Appellate Division Cases
(Civil)
PARTIES
Md. Shahid Hossain Khan………………Appellant
-VS-
Abdul Bashed Lashkar and others ……………….Respondents
JUSTICE
Md. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 9th July 2006
The Code of Civil Procedure Order 39, Rule 1 and 2.
The Specific Relief Act, 1877, Section 54.
Specific Performance of Contracts-Sections 12-30.
General property is that which every absolute owner has special property may mean: (1) that the subject matter is incapable of being in the absolute ownership of any person; e.g., wild animals; (2) that the thing can only be put to a particular use; e.g., in the case of bailment”. (The concise Law Dictionary-by P.G. OSBORN, 4th Edition
Seeking decree for permanent injunction restraining the defendant Nos. 2-10 from admitting girl students in Nalchity Merchants High School …………….(1)
In violation of the norms of the non-government education at institutions, that the
High School under the law was required to apply to the Deputy Director of Secondary and Higher Secondary Education Board for according permission to start a girl school but no such application was filed and as such the High school was not authorized to establish any school for admitting girls within one Kilometer of the existing girls school ………………….(1)
Running a school for the purpose of imparting education to the girls is not a proprietary right, rather is a service is not a right to property, that the matters relating to admission of a girl as student in a school as claimed in the suit is neither property nor proprietary right since parents and students vis-a-vis school are stake holder in the said process and that choosing of particular institution by a girl as student for admission is volition of the girl student and the same can not be claimed as property or proprietary right of a particular institution, as in the instant case Nalchity Girls High School, that the girl students can not be considered as merchandise and for that particular school has the exclusive right to have the girl students admitted in that institution alone, that High Court Division was wrong in taking the view that right of running the School i.e. Nalchity Girls High School and admission of the students in the said school is a proprietary right of the school since the matter of admission of students in the Nalchity Girls High School is neither exclusive right of the said school nor the School has exclusive domain over the matter of admission of the girl students in the said school exclusively and that as there is no proprietary right of the school in the matter of admission of students as such there is no question of violation of any right or any other matter pertaining to the Nalchity Girls High School, that running of School therein is not a property right and as such choice of the student to get admission in a particular School is not violation of proprietary right, that High Court Division was wrong in proceeding on the premise that the School has the right to get the girl student admitted therein since the same has been imparting education to the girl students and as such the same is entitled to have the protection of law since the said right has been invaded by the High School or in other words by the Nalchity Merchants High School, that the High Court Division was in error in addressing itself to the question whether the School has any property right to get girl students of the locality admitted in it alone and whether the said ‘right’ is exclusive right, that the High Court Division was wrong in addressing the question of balance of convenience and inconvenience as well as the question of loss and injury since the same are absent because of the fact that the School has no proprietary right to the matter claiming which the suit has been filed and prayer for injunction has been sought…………………(8)
When person’s “right to, or enjoyment of, property” is invaded by his adversary then the person whose right has been invaded or threatened to be invaded may ask for an order of injunction ……………….(11)
‘Property’ means we are to the view plaintiff’s contention of having the girl students admitted in his institution exclusively is not a right to property and that being so the
High Court Division was in error in discharging the Rule and consequent thereupon affirming the judgment and order of the lower appellate Court granting injunction restraining the High School from admitting girl students on the view that the School has exclusive proprietary right to get girl students admitted in it and the said right has been invaded or threatened to be invaded by the High School by starting admission of the girl students. The view upon which the High Court Division and the appellate Court maintained and granted ……………(20)
The view so taken by the High Court Division as to the matter of admission of girl students into Nalchity Girls High School as the exclusive right thereof in our view is not well founded since a particular school imparting education to the girl students of the locality can not have the exclusive claim to have the girl students of the locality admitting therein alone as it is the option of the parents of the girls as well as of the girls to decide the matter of admission in the institution or school wherein girls would have better education and as such the action of the High school in admitting girl students in our view has in no way invaded or threatening proprietary right or any kind of right of the School, and in that view of the matter the Nalchity Girls High School was not on correct legal footing in going to the Court for having an order restraining the High School from admitting girl students in it and that the High Court Division was in error in discharging the Rule and thereby affirming the order of the lower appellate Court granting injunction restraining the High School form admitting girl students upon setting aside the order of the trial Court. The kind of right i.e. to have girl students exclusively admitted in the School as claimed by the School and accepted by the High Court Division and thereupon made the same basis of the judgment was erroneous as the right claimed by the School is by no standard is ‘property’ and thus right claimed by the School was not ‘right to, or enjoyment of, property’ and consequent thereupon the School was neither entitled to temporary injunction, nor to a decree of permanent injunction……………(21)
Civil Appeal No. 8 of 2003 (From the Judgment and Order dated July 17, 2002 passed by the High Court Division in Civil Revision No. 876 of 2002)
A.F. Hossain Arif, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-record………………For the Appellant.
