Judgment:
ORDER
1. This civil revision petition has been filed by the petitioner/1st defendant as revision petitioner against the order and decretal order dated 12.2.2001 and made in I.A.No.87 of 2001 in O.S.No.37 of 2001 on the file of the Principal District Munsif, Madurai Town.
2. The facts that are necessary for disposal of this Civil revision petition are as follows:- The revision petitioner is a registered society under the Tamil Nadu Societies Registration Act, 1975, herein after referred to as the Act. The Secretary and Executive Committee Members of the said Society will be elected for a period of one year by the General Body of the revision petitioner society. There are 1496 members in the revision petitioner society and in the election held on 30.7.2000 one I. Ismail was elected as Secretary of the said society. The respondents 2 to 6 and Thiruvalargal P. Sudalai, Gnanavel and Diraviyam were elected as members of the Executive Committee of the said society. The sub-rule in the bye law of the said society which prohibits admission of members outside the city of Madurai, was cancelled in the General Body Meeting held on 31.3.1996. The 1st respondent who is the counsel for one R. Thangammal, her husband Rajangam and advocates A.K. Ramasamy and Sethurathinam requested the revision petitioner to renew the licence to the above said R. Thangammal to run a cinema theatre in Madurai and the request was not accepted by the revision petitioner society. By making use of the 1 st respondent herein a suit was filed seeking reliefs of declaration, permanent injunction, etc., against the revision petitioner society and its Secretary and Executive Committee Members in O.S.No.37 of 2001 on the file of the Principal District Munsif, Madurai Town. Since 1400 members were interested in the better maintenance and welfare of the revision petitioner society, the 1st respondent herein as plaintiff ought to have obtained leave of the trial Court under Order 1, Rule 8, C.P.C. and served notice on such members, but no leave was obtained as contemplated under Order 1, Rule 8, C.P.C. The Registrar or Societies is the competent authority to enquire into the constitution, working and financial condition of a registered society. The Court has no jurisdiction to entertain the suit for the reliefs sought for in thesuit filed by the 1st respondent herein. The petition filed by the members of the revision petitioner society has been adjourned to 7.3.2001 and was not considered by the Principal District Munsif, Madurai Town. It is on these grounds, the revision petitioner society has sought for dismissal of the suit filed by the 1st respondent as plaintiff in O.S.No.37 of 2001 on the file of the Principal District Munsif, Madurai Town.
3. The 1st respondent who is the plaintiff in the suit referred to above resists the claim made by the revision petitioner society on the following grounds:- This respondent is a life member of the revision petitioner society. The forms relating to newly admitted members in the revision petitioner society were not sent to the Registrar of Societies concerned after resolving to admit the new members as contemplated under the Act and Rules and such forms after verification and enquiry were not filed to treat the alleged newly admitted members to vote in the election to be held for election of Secretary and Executive Committee Members of the revision petitioner society. The sub-rule of the bye law of the revision petitioner society was not cancelled or amended on 31.3.1996 as alleged by the revision petitioner society, as seen from the records of the concerned Registrar of Societies in Madurai Town. The 1st respondent as plaintiff has got every right to file the suit referred to above for the reliefs of declaration, permanent injunction, etc., as claimed in the plaint. Since the suit has been filed in the individual capacity of the 1st respondent/plaintiff, there is no need to get leave of the competent Court under Order 1, Rule 8, C.P.C. The Secretary and Executive Committee Members of the revision petitioner society have been added as parties to the suit filed by this respondent, there is nothing in the Act to show that this respondent should approach the Registrar of the society alone for seeking the reliefs sought for in the suit. This Court has already dismissed the petition filed in C.R.P.No.357 of 2001 under Article 227 of the Constitution of India to quash the suit as not maintainable and therefore, the same will show that this Court has got jurisdiction to entertain the suit. The welfare of 1400 members will not be affected as alleged by the revision petitioner society in filing the suit. It is under the said circumstances, the 1st respondent has sought for dismissal of the petition filed by the revision petitioner society questioning the maintainability of the suit.
