MUHAMMAD THAYYIB S/O MUHAMMED KUTTY RASHEED MANZIL PATHAPRIYAN Vs. A P ABDUL KHADER MAULAVI S/O SAINUDEEN

JUDGEMENT

(1.) THE Second Appeals and Cross objections arise from the common judgment and decree of learned Third Additional District Judge, Kozhikode in A.S. Nos.230 of 2008 and 217 of 2008 respectively, and the Cross Objection in A.S. No.217 of 2008. Those appeals and Cross Objection were brought from the common judgment and decree of learned Additional Munsiff, Kozhikode-I in O.S. No.568 of 2002. R.S.A. No.1279 of 2010 is at the instance of additional defendants 4 to 7 while R.S.A. No.1283 of 2010 is preferred by defendants 2 and 3 (first defendant died pending the suit). Plaintiff has preferred the Cross Objections. Parties are referred as plaintiff and defendants for convenience.

(2.) THE plaintiff is Shri A.P. Abdul Khader Moulavi claiming to be the General Secretary of the Kerala Naduvathul Mujahideen (for short, "the KNM"), Mujahid Centre, Anniehall Road, Kozhikode. Shri Abdul Khader Moulavi filed the suit on behalf of the KNM as its General Secretary, under Rule 8 of Order I of the Code of Civil Procedure (for short, "the Code") effecting necessary publication in that regard, originally against defendants 1 to 3 for a declaration that the resolutions passed at a meeting of the State Executive of the KNM convened by the second defendant on 17.08.2002 expelling Abdul Khader Moulavi from the post of General Secretary, etc., are illegal and for a decree for prohibitory injunction against defendants 1 to 3 trespassing into the office of the KNM, interfering with the said Abdul Khader Moulavi functioning as the General Secretary, against defendants 1 to 3 using the name of the KNM, its seal and letterhead and against their operating bank account of the KNM. Plaintiff alleged that the KNM is a Society registered in the year, 1957 under the Societies Registration Act, 1860 (for short, "the Act), Abdul Khader Moulavi was elected as its General Secretary and though the second defendant failed in getting elected as a Secretary, Abdul Khader Moulavi nominated him as a Secretary. During the relevant time, the second defendant was facing action for misappropriation of funds of the KNM. THE ISM is the youth wing of the KNM. THE KNM took action against some members of the ISM and expelled them. Some followers of defendants (1 to 3) filed O.S. No.533 of 2002 claiming that the ISM has no connection with the KNM and that the KNM has no control over the assets of the ISM. While so, a news item appeared in a vernacular daily that the State Executive meeting of the KNM convened by the second defendant on 17.08.2002 dissolved the State Executive, removed Abdul Khader Moulavi from the post of the General Secretary and elected defendants 1 to 3 as its President, General Secretary and Vice President, respectively. According to the plaintiff, no such meeting was convened and at any rate, second defendant had no authority to convene the meeting. Decisions if any, taken in the said meeting are illegal. THE KNM has assets, is getting financial assistance from various sources and is running various institutions. Defendants 1 to 3 approached the bank with a claim that Abdul Khader Moulavi has no right to operate bank account of the KNM. Plaintiff apprehended that defendants (1 to 3) might trespass into the suit property belonging to the KNM, use its name, seal, letterhead, etc. Hence the suit.

(3.) PLAINTIFF filed I.A. Nos.2858 and 2982 of 2002 for an order of temporary injunction. Learned Munsiff passed orders on the said applications observing that removal of Abdul Khader Moulavi and his supporters from their respective posts as per resolution dated 17.08.2002 is prima facie invalid. Defendants 1 to 3 challenged the orders in C.M.A. Nos.240 to 243 of 2002 in the District Court, Kozhikode. In the C.M. Appeals, defendants 1 to 3 contended that all the Committees of the KNM ceased to exist by October, 2002 (later amended as by 31.12.2002) and hence all the questions raised in the plaint and applications for injunction became irrelevant. Defendants 1 to 3 requested the court to appoint an Advocate Commissioner to hold fresh elections with the membership as in the year, 1999. PLAINTIFF contended that the term of the State Executive of the KNM did not expire in October, 2002 (or by 31.12.2002 as contended by defendants 1 to 3 in the amended written statement) and that its term was to expire only in April, 2003 as the State Executive was formed only in April, 2000. Learned District Judge was of the view that all the office bearers of the KNM elected in October, 1999 ceased to hold office by October, 2002 and ordered fresh elections to be conducted by an Advocate Commissioner. Learned District Judge directed that elections be held based on the membership of the year 1999. PLAINTIFF challenged the judgment of learned District Judge in this Court in Civil Revisions. PLAINTIFF contended that fresh elections were conducted to the various bodies of the KNM in the year, 2003. Defendants 1 to 3 filed C.M.P. No.2667 of 2003 on 02.05.2003 in the Civil Revisions disputing that elections were conducted as above stated though certain newspapers carried reports in that way and seeking stay of the so-called elected members taking charge of office of the KNM. This Court did not pass any order on the said application. The Civil Revisions were disposed of on 18.11.2005 setting aside the judgment of learned District Judge for the reason, among other things, that learned District Judge could not have ordered fresh election in the absence of any pleading to that effect by defendants 1 to 3.