Sri Chandrashekar K. S/O Kallaya and Vs. Bangalore City Institute (Regd.) Rep. by Its Secy - Court Judgment

D.V. Shylendra Kumar, J.

1. This appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure is directed against the order passed by the Trial Court in pending O.S. No. 27o9/2009 on 18.4.2009 directing issue of notice to the defendants on an application filed by the plaintiff under Order XXXIX Rules 1 and 2.

2. The suit filed by the plaintiff is to declare that the resolution Nos. 1 to 4, copies of which are produced before the Trial Court at Annexure-L are unjust, illegal and contrary to bye-laws and provisions of Karnataka Societies Registration Act and it is in such a suit plaintiff had sought for an order of temporary injunction to restrain the defendant society from holding a proposed special general body meeting on 3.5.2009. While learned judge of the trial court did not grant an ex-parte order of temporary injunction, only issued notice on the I.A. to the defendants. Aggrieved by this order the present appeal.

3. The registry has raised an objection pointing out that the appeal under Order XLIII Rule 1(r) is not tenable because there is no order passed by the Trial Court, it has only issued notice to the defendants.

4. The matter has come up before the court for orders on the maintainability of the appeal. Smt. M.D. Anuradha, learned Counsel appearing for the appellant submits that the trial court though directed issue of notice, it nevertheless is an order of refusal to grant an order of temporary injunction, that the prayer was for restraining the defendant from going ahead with the special general body meeting proposed to be held on 3.5.2009. On issue of notice and taking up the matter after the proposed meeting is virtually a denial of the prayer and in this view of the matter, present appeal is maintainable as it has to be taken as an appeal against an order passed by the trial court refusing to grant an order of temporary injunction.

5. In support of the submission, learned Counsel for the appellant would place reliance on the decision of the Supreme Court in the case of Kishore Kumar Khatan and Anr. V. Praveen Kumar Singh reported in : AIR2006SC1474 . Submission is that in a suit where the trial court did not grant an order of temporary injunction but only directed issue of notice on the application for grant of temporary injunction and appeal was filed before the Appellate Court and the Appellate Court in such appeal had passed order to maintain, status-quo and the matter being carried to the Supreme Court, the Supreme Court has observed that the Appellate Court was not right in merely passing an order of status-quo without indicating what the status-quo order was, when the court was satisfied that the appellant before it had made out a prima facie case for an ad interim order of temporary injunction and such observation is supportive of the submission that the appeal is maintainable even if it is against the order directing issue of notice on the application for temporary injunction; that the appeal was not held to be untenable or not maintainable and therefore, the present appeal should be entertained.

6. The Supreme Court was not directly seized of the question that the appeal under order XLIII Rule 1(r) is tenable against this order passed by the Trial Court on an application under Order 39 Rule 1 and 2 by merely issue of notice and not passing an order by granting an ex-parte temporary injunction. There are divergent views on this question. Our High Court has taken a view that even as against an order granting an ex-parte order of temporary injunction an appeal does not lie, but an application under Order 39 Rule 1 and 2 alone could be moved.

7. If such is the logic, the aforesaid decision will not apply to a situation of the present nature.

8. Be that as it may, the appeal even if it is tenable, is not much merited particularly as the application was for grant of an order to restrain the defendant-society from holding a special general body meeting. The reason attributed for seeking such a temporary injunction is that the agenda fox the meeting was the subject matter of the pending suit before the cried court and therefore, it was not proper fox the society to hold general body meeting at the society, the very question which is subjudice.

9. It is also her submission that the proposed agenda, was virtually seeking judgment of earlier resolution passed by the society and to the detriment of the plaintiff and therefore, the order of temporary injunction was sought for.

10. If a matter is seized before the Civil Court, it is for the parties to move that court in the pending matter for orders incidental and pertaining to the subject matter of the suit. There cannot be proliferation of litigation in a number of suits being generated in respect of the same subject matter only on the premise that there are fresh causes of action. Be that as it may, the apprehension of the plaintiff/appellant that some illegal resolution may be passed at the proposed meeting, a suit on such premise is more speculative than on any existing state of affairs. An order of temporary injunction cannot be granted on a mere speculation that in a special general body meeting to be conducted henceforth some illegal resolution may be passed. That premise is speculative depending on the resolution to be passed.

11. In a matter of this nature no occasion to grant an order of temporary injunction restraining the society to go ahead with the general body meeting. I do not find any fault in the order. I find that there is neither prima-facie case in favour of the plaintiff, nor balance of convenience for granting an order of temporary injunction, which are very essential apart from plaintiff making out a case of irreparable hardship and injury. If the Trial Court had merely issued notice, the order is not illegal ct bad in law only due to the possibility that the relief would become infructuous due to passage of time.

12. The only reason as to why the appeal is moved is that the relief sought for in the application would become infructuous once the date of the special general body meeting is over.

13. While it may be so, an order of temporary injunction cannot be granted without the court being convinced that the plaintiff having made out a case of the requirement for grant of temporary injnunction. I do not find any illegality or even irregularity in the order passed by the Trial Court and therefore the appeal itself is dismissed.