4. The learned Principal District Munsif, Madurai Town, after considering the submissions on both sides has come to a conclusion that the suit filed by the 1st respondent herein as plaintiff can be maintained without obtaining leave or that Court under Order 1, Rule 8, C.P.C. and that section 36 of the Act will not oust the jurisdiction of the said Court in entertaining the suit filed for declaration, permanent injunction, etc., on the file of the said Court. Accordingly, the petition filed by the revision petitioner society was dismissed. Aggrieved at the order and decretal order dated 12.2.2001 and made in I.A.No.87 of 2001 in O.S.No.37 of 2001 on the file of the Principal District Munsif, Madurai Town, the petitioner society as revision petitioner society has come forward with this civil revision petition.
5. Admittedly, the Victoria Edward Hall, a. registered society bearing registration No. 16/1907 was formed for some noble causes and the same is administered by its Secretary and Members of the Committee of the said revision petitioner society as per its bye laws and Rules. It seems there are 4 types of members known as honourary member, regular member, associate member and life member. The fact remains that no member outside the city of Madurai can be admitted in the revision petitioner society as per the sub-rule of the revision petitioner society, while the 1st respondent who is the life member claims that the above said sub rule is still in force, the revision petitioner society represented by the Secretary, 1. Ismail, claims that the said sub rule was cancelled in the General Body meeting of the revision petitioner society held on 31.3.1996. The said I. Ismail was restrained by the trial Court from functioning as the Secretary of the revision petitioner society and a receiver was admittedly appointed to take over the administration of the revision petitioner society. In fact the receiver appointed by the trial Court has already taken charge of the said revision petitioner society. Therefore, there can be no difficulty in carrying on with the administration of the revision pctitioner society, even if an order of ad-interim injunction has been granted by the trial Court against the said Secretary and the Executive Committee Members of the revision petitioner society. In view of the peculiar circumstances prevailing in the administration of the society, it has to be decided by the competent Court whether the above said sub-rule was cancelled on 31.3.1996 as alleged by the revision petitioner society.
6. A perusal of the minutes of the meeting or' the General Body of revision petitioner society held on 22.7.1990 would show that the regular members of the society shall not exceed 650 and if there was any necessity to increase the regular members, the matter should be placed before Managing Committee to increase the ceiling limit and the proposal must be placed before the General Body for its approval. According to the 1st respondent herein there was no increase of regular members of the revision petitioner society by placing any proposal as per the resolution dated 22.7.1990 referred to above and therefore, the revision petitioner society cannot claim to have exceeding members of 1400 or 1496 as claimed by the revision petitioner society. No acceptable evidence has been placed before the trial Court by the revision petitioner society to show the approval given by the General Body of the said society to increase, the members of the said society from 650 to 1400 or 1496 as claimed by the revision petitioner society. That has to be gone into by the trial Court and a decision has to be arrived at, at the time of trial. It is relevant to point out that the revision petitioner society had admitted 207 members already and the same was questioned by one of the members of the revision petitioner society and the said dispute has not yet been settled between the member and the society. It is evident from a perusal of the documents produced before the Court that there was an inspection in the revision petitioner society by the authority concerned on 1.7.1999 and the register maintained by the revision petitioner society had reflected 1440 membersinclusive of the admitted members by the revision petitioner society. A perusal of Rule 11(1) of the Tamil Nadu Societies Registration Rules, 1975, herein after referred to as 'the Rules', would disclose that the notice of any change among the members of the society or of the Committee shall be filed in Form No.VII within 3 months from the date of such change and the notice of change among the members of the Committee shall be accompanied by a resolution of the meeting, if any, effecting such change. In this case, admittedly, the revision petitioner society had filed necessary papers With regard to the change of members increasing to 1496, who voted in the election of Secretary and Members of the Committee of the revision petitioner society on 30.7.2000, only on 31.1.2001 before the Registrar of Societies, Madurai South. Admittedly, the said records were not filed within the stipulated time of 3 mouths and therefore, the. Registrar of Societies, Madurai South has not accepted the records submitted for increasing the members of the revision petitioner society immediately, but had informed the revision petitioner society that the said authority will address the Government for permission to condone the delay in filing the records for change among the members of the society and thereafter alone it will be filed with the records of the revision petitioner society. It is not in dispute that the above said 1496 members had voted in the election for election of Secretary and Members of the Committee of the revision petitioner society on 30.7.2000. There is no dispute that newly admitted members cannot vote in the election before approval was given by the Registrar of Societies, Madurai South. This aspect of the matter has also to be considered and decided by the trial Court in the light of the records to be submitted on both sides. It is in view of the said position, the 1st respondent as plaintiff has sought for declaration that the voters list of the year 2000-2001 is incorrect and invalid and that the election held on 13.7.2000 to elect the present Secretary and Committee members of the society for 2000-2001 is null and void. There can be no doubt, declaratory relief can be granted only by competent civil Court and not by any other forum. But it is relevant to point out that the Registrar of Societies will have power under the Act and Rules to enquire into the correctness arid validity of the voters list and also to find out as to whether the election of Secretary and Members of the Executive Committee of the revision petitioner society was in accordance with the bye laws of the society and also the Act and Rules. Therefore, it will be a concurrent jurisdiction to the Civil Court as well as to the authorities concerned under the Act and the Rules. A relief of permanent injunction restraining the elect body can be granted by a civil Court having jurisdiction alone and not by any other authority empowered under the Act and the Rules. This is the special power conferred on the civil Court and the 1st respondent herein has come forward with this suit to exercise such special power vested with the competent civil Court in this matter. Though the authority under the Act and the. Rules can take over administration of the revision petitioner society, they cannot appoint a receiver as done by the trial Court in this matter already.