Khan Saifur Rahman, Advocate, instructed by Md. Nawab AH, Advocate-on-record…………For Respondent No.l
Respondent Nos. 2-13 …………….Not represented.
JUDGMENT
1. Md. Ruhul Amin J :- The appeal, by leave, is by the defendant No.2 (Head Master and Secretary of Nalchity Merchants High School) against the judgment dated July 17,
2002 of a Single Bench of the High Court Division in Civil Revision No. 876 of 2002 discharging the Rule obtained against the judgment and order dated February 10, 2002 of the 2nd Court of Joint District Judge, Jhalokathi in Title Appeal No.5 of 2001 (in fact Miscellaneous appeal) allowing the same and thereupon setting aside the judgment and order dated January 18, 2001 of the Court of Assistant Judge, Nalchity, Jhalokathi in Title Suit No.2 of 2001 rejecting the prayer for temporary injunction. The suit was filed seeking decree for permanent injunction restraining the defendant Nos. 2-10 from admitting girl students in Nalchity Merchants High School. The plaintiff claiming himself as the Vice-Chairman of the Nalchity Girls High School filed the aforesaid suit stating, inter alia, that Nalchity Girls High School (the School) was established in 1966 for the purpose of imparting education to the girls of the locality, that the School imparts education the girls from Class VI to X, that the school is 40 yards away from Nalchity Merchants High School (the High School) established in 1929, that the High School was started for imparting education to the boys and the said school had at no point of time admitted any girl, that to eliminate the School the High School circulated posters and leaflets for admitting therein girls without any fees in Class VI to X in violation of the norms of the non-government education at institutions, that the High School under the law was required to apply to the Deputy Director of Secondary and Higher Secondary Education Board for according permission to start a girl school but no such application was filed and as such the High school was not authorized to establish any school for admitting girls within one Kilometer of the existing girls school i.e. the School and thereby posing threat to the existence of the School upon admitting girls in the newly established School in violation of the Regulations of the Secondary and Higher
Secondary Education Board, that the Managing Committee of the School adopted resolution for directing the High School not to admit girls and the said resolution was sent to the Deputy Director, Secondary and Higher Secondary Education Board, Barisal Zone, Barisal requesting him to issue necessary order debarring the High School from admitting girls in the said institution, that the High School through its Secretary assured the School not to admit girl in its institution and as such plaintiff did not pursue the matter of preventing the High School from admitting girls, that in 2001 the High School circulated leaflets for admitting girls from Class VI to X and having had. noticed the said fact the School requested the said institution but the Head Master of the High School did not pay any heed to the request made by the School and in that state of the matter the Managing Committee of the School in its meeting held on November 30, 2001 took decision to seek redress against the activities of the High School in the court and also authorized the plaintiff to file the suit.
2. The plaintiff after filing the suit filed an application under Order 39, Rule 1 and 2 of the Code of civil Procedure with the prayer for temporary injunction restraining the High School from admitting girls in Class VI to X.
