K.K. Denesan, J.
1. Respondents 1 to 5 filed O.S. No. 1304 of 2003 before the 1st Additional Munsiff's Court, Ernakulam praying for a declaration that the election of defendants 7 to 17 held, on 11.7.2003 to the Ernakulam District Committee of the 1st defendant is null and void. The 1st petitioner-Kerala Vyapari Vyavasayi Ekopana Samithi, State Committee, represented by its present General Secretary Alex M. Chacko is the 1st defendant in the suit. The 2nd petitioner herein is the aforesaid Alex M. Chacko himself in his capacity as the General Secretary of the 1st petitioner.
2. The reliefs prayed for in the suit are extracted below:
'(A) declare that the alleged election of defendants 7 to 17 on 11.7.2003 to the Ernakulam District Committee of the 1 st defendant is null and void;
(B) declare that the actions of defendants 7 to 17 as the office bearers of the Ernakulam District Committee of the 1 st defendant are null and void;
(C) restrain defendants 7 to 17 by a permanent prohibitory injunction from using the name, emblem or flag of the 1st defendant and from representing or holding themselves out as the duly elected District Committee of the 1st defendant for Ernakulam;
(D) restrain defendants 1 to 6 by a permanent prohibitory injunction from approving the committee headed by defendants 7 to 17;
(E) restrain defendants 7 to 17 by a permanent prohibitory injunction from collecting any amounts as membership fees or otherwise from the members of the 1st defendant in the district of Ernakulam;
(F) restrain defendants 1 to 6 by a permanent prohibitory injunction from affiliating any Unit through defendants 7 to 17 for the District of Ernakulam, and
(G) grant such other reliefs as the plaintiffs pray for from time to time and that this Hon'ble Court may deem fit and proper to grant in the facts and circumstances of the case and also the costs of this suit'.
3. The 1st petitioner-Kerala Vyapari Vyavasayi Ekopana Samithi, hereinafter referred to as the 'Society' was registered under Section 5 of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, hereinafter referred to, for short, as the 'Act' only. Ernakulam District Committee of the Society was elected for two years from 10.7.2001 to 9.7.2003. According to the petitioners, the District Committee failed to remit the membership fees within the time prescribed therefore and consequently it ceased to have membership in the Society with effect from 30.9.2001. The State Committee of the Society informed all concerned about the above fact and afforded them opportunity to become members by paying the partnership fees directly to the State Committee. According to the petitioners, election to the Ernakulam District Committee of the Society was held by the State Committee on 11.7.2003 and new office bearers were elected. Thereupon respondents 1 to 5 filed the above suit in the Munsiff s Court. Alongwith the suit I. A. No. 6254 of 2003 was also filed for an interlocutory order restraining respondents 7 to 17 therein by temporary prohibitory injunction from representing or holding themselves out to be office bearers of the Ernakulam District Committee of the Society and from using the emblem, flag or name of the Society and also to restrain them, their men and agents from interfering with the functions of the plaintiffs/petitioners in the above I.A. The Society filed written statement (Ext.P4) in the suit and counter-affidavit (Ext.P6 - Statement of objection) in the LA. (Ext.P3). The 8th defendant in the suit also filed statement of objection (Ext.P5) to Ext.P3 application for injunction. In the written statement and the statement of objection, it was contended, inter alia, that the Munsiff's Court has no jurisdiction to try the suit in view of Section 25 of the Act, because the registered office of the Society is at Thrissur and the District Court, Thrissur alone is competent to try and dispose of the suit.
4. Immediately after filing the written statement and the statement of objection, the Society filed LA. No. 6576 of 2003 in the above suit praying that the issue of jurisdiction may be decided as a preliminary issue. A copy of the above LA. is produced as Ext.P7. The learned Munsiff did not pass any order on Ext.P7, but disposed of the application for injunction by Ext.P8 order dated 10.10.2003 allowing the injunction as prayed for.
