Rajasthan High Court - Jodhpur

Anwar Ali Khan vs Marwar Muslim Education And Welfare ... on 26 September, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:40151]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN

                                 AT JODHPUR


                  S.B. Civil Misc. Appeal No. 2393/2024

1.       Anwar Ali Khan S/o Sultan Khan, aged about 67 years,
         Resident of 17 E/ 833 Chopasani Housing Board Jodhpur
         (Raj.)
2.       Shahzad Ahmed Khilji S/o Sh. Nisar Ahmed, aged about
         40 years, R/o Pakija Chakki, Kamla Nehru Nagar, Jodhpur
         (Raj.)
3.       Mohd. Taiyab S/o Sh. Abdul Hakim, aged about 55 years,
         R/o Khanda Falsa, Jodhpur (Raj.)
4.       Abdullah Umer S/o Sh. Mohd. Ateek, aged about 50
         years, R/o Ashraf Manzil, Outside Merti Gate, Jodhpur
         (Raj.)
5.       Abdullah Tareek S/o Sh. Mohammed Ateek, aged about
         47 years, R/o Ashraf Manzil, Outside Merti Gate, Jodhpur
         (Raj.)
6.       Mohammed Aslam S/o Sh. Mohammed Shareef, aged
         about 50 years, R/o Khandafalsa, Jodhpur (Raj.)
7.       Mohad. Sabir Qureshi S/o Sh. Hazi Abdul Munaf, aged
         about 52 years, R/o Mohalla Nagauri Silavatan, Jodhpur
         (Raj.)
8.       Abdullah Khalid Qureshi S/o Sh. Abdul Rajjak Qureshi,
         aged about 60 years, R/o Inside Sojati Gate, Jodhpur
         (Raj.)
9.       Smt. Umme Ruman W/o Sh. Abdullah Umer, aged about
         45 years, R/o Ashraf Manzil, Outside Merti Gate, Jodhpur
         (Raj.)
10.      Abdullah Harun S/o Sh. Ahmed Faarook, aged about 65
         years,      R/o    Ashraf        Manzil,        Outside   Merti   Gate,
         Jodhpur(Raj.)
11.      Rajab Ali S/o Sh. Asgar Ali, aged about 60 years, R/o
         Guljarpura, Jodhpur (Raj.)
12.      Iqramuddin Abbasi S/o Sh. Babu Khan, aged about 62
         years, R/o Bamba Mohalla, Jodhpur (Raj.)
13.      Abdullah Arshad Modi S/o Sh. Abdullah Faarookh, aged
         about 42 years, R/o Abdullah Building, Sojati Gate,


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         Jodhpur (Raj.)
14.      Jakir Hussain Gauri S/o Sh. Mohammed Ali Gauri, aged
         about 62 years, R/o Ashraf Manzil, Outside Merti Gate,
         Jodhpur (Raj.)
15.      Abdullah Mahir Modi S/o Sh. Abdullah Haarun, aged about
         45 years, R/o Ashraf Manzil, Outside Merti Gate, Jodhpur
         (Raj.)
16.      Dr. Abdullah Aamir S/o Sh. Mohammed Yunus, aged
         about 58 years, R/o Ashraf Manzil, Outside Merti Gate,
         Jodhpur (Raj.)
17.      Smt. Hafsa Taahir W/o Sh. Abdullah Taahir, aged about
         42 years, R/o Ashraf Manzil, Outside Merti Gate, Jodhpur
         (Raj.)
18.      Mohammed Subhan S/o Sh. Mohammed Ramzan, aged
         about 45 years, R/o Bakra Mandi, Jodhpur (Raj.)
19.      Mohammed Ramzan S/o Sh. Mohammed Shafi, aged
         about 67 years, R/o Bakra Mandi, Jodhpur (Raj.)
20.      Mohammed Vaasid S/o Sh. Hazi Abdulla Qureshi, aged
         about 48 years, R/o Mohalla Nagauri Silavatan, Jodhpur
         (Raj.)
21.      Abdullah Nasir Khan S/o Sh. Abdullah Mohammed Umer,
         aged about 62 years, R/o Haji Street, Shantipriya Nagar,
         Jodhpur (Raj.)
                                                                 ----Appellants
                                    Versus
1.       Marwar Muslim Education and Welfare Society, Jodhpur
         through its General Secretary, having its registered Office
         at Kamla Nehru Nagar, Pal Link Road, Jodhpur (Raj.)
2.       Noor Mohammed S/o Sh. Deen Mohammed, R/o Care Of
         Kohinoor Cinema, Chopasani Road, Jodhpur (Raj.)
3.       Mohammed Ismail Qureshi S/o Abdul Jabbar, R/o Near
         Cheerghar Mandir, Kamla Nehru Nagar, Jodhpur (Raj.)
4.       Shokat Ansari S/o Sh. Insaf Ali Ansari, R/o Film City,
         Village Gangana, Jodhpur (Raj.)
5.       Dr. Gulam Rabbani S/o Sh. Haji Mohammed Haneef, R/o
         Inside Sojati Gate, Near Hotel Abbabeel, Jodhpur (Raj.)
6.       Mohammed Haarun S/o Sh. Hisamuddin, R/o Janta Bartan
         Bhandar, Nai Sadak, Jodhpur (Raj.)