3. The prayer for temporary injunction was opposed by the defendant No.2 by filing written objection stating, inter alia, that the High School was established in 1929 and since then the school imparting education both to boys and girls, that with the passage of time as the number of students increased and because of that the school faced accommodations problem because of paucity of space as well as furniture and consequent thereupon from 1970 the High School temporarily suspended admission of girl students, that the High School being requested by the elite of the area for some time suspended admission of girl students for the sake of the School which was established in 1966, that the elite of the locality in 1998 sat with the Managing Committee of the High School to start additional section in classes VI to X of the High School for admitting girl students, that in the said meeting a teacher as well as the two members of the Managing Committee of the School and the chairman of the Pourashava were present, that in the background of the request so made by the elite of the locality the High School since 1999 started admitting girl students, that at present the school has 1065 students including girl students and that in the year 2000 there were 29 girl students in Classes VI to IX, that because of good performance in the public examination the School has become jealous and thereupon has filed the suit to cause prejudice to High School.
4. The trial Court upon hearing the parties and on consideration of the materials on record held that it has been established that the High School has not established any new school for the girls, nor the High School is a new School and the said School is not engaged in any activities contrary to the provision of law and the plaintiff has failed to establish that the High School admitting girl students in violation of the law, rules or regulations. The trial Court also held that the plaintiff has no arguable case and the balance of convenience and inconvenience is not in favour of the plaintiff and that the plaintiff has failed to establish that he would suffer irreparable loss in case injunction is not granted. On the aforesaid findings the trial Court rejected the prayer for temporary injunction.
5. The plaintiff went on appeal. The appellate Court allowed the appeal upon observing that the authority discouraged admission of girl students in a boys’ school in case the said
School is within 1 kilometer of girl School and in that state of the matter the action of the
High School, wherein admission of girl students remained suspended for long time, in
the name of introducing co-education by starting separate section for admitting girls can not be approved and the High School has no justification to resort to the said activities, that from the materials on record it is seen that the High School although claimed to have introduced co-education but in fact within the school compound the High School has started separate girls section and admitting girl students upon circulating alluring leaflets and notifications with alluring terms, that the High School being a established school has resorted to admitting girl students without admission fees and session fees as well as without tuition fees only to cause prejudice to School and that because of the mode resorted to by High School the parents of the girl student would not be interested to admit their girls in the School and thereby the School would face serious loss which cannot be compensated by money, that although the High School has taken step to start new section for admission of the girl students but has not obtained any permission of the Secondary and Higher Secondary, Board. The appellate Court finally allowed the appeal upon observing that the trial Court in the background of the facts and circumstances of the case failed to hold that plaintiff would suffer irreparable loss and the balance of convenience and inconvenience is in favour of the plaintiff and that plaintiff has arguable case in support of its prayer for temporary injunction and thus the trial Court was in error in rejecting the prayer for temporary injunction.