5. This Writ Petition is filed to quash Ext.P8 order and for a declaration that the 1st Addl. Munsiff's Court, Ernakulam, has no jurisdiction to pass Ext.P8 and that Ext.P8 is a nullity.
6. Respondents 2 to 5 have filed a detailed counter-affidavit denying the allegations in the Writ Petition and maintaining the stand that the Munsiff s Court, Ernakulam, has got jurisdiction to grant the reliefs prayed for by the plaintiffs in the suit.
7. The question for consideration is whether the challenge against Ext.PS is sustainable on the ground that it was passed by a court which has no jurisdiction to try the suit.
8. Petitioners have invoked the extra-ordinary jurisdiction of this Court under Arts. 226 and 227 of the Constitution. Ext.PS is an appealable order. In view of the fact that an effective and efficacious remedy by way of appeal is available under Order 43 Rule 1 of C.P.C. this Court will be loathe to interfere under Arts. 226 or 227 of the Constitution. Presumably, being aware of the principle of law and the self imposed restriction which the High Courts observe in the exercise of the power under Articles 226 and 227 of the Constitution, the learned counsel for the petitioners submitted that the challenge against Ext.PS is on the ground of total lack of jurisdiction and hence this Court may decide that question on its merits.
9. Learned counsel for the petitioners, Shri. S.V. Rajan contended that if the Munsiff s Court has no jurisdiction to try the suit and grant the reliefs prayed for by the plaintiffs, what necessarily follows is that Ext.PS is a nullity. A perusal of the grounds raised in the Writ Petition as also the reliefs prayed for by the petitioners makes it clear that the ground of attack against Ext.PS is total lack of jurisdiction for the Munsiff s Court to entertain the suit and grant any order in favour of the plaintiffs.
10. It is to be noted that the learned Munsiff has not passed any order disposing of Ext.P7 application filed by the 1st petitioner herein. Hence, in the normal course it would be appropriate for this Court to direct the learned Munsiff to decide the question of jurisdiction as a preliminary issue. However, counsel appearing for the Writ Petitioners as also the respondents did not prefer such a course. Instead, they joined issue on the question of jurisdiction and addressed lengthy arguments in the Writ Petition. Hence, with the consent of the counsel appearing for the petitioners and the respondents, this Writ Petition is being disposed of answering the jurisdictional question.
11. According to the petitioner's counsel, the respondents should have resorted to the remedy provided under Section 25 of the Act instead of filing a suit in the Munsiff's Court. Section 25 reads:
'Application to Court for dissolution, framing a scheme, etc:- (1) When an application is made by the State Government or ten percent of the members on the rolls of a society to the District Court within the jurisdiction of which the Society is registered, the court may, after enquiry and on being satisfied that it is just and equitable, pass any of the following orders:-
(a)removing the existing governing body and appointing a fresh governing body; or
(b) framing a scheme for the better and efficient management of the society; or
(c) dissolving the society.
(2) Where the application under Sub-section ( 1) is by the members of the society, the applicant shall deposit in court along with the application the sum of one hundred rupees in cash as security for costs'.
12. In this connection reference may be made to Section 9 of the Code of Civil Procedure which reads as follows:
'Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation I.- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II.- For the purpose of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.'
13. Confronted with the fact that the Act does not contain any express provision excluding the jurisdiction of the civil courts to try suits of a civil nature, counsel for the petitioners contended that Section 25 of the Act operate as an implied bar against the jurisdiction of the ordinary civil courts. According to the learned counsel the implied bar can be felt and understood on a reading of the provisions of the Act and the whole scheme of the Act. under Section 27 of the Act, appeals lie to the High Court from orders passed under Section 25 as if they were decrees in suits. Counsel submitted that the courts haying the original jurisdiction and the appellate jurisdiction to decide the disputes by or against the society are clearly specified and therefore it is only reasonable to presume that there is an implied ouster of jurisdiction of other courts. My attention was drawn to the following passage in the Seventh Edition of the book 'Principles of Statutory Interpretation' by Justice G.P. Singh (former Chief Justice, M.P. High Court) where the learned author at page 531 says: 'As laid down by Willes, J. and affirmed by high authorities.' -
'There are three classes of cases in which a liability might be established, founded upon statute. One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular from the remedy; there, the party can only proceed byaction at common law. But there is third class, viz. where a liability not existing at common lawis created by a statute which at the same time gives a special and particular remedy for enforcingit - The remedy provided by the statute must be followed, and it is not competent to the partyto pursue the course applicable to cases of the second class.'
