ST XAVIERS SCHOOL Vs. SUBHRA KUMAR KUNDU

JUDGEMENT

(1.) THIS Court has heard the learned senior advocates for the respective parties. The petitioners as plaintiffs have filed a suit being O. C. Suit No. 296 of 2008 inter alia challenging the election held on 21. 09. 2008 for reconstitution of the Governing Body of the school concerned (the St. Xavier's School, Malda) for the period 2008-11 since according to the petitioners the said election was held in violation of the injunction order dated 10. 09. 2008 passed by the learned Civil Judge (Senior division, Malda) in O. C. Suit No. 268 of 2008 which was brought by the opposite party No. 12 (Rajkumar Prosad Jaiswal ). According to the petitioners the opposite party No. 12 instituted the said O. C. Suit No. 268 of 2008 after the final publication for the list of guardian voters and such suit was filed against the petitioner Nos. 1 and 2 wherein it was prayed that a decree be passed that the said opposite party No. 12 has the right to be a voter and was entitled to get his name incorporated in the voters' list in connection with the election of the members of the governing body for the period 2008-11 which was scheduled to be held on 21st September, 2008. In the said O. C. Suit No. 268 of 2008 the opposite party No. 12 made an application for injunction and after a contested hearing the learned trial Court by order dated 10th September, 2008 allowed the said application for injunction and restrained the petitioner Nos. 1 and 2 herein from holding the elections which was due to be held on 21st September, 2008 till the disposal of the said suit. It further appears that by letter dated 15th September, 2008 the petitioner nos. 1 and 2 brought to the notice of the District Magistrate, Malda about the aforesaid injunction order dated 10th September, 2008 and further informing the District Magistrate that in compliance with the learned Court's order the election of the Governing Body of the said school is cancelled in all respect and all the proceedings of the said election which was scheduled to be held on 19. 09. 2008 (for T. R. and Non T. R. members) and 21. 09. 2008 (for guardian Members) are withdrawn. The petitioner Nos. 1 and 2 requested the District Magistrate, Malda to restrain the S. D. O. Malda Sadar from conducting the said election as a Presiding Officer. It also appears that the learned advocate for the opposite party No. 12 also wrote a letter dated 17. 09. 2008 to the S. D. O. Malda Sadar who was supposed to be the Presiding officer of the said Election bringing it to the notice of the latter that the aforesaid order of injunction has been passed against the defendants in the said O. C. Suit No. 268 of 2008 and the defendants have been restrained from holding the election till the disposal of the suit. The said learned advocate also stated in the said letter dated 17. 09. 2008 that if the election is held in spite of the aforesaid order of injunction then it will be a direct violation of the Court's order and as such the election is required to be cancelled. The said learned advocate also requested the said S. D. O. , Malda Sadar to cancel the said election in view of the aforesaid order of injunction passed by the learned Court. It further appears that a copy of the said injunction order was annexed with the said letter. The petitioners' case is that the said S. D. O. , malda Sadar, in spite of the aforesaid information, by order dated 19th september, 2008 issued an order bringing it to the notice of all concerned that following the aforesaid order of injunction, the opinion of the learned government Pleader was obtained, and the said order further stated that since the Presiding Officer has not been restrained from holding election to the governing Body for electing guardian representative on 21. 09. 2008 the said election is to be held as usual on 21. 09. 2008. A copy of such order has been annexed as annexure-D to the application under Article 227 of the constitution of India. The petitioners' case is that they actually did not participate in the said election in view of the said injunction order dated 10th september, 2008 but since the said S. D. O. concerned purportedly published results of the said election and steps were being taken for holding election, of office-bearers of the Managing Committee of the said School, the petitioners brought the said suit being O. C. Suit No. 296 of 2008. The petitioners filed an application for injunction and by an order dated 24th September, 2008 the learned trial Court directed issuance of notice upon the defendants/opposite parties and passed an ad-interim order of injunction restraining the defendants/opposite parties from disturbing the petitioner Nos. 2 to 4 in the matter of discharging their duties and functioning as office bearers of the school concerned till a certain date. The opposite party No. 1 made an application for stay of operation of the said order dated 24th September, 2008 and the learned trial Court by order dated 26th September, 2008 fixed a certain date for hearing of the application. The opposite party No. 3 moved this Court under Article 227 of the Constitution of India challenging the said order dated 24th September, 2008 whereby an ad-interim order of injunction was granted and the said application was registered as C. O. No. 3412 of 2008. The opposite party No. 1 moved this Court under Article 227 of the constitution of India challenging the said order dated 26th September, 2008 and the said application was registered as C. O. 3411 of 2008. It also appears that the petitioners have moved an application for vacating a certain ad-interim order passed in the said C. O. No. 3412 of 2008. The petitioners have stated in the present application under Article 227 of the Constitution of india that all the aforesaid Civil Orders and applications for variation and/or vacation of ad-interim order were heard and disposed of by an Hon'ble single judge of this Court by order dated 23rd December; 2008 inter alia directing the learned trial Court namely the Civil Judge, Senior Division, malda to hear the injunction application in presence of both the parties within a stipulated period of time and till such time the injunction application is disposed of status quo as on the date prior to the date of institution of O. C. No. 296 of 2008 shall be maintained with regard to the management of the school. The learned trial Court by order dated 21st January, 2009 allowed on contest the said application for injunction by holding inter alia that it is evident from the record that the election held on 21. 09. 2008 was in gross violation of the order of injunction passed by the learned Court in O. C. Suit no. 268 of 2008 and the said election was illegal. The learned trial Court also observed that the candidates who have been declared elected in the said election cannot be termed as duly elected. The learned trial Court further observed that if the defendants in the suit are allowed to function as office bearers of the alleged Managing Committee then it would tantamount to putting a seal of approval on the election which was held in gross violation of the order of injunction dated 10. 09. 2008. The learned trial Court directed that status quo ante i. e. the status quo just prior to the institution of the said suit should be maintained for management of the school. The learned trial Court further found that the plaintiffs/petitioners have a good prima facie case, balance of convenience and inconvenience is in favour of the plaintiffs/petitioners and that the order of injunction should be passed as otherwise the petitioners will suffer irreparable loss and injury. The Learned trial Court restrained the defendants/opposite party No. 1 to 11 from disturbing the plaintiffs/ petitioners Nos. 2 to 4 in their discharge of duties and functioning as office bearers of the said school till the disposal of the said suit. It may also be noted that the learned trial Court also observed that the question whether the plaintiffs/petitioners actually contested the election or not can only be decided after taking evidence at the time of trial.

