K ANBAZHAGAN Vs. M KANNAPPAN

JUDGEMENT

(1.) THE applicant/plaintiff in his affidavit contends briefly as follows:- THE applicant has filed the suit against the defendants for permanent injunction in his capacity as the General Secretary of Dravida munnetra Kazhagam, herein after called the DMK party, which is a political party recognised by the Election Commission of Inida. THE applicant is the general Secretary of the party having been elected continuously for the fourth time, since 1977. He was elected by its present General Council, which is the 9th General Council, at its first meeting after the party elections, as per rule 18 (3) of the Rules and Regulations governing the party. THE members of the general Council are elected as per Rule 18 (2) of the party Constitution. THE 9th general Council at its first meeting on 2. 6. 1992 elected Thiru M. Karunanidhi, as President, the applicant as the General Secretary and Mr. S. J. Sadiq Basha as the Treasurer. THE General Council of the DMK party had elected thiru. M. Karunanidhi, as the President of the party for the 6th consecutive time from 1969 and he was elected as the Chief Minister of Tamil Nadu by the legislators after the demise of the party leader Dr. Arignar Anna. THE aplicant had joined the party as a founder member along with Dr. Arignar Anna and he had also served as a cabinet Minister from the year 1971 in the DMK Government in the State of Tamil Nadu . THE applicant became the Treasurer and thereafter elected unanimously as the general Secretary for four times from the Year 1977. As per Rule 20 (1) of the dmk party Constitution, all the administrative responsibilities will be attended and managed by the applicant as the General Secretary. As per Rule 20 (7) of the Party Constitution, the General Secretary is responsible for conducting litigation on behalf of the party in legal issues that may arise relating to the properties belonging to the party. THE DMK party under the presidentship of Thiru. M. Karunanidhi, has been registered under section 29 A of the Representation of the People Act. THE majority of the General Council members and party cadres support the President and the General secretary of the party and the party under the Presidentship of Thiru. M. Karunanidhi, is continued to be recognised by the Election Commission of Inida as the DMK party.

(2.) ON 2nd October, 1993, the Chief Secretary of the government of Tamil Nadu has sent a communication to Thiru. M. Karunanidhi, stating that the Government was informed by a Central Government Intelligence agency that it had unearthed a plan to assassinate the DMK President by the ltte, to promote the interest of the Rajyasabha M. P. Thiru V. Gopalaswamy, in the DMK party. The letter has requested the President to convey his consent for providing him adequate security. Thiru M. Karunanidhi was advised by the senior leaders of the party, including the applicant and other well wishers to accept the security protection to be provided by the State Government as a measure of precaution. The defendants and other disgruntled persons in the DMK party took this opportunity to criticise the DMK party high command by saying that Thiru v. Gopalaswamy was falsely accused of his involvement in the conspiracy to assassinate the DMK President. They attempted to confuse the members of the party by suggesting that the high command was unreasonably accusing one of its members of a plot to kill its President. Thiru M. Karunanidhi and the applicant made it clear that no member of the DMK party was either directly or indirectly accused of a plot to kill the Party President and invited the respondents to discuss with them in person and to clear the doubts if any. Inspite of it, the respondents continued to address public meetings and issue press statements accusing the party high command of fabricating the report of the Central government Intelligence Agency and conspiring to involve Thiru V. Gopalaswamy in a plot to kill Thiru M. Karunanidhi. The above act of indiscipline by the fourth respondent brought a slur on the dignity of the party and thereby attracted disciplinary action as per the DMK party Constitution. An emergency meeting of all the 30 District Secretaries of the DMK party was called by the applicant at madras to discuss about the act of indiscipline by the fourth respondent and all of them attended the meeting on 5. 10. 1993. 22 District Secretaries requested the party high command to take immediate disciplinary action against the fourth respondent as per Rule 36 of the Party Constitution. Yet no hasty action was taken against the fourth respondent in the interest of the party. As the fourth respondent was further violating the discipline of the DMK party, a show cause notice was issued to him on 1. 11. 1993 as per Rule 36 (7) of the constitution of DMK party. The fourth respondent did not offer any acceptable explanation to the contraventions stated in the show cause notice. He further indulged in the activities of violating party discipline and confusing the party workers. Therefore, the applicant, as the General Secretary of the DMK party expelled Thiru V. Gopalaswamy from the DMK party on 11. 11. 1993, exercising his powers as per Rule 36 (3) and (14 ). The other respondents and some other members of the party who have associated themselves with Thiru V. Gopalaswamy, subsequent to his expulsion from the party were also subjected to disciplinary actions for their contravention of the party discipline despite the warnings. The respondents and other expelled members continued to organise public meetings in the name of DMK party and used DMK party's name and flag without any authority or permission, in order to defeat the party and to ruin its image in the minds of the party sympathisers and general public. The expulsion of the respondent and their supporters was approved by the Central Executive Committee of the DMK party in its meeting held on 25. 11. 1993, at Salem, in which 138 out of 178 members attended and six others sent their letters praying the General secretary to condone their absence and expressing their support for the decision taken by the majority of the members of the meeting. All those who attended the meeting approved the disciplinary actions taken against the respondents and expressed their whole hearted support to the leadership of the dmk party under the Presidentship of Thiru. M. Karunanidhi. The Rules and Regulations of the Constitution of the party as recognised by the Election Commission of india under Section 29a of the Representations of the People Act have been previously accepted by the respondents and they were aware that the Rules and regulations of the party are binding on them, since they were members of the dmk party prior to expulsion. Therefore, they are not entitled to challenge the action taken against them. The party's flag with its colour design and theme are the exclusive properties belonging to the applicant's party as per the rules and Regulations. The respondents are not entitled to make any claim over the exclusive properties of the DMK party or use or ut ilise or cause to utilise and propagate the same. Even if the respondents make a tall claim that they are the real DMK with their supporters and others they are yet to be recognised by the Election Commission under Representation of the People Act, 1951. Before getting such an approval or recognition they are not entitled to use the name of the plaintiff's party nor its colour and design of the flag for any purpose. If they are allowed to use it, it will cause confusion among party followers and cadres, but also on the name of the DMK party and the administration and enjoyment of its functionary properties. The respondents are therefore bound to be restrained by means of a perpetual injunction from using the name of the DMK party and its flag in their meetings, processions or in any other places.

(3.) THE fourth respondent has also prayed for suspension of the order of injunction on the same averments in the affidavit and it is treated as a separate application in Application No. 2376 of 1994. Application no. 2375 of 1994 is an application filed by the fourth respondent in O. A. No. 342 of 1994 on the some averments in the affidavit filed by him in the counter in O. A. No. 342 of 1994 and the same is taken as an application filed by the fourth respondent to vacate the order of injunction in Original Application No. 342 of 1994.