According to the learned counsel for the petitioners the case on hand falls within the. third category mentioned above. The following decisions of the Supreme Court were cited in support of his contentions: Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke ((1976) 1 SCC 496), Munshi Ram v. Municipal Committee, Chheharta (AIR 1976 SC 1250), Jitendra Nath Biswas v. Empire of India and Ceylone Tea Co. (1989) 3 SCC 582) and Saraswathi v. Lachanna ((1994)1 SCC 611).
14. Shri. N.N. Sugunapalan appearing for the 1st respondent submitted that the reliefs prayed for in the suit are outside the purview and ambit of Section 25 of the Act and therefore the contentions of the petitioners, if accepted, would bring about arbitrary and inequitable results thereby leaving the aggrieved persons without any remedy at all in respect of matters which are not specifically provided for in Clause (a), (b) and (c) of Section 25 of the Act. Learned Counsel cited before me the decisions of the Supreme Court in Firm of Illuri Subbayya Chetty and Sons. v. State of Andhra Pradesh (AIR 1984 SC 322) -and Dhulabhai v. Stale of M.P. (AIR 1969 SC 78). He also cited the decisions of this Court in Parayakadu Nalukulangara Devaswom v. Padmanabhan Marshas (1983 KLJ 232) and Antony v. Thandiyode Plantations (Pvt.,) Ltd. (1995 (2) KLT 512).
15. Shri. Vinod appearing for respondents 2 to 5 also emphasised the restricted or limited jurisdiction of the District Court as conferred by Section 25 of the Act and submitted that there may arise cause of action other than those covered by Section 25 or Section 23 of the Act, for which no remedy is provided under the Act. The cause of action and remedy sought for in O.S. No. 1304 of 2003 is one such instance. Learned counsel cited the decision of M.P. Menon, J. in R. Prakasam v. Sree Narayana Dharma Paripalana Yogam ((1980) 50 Comp. Cases 611) and the decision of a Division Bench of this Court in R.R. Rajendra Menon v. Cochin Stock Exchange Ltd. ((1990) 69 Comp. Cases 256).
16. I think the principles stated in the decision cited by the counsel on both sides to buttress the respective contentions they have urged do help to a very extent in resolving the dispute relating to the jurisdiction of the District Court referred to in Section 25 of the Act vis-a-vis the jurisdiction of the ordinary civil courts as provided in Section 9 of the C.P.C.
