
OP(C) No.1662 of 2022
Court shall without issuing notice to the opposite party
and for reasons to be recorded that notice would defeat
the application, grant an ad-interim injunction.
However, if the court below is not satisfied that the
application falls within the purview of the proviso to
Rule 3 of Order 39 of the Code, the Court below shall,
issue notice to the opposite party and after hearing
both sides, decide whether or not to grant a temporary
order of injunction.
7. In the case at hand, it is seen that even
though the application was filed on 25.8.2022, the
court below declined to invoke the proviso to Rule 3 of
Order 39 and pass and ad-interim order of injunction.
Instead, the court below has issued Ext P3 notice to the
respondents informing them that the application stands
posted to 2.9.2022.
In the above factual background, I am not
inclined to pass any direction to the court below to
consider and dispose of Ext P2 application invoking the
supervisory powers of this Court under Article 227 of
OP(C) No.1662 of 2022
the Constitution of India. The court below is well
within its bounds to consider and dispose of Ext P2
application, on its merits and in its proper perspective,
after affording the respondents an opportunity to
substantiate their stand by filing their written
objection. Nonetheless, the court below shall bear in
mind the election to the third tier is fixed on 10.9.2022.
With the above observation, the original petition is
disposed of.
sd/-
sks/31.8.2022 C.S.DIAS, JUDGE
OP(C) No.1662 of 2022
APPENDIX OF OP(C) 1662/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF PLAINT DATED 20.8.2022 IN
O.S. NO.700/2022 BEFORE THE COURT OF
1ST ADDITIONAL MUNSIFF COURT,
NEYYATTINKARA
Exhibit P2 TRUE COPY OF I.A. NO.1/2022 DATED
22.8.2022 IN O.S. NO.700/2022 BEFORE
THE COURT OF 1ST ADDITIONAL MUNSIFF,
NEYYATTINKARA
Exhibit P3 TRUE COPY OF NOTICE DATED 25.8.2022 IN
I.A. NO.1/2022 IN O.S. NO.700/2022 OF
THE COURT OF 1ST ADDITIONAL MUNSIFF,
NEYYATTINKARA
Exhibit P4 TRUE COPY OF I.A. NO.3/2022 IN O.S.
NO.700/2022 DATED 24.8.2022 ON THE FILE
OF COURT OF 1ST ADDITIONAL MUNSIFF,
NEYYATTINKARA
Exhibit P5 TRUE COPY OF I.A. NO.4/2022 IN O.S.
NO.700/2022 DATED 25.8.2022 ON THE FILE
OF COURT OF 1ST ADDITIONAL MUNSIFF,
NEYYATTINKARA