6. As against the order of the appellate Court the defendant No.2 moved the High Court
Division in revisional jurisdiction and obtained the Rule. The High Court Division discharged the Rule upon the findings that the plaintiff has locus standi to file the suit and to maintain an application for temporary injunction, that in view of the provision of section 54 of the Specific Relief Act, 1877 since the right of the plaintiff has been invaded by the defendants, as such plaintiff who is the Vice-Chairman of the Managing Committee can very much proceed with the suit, that the plaintiff has legal right to maintain the suit, that the undenied fact is that since 1970 the High School stopped admitting girl students but suddenly in 1999 through leaflets and notifications the High School started admitting girl students inspite of the fact that the school is exclusively a boys School and in that state of the matter Director General of Secondary and Higher Secondary Education Board by the Memo dated June 6, 2001 directed the High School not to admit girl students and that Inspector of the Education Board, Barisal by the letter dated July 12, 2001 also directed the High School not to admit girl students and that materials being on the record showing that the High School started admitting girl students upon opening separate section within the school compound on lucrative terms and conditions and because of the letter dated January 12, 2002 written by the Education Board, Barisal requesting the High School, where education is being imparted to boys, not to admit girl students if a girl school situates within 1 kilometer and the appellate
Court having had considered those materials and thereupon having had passed the order granting temporary injunction the said Court has not committed any error and that the aforesaid materials show that the defendant has ‘no legal and moral sanction’ for taking decision to admit girl students when the same is within 80 yards of the school, that the contention of the learned Counsel appearing for the petitioner that the instructions issued by the director General and the Inspector of the Secondary and Higher Secondary Board,
Barisal and the decision of the school grants commission have no force of law and as such not binding on the High School and that said instructions are under challenge in Court and as such upon placing reliance on those materials appellate Court was not justified in holding that the plaintiff has prima facie case as well as arguable case in support of its prayer for temporary injunction is of no merit since ‘in order to find out the prima-facie case and the balance of convenience and inconvenience the appellate court rightly took into consideration of those papers. Furthermore, the defendant school has absolutely failed to give any plausible reason and show any permission 219 from the authority namely, the Secondary and Higher Secondary Education Board, Barisal to admit female students when a Girls School is in existence just within 80 yards. In fact there is no reason for the defendant school to admit female students.’
7. Leave was granted to consider the contentions that the High Court Division upon mis-conception of law discharged the Rule and thereby affirmed the order of the appellate
Court granting temporary injunction against the defendant although the defendant’s school has got recognition by the Board and admission of students in the school is governed by the Rules and Regulations of the Board and as such another school has no legal right to interfere with the matter of admission of students, both boys and girls in the defendant’s school, that High Court Division did not appreciate that only the Board is the regulatory body and the different memos by different authorities at the behest of the plaintiff school was of no avail as to the matter of admission of students both boys and girls in the defendant’s school.
8. It has been submitted by the learned Counsel for the appellant that the High Court
Division discharged the Rule on the view that Nalchity Girls High School (the School) has the exclusive right to admit the girls a property and as such is entitle to an order of injunction to secure enjoyment of the said proprietary right, that High Court Division was wrong in addressing the question as to who could be the plaintiff in the suit in the background of the averments made in the plaint and the relief sought in that the present plaintiff even if authorized by the Managing Committee of Nalchity Girls High School (the School) to file the suit still then the present plaintiff Abdul Bashed Lashkar describing him as the Vice-President can not figure as plaintiff since grievance upon making which suit has been filed is of the School and not of the person who figured as plaintiff, that High Court Division was in error in considering the frame of the suit on the view that institution is to act “through its representative that is the Managing Committee” but for that the person who has figured as plaintiff can not proceed with the suit unless the School figures as plaintiff. The learned Counsel has also submitted that there is no averment in the plaint that the suit has been filed in the representative capacity, that running a school for the purpose of imparting education to the girls is not a proprietary right, rather is a service is not a right to property, that the matters relating to admission of a girl as student in a school as claimed in the suit is neither property nor proprietary right since parents and students vis-a-vis school are stake holder in the said process and that choosing of particular institution by a girl as student for admission is volition of the girl student and the same can not be claimed as property or proprietary right of a particular institution, as in the instant case Nalchity Girls High School, that the girl students can not be considered as merchandise and for that particular school has the exclusive right to have the girl students admitted in that institution alone, that High Court Division was wrong in taking the view that right of running the School i.e. Nalchity Girls High School and admission of the students in the said school is a proprietary right of the school since the matter of admission of students in the Nalchity Girls High School is neither exclusive right of the said school nor the School has exclusive domain over the matter of admission of the girl students in the said school exclusively and that as there is no proprietary right of the school in the matter of admission of students as such there is no question of violation of any right or any other matter pertaining to the Nalchity Girls High School, that running of School therein is not a property right and as such choice of the student to get admission in a particular School is not violation of proprietary right, that High Court Division was wrong in proceeding on the premise that the School has the right to get the girl student admitted therein since the same has been imparting education to the girl students and as such the same is entitled to have the protection of law since the said right has been invaded by the High School or in other words by the Nalchity Merchants High School, that the High Court Division was in error in addressing itself to the question whether the School has any property right to get girl students of the locality admitted in it
alone and whether the said ‘right’ is exclusive right, that the High Court Division was wrong in addressing the question of balance of convenience and inconvenience as well as the question of loss and injury since the same are absent because of the fact that the School has no proprietary right to the matter claiming which the suit has been filed and prayer for injunction has been sought, that the High Court Division failed to notice that since 1929 the High School has been imparting education to the students, both boys and girls, and that till 1970 the High School imparted education to the students, boys and girls and thus till 1970 there were girl students in the High School but thereafter for some time admission of the girl students in the High School was discontinued because of paucity of accommodations and that while in 1998 the said crisis was over the High School started admitting girl students and at the present there are sufficient number of girl students in the High School.