17. Admittedly the Society is one registered under Section 5 of the Act. Its registered office is situated within Thrissur District. A registered Society enjoys certain rights by virtue of the provisions of the Act and is subjected to certain liabilities also. Provisions are there in the Act to protect the members of the society against such liabilities. It is true that the right to form a society which is an association of persons does not flow from the provisions of the Act. The said right existed under the common law. After the commencement of the Constitution it became one of the fundamental constitutional rights. Therefore, it cannot be said that the right to form an association simpliciter is a right created by the Act. However, it cannot be said that all the rights and privileges guaranteed to a registered society under the Act and the liabilities imposed on the Society including its governing body, were in existence before the commencement of the Act. The Act has created new rights and has imposed new liabilities. Section 5 deals with the right to get registration under the Act. Section 8 of the Act says that the property movable and immovable, belonging to a society, if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings, civil and criminal, may be described as the property of the governing body of such society by their proper title. Section 9 of the said Act provides that every society may sue or be sued in the name of the President, Chairman, or Principal Secretary etc. Therefore, a society registered under the Act can sue or be sued. Section 11 says that if a decree is against the person or officer named on behalf of the society such decree shall not be executed against the property, movable or immovable, or against the body of such person or officer, but against the property of the society. Therefore, the provisions of Act are not merely regulatory in character in so far as the affairs of a Society registered thereunder are concerned but are capable of creating new rights and liabilities under Section 12 of the Act the society is liable to keep books of accounts. Failure to do so attracts penal consequences on every member of the governing body in the manner provided in Sub-section (2) of Section 12. Likewise, the governing body of the society has got the duty to lay before the society the annual balance sheet and income and expenditure accounts. Here also failure to comply with the requirements of Sub-sections (1) to (4) of Section 13 attracts the penal consequence of fine as provided in Sub-section (5) thereof. There are other provisions also in the Act which imposes similar duties and liabilities on a Society registered under that Act.
18. Though Section 25 confers power on the District Court to pass any of the orders enumerated in Clause (a), (b) and (c) under Sub-section (1) of the said section, it is to be noted that nowhere in the Act is there a provision which expressly bars the jurisdiction of the civil court to entertain or try or dispose of a suit for granting the reliefs enumerated in Clause (a), (b) and (c) of Sub-section (1) of Section 25 or any other reliefs in favour of or against a society under the Act or touching the affairs of the society or the members thereof.
19. As I understand the principle of law laid down by the Apex Court is that if a statute confers a right and in the same breath provides for a remedy for enforcement of such right, the remedy provided by the statute is an exclusive one. The scope and purpose of a statute, and in particular for whose benefit it is intended, has got to be considered. If a statute imposes a duty on one party to do certain thing, it creates a right in such persons who would be injured by its contravention. The Apex Court in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke ((1976) 1 SCC 496) speaking through Untwalia, J. quoted with approval the famous and oft-quoted words of Lord Tenterden, C. J. in Doe v. Bridges ((1831) 1 B & Ad 847) saying:
'Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner'.
The matter would be different if the obligation imposed under the statute brings into existence a right to favour of an individual but provides no remedy for its enforcement. In Premier Automobiles Ltd., (supra) the Supreme Court was examining the question of ouster of jurisdiction of civil courts for getting reliefs based on the rights and obligations created under the Industrial Disputes Act. The following illustration given in that decision is worth quoting:
'Supposing after providing for awarding of certain compensation in Chap. VA of the Act there was no provision made in it like Section 10 or Section 33C. The mere penal provision for violation of the obligation engrafted in Section 29 or Section 31 would not have been sufficient to oust the jurisdiction of the Civil Court for enforcement of the Individual right created under Chap. VA.' (See paragraph 11 at page 506).
The principle of law laid down by Lord Watson in Barraclough v. Brown ((1897) AC 615) that when the right and the remedy are given uno flatu, the one cannot be dissociated from the other was quoted with approval by the Apex Court in Premier Automobiles Ltd. (supra). I quote the following paragraph from the judgment of Lord Watson:
'As already indicated, I am of opinion that the claim founded upon Section 47 of the Act of 1889 was not competently brought before the court in this suit. The only right which the undertakers have to recover from an owner is conferred by these words: 'or the undertakers may, if they think fit, recover such expenses from the owner of such boat, barge, or vessel in a court of summary jurisdiction.' The right and the remedy are given uno flatu, and the one cannot be dissociated from the other. By these words the Legislature has, in my opinion, committed to the summary court exclusive jurisdiction, not merely to assess the amount of expenses to be repaid to the undertaker, but to determine by whom the amount is payable; and has therefore, by plain implication, enacted that no other court has any authority to entertain or decide these matters. The objection is one which, in my opinion, it is pars judicis to notice, because it arises on the face of the enactment which your Lordships are asked to enforce in this appeal. It cannot be the duty of any court to pronounce an order when it plainly appears that, in so doing, the court would be using a jurisdiction which the Legislature has forbidden it to exercise.'
