Mojibul Haque (Md) (Petitioner)
Ataur Rahman and others (Opposite Parties)
High Court Division
(Civil Revisional Jurisdiction)
Md. Awlad Ali J
Judgment :November 7, 2000.
Cases Referred To-
AIR 1959 (Mysore) 75 & 47 DLR 261.
Civil Revision No. 274 of 2000.
Md. Awlad Ali J.- This Rule arose out of interlocutory injunction order and is directed against the Judgment and order dated 25-10-1999 passed by the Additional District Judge, 2nd Court Dhaka in Miscellaneous Appeal No.76/98.
2. The petitioner and ten others instituted Title Suit No.383/97 in the First Court of Assistant Judge, Dhaka impleading the opposite parties as defendants seeking a decree declaring that the general meeting dated 15-5-1997 and special general meeting on requisition dated 7-7-1997 and the meeting of the managing committee dated 24-7-1997 and the decision taken in the meeting removing the plaintiff from the managing committee and the co-option of the defendants in the managing committee is illegal void and without lawful authority, and for further declaration that the initiation of the enquiry against the plaintiff by the defendant Nos.11-13 at the instance of the defendants Nos.1-10 are illegal and mala fide and also a decree for perpetual injunction restraining the defendants Nos.1-l0 from interfering with the function of the managing committee of the Mohammadia Market Baboshayee Bahumukhi Samabaya Samity Limited and restraining the defendants Nos.11-13 from proceeding with the enquiry initiated against the plaintiff.
3. The Case of the plaintiff, in short, is that the plaintiffs are the elected office-bearers and members of the managing committee of the Mohammadia Market Baboshayee Bahumukhi Samity Ltd. (hereinafter referred to as the samity). The plaintiff Nos. 1-9 and 3 others were duly elected as office-bearers of the samity in the election held on 12-12-1994 for a period of 3 years with effect from 14-12-1994. Subsequently, two elected Directors ceased to be the Directors and plaintiff Nos.10 and 11 were co-opted in their place. The defendant No.2 participated in the election held on 12-12-1994 for the post of vice-president, defendant No.3 for the post of Secretary and defendant Nos. 6, 7 and 10 for the post of directors, but all got defeated in the election and after their defeat they became hostile to the plaintiffs and started creating all sorts of hindrance to the smooth functioning of the managing committee. The defendant Nos.1 to 10 in collusion with one another formed an unholy alliance to usurp the management of the samity by illegal means, despite such hindrance created by the defendants the plaintiffs have been running and conducting the affairs of the samity smoothly. The account of the Samity was duly audited by the Registrar of the Co-operative Society for the years 1994-95, 95-96. Thereafter, the defendants along with some non members armed with deadly weapons and forming an unlawful assembly entered into the office of the samity and took forcible occupation of the office on 1-8-1997 for which information was lodged to the local police station being Pallabi PS Case No.1(8)97. On 2-8-1997 an advertisement was published in the Daily Sangram to the effect that the plaintiffs were removed on 7-7-1997 by special general meeting and the defendants Nos.1-10 were co-opted in various posts. The plaintiffs filed application to the respective authorities as regards the illegal occupation of the registered office of the samity by the defendants. It is alleged that the general meeting was not held in accordance with law and the rules as provided under section 16(1) of the Co-operative Societies Ordinance, 1984 and Rule 26(1) of the Co-operative Societies Rules, 1987.
4. The plaintiff in the suit made an application praying for temporary injunction whereupon an order of ad interim injunction was granted. The defendants entered appearance and took several adjournments for filing written objection but no written objection was filed and the injunction matter was fixed on 15-2-1998 and on the said date in the absence of the defendants the learned Assistant Judge allowed the prayer for injunction and an order of ad interim injunction passed on 27-11-1997 was made absolute with a finding that there is prima facie and arguable case in favour of the plaintiff.
5. Against the order dated 15-2-1998 passed by the learned Assistant Judge an appeal being Miscellaneous Appeal No.76/98 was taken by the defendants to the learned District Judge which was heard by the learned Additional District Judge, Dhaka. The learned Additional District Judge considering the materials on record and also having regard to the relevant provision of Co-operative Societies Ordinance, 1984 set aside the order passed by the learned Assistant Judge and thereby allowed he appeal by the impugned Judgment and order.
6. The Learned Additional District Judge, as it appears from the Judgment found that the plaintiffs have no arguable case and they will not stain any loss and injury and that the balance of convenience and inconvenience is in favour of the defendants and further found that under the provision of sections 86 and 133 of the Co-operative Societies Ordinance, 1984 the suit is not maintainable. Therefore the temporary injunction not be granted.