9. As against the aforesaid contentions of the appellant it has been submitted on behalf of the Respondent No.l (plaintiff) that as the High School is admitting girl students upon opening sections in a different building and as such having had started a new school for imparting education to girl students without the permission of the regulatory body and as the step so taken by the High School can not be considered co-education and thus the matter of admitting girl students in the High School as is violative of the regulation of the
Board, the High School had quite legally been restrained by the appellate Court and the High Court Division from admitting girl students. The learned Advocate has also submitted that the Board directed the High School not to admit girl students since there in a Girls High School within one kilometer of the High School but the High School in violation of the directions as was admitting girl students the relief sought was quite available to the school under the provision of section 54 of the Specific Relief Act. The learned Counsel upon referring to the word ‘obligation’ in section 54 of the Specific Relief Act submitted that the same having been breached by the High School by its activities and as such order of ad-interim injunction passed by the Court to prevent breach of the obligation existing in favour of the plaintiff was quite legal. The learned Counsel upon referring to the provision of Article 28(4) of the Constitution has submitted that the Secondary and Higher Secondary Education Board, Barisal and the other authorities in directing the High school not to admit girl students acted quite legally and the direction of the legally competent authority having been flouted and thereupon as the High School was acting to the prejudice of the School, the order of injunction was quite legal. The submission so made upon referring to the aforesaid provision of the Constitution is not well founded since by admitting girl students the High School was not acting in a manner prejudicial to the imparting of education to the girl student. The learned counsel has submitted that the High School is running a separate school for the girl students in the gard of co-education, although materials on record clearly show that there is no co-education in the High School, that the High School upon admitting girl students in fact is out for the extinction of the School and also is depriving the School from getting girl students for being admitted therein.
10. The High Court Division in affirming the order of the appellate Court upon discharging the Rule placed reliance on the 2nd part of the provision of Section 54 of the Specific Relief Act matters relating to property. The provision of Section 54 of the Specific Relief Act are as follows:”54. Perpetual Injunctions, When Granted: Subject to the other provisions contained in, or referred to, by this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication. When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act.
(a) Contracts which may specifically be enforced and (b) Contacts which cannot specifically be enforced; When the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases (namely): (a) Where the defendant is trustee of the property for the plaintiff; (b) Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by invasion; (c) Where the invasion is such that pecuniary compensation would not afford adequate relief; (d) Where it is probable that pecuniary
compensation cannot be got for the invasion; (e) Where the injunction is necessary to
prevent a multiplicity of judicial proceedings.