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7.       Shakeel Parbej, Receiver, Marwar Muslim Education and
         Welfare Society, Jodhpur having its registered Office at
         Kamla Nehru Nagar, Pal Link Road, Jodhpur (Raj.)
8.       Mahaveer Singh Jodha, Election Officer, Address - Court
         Premises, Jodhpur (Raj.)
9.       Ahmed Hussain S/o Sh. Abdul Jabaar, aged about 60
         years, R/o Hanuman Ji Ki Bhakhri, Nai Sadak, Jodhpur
         (Raj.)
                                                                  ----Respondents


For Appellant(s)           :    Mr. Ziya-Ul-Haq, through VC.
                                Mr. Shashank R. Joshi
For Respondent(s)          :    Mr. Om Prakash Mehta, through VC
                                with Mr. Tanay Jain.



               HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

26/09/2024

1. The appellants/plaintiffs have preferred the instant misc.

appeal under Order 43 Rule 1 (r) read with Section 104 of the

Code of Civil Procedure, 1908 ('CPC') challenging the order dated

21.06.2024 passed by learned Additional District Judge No.7,

Jodhpur Metropolitan, Jodhpur ('Trial Court') in Civil Misc.

Application No.25/2024, whereby the learned Trial Court has

rejected the prayer for ad-interim injunction and an erroneous

finding with respect to appellants' membership has been given,

which was neither the subject-matter of the suit nor even pleaded

by the appellants.

2. The facts apposite for the purpose of disposal of this misc.

appeal are that the appellants/plaintiffs filed a suit for declaration

and permanent injunction against the respondents/defendants

before the learned Trial Court. The appellants/plaintiffs filed the

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suit assailing the action of the defendants No.1 to 6, whereby

without having any authority or right and in gross violation of the

Constitution of the Society, the life membership of the appellants

has been rejected by the defendants and their names have been

ordered to be removed from the voter list/list of life members.

Along with the suit, the appellants/plaintiffs filed an application

seeking temporary injunction under Order 39 Rule 1 & 2 read with

Section 151 CPC with the prayer that the defendants be restrained

from creating any hurdle in the way of appellants' participation in

the elections as voter and candidate(s), which were to be held on

23.06.2024.

3. The defendants No.1 to 7 filed reply to the application under

Order 39 Rule 1 & 3 CPC while denying the contents thereof. In

the reply, the defendants while defending rejection of appellants'

membership from the defendant-Society have raised various

preliminary objections with respect to locus of the appellants to

maintain the suit, conduct of the appellants and application forms

submitted by the appellants/plaintiffs etc.

4. The learned Trial Court vide order impugned dated

21.06.2024, after considering the rival submissions made by the

parties, proceeded to reject the prayer of the appellants and

posted the matter for arguments on temporary injunction

application on 01.07.2024.

5. Learned counsel appearing for the appellants submits that

while exceeding the prayer, at ad-interim stage, the learned Trial

Court ought not to touch the merits of the main suit, when the

relief sought in the prayer has a nexus with the main relief sought

in the suit itself. Learned counsel for the appellants submits that

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by way of filing application under Order 39 Rule 1 & 2 CPC, the

appellants prayed that the defendants be restrained from creating

any hurdle in the way of appellants' participation in the elections

and be permitted to participate in the elections in the capacity of

voters and contest the election. Learned counsel for the appellants

submits that the learned Trial Court has adjudicated upon the

point of membership of the appellants, which was not even prayed

or pleaded by the appellants, either in the suit or in the

application seeking temporary injunction and thus non-suited the

appellants at the threshold, at ad-interim stage, causing serious

prejudice. He further submits that the issue before the learned

Trial Court was pertaining to the legality of the power exercised by

the defendants, inasmuch as they usurped the power of the

Governing Council/General Council and removed the names of the

appellants from the list of voters/list of life membership.

7. On the other hand, learned counsel appearing for the

respondents submits that elections have already been conducted

as per the Schedule and the result has also been declared

thereafter. Learned counsel for the respondents submits that

essentially the application under Order 39 Rule 1 & 2 CPC has

been rendered infructuous. And, this fact has not been disputed

by the learned counsel for the appellants/plaintiffs. Learned

counsel for the respondents relied upon judgment in Manohar Lal

(D) by LR's v. Ugrasen (D) by LR's & Ors. : AIR 2010 SC 2210.