20. It is therefore necessary to examine whether the reliefs claimed in the suit are on the basis of a common law right or a constitutional right or exclusively based on a right created by the Act. Learned counsel for the petitioners attempted to establish that the reliefs claimed are based on the rights created by the Act and conferred by the provisions of the said Act. Learned counsel for the contesting respondents argued that the plaintiffs do not uno flatu claim under the Act and therefore they are entitled to seek a remedy in a civil court having jurisdiction to grant those reliefs, because: 'it is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for determination of his rights is not to be excluded except by clear words'. (See observations of Viscount Simonds in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1960 AC 260 at p. 286).
21. Ubi jus ibi remedium is a well accepted doctrine or law. Therefore, suits that may be filed by the society against the society or between members of the society in relation to the affairs of the society for reliefs falling outside the scope of Section 25 of the Act will have to be tried and disposed of by the civil courts as provided under Section 9 of the C.P.C. To say that even in respect of the aforesaid matters, there is an ouster of jurisdiction of the civil court will be against law and justice. In Parayakadu Nalukulangara Devaswom v. Padmanabhan Harshas (1983 KLJ 232) a learned Single Judge of this Court (S.K. Kader, J.) had occasion to consider the ouster of jurisdiction of civil courts in the light of Section 25 of the Act. Learned Judge after quoting Section 25 of the Act expressed the view that there is nothing in the section which either expressly or impliedly shows or indicates that the District Court can interfere with the convening of a general body or conducting of elections or convening of a special general body. It was further held that there was nothing in Section 25 which either expressly or impliedly ousts the jurisdiction of a civil court, particularly in matters relating to convening of general body or conducting of elections. Section 25 confines to matters expressly stated therein. Ouster of jurisdiction of the civil courts cannot be simply inferred but it has to pass through certain tests including the availability of proper and complete remedy provided by the Statute which creates an alternate forum for resolving the disputed issues and for the grant of appropriate reliefs.
22. It was held in R. Prakasam v. Sree Naryana Dharma Paripalana Yogam ((1980) 50 Comp. Cases 611) that except in cases where the Companies Act, 1956, confers jurisdiction on the company court or some other authority like the Central Government or the Company Law Board, either expressly or by implication, all other disputes pertaining to a company are to be resolved through the forum of civil courts when the disputes are capable of being resolved by them. It was further held that Section 10 of the Companies Act does not purport to invest the company court with jurisdiction over every matter arising under the said Act. The learned Judge proceeded further and held:
'It may be that, in view of the elaborate provisions contained in the 1956 Act in regard to management and conduct of a company's affairs, including even important internal matters of administration, the scope for interference by the civil court may have become more limited, but the power has not at all been taken away. Every suit for redressal of individual wrongs cannot be considered as merely concerned with matters of internal management, so as to attract the rule in Foss v. Harbottle((1843)3 Hare 461).'
23. The following passage in the decision of a Division Bench of this Court in R.R. Rajendra Menon v. Cochin Stock Exchange Ltd. ((1990) 69 Comp. Cases 256) is worth quoting:
'No provision in the Act has been brought to our notice as specifying expressly or impliedly that an application to compel a company to comply with the requirements in Section 257 will lie in the company court. The Act specifies certain questions or disputes to be resolved by the Central Government, certain others by the Company Law Board and certain matters to be dealt with by the company court. Only such matters as are specified in the Act or in the rules to be dealt with by the court could the company court deal with. The jurisdiction of the ordinary civil court can be regarded as impliedly barred in respect of those matters specified in the Act to be dealt with by the court. It cannot be held that the jurisdiction of the Civil Court in respect of all other matters relating to a company is barred. The corollary is that, unless a particular matter is specified in the Act to be dealt with by the company court, it cannot exercise jurisdiction merely because it is also a matter which relates to a company.'
