B.L.Yadav - (1.) WHETHER the proviso added by State of U. P. to sub-rule 2 of Rule 2 of Order 39 of the Code of Civil Procedure, 1908, (for short the Code), is inconsistent with the provisions of the Principal Act or the Code as amended by the Code of Civil Procedure (Amendment) Act, 1976 ; whether the Labour Organization of Rural Poor registered under the Trade Unions Act, 1926, is a "society" within the meaning of sub-clause (d.) of proviso to sub-rule (2) of Order 39 of the Code, and no temporary injunction can be granted in respect of such society ; and whether under the circumstances of the case the order of the trial court dated 4-4-88 passed by the Civil Judge, Ghazipur, granting temporary injunction to the plaintiff, the petitioner, in a suit for permanent injunction restraining the defendants from interfering with the working of the aforesaid Organization could have been set aside by the order dated 30-5-88 passed by the Illrd Additional District Judge in appeal filed by respondent nos. 2 and 3, are the short questions that fall for determination in the present petition filed by the petitioner under Article 226 of the Constitution of India, seeking a relief of a writ of Certiorari quashing the judgment and order dated 30-5-88 passed by the Illrd Additional District Judge, allowing the appeal and rejecting the application for temporary injunction filed by the petitioner.
(2.) THE portrayal of essentia! facts are these. A suit for permanent injunction was filed by the petitioner alleging himself to be the President of the Labour Organization of Rural Poor, a registered society under the Trade Unions Act, 1926. THE Constitution of the aforesaid Organization provides the mode of activities and functions. A communication was made that the petitioner has been elected as President of the Organization and one Sri Vishwanath Singh was elected as Acting President and Sri Kumar K. Manglik was elected as General Secretary. But incorrectly the defendant respondent nos. 2 and 3 got a news published in the newspaper 'Dainik Jagran' to the effect that respondent no. 3 was the President and respondent no. 2 was the General Secretary of the aforesaid Organization, and started interfering with the petitioner's work as President of the aforesaid Organization. Hence the necessity arose for filing of the aforesaid suit. An application for temporary injunction was also filed for restraining the defendants respondent nos. 2 and 3 from interfering with the work of the petitioner as President of the aforesaid Organization during the pendency of the suit. A written statement was filed by respondent nos. 2 and 3 alleging that they were elected as Secretary and President in the election held on 26-11-87 wherein Sri S. N. Tripathi (Respondent No. 3) was elected as President and Sri Shameem Ahmad Abbasi respondent no. 2 was elected as General Secretary and the petitioner, as plaintiff ceased to function as such and that Sri Kumar K. Mangalik or Sri Vishwanath Singh were never elected as General Secretary and Acting President. Respondent nos. 2 and 3 have sent a communication to the relevant authorities about their election as President and General Secretary. In reply to the application for temporary injunction filed by the petitioner it was averred that the petitioner was not elected nor he was working as President, the balance of convenience, prima facie case was not made out in favour of the petitioner, the plaintiff, nor there was any irreparable injury to the petitioner as he was not elected as President of the Organization. Consequently, the application for temporary injunction was liable to be dismissed. The learned Civil Judge granted ex-parte temporary injunction in favour of the petitioner and the same was confirmed on 4 -4-88. The appeal filed by respondent nos. 2 and 3 against the order granting temporary injunction was allowed by the impugned order dated 30-5-88 and the order of the learned Civil Judge granting temporary injunction was set aside. Against that order the present petition has been filed.
(3.) LEARNED counsel for the petitioner urged that the amendment made by the State of U. P. adding a proviso to Rule 2 of Order 39 of the Code, was inconsistent with the provisions of the Principal ' ode or the Act, particularly Order 39 Rules 1 and 2 as amended by the Code of Civil Procedure (Amendment) Act, 1976, (for short the Amendment Act), and in view of Section 97 of the Amendment Act, such amendment by the State of U. P. adding the proviso would stand repealed. Reliance was placed on Ganpat Giri v. Ilnd Additional District Judge, Ballia, 1986 AWC 181 and on two Full Bench decisions of this Court in Smt. Chandra Rani v. Vikram Singh, 1979 AWC 4747 (FB) and M/s. Premier Motors (P) Ltd. v. Jaswant Prasad, by a Full Bench of this Court (to which I had the occasion to be a Member), 1988 AWC 1224 FB. It was next urged that the petitioner being elected as president and the trial court having granted interim injunction, there was no justification to set aside that order in appeal. In the end it was urged that the Labour Organization of Rural Poor was not a "society" registered under the Societies Registration Act. The word 'society' in the proviso added to Rule 2 of Order 39 of' the Code refers in respect of the society registered under the Societies Registration Act and not society registered under the Indian Trade Unions Act. Consequently the learned District Judge erred in applying the proviso that as the election was in respect of "society", hence proviso (d) added to Rule 2 of Order 39 of the Code would not apply, and the learned District Judge erred in allowing the appeal on that analogy. Contesting respondents have been served and they have filed counter affidavit. Learned counsel for respondent nos. 2 and 3 urged that under section 97 of the Amendment Act what was contemplated was that any such amendment or provision, if the same was inconsistent with the provisions of the principal Act or the Code, that would stand repealed. In the present case the proviso added by the State of U. P. to Rule 2 of Order 39 was not in any way inconsistent with the main provision of Order 39 Rule 1 or 2, inasmuch as circumstances have been indicated under Rules 1 and 2 of Order 39 under which temporary injunction can be granted, and in respect of circumstances not covered by the provisions of Rules 1 and 2, the injunction could not be granted. Hence the proviso was added indicating different situations or cases in which temporary injunction cannot be granted, as that would entail great hardship, hence the proviso cannot be said to be inconsistent. The Supreme Court case of Ganpat Giri v. A.D.J. (Supra) was not applicable to the facts of the present case, inasmuch as in that case Rule 72 of Order 21 were considered and as the amendment made by the High Court Allahabad was inconsistent with Order 21 Rule 72, (main provision of the Code) hence that was held to be deemed as repealed. In the present case the U. P. amendment could not be said to be inconsistent with Rules 1 and 2 of Order 39. It was next urged that the temporary injunction granted by the trial court and confirmed after hearing the parties, has been correctly vacated by the learned District Judge in appeal. It was further urged that the word 'society' used in proviso (d) added by the U. P. Amendment to Rule 2 of Order 39, was very comprehensive expression including a society either registered under the Societies Registration Act or under the Indian Trade Unions Act. In both the cases no injunction must be granted.;