11. The learned Counsel for the Respondent as stated hereinbefore upon referring to the word ‘obligation’ in the aforesaid section tried to support the order of the High Court
Division and the lower appellate Court in the matter of granting injunction in favour of the plaintiff, but when attention of the learned Counsel was drawn to the 1 st part of the provision of section 54 of the Specific Relief Act (the Act) he having felt difficulty to substantiate his submission made referring to the word ‘obligation’, then tried to fall on the 2nd part of section 54 of the Act. The 2nd part of section 54 of the Act contemplates a situation for an order of injunction when person’s “right to, or enjoyment of, property” is invaded by his adversary then the person whose right has been invaded or threatened to be invaded may ask for an order of injunction. It may be mentioned the High Court Division in discharging the Rule proceeded on the premise that the matter of admission of girl students in the School i.e. the Nalchity Girls High School is a right to property or in other words proprietary right to property or in other words proprietary right of the said School and that the same having been invaded by the High School by admitting girl students, the appellate Court was quite correct in passing the order of ad-interim injunction preventing the High School from admitting girl students.
12. Attempt from plaintiff-Respondent’s side was made to establish the correctness of the
judgment of the High Court Division as well as the lower appellate Court upon referring to the letters written by the personnel of the Education Department at the upazilla level initially and then by the personnel of the Directorate level of the Ministry of Education and finally the resolution taken by the Secondary and Higher Secondary Education Board, Barisal to request the High School not to admit girl students and thereupon contending that thereby an obligation was created on the part of the High School not to admit girl students in the said institution. In the background of materials on record it is seen there was no legal sanction of the aforesaid correspondences as well as the resolution. It may be mentioned step taken by the Board in pursuant to the resolution as well as by other functionaries the High School has challenged the legality those of by institution a suit and therein the High School has obtained an order of stay and the same is still inforce since the suit is yet to be disposed of. This being the state of the matter we are of the view the contention the High School was under obligation in the background to the correspondences made by the officials of the Education Department and the Board is of no merit. It is seen from the judgment of the High Court Division that the said Division has taken exception as regard imparting of education to the girl students by the High School without charging fees and other charges. Further “breach of an obligated existing in favour of the applicant” as in Section 54 of the Act referable first to the matters in chapter II (of the Specific Performance of Contracts-Sections 12-30) and secondly when one’s “right to, or enjoyment of, properly” is invalid or threatened. None of the aforesaid situations or occasions is present in the instant suit and consequent thereupon the school was not entitled to the relief sought in the suit and for that to an order of temporary injunction. The High Court Division has also taken exception to the action of the High School in going to the civil Court challenging the letters written by personnel of Education Department and the Resolution taken by the Board prohibiting the High School from admitting girl students and the High Court Division taking the aforesaid matter into consideration expressed the view that the said fact shows that High School has “no legal and moral sanction behind the decision of Nalchhity Merchant High School to admit female students” since the Nalchhity Girls High School is just 80 yards away from the High School. In our view the High Court Division was not well foundrd in taking the aforesaid materials into consideration while considering the legality of the judgment and order of the lower appellate Court since the legality of the correspondence made by the Education Department and the Board not to admit girl students in the High School is the subject matter or the pending suit.
13. The High Court Division has in fact affirmed the judgment of the lower appellate Court upon placing reliance on the provision of the 2nd situation i.e. “right to, or enjoyment of property” as in section 54 of the Act whereupon the Court may grant permanent injunction.
14. What ‘property’ connotes:”Property:- That which is capable of ownership, some time sued as meaning a right of ownership, as “Property in the goods”. “General property is that which every absolute owner has special property may mean: (1) that the subject matter is incapable of being in the absolute ownership of any person; e.g., wild animals; (2) that the thing can only be put to a particular use; e.g., in the case of bailment”. (The concise Law Dictionary-by P.G. OSBORN, 4th Edition).
15. Property:- “The right to possess, use, and enjoy a determinate thing (either a tract of
land or a chattel); the right of ownership; Any external thing over which the rights of possession, use, and enjoyment are exercised” (Black’s Law Dictionary, 7th Edition).
16. Property:-“The highest right a man can have to anything, being used for that right which one has to lands or tenements, goods or chattels which does not depend on another’s courtesy” (Wharton’s Law Lexicon, 14th Edition).