24. From the discussions made above the following positions emerge: The Act has created new rights and liabilities as far as societies registered thereunder are concerned. Section 25 provides a specific forum for granting the reliefs enumerated in Clause (a), (b) and (c) of Sub-section (1) of Section 25. Hence, the District Court within the jurisdiction of which the Society is registered is the competent court to entertain and try suits or applications for (a) removing the existing governing body and appoint a fresh governing body; (b) framing a scheme for the better and efficient management of the society; and (c) dissolving the society. The stipulation that the aforesaid reliefs can be sought for only in the manner specifically mentioned therein will not affect the exclusive nature of the jurisdiction conferred on the District Court. The exclusion of jurisdiction as above can be inferred not only from the fact that the District Court which is the principal civil court of original jurisdiction Of the district concerned is specified for conducting the enquiry and granting the reliefs on its satisfaction but also from the fact that the right of appeal under Section 27 of the Act is conferred on the High Court. However, since that Legislature has enumerated the nature and kinds of disputes which are to be enquired into and the reliefs that could be sought for, it admits no doubt that other kinds of disputes are outside the purview of the District Court exercising power under Section 25 of the Act. The question that immediately arises is which other forum the aggrieved person should approach for reliefs not covered by Section 25. The answer is Section 9 of the C.P.C. Hence, in respect of all other matters involving disputes of a civil nature, it is competent for the ordinary civil courts to entertain, try and dispose of the suits.
25. The reliefs prayed for in the suit are in respect of the election held to the Ernakulam District Committee of the 1st respondent. No relief is claimed either directly or indirectly for removing the governing body of the 1st respondent-Society or for appointing afresh governing body in its place. There is no prayer for framing a scheme or dissolving the Society. A declaration that the election to the governing body of the Society which is holding that office, as null and void, in effect and substance, amounts to the removal of the existing governing body. Such a declaration can be prayed for, only for invoking Section 25 of the Act, and not by filing a suit in the ordinary civil court because what cannot be achieved directly cannot be got indirectly in an attempt to choose a forum other than the one prescribed under Section 25 of the Act. The term 'governing body' is defined in Section 2(a) of the Act. The definition is as follows:
'Governing body' means the Governors, council, directors, committee, trustees or other body to whom, by the rules and regulations of the society, the management of its affairs is entrusted;'
Section 4 says that the Memorandum of Association shall contain the name of the society; the object of the society; the names, addresses and occupations of the Governor, Councils, Directors, Committee or other governing body to whom, by the rules of the society the management of its affairs is entrusted. It is not stated in the Writ Petition that the management of the affairs of the society is entrusted with the District Committee members of a particular district. Section 4(ii) of the Act says that a copy of the rules and regulations of the society certified to be a correct copy by not less than three of the members of the governing body, shall be filed with the Memorandum of Association. As rightly pointed out by the learned counsel for the respondents the above provisions give a clear indication as to the character of the governing body, that is, the governing body is that of the society and not a committee of officers at the district level or unit level. The Scheme of the Act as evident from Sections 8, 9, 12, 13, 18, 20, 21, 22 etc. makes it clear that the District level committee of the Society is not the governing body under Section 2(a) of the Act. Hence, even in respect of the reliefs claimed as (A) and (B) in the suit, it cannot be said that the respondents/plaintiffs have filed the suit for an order coming within the purview of Section 25(1)(a) of the Act.
26. In the light of the above observations and findings made by me I hold that the 1st Additional Munsiff's Court, Ernakulam has got the jurisdiction to try and dispose of O.S. No. 1304 of 2003. Needless to say that the said court has got the power to consider and pass orders in the interlocutory applications filed in the above suit. The Writ Petition, therefore, fails and is dismissed. I make it clear that I have not considered or decided the correctness of the impugned order from any other angle and my decision is confined to the question of jurisdiction only.