(2.) THE petitioners have further stated in their application under Article 227 of the Constitution of India that the defendants/opposite parties 1 to 9 preferred a Misc. Appeal in the Court of the learned District Judge, Malda being Misc. Appeal No. 1 of 2009 which was assigned to the Court of the learned 3rd Additional District Judge, Malda. It appears that the petitioners raised a question with regard to the maintainability of the said Misc. Appeal but the Learned Lower Appellate Court by order dated 2nd March, 2009 overruled the said objection and admitted the appeal. In such circumstances, the petitioners moved an application under Article 227 of the Constitution of India before this Court against the said order dated 2nd March, 2009 and the said revisional application was registered as C. O. No. 790 of 2009. The petitioners have further alleged that the defendants/opposite parties made an application for amendment of the cause title in the said Misc. Appeal but the learned Judge did not allow the said amendment application and ultimately disposed of the said Misc. Appeal by the impugned order dated 24. 04. 2009 whereby the said Misc. Appeal was allowed and the trial Court's aforesaid order dated 21. 01. 2009 was set aside. The learned lower appellate court directed the parties to maintain status quo as on the date of the said order (i. e. 24. 04. 2009) relating to the day to day management of the said school till the disposal of the suit. The learned lower appellate Court also observed that the legality and validity of the election dated 21. 09. 2008 being disputed in the suit the learned trial Court shall dispose of the suit within two months from the date of receipt of the said order.

(3.) CHALLENGING the said impugned order the petitioners have filed the present application under Article 227 of the Constitution of India. It appears from the application under Article 227 of the Constitution of India that the petitioner No. 2 claims to be the Secretary, petitioner No. 3 claims to be the president and petitioner No. 4 claims to be the Vice-President of the said School.