7. It is relevant to point out that the revision petitioner as 1st defendant represented by the Secretary and the members of the Executive Committee of the revision petitioner as well as the District Registrar(Society, Madurai) who was arrayed as 11th defendant and the State of Tamil Nadu represented by the District Collector, Madurai, who was arrayed as 12th defendant, have not yet filed their written statement in the suit raising the plea of maintainability either on the ground of Order 1, Rule 8, C.P.C. or on the ground of section 36 of the Act. But on the other hand, the revision petitioner, the 1st defendant filed a civil revision petition under Article 226 of the Constitution of India to quash the suit referred to above filed by the 1st respondent herein on the ground of maintainability and the said petition, after considering the submission made on both sides, was dismissed, but with direction trial court to take up the preliminary issue of maintainability raised by the revision petitioner herein and to pass orders. The revision petitioner, the 1st defendant in that suit has not filed his written statement, but on the other hand, filed this petition in I.A.No.87 of 2001 in O.S.No.37 of 2001 raising the question of maintainability as preliminary issue without producing any documentary evidence before the trial Court and got the petition filed by the revision petitioner dismissed on merits by the trial Court. If the revision petitioner herein as well as 11th and 12th defendants in the suit have filed their written statement, it would throw light on the controversial points raised on either side. It is unfortunate that the revision petitioner herein had rushed to the High Court as well as to the trial Court to get an order with regard to the maintainability of the suit without even filing the written statement raising the plea of maintainability and also without giving opportunity for the defendants 11 and 12 to file their written statement with regard to the points at issue.
8. Order 14, Rule 2(2), C.P.C. would reveal that where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force. So it has to be found out whether the Principal District Munsif, Madurai Town lacks jurisdiction to entertain and try the suit or whether there is any bar to try the suit created by any law for the time being in force.
9. The learned senior counsel Thiru T.R. Rajagopalan, appearing on behalf of the revision petitioner society contends that the 1st respondent herein who has filed the suit seeking the reliefs of declarations, permanent injunction, etc, had specifically stated in the pleadings in the plaint that as life member of the revision petitioner society has more interest in the benefit and administration of the Hall that, he has taken steps to file the suit to maintain the name and fame of the revision petitioner society and that therefore he should have filed the suit in representative capacity instead of filing the suit in his individual capacity. It was also contended by the learned senior counsel that in view of the non-filing of the suit in representative capacity questioning of the membership of the members of 1496 excluding 650 members the saidsuit should have been filed only in representative capacity or otherwise the other members whose 1st membership has been disputed by the 1st respondent herein as plaintiff in the suit, will be unrepresented in the suit at the time of getting any relief by the 1st respondent herein as plaintiff in the said suit. Per contra, the learned counsel Thiru B.S. Gnanadesikan appearing for the 1st respondent contends that the 1st respondent as plaintiff has got a right to file suit in his individual capacity, and there is no necessity to file the suit in representative capacity, that the 1st respondent herein can file a petition under Order 1, Rule 8, C.P.C. for getting leave of the Court, even at the appellate stage as per the settled legal position that the 1st respondent has no objection to file such petition before the trial Court at an early date, since the revision petitioner society and other defendants have not yet filed their written statement before the trial Court and that therefore, it cannot be said that the suit without getting leave of the Court under Order 1, Rule 8, C.P.C. is not maintainable. Of course, the 1st respondent as plaintiff has stated in the pleadings in the plaint that he has more interest in the benefit and administration as well as the name and fame of the revision petitioner society as life member. But in other aspects the pleadings in the plaint proceeds as if he is filing the suit in his individual capacity for the reliefs sought for in the plaint.