8. I have considered the submissions made by counsel for the

parties at length and have perused the material available on

record.

[2024:RJ-JD:40151] (6 of 7) [CMA-2393/2024]

9. The learned Trial Court vide the impugned order dated

21.06.2024 has ordered as under:

"lquk x;kA i=koyh dk voyksdu fd;k x;kA i=koyh ds voyksdu ls n`f"Vxr gksrk gS fd ekuuh; jktLFkku mPp U;k;ky; }kjk ,l-ch- flfoy fe- vihy uEcj 1372@2023 esa vkns'k fnukad 20-03-2024 ds }kjk iwoZ xofuZax dksafly] tks pquko fnukad 01-08-2021 }kjk p;fur dh xbZ Fkh] dks Dissolve dj fn;k x;k gS rFkk u, pquko vk;ksftr djok, tkus ds funsZ'k fn, gS rFkk Lora= pquko vf/kdkjh dh fu;qfDr djrs gq, pquko vf/kdkjh dks viuh fu;qfDr ls nks ekg ds Hkhrj mDr pquko lEiUu djok, tkus ds funsZ'k fn, gSA izkFkhx.k us bl fufer nkSjku cgl bl Lrj ij ;g nf'kZr ugha fd;k gS fd os laLFkk ds fo/kku esa of.kZr lnL;rk dh 'krsZa] tks mDr laLFkk ds lafo/kku ds fu;e 5%3] 5%4] 5%5] 5%7 vkfn esa of.kZr gS] dh iwfrZ djrs gksaA vizkFkhZx.k }kjk izkFkhZx.k ds lEcU/k esa tks nLrkostkr lnL;rk QkWeZ vkfn ds nLrkostkr izLrqr fd, gSa] muls bl Lrj ij izFke n`"V;k ;g nf'kZr ugha gksrk fd izkFkhZx.k laLFkk ds lafo/kku ds vuq:i lnL; ds :i esa fu/kkZfjr vgZrk,a j[krs gksaA vf/koDrk izkFkhZx.k dk dsoyek= ;g dFku jgk gS fd ljijLr esEcj dks mUgs lnL;rk ls gVkus dk vf/kdkj ugha FkkA vf/koDrk vizkFkhZx.k dk dFku gS fd izkFkhZx.k dks lnL;rk ls gVkus dk iz'u rks rc mRiUu gksxk] tc izkFkhZx.k oS/k :i ls lnL; gksA izkFkhZx.k tc lnL;k dh vgZrk,a gh iwjh ugh djrs gSa] rks mUgs gVk, tkus dk iz'u ugha mRiUu ugha gksrkA vizkFkhZx.k }kjk izkFkhZx.k dh lnL;rk gsrq tek djok, x, QkWeZ o vU; nLrkostkr ds voyksdu ls lkslk;Vh ds fo/kku ds vuq:i izkFkhZx.k lnL; fu;qDr gksus ds lEcU/k esa vgZrk,a j[krs gksa] ,slk bl Lrj ij izFke n`"V~;k n`f"Vxr ugha gksrkA mijksDr fo'ys"k.kkuqlkj izkFkhZx.k ds i{k esa varfje :i ls izFke n`"V~~;k ekeyk cuuk n`f"Vxr ugha gksrk gSA lqfo/kk dk larqyu Hkh izkFkhZx.k ds i{k esa bl Lrj ij curk n`f"Vxr ugha gksrkA vr% izkFkhZx.k dk mDr varfje vLFkkbZ fu"ks/kkKk dk fuosnu mijksDr fo'ys"k.kkuqlkj bl Lrj ij Lohdkj fd;k tkuk mfpr p U;k;ksfpr izrhr ugha gksrkA vr% izkFkhZx.k dk varfje vLFkkbZ fu"ks/kkKk dk fuosnu vLohdkj fd;k tkrk gSA i=koyh okLrs cgl Vh-vkbZ- ewy U;k;ky; ds le{k fnukad 1-7- 2024 dks is'k gksA"

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10. Having regard to the submissions made by counsel for the

parties, this Court finds that the prayer sought by the appellants

that defendants be restrained from creating any hurdle in the way

of appellants' participation in the elections, has been rendered

infructuous, inasmuch as the elections have already been

concluded/over and result whereof has also been declared on

23.06.2024.

11. So far as the contention of learned counsel for the

appellants/plaintiffs that the learned Trial Court by the impugned

order could not have adjudicated upon the point of membership of

the appellants is concerned, needless to observe here that while