7. Mr. Hassan Arif, the learned Advocate has appeared for the plaintiff petitioner and he has contended that the learned Additional District Judge committed error of law in deciding the maintainability of the suit. He has argued that in an injunction preceeding the learned Additional District Judge should not have decided the question of maintainability of the suit. His further contention is that under section 16(1) (3) of the Ordinance and Rule 26 of the Co-operative Societies Rules, 1987 there is a provision for calling special general meeting but those provisions were not followed and, as such, the removal of the plaintiffs from the managing committee of the Samity by resolution in that general meeting is apparently illegal and the learned Assistant Judge considering the materials on record was justified in allowing the prayer for temporary injunction.
8. The respondents Nos.1-10 have filed a counter affidavit denying the allegations of the plaintiff and it has been stated, inter alia, that the Mohammadia Market Baboshayee Bahumukhi Sambaya Samity Ltd. is governed by the Co-operative Societies Ordinance, 1984 and the Rules framed thereunder in 1987 and that the election of the samity was held on 12-12-1994 and the committee that was elected was for a period of 3 years with effect from 14-12-1994 to 13-12-1997. Admittedly the plaintiffs were elected in that election and that committee functioned up to 30-7-1997 and during that period by abusing their position they acted in a manner prejudicial to the interest of the affairs of the samity. Admittedly, the plaintiffs are not in possession of the office premises so they are not entitled to any order of temporary injunction. It has further been contended that the dispute that arose between the plaintiffs and the defendants are relating to the business or affairs of the co-operative society and such dispute shall be referred to the Registrar according to the provision of section 86 of the Ordinance but the plaintiffs without following that provision filed the instant suit which is not maintainable
9. Mr. Syed Ziaul Karim, the learned Advocate relying on the aforesaid facts, has submitted that since the defendants were elected as members of the committee on 29-11-1997 and since that election has not been challenged and that the plaintiff are not in the office of the samity the suit has become infructuous. He has further submitted that when permanent injunction cannot be granted in the facts and circumstances of the case the plaintiff is not entitled to any order of temporary injunction. In support of such proposition he has made reliance upon a decision reported in AIR 1959 (Mysore) 75. I need not discuss the said decision for inasmuch as the aforesaid principle has been settled by our apex court. He also placed reliance upon the Case reported in 47 DLR 261 which relates to the maintainability of the suit as referred in the impugned Judgment.
10. It appears from the order passed by the learned Assistant Judge granting temporary injunction that he has neither discussed the case of the plaintiff nor has determined the prima facie case and the right of the plaintiff to seek injunction nor has decided the question of balance of convenience and inconvenience considering the materials on record.
11. The learned Additional District Judge, however, considering the materials on record and also the legal right of the plaintiff as stated in the application for temporary injunction came to a conclusion that the plaintiff has no prima facie and arguable case and that the balance of convenience and inconvenience is in favour of the defendants and further found that under the provision of sections 86 and 133 of the Co-operative Societies Ordinance the suit filed by the plaintiffs is incompetent. In deciding the prima facie case the learned Additional District Judge went to the extent of deciding the maintainability of the suit. Mr. Hassan Ariff has questioned the power of the Appellate Court in making any decision as to maintainability of the suit saying that without framing any issue the question of maintainability cannot be decided. The learned Additional District Judge appeared to have discussed the relevant provision of law in order to determine the prima facie case and the legal right of the plaintiff to seek relief for injunction. The learned Additional District Judge was justified to see as to whether the suit in which the injunction was sought for was properly framed and that on such framing of the suit the plaintiff has any legal right to seek temporary injunction and also to determine that the case of the plaintiff does not suffer from legal defects. So far as the maintainability of the suit is concerned it should not have been decided finally by the learned Additional District Judge but the learned Additional District Judge was authorised to see the question of maintainability provisionally and accordingly, the question of maintainability of the suit came to be discussed incidentally.
12. In that view the Judgment and order passed by the learned Additional District Judge setting aside the ex parte injunction order as aforesaid does not suffer from any legal infirmity and accordingly, the order passed by the learned Additional District Judge is upheld but the observation that has been made in the Judgment, as regards maintainability of the suit will not be binding upon the trial Court at the trial of the suit and the trial Court upon considering the materials adduced before it will be at liberty to decide the question of maintainability of the suit independently.
The Rule is accordingly discharged without any order as to costs. The stay order granted by this Court stands.
Source : 53 DLR (2001) 229