10. In S. Thirunavukkarasu and another v. J. Jayalalitha and another, it has been held by a Division Bench of this Court that the averments made in the plaint should be taken note of for the purpose of deciding the jurisdiction to entertain and try the suit filed before the Court.
11. A perusal of Order 1, Rule 8, C.P.C. would reveal that where there are numerous persons having same interest in one suit, one or more of such persons may, with the permission of the Court sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. It would also reveal that the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. In the case, the 1st respondent as plaintiff had taken a stand that only 650 members were permitted to be admitted as members of the revision petitioner society as per the resolution dated 22.7.1990, that the subsequent admission of 207 members in the revision petitioner society is already in dispute and that the revision petitioner society has no right to admit 1496 members as members of the revision petitioner and allow them to vote in the election held on 30.7.2000 without the Registrar of Societies admitting such members of the revision petitioner society after filing Form VII along with the resolution passed by the General Body or the revision petitioner society. Therefore, it is evident that out of 1496 members except 650 members, membership of other members are in dispute. If the relief of declaration sought for in the suit that the voters list of the year 2000-2001 is incorrect and invalid is to be decided the presence of the members whose membership is disputed is a must for being heard, or else it will affect the right of the persons not present before the Court. It is relevant to point that a duty iscast on the Court to follow the procedure prescribed under Order 1., Rule 8C;P.C. irrespective of the fact as to whether the defendant or defendantspresent before Court raises any objection or not. In view of the. fact that a dutyis cast on the Court to safeguard the interest of the persons who are not presentbefore Court a petition under Order 1, Rule 8, C.P.C. for grant of leave ofCourt to file a suit in representative capacity has to be filed by the 1strespondent herein. The learned counsel appearing for the 1st respondent hereinundertakes to file a petition under Order 1, Rule 8, C.P.C. In view, of thecircumstances stated supra, the solemn undertaking given by the learnedcounsel appearing for the 1st respondent herein has taken note of andapproved.
12. An application for leave of Court under Order 1, Rule 8, C.P.C. can be allowed even at Appellate stage in a suit filed in individual capacity by means of amendment when such amendment does not materially change the nature of suit in view of the decision of this Court reported in M. Pillai v. S. Piliai A.I.R. 1947 Mad. 205. Same principle has been laid by this Court in Nilgiri District Janatha Party, Etc., v. A. Rahim, and 3 others 1996 (2) LW 456. In Mukalem Das v. Chhagan Kisan, , it has been held that permission under Order 1, Rule 8, C.P.C. can be granted even at the appellate stage. In Anandan v. Ayyanna Gounder , His Lordship Abdul Hadi, J. has held that leave is a condition precedent for institution of a suit under section 92(1), C.P.C, but it is not so, if leave has to be obtained from the Court under Order 1, Rule 8, C.P.C. It has also been held that permission under Order 1, Rule 8, C.P.C. may be granted even after institution of the suit and even at the appellate stage by allowing an amendment if such amendment does not materially change the nature of the suit. In Assistant Commissioner, H.R. & C.E., Salem v. N.K.S.F. Mudaliar, , His Lordship M. Srinivasan, J.(as he then was) has held that a person cannot advance the claims of a group of persons or community without adopting the procedure under Order 1, Rule 8, C.P.C., if the relief is prayed for only on the basis of the rights of the community as such. A distinction has to be maintained between cases where individual putforward a right which he has acquired as a member of a community and cases where a right of the community is putforward in the suit. It is also held that if it is the former, the individual is not debarred from maintaining the suit in his own right in respect of a wrong done to him even though the act complained of may also be injurious to some other persons having the same right and if it is the latter, the procedure under Order 1, Rule 8, C.P.C. has to be followed and without doing so, no relief could be granted to the individual concerned. In Dhirendranath Chandra v. Apurba Krishna Chandra and others, , it has been held as follows:-
'A plain reading of Rule 2 will show that ordinarily even if the case may be disposed of on a preliminary issue, the Court is bound to pronounce judgment on all issues. This ordinary rule is subject to only one exception which has been provided in sub-rule (2) according to which if the case or anypart thereof may be disposed of on issue of law only and if that issue of law relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force, the Court may try such issue first. It is, therefore, clear that a departure from the ordinary rule provided in sub-rule (1) of Rule 2 can be made by the Court only in the circumstances mentioned in sub-rule (2) and even in these circumstances the Court, has only a discretion that it may try an issue of law relating to the points mentioned in Clause (a) and (b) of sub-rule (2) as a preliminary issue before framing other issues. There is, however, nothing in sub-rule (2) which makes it obligatory for the Court to try such an issue first in all cases. If, therefore, the Court is of opinion that in any particular case it will be more expedient to try all the issues together and therefore, if it refuses to try and decide any issue of law even on the points referred to in Clause (a) and (b) or sub-rule (2) as a preliminary issue before taking up other issues, it commits no error touching jurisdiction.'