17. “Property is that which belongs to a person exclusively or others, and can be the subject of bargain and sale. It includes goodwill, trade marks, licenses to use a patent, book-debts, options to purchase, life policies, and other rights under a contract” (Halsubry’s Laws of England, 3rd Edition, Vol. 33)
18. “Property is the generic term for all that a person has dominion over. It is indeed most comprehensive of all terms which can be used, inasmuch as it is inductive and descriptive of every possible interest which the party can have. It is elementary that includes the right to acquire, use and dispose of it. Property consists of the free use, enjoyment and disposal of a person’s acquisitions without control or diminution by the law of the land. (Buchanan V. Wasley, 245 U.S. 60 at P.74).
19. “The expression ‘property’ means the ‘highest right a man can have to anything,’ being that right which one has to lands or tenements, goods or chattels which does not depend on another’s courtesy: it includes ownership, estates and interests in corporal things, and also rights, such as, trade-marks, copyrights, patents and even rights in personal capable of transfer or transmission, such as debts; and signifies a beneficial right to or a thing considered as having a money value, especially with reference to a transfer or succession and to their capacity of being injured” (Rajahmundry Electronic Supply Corporation V. State of Andhra, (1954) S.C.R. 779 at p.780).
20. In the context of aforesaid authoritative decisions/enunciations as to what ‘property’ means we are to the view plaintiffs contention of having the girl students admitted in his institution exclusively is not a right to property and that being so the High Court Division was in error in discharging the Rule and consequent thereupon affirming the judgment and order of the lower appellate Court granting injunction restraining the High School from admitting girl students on the view that the School has exclusive proprietary right to get girl students admitted in it and the said right has been invaded or threatened to be invaded by the High School by starting admission of the girl students. The view upon which the High Court Division and the appellate Court maintained and granted, respectively order of injunction is not legally sound. The High Court Division was also in error in accepting the contention of the learned Advocate for the plaintiff-Respondent relating to the maintainability of the suit, that the suit has been filed in the representative capacity by the plaintiff. As stated hereinbefore the plaintiff has not claimed in his pleading that he has filed the suit in the representative character, rather it is his case that he has figured as plaintiff on being authorized by the Managing Committee. It may be mentioned the School i.e. Nalchity Girls High School has not figured as plaintiff in the suit. It is also seen from the judgment of the view that as the Nalchity Girls High School has been established to impart education to the girl students of the locality and thereby the School has the exclusiveness of having the girls of the locality admitted and that the High School by starting admission of the girl students invaded the right of the School i.e. Nalchity Girls High School.
21. The view so taken by the High Court Division as to the matter of admission of girl students into Nalchity Girls High School as the exclusive right thereof in our view is not well founded since a particular school imparting education to the girl students of the locality can not have the exclusive claim to have the girl students of the locality admitting therein alone as it is the option of the parents of the girls as well as of the girls to decide the matter of admission in the institution or school wherein girls would have better education and as such the action of the High school in admitting girl students in our view has in no way invaded or threatening proprietary right or any kind of right of the School, and in that view of the matter the Nalchity Girls High School was not on correct legal footing in going to the Court for having an order restraining the High School from admitting girl students in it and that the High Court Division was in error in discharging the Rule and thereby affirming the order of the lower appellate Court granting injunction restraining the High School form admitting girl students upon setting aside the order of the trial Court. The kind of right i.e. to have girl students exclusively admitted in the School as claimed by the School and accepted by the High Court Division and thereupon made the same basis of the judgment was erroneous as the right claimed by the School is by no standard is ‘property’ and thus right claimed by the School was not ‘right to, or enjoyment of, property’ and consequent thereupon the School was neither entitled to temporary injunction, nor to a decree of permanent injunction.
22. In the background of the discussions made hereinbefore we find merit in the appeal.
23. Accordingly the appeal is allowed with costs.
Ed.
Source: IV ADC (2007), 214