13. Two categories of issues that can be decided as preliminary issue or issues are law relating to the jurisdiction of the Court or a bar to the suit created by any law for the time being inforce as per the decision reported in Bhupinder Kamal and Another v. The New Delhi Municipal Committee, .
14. It is evident from the cases cited above that the 1st respondent herein can file, a petition under Order 1, Rule 8, C.P.C. for grant of leave of. Court even upto appellate stage and non-filing of a petition of this nature along with the suit by the 1st respondent herein, even while written statement was not filed by all the defendants before the trial Court, will not lead to hold that the suit filed by the 1st respondent as plaintiff is not maintainable.
15. The learned senior counsel appearing for the revision petitioner society placed reliance on the case reported in Ramshander Sunda and another v. Union of India and others, to contend that a suit is not maintainable without filing a petition under Order 1, Rule 8, C.P.C. In that case a writ petition was filed under Articles 32 and 226 of Constitution of India in the year 1988 and application under Order 1, Rule 8, C.P.C. has not been filed immediately thereafter, the case cited above has been disposed of by the Honourable Apex Court on 7.1.1999 when the party to the proceeding has sought for permission to file petition under Order 1, Rule 8, C.P.C. It is because of such delay, the Honourable Apex Court refused to grant permission to file a petition under Order 1, Rule 8, C.P.C. The case under consideration before this Court now is not such case. As already pointed out, the defendants in the suit have not filed even written statement stating their defence. In view of the said position, the case law relied on by the learned senior counsel will not lend any help to the revision petitioner society. In Kalyan Singh v. Smt. Chhoti and others, , the Honourable Apex Court was pleased to hold that a suit could be instituted by representatives of the particular community, but that by itself was not sufficient to constitute the suit as the representative suit, the court's permission under Order 1, Rule 8, C.P.C. is mandatory. In the absence of necessary material, the conclusion on one wayor the other as to the nature of the suit will not be justified. In view of the circumstances stated in this case, the decision rendered by the Honourable Apex Court cited above will not help the revision petitioner society to hold that the suit filed by the 1st respondent as plaintiff against the revision petitioner society and others is not maintainable without getting leave of Court by filing a petition under Order 1, Rule 8, C.P.C. Likewise the decisions reported in N. V.R. Nagappa Chettiar and another v. The Madras Race Club by its Secretary. Mr. H.L. Raja Urs and others, (2) and Kodia Goundar and another v, Velandi Goundar and others, will not help to non-suit the 1st respondent herein at this stage for non filing of petition under Order I, Rule 8, C.P.C. to obtain leave of the Court to file the above said suit. Therefore, the contention raised by the learned senior counsel appearing for the revision petitioner society that the suit filed by the 1st respondent as plaintiff against the revision petitioner society and others as defendants cannot be maintained for want of filing a petition under Order 1, Rule 8, C.P.C. to get leave of the Court at the time of institution of the suit cannot be sustained.
16. The learned senior counsel appearing for the revision petitioner society contends that the suit filed for the reliefs sought for in the plaint cannot maintained since the remedy can be availed by the 1st respondent herein by approaching the Registrar of societies under section 36 of the Act. Per contra learned counsel appearing for the 1st respondent herein contends that the jurisdiction of the civil Court to claim the reliefs, sought for in the plaint by the 1st respondent herein has not been ousted under the Act and therefore, the 1st respondent herein as plaintiff is entitled to maintain the suit before the civil Court having jurisdiction and it is not a bar under section 36 of the Act. A perusal of Section 36 of the Act would not disclose that there is any bar for instituting a suit of this nature before the competent civil Court. In fact it is evident that the Registrar of Societies has a right to decide the quantum of expenses incurred by him for holding an enquiry and direct the society concerned to pay the said amount as per section 36(4) of the Act. The said amount can also be recovered out of the assets of the registered society and also can be recovered as an arrear of land revenue. In section 36(5) of the Act, it has been stated that the order made under sub-section (4) of the said section shall be enforced by any civil Court having local jurisdiction in the same manner as a decree of such Court. That would disclose that the Act itself conferred right on civil Court to enforce certain right that can be decided under section 36 of the Act.
17. The learned Senior Counsel appearing for the revision petitioner society as well as the learned counsel appearing for the 1st respondent respectively relied on the decision reported in K. Arivanantha Pandian and another v. Nadar Mahajana Sangam. etc., and others, 1994 (2) LW 584, a Division Bench consisting of Their Lordships K.A. Swami, C.J. and Somasundaram, J. has held as follows :-
'Of course, the Act does not prescribe any forum to challenge the election or the grounds on which the election can be challenged nor does it either by express provision or by necessary implication take away the jurisdiction of Civil Court. As such the members of the society who claim to have been elected as members of the committees can undoubtedly approach civil court and have their claim adjudicated cannot at all be said that such an adjudication falls outside the purview of the Civil Court. Section 9 of the Code of Civil Procedure specifically provides that the Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognisance is either expressly or impliedly barred.... the power of the Registrar exercises for determining the correctness or otherwise of the change reported in Form VII would be only for the purpose of administration of the society and any party aggrieved by such decision will be entitled to approach the Court as defined under the Act and have the same adjudicated by the Court. Of Course, if the order passed by the Registrar under Section 36 of the Act is not in accordance with the provisions of the Act and does not conform to the principles of natural justice and is passed without holding an inquiry as required by Section 36 itself, it would be open to the parties to invoke the jurisdiction of this Court under Article 226 of the Constitution of India in which event, it would be open to this Court to exercise the jurisdiction or decline to exercise, depending upon the facts and circumstances of each case, and direct the parties to have it adjudicated by the Court as defined in the Act.'
The decision rendered by the Honourable Division Bench of this Court would clearly go to show that the Act does not prescribe any Form to challenge the election or the grounds on which the election can be challenged nor does it either by express provision or by necessary implication take away the jurisdiction of the civil Court, In view of the decision of the Division Bench of this High Court the contention raised by the learned counsel for 1st respondent herein that the Act does not oust the jurisdiction of the competent civil Court to take on file and try the suit filed by the 1st respondent for the reliefs sought for in the suit cannot be held to be unsustainable one.
18. In Shiv Kumar Chadha v. Municipal Corporation of Delhi, : [1993] 3 SCR 522 it has been held by the Honourable Apex Court that where statutory enactments only create rights or liabilities without providing forums for remedies, any person having a grievance that he has been wronged or his right is being affected, can approach the ordinary civil court on the principle of law that where there is a right there is a remedy. It is evident as seen from the pleadings raised by both parties and the case law cited above, the right of the plaintiff to file a suit in civil Court has not been taken away if the first respondent alleges that his right, is being effected. Therefore, the decision referred to above will not help the revision petitioner society to non suit the 1st respondent herein.
19. In Saraswati and others v. Lachanna (dead) through Lrs. , the Honourable Apex Court was pleased to hold that where a particular case creates a right and also provides a forum for enforcement or such right and bars the jurisdiction of the civil court, then ouster of the civilcourt jurisdiction has to be upheld. In view of the position that the jurisdiction of the civil Court has not been ousted under the Act the decision referred to above will not also help the revision petitioner society to non suit the 1st respondent herein.
20. In Kowtha Suryanarayana Rao v. Patibandla Subramanyam and others it has been held that it is only when the Act is ultra vires of the society that a civil suit is maintainable. In this case on hand it is a specific case of the 1st respondent as plaintiff that the list maintained for the voters and allowed to vote in the election was not in accordance with the provisions of the Act and Rules and had acted without jurisdiction contra to the provisions of the Act. The suit is at the stage of filing written statement by the contesting defendants. On the averments made in the pleadings in the plaint the alleged act of the revision petitioner society is ultra vires and the same has to be decided only at the time of trial by letting in evidence by both sides. In view of this, the decision referred to above will not also help the revision petitioner society in any respect to non suit the 1st respondent herein.
21. It has been held in Rentala Narasimha Rao v. Rentala Venkataramana Rao A.I.R. 1941 Mad. 857 that when a right is created by a special statute, and a remedy is provided by that very statute for cases of violation of that right, the party aggrieved must pursue the remedy given by the statute. That case falls under Madras Hereditary Village Offices Act, 1895 and not under this Act. As already pointed out that the jurisdiclion of the Court has not been ousted under the Act and therefore, the decision rendered in the above said Act will not advance the case of the revision petitioner society in any respect.
22. In Punjab State Electricity Board and another v. Ashwani Kumar 1998 (1) M.L.J. 1. the jurisdiction of the civil Court in enlertaining a suit and to give declaration without directing the party to avail of the remedy provided under the Indian Electricity (Supply) Act has been ousted specifically and statutory circulars have also been issued by the Board in that behalf from time to time ousting jurisdiction of the civil Court. It is under the said circumstances, it has been held that the party who had approached for a remedy which can be availed and the Act cannot approach the. civil Court for such remedy. Such is not the position in this case and therefore, the decision may not be of much help to the revision petitioner society.
23. In M/s. Raichkud Amulakh Shah and another v. Union of India, the jurisdiction of the Civil Court is ousted under section 26 of the Railways Act. While such ouster of jurisdiction was considered, the Honourable Apex Court was pleased to hold that it does not bar a civil suit for refund of the amount collected by the railway administration by way of wharfage or demurrage filed on the ground that the rules empowering the railway administration to do so are ultra vires or that the amounts so collected are in excess of wharfage or demurrage leviable under the rules. While a contention was raised that there is a ouster of jurisdiction under section 26 ofthe Railways Act, in such circumstances of this case the Honourable Apex Court was pleased to hold that the' civil Court has got jurisdiction for the purposes mentioned above. There is no such bar of jurisdiction under the Act under consideration. But on the other hand, the civil Court's jurisdiction to entertain a suit for the reliefs sought for by the plaintiff has been found favour by a Division Bench of this Court in K. Arivanantha Pandian and another v. Nadar Mahajana Sangain. etc., and others, 1994 (II) LW 584.
24. If the decisions referred to above are taken into consideration in the light of the circumstances of this case, there is nothing to hold at this stage that the trial Court has no jurisdiction to entertain and try the suit or there is a bar to the suit inview of section 36 of the Act. Therefore, this Court finds no reason to interfere with the conclusion arrived at by the trial Court that the said court has got jurisdiction to entertain and dispose of the suit on merits.
25. The fact remains that the election, tor the above said society was held on 30.7.2000 and the Secretary and office bearers of the said society can continue in office only, for a period of one year from 30.7.2000. It is evident from the said fact that there is only 3 more months for expiry of the said period. Admittedly, an advocate-receiver ,has been appointed and it seems that he has taken over the administration from the Secretary and office bearers of the said society. The election for the next period of one year from 30.7.2001 is fast approaching. In view of the said position this court desires to direct that the election for the Secretary and office bearers of the revision petitioner society can be held in accordance with bye laws of the society as well as the Act and Rules with the approved members, who can vote in such election is recognised by the Registrar of Societies on the date of notification for the election to be held on 30.7.2001. The election may be conducted, smoothly, to avoid further complication between the warring parties, by appointment of a nominee by the trial Court to conduct the election smoothly. As both parties are urging that they arc interested in safeguarding the name and fame of the revision petitioner society, this Court honestly believe that they will extend full co-operation for conduct of the. ejection for the period of one year from 30.7.2001 smoothly.
26. In fine the order and decretal order passed by the learned Principal District Munsif, Madurai Town are confirmed and the Civil Revision Petition is dismissed, but without costs. In view of the disposal of the Civil Revision Petition, the petitions in C.M.P. Nos. 3085 and 3086. of 2001 are closed as unnecessary.